O:\precedential\2007\072271p.wpd

Case: 07-2271 Document: 00318362723 Page: 1 Date Filed: 03/31/2009 PRECEDENTIAL
by the United States Nuclear Regulatory Commission Before: McKEE, SMITH and ROTH, Circuit Judges Case: 07-2271 Document: 00318362723 Page: 2 Date Filed: 03/31/2009 Anne Milgram, Esquire
Attorney General of New Jersey
Nancy Kaplen, Esquire
Assistant Attorney General of Counsel
Ellen B. Balint, Esquire
Eileen P. Kelly, Esquire (Argued)
Valerie Anne Gray, Esquire
John A. Covino, Esquire
Deputy Attorney Generals
R. J. Hughes Justice Complex
P. O. Box 093
25 Market Street
Trenton, New Jersey 08625
Counsel for Petitioner New JerseyDepartment of Environmental Protection Ronald J. Tenpas, Esquire
Assistant Attorney General
Karen D. Cyr, Esquire
General Counsel
John F. Cordes, Jr., Esquire (Argued)
Solicitor
Charles E. Mullins, Esquire
Senior Attorney
E. Leo Slaggie, Esquire
Case: 07-2271 Document: 00318362723 Page: 3 Date Filed: 03/31/2009 Deputy SolicitorU. S. Nuclear Regulatory Commission11555 Rockville PikeOne White Flint NorthRockville, MD 20852-2738 Tamara N. Rountree, EsquireEnvironment & Natural Resources DivisionP. O. Box 23795L’Enfant Plaza StationWashington, D. C. 20026 J. Bradley Fewell, Esquire
Associate General Counsel
Exelon Business Services Company
Brad Fagg, Esquire (Argued)
Kathryn M. Sutton, Esquire
Martin J. O’Neill, Esquire
Morgan, Lewis & Bockius, LLP
1111 Pennsylvania Avenue, N. W.
Washington, D. C. 20004
Case: 07-2271 Document: 00318362723 Page: 4 Date Filed: 03/31/2009 Ellen C. Ginsberg, EsquireMichael A. Bauser, EsquireAnne W. Cottingham, EsquireNuclear Energy Institute, Inc.
1776 I Street, N.W., Suite 400Washington, D. C. 20006-3708 Counsel for Amicus Curiae NuclearEnergy Institute, Inc. for RespondentNuclear Regulatory Commission ROTH, Circuit Judge:
The issue presented by this appeal is whether the Nuclear Regulatory Commission (NRC), when it is reviewing anapplication to relicense a nuclear power facility, must examinethe environmental impact of a hypothetical terrorist attack onthat nuclear power facility. The New Jersey Department ofEnvironmental Protection (NJDEP) contends that the NationalEnvironmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 etseq, requires the analysis of the impact of such an attack.
NJDEP has petitioned for review of an NRC decision denyingits request to intervene in relicensing proceedings for the OysterCreek Nuclear Generating Station (Oyster Creek). The NRCconcluded that terrorist attacks are “too far removed from thenatural or expected consequences of agency action” to require Case: 07-2271 Document: 00318362723 Page: 5 Date Filed: 03/31/2009 an environmental impact analysis and that, in any event, it hadalready addressed the environmental impact of a potentialterrorist act at Oyster Creek through its Generic EnvironmentalImpact Statement and site-specific Supplemental EnvironmentalImpact Statement. We agree with the NRC and will deny thepetition.
I. BACKGROUND
A. Statutory and Regulatory Framework
The Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. § 2011 et seq., establishes a “comprehensive regulatory
framework for the ongoing review of nuclear power plants
located in the United States.” Sections 103 and 104(b) of the
AEA authorize the NRC to issue licenses to operate commercial
power reactors. 42 U.S.C. §§ 2133, 2134(b). Section 103 limits
licenses to forty-year terms but provides for renewal of nearly-
expired licenses. 42 U.S.C. § 2133. By regulation, the NRC
may renew a license for up to twenty years. See 10 C.F.R. §
54.31.
Two sets of regulatory requirements govern the NRC’s review of license renewal applications. Under 10 C.F.R. Part54, the NRC conducts a health and safety review focused on“the detrimental effects of aging”on the plant. See NuclearPower Plant License Renewal: Revisions, 60 Fed. Reg. 22,461,22,464 (May 8, 1995). Under 10 C.F.R. Part 51, the NRC completes a NEPA- based environmental review, focusing on the potential impacts Case: 07-2271 Document: 00318362723 Page: 6 Date Filed: 03/31/2009 of twenty additional years of operation. NEPA is a proceduralstatute that does not mandate particular substantive results.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,350–51 (1989). Rather, it is designed “to insure a fullyinformed and well-considered decision” in the examination ofpotential environmental impacts of a proposed agency action.
