DC Circuit: NRC Rule Is Not a Licensing Action and Generic EIS Satisfies NEPA


In 2014, the NRC promulgated a “Continued Storage Rule” followed by the Nuclear Regulatory Commission’s (NRC) issuance of a Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities (NUREG-0586) to support the Rule. On June 3, 2016, the U.S. Court of Appeals for the DC Circuit, in State of New York, et al., v. Nuclear Regulatory Commission, et al., rejected the arguments made by “several states, a Native American Community, and numerous environmental organizations” objecting to the Rule and generic EIS concerning the “continued, and possibly indefinite storage” of spent nuclear fuel generated by nuclear power plants operating in the United States.

As the Court of Appeals noted, virtually all spent nuclear fuel remains radioactive for thousands of years and must be safely managed and eventually disposed. Without a permanent repository, most spent nuclear fuel must be stored on site where it is cooled before being placed in dry casks. The Court of Appeals rejected all of the plaintiffs’ arguments, including the position that the rule was, in effect, a licensing action, and held that this generic EIS satisfied the National Environmental Policy Act of 1969 (NEPA).

As the Court of Appeals concluded, “this case is not the first, or even the second, time that concerned parties have petitioned this Court to address the spent-nuclear-waste problem,” it reminded the parties that its role in resolving what are essentially political questions is circumscribed by the requirement that such administrative actions must be assessed in accordance with the arbitrary and capricious standard of judicial review.