City of New York v. U.S. Dept. of Transp.

• Decision Date: 10 August 1983
• Docket Number: D,Nos. 415,451,s. 415
• Citation: 715 F.2d 732
• Court: U.S. Court of Appeals — Second Circuit
• Parties: , 13 Envtl. L. Rep. 20,823 The CITY OF NEW YORK, Plaintiff-Appellee, and The State of New York, et al., Plaintiffs-Intervenors-Appellees, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants-Intervenors- Appellants. ockets 82-6094, 82-6200.

Page 732

715 F.2d 732

19 ERC 1617, 13 Envtl. L. Rep. 20,823

The CITY OF NEW YORK, Plaintiff-Appellee and The State of New York, et al., Plaintiffs-Intervenors-Appellees, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION, et al Defendants-Intervenors- Appellants.

Nos. 415, 451, Dockets 82-6094, 82-6200.

United States Court of Appeals Second Circuit.

Argued Feb. 14, 1983.

Decided Aug. 10, 1983.

Twila L. Perry, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty Gaines Gwathmey, III, Peter C. Salerno, Asst. U.S. Attys., New York City, Douglas Anderson, Dept. of Transp., Washington, D.C., on brief), for defendants-appellants.

Harry H. Voigt, New York City (Leonard M. Trosten, Mindy A. Buren, Robert S. Garrick, LeBoeuf, Lamb, Leiby & MacRae, New York City, on brief), for defendants-intervenors-appellants.

Stephen P. Kramer, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel, Barry L. Schwartz, New York City, on brief), for plaintiff-appellee.

Ezra I. Bialik, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Peter H. Schiff, Acting Atty. in Chief, New York City, on brief), for plaintiffs-intervenors-appellees.

Peter M. Collins, John G. Collins, Mid-Atlantic Legal Foundation, Inc., New York City, filed brief on behalf of amicus curiae Scientists and Engineers for Secure Energy, Inc. and Mid-Atlantic Legal Foundation, Inc.

Eldon Kaul, Asst. Atty. Gen., Roseville, Minn., E. Dennis Muchnicki, Asst. Atty. Gen., Columbus, Ohio, filed brief on behalf of amicus curiae States of Ohio and Minn. on the relation of their Attys. Gen. William J. Brown, Columbus, Ohio, and Warren R. Spannaus, St. Paul, Minn.

Before OAKES, NEWMAN, and PRATT, Circuit Judges.

NEWMAN, Circuit Judge:

Every age has experienced scientific advances. A distinguishing feature of our era is the effort the scientific community is making to quantify the risks that seem inevitably to accompany the results of technological progress. The availability of this data has doubtless played a part in raising public consciousness about the mixed blessings of "progress," and public concern has led to rigorous governmental regulation. These trends, in turn, have brought before the courts controversies that present old issues in new contexts of unusual complexity. In determining whether regulatory actions conform to statutory requirements, courts are now obliged to review agency consideration of sophisticated data concerning the potential gravity of adverse consequences and the probability of their occurrence. This assessment of risk lies at the heart of this appeal, which involves a challenge to a federal regulation designed to reduce the risks from the transportation of radioactive materials. The United States Department of Transportation ("DOT" or "the Department") appeals from the May 6, 1982, judgment of the District Court for the Southern District of New York (Abraham D. Sofaer, Judge) declaring invalid, in part, regulations promulgated by DOT to govern the transportation of large quantities of radioactive materials by highway. 539 F.Supp. 1237 (S.D.N.Y.1982). For reasons set out in detail below, we reverse and remand the matter for entry of a judgment upholding the regulations.

I.

The challenged DOT regulations can best be understood in light of developments preceding their issuance. In early 1976, the City of New York amended its health code to prohibit the transportation of spent nuclear fuel and other large quantities of radioactive material through the City without a Certificate of Emergency Transport from the Commissioner of Health. See N.Y. City Health Code § 175.111(l ) (January 15, 1976). The amendment of the City's Health Code effectively banned the use of motor vehicles to ship spent fuel from nuclear reactors operating on Long Island because all roads from Long Island pass through New York City. Since 1976, spent nuclear fuel has been removed from Long Island by barge across the Long Island Sound to New London, Connecticut.

The Brookhaven National Laboratories, which operates a reactor on Long Island, responded to New York City's action by asking DOT to declare the amendment preempted by the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. §§ 1801- 1812 (1976 & Supp. V 1981). ¹ Section 105(a) of HMTA authorizes the Secretary of Transportation to promulgate rules governing the routing of shipments containing hazardous materials including radioactive materials. 49 U.S.C. § 1804(a). Section 112(a) of HMTA provides that any state or local regulation inconsistent with federal regulations is preempted. 49 U.S.C. § 1811(a).