Vermont Yankee, 435 U.S. at 558. NEPA “merely prohibitsuninformed—rather than unwise—agency action.” Robertson,490 U.S. at 351. In addition, NEPA review should be consistentwith NEPA’s “national policy [to] encourage productive andenjoyable harmony between man and his environment.” 42U.S.C. § 4321. NEPA’s “twin aims” are to “‘place[] upon anagency the obligation to consider every significant aspect of theenvironmental impact of a proposed action’ [and to] ensur[e]that the agency will inform the public that it has indeedconsidered environmental concerns in its decisionmakingprocess.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97(1983) (quoting Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 553 (1978)). By regulation, the NRC has divided the environmental requirements for license renewal into generic and plant-specificissues. This division resulted from “a systematic inquiry intothe environmental impacts of refurbishment activities associatedwith license renewal and the environmental impacts ofcontinued operation during the renewal period (up to 20 yearsfor each licensing action).” Notice of Intent to Prepare anEnvironmental Impact Statement for the License Renewal ofNuclear Power Plants and to Conduct Scoping Process, 68 Fed.
Reg. 332909, 33209 (June 3, 2003). The NRC analyzed “[t]hesignificance of environmental impacts . . . for each of nearly 100 Case: 07-2271 Document: 00318362723 Page: 7 Date Filed: 03/31/2009 issues [and] categorized which of these analyses could beapplied to all plants and whether the additional mitigationmeasures would be warranted for each environmental issue.” Id.
Ultimately, “[o]f the 92 issues analyzed, 69 were resolvedgenerally, 21 require a further site-specific analysis thatapplicants are required to address, and 2 require a site-specificassessment by the NRC.” Id. The NRC’s “Generic Environmental Impact Statement for License Renewal of Nuclear Plants,” Final Report, Vol. I(May 1996) (GEIS), addresses issues that are common to allnuclear plants. These have been designated “Category 1” issues.
GEIS at 1-5, 1-6. Of particular note here, the GEIS reviews therisk of sabotage to nuclear power plants. The NRC hasdetermined from this review that the risk is small and isprovided for in the consideration of internal severe accidents: The regulatory requirements under 10 CFR part73 [i.e., “Physical Protection of Plants andMaterials”] provide reasonable assurance that therisk from sabotage is small. Although the threatof sabotage events cannot be accuratelyquantified, the commission believes that acts ofsabotage are not reasonably expected.
Nonetheless, if such events were to occur, thecommission would expect that resultant coredamage and radiological releases would be noworse than those expected from internallyinitiated events. Case: 07-2271 Document: 00318362723 Page: 8 Date Filed: 03/31/2009 concludes that the risk from sabotage is small andadditionally, that the risks f[ro]m other externalevents[] are adequately addressed by a genericconsideration of internally initiated severeaccidents.
GEIS at 5-18. The NRC expressly incorporated the GEIS’sfindings related to internal severe accidents into the NRC’senvironmental review regulations. See 10 C.F.R. Part 51 Subpt.
A, App. B, Table B-1.
Environmental impacts not discussed in the GEIS are designated “Category 2” issues and must be addressed in anapplicant’s environmental report. Id. § 51.53(c)(3)(ii).
Ultimately, NRC staff prepares a site-specific SupplementalEnvironmental Impact Statement (SEIS) for each plant. Id. §51.95(c). The SEIS includes evaluations of site-specificCategory 2 issues—including a consideration of “severeaccident mitigation alternatives” (SAMAs) for those issues thathave not previously been considered—and “new and significantinformation” regarding Category 1 issues.
As a part of the relicensing review process, NRC regulations permit anyone with an “interest” in a licensingproceeding to obtain a hearing on admissible safety andenvironmental “contentions.” See 10 C.F.R. § 2.309(a), (d).
Such a person must file a petition to intervene demonstratingstanding and that “the issue raised . . . is within the scope of theproceeding.” Id. § 2.309(f)(1)(iii). Unless a party obtains a Case: 07-2271 Document: 00318362723 Page: 9 Date Filed: 03/31/2009 waiver from the NRC, regulations are not “subject to attack”during adjudications. Id. § 2.335(a).
B. Factual and Procedural Background
On July 22, 2005, the AmerGen Energy Company, LLC (AmerGen) applied to the NRC to renew its operating license atOyster Creek for an additional twenty years. Oyster Creek islocated adjacent to Barnegat Bay in Lacey and OceanTownships, Ocean County, New Jersey. Oyster Creek’s currentlicense expires in April 2009. On September 15, 2005, the NRCpublished a notice of opportunity for hearing in the FederalRegister. See Notice of Opportunity for Hearing RegardingRenewal of Facility Operating License No. DRP-16 for an Additional20-Year Period, 70 Fed. Reg. 54,585 (Sept. 15, 2005).
On November 14, 2005, NJDEP filed a petition to intervene raising three contentions, only one of which it hasraised in the appeal before us.1 NJDEP challenges the NRC’sfailure to prepare an environmental impact statement (EIS) tostudy the effects of an aircraft attack on Oyster Creek. NJDEPcontends that such an EIS should have contained, within its New Jersey’s other two contentions involved (1) the appropriate calculation of metal fatigue for the reactor coolantpressure boundary and associated components and (2) whetherOyster Creek had sufficient back-up power to operate during ablackout.
