SAN LUIS OBISPO MOTHERS FOR PEACE V. UNITED STATES NUCLEAR REGULATORY COMMISSION, No. 23-852 (9th Cir. 2024)
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In 2022, the California Legislature directed Pacific Gas & Electric (PG&E) to extend operations at the Diablo Canyon Nuclear Power Plant, despite PG&E's previous plans to cease operations. However, the deadline for a federal license renewal application for continued operation had already passed. PG&E requested an exemption from the U.S. Nuclear Regulatory Commission (NRC) to this deadline, which the NRC granted. The NRC found that the exemption was authorized by law, would not pose an undue risk to public health and safety, and that special circumstances were present. The NRC also concluded that the exemption met the eligibility criteria for a categorical exclusion, meaning no additional environmental review under the National Environmental Policy Act was required.
Three non-profit organizations, San Luis Obispo Mothers for Peace, Friends of the Earth, and the Environmental Working Group, petitioned for review of the NRC's decision. The Ninth Circuit Court of Appeals first addressed whether it had jurisdiction to hear a direct appeal from an NRC exemption decision. The court held that it did have jurisdiction, as the substance of the exemption was ancillary or incidental to a licensing proceeding. The court also concluded that the petitioners had Article III standing to bring the case, as they alleged a non-speculative potential harm from age-related safety and environmental risks, demonstrated that Diablo Canyon would likely continue operations beyond its initial 40-year license term, and alleged members’ proximity to the facility.
On the merits, the court held that the NRC’s decision to grant the exemption was not arbitrary, capricious, or contrary to law. The court also held that the NRC did not act arbitrarily or capriciously in invoking the National Environmental Policy Act categorical exclusion when issuing the exemption decision. The court concluded that the NRC was not required to provide a hearing or meet other procedural requirements before issuing the exemption decision because the exemption was not a licensing proceeding. The court denied the petition for review.
Court Description: Nuclear Regulatory Commission The panel denied a petition for review of the U.S.
Nuclear Regulatory Commission (“NRC”)’s decision granting Pacific Gas & Electric (“PG&E”)’s request for an exemption to the deadline for a federal license renewal application for the continued operation of the Diablo Canyon Nuclear Power Plant.
In 2022, the California Legislature directed PG&E to pursue any actions needed to extend operations at Diablo Canyon. Prior to that point, PG&E had been working to cease operations at Diablo Canyon’s two nuclear power units, and the deadline to qualify for continued operation during the NRC’s review of a license renewal application had passed. In granting PG&E’s requested exemption to the renewal deadline, the NRC found that the exemption was authorized by law, there would be no undue risk to public * The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. health and safety, and special circumstances were present. The NRC also concluded that the exemption met the eligibility criteria for a categorical exclusion, and no additional environmental review under the National Environmental Policy Act (“NEPA”) was required.
The panel first addressed whether the Hobbs Act granted the court jurisdiction to hear a direct appeal from an NRC exemption decision. Applying a case-by-case approach, the panel held that where, as here, the substance of the exemption is ancillary or incidental to a licensing proceeding, there is jurisdiction.
The panel further concluded that petitioners, three non- profit organizations concerned with the dangers posed by nuclear power, had Article III standing to bring this case. Petitioners alleged a non-speculative potential harm from age-related safety and environmental risks; demonstrated that under the Exemption Decision, Diablo Canyon will in all likelihood continue operations beyond its initial 40-year license term; and alleged members’ proximity to the facility.
The panel held that NRC’s decision to grant the exemption was not arbitrary, capricious, or contrary to law. Nor did the NRC act arbitrarily or capriciously in invoking the NEPA categorical exclusion when issuing the Exemption Decision. The NRC was not required to provide a hearing or meet other procedural requirements before issuing the Exemption Decision because the Exemption was not a licensing proceeding. NRC adequately explained why California’s changing energy needs constituted a special circumstance, and why the record supported its findings of no undue risk to the public health and safety.
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