In an "Inconsistency Ruling" published in April 1978, DOT found that HMTA did not preempt the amendment of the New York City Health Code. 43 Fed.Reg. 16,954 (Apr. 20, 1978). DOT reasoned that, although HMTA authorized the Secretary to develop national rules for the routing of nuclear materials, the Secretary had not yet exercised that authority. Consequently, in DOT's view, municipalities like New York City were free to enact their own routing rules, including extreme routing requirements such as a ban on the shipment of nuclear materials through densely populated urban areas. ²

As a consequence of restrictions placed on the transportation of nuclear materials by New York City and numerous other jurisdictions across the country, DOT decided to investigate whether federal rules governing highway carriers of radioactive materials might be needed. In an Advance Notice of Proposed Rulemaking published in August 1978, DOT expressed its concern that the various, inconsistent safety regulations imposed by state and local authorities might in fact diminish the overall safety of the transportation of nuclear materials. See 43 Fed.Reg. 36,492 (Aug. 17, 1978). In this Advance Notice, DOT outlined several proposals for regulating the highway transportation of radioactive materials at the federal level and invited comments on these proposals as well as on the threshold question, "Should radioactive materials be subject to more stringent Federal highway routing requirements than now imposed?" Id. at 36,493-94. ³ From the start, DOT indicated its intention to limit its proposed rulemaking to highway routing, which it identified as the mode of transportation that "offers the largest number of routing possibilities and the greatest access to population centers.... [while] fac[ing] immediate and significant disparities in safety requirements imposed by State and local jurisdictions." Id. at 36,492.

In the course of rulemaking proceedings mandated by the Administrative Procedure Act, 5 U.S.C. §§ 551-706 (1976 & Supp. V 1981), DOT conducted eight public hearings and received more than 1600 comments on its proposed regulation of the highway transportation of radioactive materials. In January 1980, DOT published a Notice of Proposed Rulemaking, which contained DOT's preliminary assessment of appropriate routing requirements and driver training programs. See 45 Fed.Reg. 7140 (Jan. 31, 1980). Almost a year later, DOT published a Final Rule, known as HM-164, which closely resembled the proposed version. 46 Fed.Reg. 5298 (Jan. 19, 1981) (codified at 49 C.F.R. §§ 171-173, 177 (1982)).

This litigation challenges the sections of the Final Rule governing the routing of motor vehicles that carry "large-quantity shipments" of radioactive materials. ⁴ The Final Rule establishes a system of preferred routes comprising the highways of the Interstate Highway System supplemented by local highways selected and approved by state routing agencies. ⁵ Under the Final Rule, vehicles carrying large-quantity shipments of radioactive materials should as a general matter "operate[ ] over preferred routes selected to reduce time in transit, except that an Interstate System bypass or beltway around a city shall be used when available." 49 C.F.R. § 177.825(b) (1982). DOT designated the entire Interstate Highway System as a preferred route because of the System's low accident rates and its capacity to reduce transit times. See 46 Fed.Reg. at 5300-01. However, because DOT believed that in many cases local roads might provide safer and more direct routes for highway carriers and that state authorities were better situated to determine where alternate routes would be preferable, state routing authorities were given authority to supplement the Interstate Highway System. See id. at 5301-02. The Rule also requires that large-quantity radioactive materials carriers prepare written route plans before shipment, that drivers for these shipments complete training programs, and that carriers moving irradiated reactor fuel follow security procedures established by the Nuclear Regulatory Commission (NRC). See 49 C.F.R. §§ 173.22, 177.825(c), (d), (e); see also 10 C.F.R. § 73 (NRC security regulations). Accompanying HM-164 was an appendix expressing DOT's opinion that the Rule would preempt local regulations, such as the New York City Health Code, that "prohibit[ ] transportation of large quantity radioactive materials by highway between any two points without providing an alternate route for the duration of the prohibition." 46 Fed.Reg. at 5317-18 (codified at 49 C.F.R. § 177 app. A (1982)).

In conjunction with the issuance of HM-164, DOT reckoned with section 102(2)(C) of the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(2)(c) (1976), which requires a detailed Environmental Impact Statement (EIS) in every proposal for a major federal action "significantly affecting" the quality of the human environment. DOT released with HM-164 a Final Regulatory Evaluation and Environmental Assessment, ⁶ which concluded that an EIS was not needed because HM-164 would not have a "significant" impact on the environment. DOT's Environmental Assessment noted that HM-164 would benefit the environment by reducing the existing level of background radiation. This benefit would result from a reduction in the transit time for shipments of...