Case: 07-2271 Document: 00318362723 Page: 10 Date Filed: 03/31/2009 SAMAs analysis, a design basis threat (DBT) analysis2 and ananalysis of mitigation alternatives for core melt sequences likelyto result from an aircraft attack. The claims were reviewed bythe Atomic Safety and Licensing Board (Board), which “heldthat terrorism and ‘design basis threat’ reviews, while importantand ongoing, lie outside the scope of NEPA in general and oflicense renewal in particular.” See In re Amergen Energy Co.,65 N.R.C. 124, 128 (2007).
NJDEP appealed this decision to the NRC, which denied the claim. Id. at 126. The NRC agreed with the Board thatterrorism concerns are security issues, which are not addressedduring license renewal because they do not relate to the aging ofthe facility. Id. The NRC also found that NEPA “‘imposes nolegal duty on the NRC to consider intentional malevolent acts’”because such acts are “‘too far removed from the natural orexpected consequences of agency action.’” Id. at 129 (quotingthe Board decision). Finally, the NRC found that a terrorismreview would be redundant because (1) “the NRC hasundertaken extensive efforts to enhance security at nuclearfacilities,” which it characterized as the best mechanism toprotect the public; id. at 130; (2) the GEIS had concluded that“the core damage and radiological release from [terrorist] actswould be no worse than the damage and release to be expectedfrom internally initiated events”; id. at 131; and (3) in its SEISfor Oyster Creek, the NRC had performed a site-specific A DBT analysis is “used to design safeguards systems to protect against acts of radiological sabotage and to prevent thetheft or diversion of special nuclear material.” 10 C.F.R. § 73.1.
Case: 07-2271 Document: 00318362723 Page: 11 Date Filed: 03/31/2009 NJDEP filed a petition for review of the NRC’s order.
We have jurisdiction pursuant to 28 U.S.C. § 2342(4).
II. DISCUSSION
NJDEP’s petition suffers from two insurmountable flaws, each of which independently supports our denial.4 The SEIS repeated the GEIS’s conclusion that “resultant core damage and radiological releases [from sabotage] would beno worse than those expected from internally initiated events.”SEIS at 5-3. The parties disagree as to the appropriate standard of review. The NRC, along with AmerGen, contends that we mustapply the “arbitrary and capricious standard” required by theAdministrative Procedure Act (APA). NJDEP, on the otherhand, argues that we should apply a “reasonableness standard”because the NRC’s decision was one of law—whether the NRCwas required to perform a NEPA review. Nonetheless, NJDEPargues that even if we apply an arbitrary and capriciousstandard, the NRC’s actions cannot be upheld.
We have maintained a dichotomy in the standard of review due an agency decision—affording deference toquestions implicating agency expertise and engaging in moreexacting review of legal questions—but we have never Case: 07-2271 Document: 00318362723 Page: 12 Date Filed: 03/31/2009 employed a “reasonableness” standard. In Patel v. Ashcroft, 294F.3d 465 (3d Cir. 2002) (superseded by statute on othergrounds), we stated: We usually afford deference to decisions ofadministrative agencies when we are reviewingthe agency’s interpretation of a statute the agencyis charged with administering. This deferencerecognizes the agency’s expertise in addressingissues that often arise when interpreting suchstatutes. However, we recognize that legal issuesthat turn on a pure question of law not implicatingthe agency’s expertise do not raise the sameconcerns under Chevron. Accordingly, when weare called upon to resolve pure questions of lawby statutory interpretation, we decide the issue denovo without deferring to an administrativeagency that may be involved.
Similarly, in the wake of CBS’s broadcast of the Super Bowl halftime performance featuring Janet Jackson, we statedthat “questions of law not within the agency’s expertise—suchas the FCC’s determination here on [Jackson’s] employmentstatus—receive less deference under the APA than other agencyconclusions.” CBS Corp. v. FCC, 535 F.3d 167, 195 n.25 (3dCir. 2008). On the other hand, we have held that “[o]ur standardof review of an order granting a nuclear power operating license. . . is deferential” and generally used the arbitrary and Case: 07-2271 Document: 00318362723 Page: 13 Date Filed: 03/31/2009 First, NJDEP has not shown that there is a “reasonably closecausal relationship” between the Oyster Creek relicensingproceeding and the environmental effects of a hypotheticalaircraft attack. Accordingly, such an attack does not warrantNEPA evaluation. See DOT v. Pub. Citizen, 541 U.S. 752, 767(2004); Metro. Edison Co. v. People Against Nuclear Energy,460 U.S. 766, 774 (1983). Second, the NRC has alreadyconsidered the environmental effects of a hypothetical terroristattack on a nuclear plant and found that these effects would beno worse than those caused by a severe accident. NJDEP hasnot provided any evidence to challenge this conclusion and hasnot demonstrated that the NRC could undertake a moremeaningful analysis of the specific risks associated with anaircraft attack on Oyster Creek. See Limerick, 869 F.2d at 744& n.31.
A. Causation
capriciousness standard in this context. See Limerick EcologyAction, Inc. v. NRC, 869 F.2d 719, 728 (3d Cir. 1989).
We need not resolve whether de novo, “reasonableness,” or arbitrary and capriciousness review is appropriate because theNRC’s actions survive review under any of these standards.
Case: 07-2271 Document: 00318362723 Page: 14 Date Filed: 03/31/2009 In rejecting NJDEP’s contention, the NRC held that “there simply is no proximate cause link between an NRClicensing action, such as [in this case] renewing an operatinglicense, and any altered risk of terrorist attack. Instead, the levelof risk depends upon political, social, and economic factorsexternal to the NRC licensing process.” See In re AmerGenEnergy Co., 65 N.R.C. at 130. NJDEP, on the other hand,asserts that the government has a duty to protect againstforeseeable danger, even if that danger comes from intentionalcriminal conduct, and that here the risk of environmental harmcaused by terrorists is foreseeable given the September 11, 2001,attacks on the World Trade Center and Oyster Creek’s proximityto important urban centers.5 NJDEP also finds significant theNRC’s efforts to improve security at nuclear facilities, assertingthat these efforts demonstrate the NRC’s recognition that aterrorist attack is foreseeable.
The Supreme Court has spoken on two occasions regarding the circumstances in which NEPA requires an agencyto prepare an EIS. The first concerned the resumption ofactivity at the Three Mile Island nuclear power plant after aserious accident caused a shutdown of one of the reactors. SeeMetro. Edison Co., 460 U.S. at 768. Though no radiation was NJDEP did not raise Oyster Creek’s proximity to important urban centers until this appeal; therefore, it should notbe considered. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d256, 262 (3d Cir. 2006). In any event, it follows from ourdiscussion that Oyster Creek’s proximity to urban centers isirrelevant to the causation analysis.
Case: 07-2271 Document: 00318362723 Page: 15 Date Filed: 03/31/2009 released in the accident, it caused widespread concern about thesafety of the plant. Id. at 769. A group of Harrisburg residents,organized as People Against Nuclear Energy (PANE), arguedthat restarting the reactor would “cause both severepsychological health damage to persons living in the vicinity[]and serious damage to the stability, cohesiveness, and well-being of the neighborhood communities.” Id. The NRCdeclined to take evidence on this issue, and PANE petitioned forreview, arguing that both NEPA and the AEA required such ananalysis. Id. at 770. The D.C. Circuit agreed as to NEPA,finding, “NEPA requires agencies to consider effects on health.
An effect on psychological health is an effect on health.
Therefore, NEPA requires agencies to consider the effects onpsychological health . . .” Id. at 771.
The Supreme Court reversed. 6 First, the Court noted that “NEPA does not require the agency to assess every impact oreffect of its proposed action, but only the impact or effect on theenvironment.” Id. at 772. The Court held that, in order todetermine when NEPA requires consideration of a particularenvironmental effect, agencies and reviewing courts “must lookat the relationship between that effect and the change in thephysical environment caused by the major federal action atissue.” Id. at 773. The Court then explained that NEPAattaches only when there is a “reasonably close causalrelationship between a change in the physical environment and Only the NEPA issue was before the Supreme Court; neither party contested the D.C. Circuit’s holding with regard tothe AEA. Id. at 771 n.5. Case: 07-2271 Document: 00318362723 Page: 16 Date Filed: 03/31/2009 the effect at issue.” The Court likened this relationship to “thefamiliar doctrine of proximate cause from tort law.” Id. at 774.
In applying this standard to the case before it, the Courtobserved that the renewed operation of the reactor would affectthe environment, particularly in the release of low levels ofradiation, increased fog, the release of warm water into theSusquehanna River, and the potential results of a nuclearaccident.7 Id. at 775. It then observed that the NRC hadconsidered all of these effects. The Court, however, founddamage to psychological health caused by the perception of arisk of a nuclear accident too attenuated: “In a causal chainfrom renewed operation . . . to psychological health damage, theelement of risk and its perception by PANE’s members are necessary middle links. We believe that the element of risklengthens the causal chain beyond the reach of NEPA.” Id. With regard to the potential results of a nuclear accident, the Court indicated that the environmental effects of an accidentarising from the operation of a nuclear facility are direct effectswhereas here the Court was considering the effect of fear of therisk occurring: “We emphasize that in this case we areconsidering effects caused by the risk of an accident. Thesituation where an agency is asked to consider effects that willoccur if a risk is realized, for example, if an accident occurs at[Three Mile Island], is an entirely different case.” Id. at 775 n.9.
Case: 07-2271 Document: 00318362723 Page: 17 Date Filed: 03/31/2009 The Supreme Court again discussed NEPA’s causation requirement in Department of Transportation v. Public Citizen,541 U.S. 752 (2004). Public Citizen concerned the operation ofMexican tractor-trailer trucks in the United States. Prior to1982, these trucks were certified to operate in the United Statesby the Interstate Commerce Commission. In 1982, Congresssuspended this certification procedure in light of concerns aboutMexico’s discriminatory treatment of American trucks operatingin Mexico. Id. at 759. The United States agreed, however, aspart of the North American Free Trade Agreement (NAFTA) tophase out the moratorium. Id. In 1994, the President lifted the moratorium but called for new regulations related to the certification of Mexican trucksseeking to operate in the United States. Accordingly, theFederal Motor Carrier Safety Administration (FMCSA), adivision of the Department of Transportation, publishedproposed safety regulations and procedures for the certificationof Mexican trucks. The FMCSA also prepared anenvironmental assessment (EA) focusing on the effects of itsproposed regulations. Id. at 760–62. The EA did not considerthe environmental impact of increased Mexican truck trafficbecause the FMCSA attributed this increase not to theregulations but to NAFTA and the President’s decision to lift themoratorium. Id. at 761. A citizen group petitioned for review,arguing that NEPA required such an analysis. Id. at 766.
The Supreme Court upheld the FMCSA’s decision. The Court noted that an EIS is required only for “‘major Federalactions,’” defined to include “‘actions with effects that may be Case: 07-2271 Document: 00318362723 Page: 18 Date Filed: 03/31/2009 major and which are potentially subject to Federal control andresponsibility.’” Id. at 763 (quoting 40 C.F.R. § 1508.18)). TheCourt then noted that “effects” were limited by regulation to (1)“[d]irect effects, which are caused by the action and occur at thesame time and place,” and (2) “indirect effects, which arecaused by the action and are later in time or farther removed indistance, but are still reasonably foreseeable.” Id. at 764(internal quotation marks and citation omitted). The Court concluded that the increase in Mexican truck traffic was not an effect of the FMCSA’s action. First, the Courtnoted that the FMCSA does not have the authority to excludeMexican trucks from the United States. Rather, pursuant tocongressional mandate, the FMCSA must certify every truckthat can meet the FMCSA’s regulations. Id. at 766. Next, theCourt considered the causal relationship between the agencyaction and the environmental impact, as required byMetropolitan Edison. The Court characterized the causation atissue as “‘but for’ causation, where an agency’s action isconsidered a cause of an environmental effect even when theagency has no authority to prevent the effect.” It declared thatthis form of “but for” causation is “insufficient to make anagency responsible for a particular effect under NEPA.” Id. at767. The Public Citizen Court also rejected the petitioner’s argument under the rule of reason, stating that agencies need notprepare an EIS when it would serve “no purpose” under NEPA.
Id. It noted NEPA’s twin aims: (1) to force agencies to Case: 07-2271 Document: 00318362723 Page: 19 Date Filed: 03/31/2009 consider environmental impact as part of its decision making,and (2) to make information available to the public so that it canplay a role in the decision making process. Because theFMCSA cannot prevent the entry of Mexican trucks, an EISaddressing increased traffic would not affect its decisionmaking. Id. at 768. Moreover, the public information purposewould not be served since FMCSA could not react to the inputreceived from the public. Id. at 768–69. Accordingly, the Courtagreed with the FMCSA that “the legally relevant cause of theentry of the Mexican trucks is not FMCSA’s action, but insteadthe actions of the President in lifting the moratorium and thoseof Congress in granting the President this authority.” Id. at 769.
NJDEP argues that neither Metropolitan Edison nor Public Citizen is apposite, asserting that those decisionsinvolved cause and effect relationships that are far moreattenuated than the one presented here. We disagree. TheSupreme Court has directed that we “draw a manageable linebetween those causal changes that may make an actorresponsible for an effect and those that do not.” Id. at 767(quoting Metro. Edison, 460 U.S. at 774 n.7). In the cases, thisline appears to approximate the limits of an agency’s area ofcontrol. For example, in Metropolitan Edison, the NRC couldcontrol the nuclear facility and its operation but not howindividuals perceived the risks of renewed operation and thepossibility of another accident; therefore, these risks were tooremote to require a NEPA analysis. Likewise, in Public Citizen,the FMCSA controlled the certification process, but it could notcontrol the admission or volume of Mexican trucks; theFMCSA’s role was limited to certification. Case: 07-2271 Document: 00318362723 Page: 20 Date Filed: 03/31/2009 In the instant case, the NRC controls whether equipment within a facility is suitable for continued operation or couldwithstand an accident, but it has no authority over the airspaceabove its facilities, which is largely controlled by Congress andthe Federal Aviation Administration (FAA). The NRC hasexplicitly noted its limited ability to address airborne threats,articulating its consistent view that “security from terroristattacks on nuclear facilities [i]s best approached by enhancingaviation security, including intelligence gathering and securityat airports and on airplanes.” Riverkeeper, Inc. v. Collins, 359F.3d 156, 161 (2d Cir. 2004); cf. Glass Packaging Institute v.
Reagan, 737 F.2d 1083, 1092 (D.C. Cir. 1984) (“NEPA is meantto supplement federal agencies’ other nonenvironmentalobjectives, not to transplant specific regulatory burdens fromthose expert agencies otherwise authorized to redress specificnonenvironmental problems and pointlessly to reimpose thoseobjectives on other unqualified agencies.”). This view is sharedby other federal agencies. See Richard A. Meserve, StatementSubmitted by the Nuclear Regulatory Commission to theSubcomm. on Oversight and Investigations of the H. Comm. onEnergy and Commerce 5 (2003) (noting that when there werereported threats to the airspace above nuclear facilities, the FAAand the Department of Defense, rather than the NRC, respondedto protect the airspace).
NRC’s lack of control over airspace supports our holding that a terrorist aircraft attack lengthens the causal chain beyondthe “reasonably close causal relationship” required by thosecases. Indeed, an aircraft attack on Oyster Creek requires at Case: 07-2271 Document: 00318362723 Page: 21 Date Filed: 03/31/2009 least two intervening events: (1) the act of a third-party criminaland (2) the failure of all government agencies specificallycharged with preventing terrorist attacks. We conclude that thiscausation chain is too attenuated to require NEPA review.
Moreover, this conclusion is supported by traditional tort lawconcepts of causation.8 According to the Restatement (Second) of Torts, the criminal conduct of a third person is not a superseding cause ofharm unless the original actor “realized or should have realizedthe likelihood that [an opportunity for a third person to commita crime] might be created, and that a third person might availhimself of the opportunity.” Restatement (Second) of Torts §448. The comments to the section clarify the circumstances inwhich an actor should anticipate third-party criminal conduct:(1) situations that “afford[] temptations to which a recognizablepercentage of humanity is likely to yield” and (2) situations“created at a place where persons of peculiarly vicious type arelikely to be” who might yield to the temptation, even though theaverage individual would not do so. Id § 448 cmt. b. NJDEPhas not demonstrated that either condition is present here. The relevant tort law concepts are premised on the idea that the actor, the NRC in this case, engages in underlyingnegligent conduct. Since cases analyzing NEPA have notfocused on negligence, we assume for purposes of this analysisthat NEPA differs from tort law in this regard. See Pub. Citizen,541 U.S. at 763; Metro. Edison, 460 U.S. at 772.
Case: 07-2271 Document: 00318362723 Page: 22 Date Filed: 03/31/2009 The Restatement also clarifies when “an intervening force is a superseding cause.” See id. § 442. Section 442 listssix factors for consideration: (1) whether the third party causesharm “different in kind from that which would otherwise haveresulted from the actor’s negligence,” (2) whether the eventappears extraordinary in light of circumstances at the time, (3)whether the intervening force operates “independently of anysituation created by the actor’s negligence,” (4) whether theintervening act is “due to a third person’s act,” (5) whether thethird person’s act is wrongful and would subject him to liability,and (6) the “degree of culpability of [the] wrongful act by [the]third party.” Id. These factors counsel against finding theNRC’s relicensing of Oyster Creek to be the proximate cause ofenvironmental harm in a terrorist attack. The first factor cutsagainst the NRC because the consequences of a successfulterrorist attack would be similar to the possible consequences ofa severe accident. The remaining five factors, however, are inthe NRC’s favor. Such an attack would certainly be“extraordinary,” as there has never been an airborne attack on anuclear facility, any terrorist would be operating independentlyof the NRC, the intervening force would be due to a third-partyterrorist, a terrorist attack is wrongful, and the degree ofculpability of the terrorist would far exceed that of the NRC.
Our decision in Port Authority of New York & New Jersey v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999), althoughdecided under state law, further supports our conclusion. PortAuthority arose in the wake of the 1993 World Trade Centerbombing. Id. at 309. The plaintiffs alleged that the defendant Case: 07-2271 Document: 00318362723 Page: 23 Date Filed: 03/31/2009 fertilizer manufacturers were negligent in the manufacture andsale of the fertilizer used in the attack. Id. at 310. We held “asa matter of law that the World Trade Center bombing was not anatural or probable consequence of any design defect indefendants’ products. In addition, the terrorists’ actions weresuperseding and intervening events breaking the chain ofcausation.” Id. at 319; see also Gaines-Tabb v. ICI Explosives,USA, Inc., 160 F.3d 613, 618 (10th Cir. 1998) (after OklahomaCity bombing, defendant fertilizer manufacturer held notresponsible for the criminal conduct of bomber in using thefertilizer to make the bomb). Similarly, here, a terrorist attackon a nuclear facility would be a superseding cause of theenvironmental effects felt after an attack.
The government agencies specifically charged with preventing an airborne terrorist attack would also serve asintervening forces. As noted above, the NRC’s sphere ofauthority is limited to the facilities themselves and theequipment within them. A terrorist attack on an NRC-licensedfacility would require, at a minimum, a failure by the FAA andthe Department of Defense to protect and defend the facility.
An additional factor counsels against finding that the NRC’s relicensing of the Oyster Creek facility would be theproximate cause of environmental harm in the event of anairborne attack. In insisting that we “draw a manageable line”when imposing NEPA responsibilities, the Metropolitan EdisonCourt noted the limited time and resources of federal agenciesand warned that “[t]he scope of the agency’s inquiries mustremain manageable if NEPA’s goal of [ensuring] a fully Case: 07-2271 Document: 00318362723 Page: 24 Date Filed: 03/31/2009 informed and well considered decision is to be accomplished.”Id. at 774 n.7, 776 (internal quotation marks omitted). Appliedto the case before it, the Court indicated that, if agencies wererequired to assess psychological health damage associated withincreased risk, agencies would “expend considerable resources”on issues “not otherwise relevant to their congressionallyassigned functions” and “resources may be spread so thin thatagencies are unable adequately to pursue protection of thephysical environment and natural resources.” Id. Similarly, if NEPA required the NRC to analyze the potential consequences of an airborne attack, the NRC wouldspend time and resources assessing security risks over which ithas little control and which would not likely aid its otherassigned functions to assure the safety and security of nuclearfacilities. Moreover, an analysis of the risks of a terrorist attackon Oyster Creek, as well as NJDEP’s arguments concerningOyster Creek’s status as a particularly vulnerable terrorist target,implicate security concerns that are broader than those at issueunder NEPA. For example, security decisions must becentralized rather than made on a site-specific basis since thosein charge of each site may have differing ideas over how tospread limited resources. This policy is reflected in NRCregulations, which separate its health and safety review,conducted through rulemaking under the APA, from theenvironmental review required by NEPA. See 10 C.F.R. Parts51, 54; In re AmerGen Energy Co., 65 N.R.C. at 130. Likewise,security reviews involve analysis of sensitive information notavailable to the public, while NEPA requires public participationand transparency. See In re Private Fuel Storage, CLI-02-023, Case: 07-2271 Document: 00318362723 Page: 25 Date Filed: 03/31/2009 In holding that there is no “reasonably close causal relationship” between a relicensing proceeding and theenvironmental effects of an aircraft attack on the licensedfacility, we depart from the reasoning of the Ninth Circuit Courtof Appeals in San Luis Obispo Mothers for Peace v. NRC, 449F.3d 1016 (9th Cir. 2006). The Mothers for Peace court heldthat, given “the policy goals of NEPA and the rule ofreasonableness that governs its application, the possibility ofterrorist attack is not so ‘remote and highly speculative’ as to bebeyond NEPA’s requirements.” Id. at 1031. We note, initially,that Mothers for Peace is distinguishable on the ground that it We do not mean to suggest that the NRC has no obligation to consider how to strengthen nuclear facilities toprevent and minimize the effects of a terrorist attack; indeed, theAEA gives broad discretion over the safety and security ofnuclear facilities. See 42 U.S.C. § 2011 et seq. Though thesufficiency of its efforts is not before us, we note that the NRCconsidered and implemented changes pursuant to the AEA toaddress the threats of a terrorist attack following the attacks ofSeptember 11, 2001. See Design Basis Threat, Final Rule, 10C.F.R. part 73 (2007). In Metropolitan Edison, however, theSupreme Court made it clear that an agency’s obligations underNEPA must be more manageable given the limited resources offederal agencies and the fact that some environmental reviewmight “not [be] otherwise relevant to their congressionallyassigned functions.” 460 U.S. at 776.
Case: 07-2271 Document: 00318362723 Page: 26 Date Filed: 03/31/2009 involved the proposed construction of a new facility—a changeto the physical environment arguably with a closer causalrelationship to a potential terrorist attack than the mererelicensing of an existing facility. See id. at 1021. Morecentrally, however, we disagree with the rejection of the“reasonably close causal relationship” test set forth by theSupreme Court and hold that this standard remains the law inthis Circuit.10 We also note that no other circuit has required aNEPA analysis of the environmental impact of a hypothetical The Mothers for Peace court attempted, unsuccessfully in our view, to distinguish Metropolitan Edison bycharacterizing that case as involving a three step causal chain:“(1) a major federal action; (2) a change in the physicalenvironment, and (3) an effect.” Id. at 1029. According to theNinth Circuit, Metropolitan Edison “was concerned with therelationship between events 2 and 3,” where event two was “thechange in the physical environment, or increased risk ofaccident resulting from the renewed operation of a nuclearreactor” and event three was the “decline in the psychologicalhealth of the human population.” Id. In contrast, the NinthCircuit characterized the case before it as involving “thedisputed relationship . . . between events 1 and 2,” where stepone was “the federal act, or the licensing of the StorageInstallation” and event two was the “change in the physicalenvironment, or the terrorist attack.” Id. at 1030. It thereforeheld that the “reasonably close causal relationship” test fromMetropolitan Edison did not apply and, instead, created a testrequiring agencies to consider under NEPA all events not“remote and highly speculative.” The Ninth Circuit made nomention of Public Citizen.
Case: 07-2271 Document: 00318362723 Page: 27 Date Filed: 03/31/2009 terrorist attack. See Mid States Coalition for Progress v.
Surface Transp. Bd., 345 F.3d 520, 544 (8th Cir. 2003) (holdingthat agency did not err in declining to reopen record forconstruction of new rail lines in light of terrorist attacks ofSeptember 11, 2001); Limerick Ecology Action v. NRC, 869F.2d 719, 743–44 (3d Cir. 1989) (upholding NRC decision notto analyze risks of sabotage under NEPA where petitioner didnot propose a meaningful way to analyze the risk); GlassPackaging Inst., 737 F.2d at 1091 (upholding agency decisionnot to consider possibility that a “deranged criminal” mighttamper with bottles); City of New York v. Dep’t of Transp., 715F.2d 732, 750 (1983) (deferring to agency’s conclusion thatrisks of sabotage “were too far afield for consideration” in theNEPA analysis of regulation governing highway shipment ofradioactive material).
Finally, NJDEP’s argument concerning the relevance of the NRC’s other efforts to prevent terrorist attacks is misplaced.
As the NRC notes, even the Ninth Circuit Court of Appeals hasheld that precautionary actions to guard against a particular riskdo not trigger a duty to perform a NEPA analysis. See GroundZero Ctr. for Non-Violent Action v. Dep’t of the Navy, 383 F.3d1082, 1090–91 (9th Cir. 2004) (fact that the Navy took potentialTrident missile accident into account when planning base layoutdid not mean, in and of itself, that Navy had to prepare NEPAreview outlining effects of that potential accident).
In sum, the NRC correctly concluded that the relicensing of Oyster Creek does not have a “reasonably close causalrelationship” with the environmental effects that would be Case: 07-2271 Document: 00318362723 Page: 28 Date Filed: 03/31/2009 caused in the event of a terrorist attack. B. The NRC’S Prior Analysis of the Terrorism
Even if NEPA required an assessment of the environmental effects of a hypothetical terrorist attack on anuclear facility, the NRC has already made this assessment. Asdescribed above, the GEIS addresses the risks associated with aterrorist attack, stating that “estimates of risk from sabotage” areimpossible to quantify but nonetheless characterizing the risksas “small.” GEIS at 5-18. The GEIS goes on to say that, shouldthe unlikely event occur, the effects would be “no worse thanthose expected from internally initiated events.” Id. The NRCrules codify these generic findings, and by regulation, licenserenewal applicants are excused from discussing generic issuesin their environmental reports. See 10 C.F.R. § 51.53(c)(3)(i);id. Part 51 Subpt. A, App. B, Table B.
Generic analysis “is clearly an appropriate method of conducting the hard look required by NEPA.” Baltimore Gas,462 U.S. at 101 (internal quotation marks omitted). Indeed, itis “hornbook administrative law that an agency neednot—indeed should not—entertain a challenge to a regulation”in an individual adjudication. Tribune Co. v. FCC, 133 F.3d 61,68 (D.C. Cir. 1998). NJDEP’s contention challenges the NRC’sgeneric findings, essentially arguing that certain characteristicsof Oyster Creek make the risk of a terrorist attack more than“small” and the environmental effects of a terrorist attack Case: 07-2271 Document: 00318362723 Page: 29 Date Filed: 03/31/2009 somehow different from “those expected from internallyinitiated events.” These arguments thus amount to collateralattacks on the licensing renewal regulations, and the proper wayto raise them would have been in a petition for rulemaking or apetition for a waiver based on “special circumstances.” See 10C.F.R. §§ 2.335, 2.802.11 Moreover, the NRC prepared a SEIS that analyzed alternatives at Oyster Creek to mitigate severe accidents. SeeSEIS at 5-3 through 5-12. Accordingly, the GEIS and SEIStogether provide both generic and site-specific analyses ofpotential environmental impacts at Oyster Creek arising fromterrorist attacks. New Jersey has never explained how or whyan aircraft attack on Oyster Creek would produce impacts thatare different from severe accidents and has not provided anyevidence that the NRC could engage in a meaningful analysis ofthe risks of an attack. Instead, NJDEP argues, quoting ourdecision in Limerick Ecology Action v. NRC, that the NRC’s“mere assertion of unquantifiability” does not immunize it fromhaving to conduct a NEPA analysis. See 869 F.2d at 744 n.31.
This is a true statement of the law, but it ignores our holding inLimerick that the burden is on the petitioner to demonstrate that A recurring theme running through NJDEP’s arguments is its concern that Oyster Creek’s design increases the risk ofany harm resulting from a terrorist attack. If NJDEP hadwished, however, to pursue a position that the Oyster Creekplant is obsolete, NJDEP should have sought a waiver of theusual licensing procedures, as set out above, so that thiscomplaint could be made. Case: 07-2271 Document: 00318362723 Page: 30 Date Filed: 03/31/2009 the NRC could evaluate risks more meaningfully than it hasalready done. See id. at 744 n.31. NJDEP has not met itsburden here.
CONCLUSION
Because NJDEP did not present an admissible contention before the NRC, concerning the environmental effects of ahypothetical aircraft attack on Oyster Creek, we will deny thepetition for review.

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