Cuomo v. U.S. Nuclear Regulatory Com'n
| Decision Date | 03 July 1985 |
| Docket Number | No. 85-1042,85-1042 |
| Citation | 249 U.S.App. D.C. 54,772 F.2d 972 |
| Parties | , 249 U.S.App.D.C. 54, 15 Envtl. L. Rep. 20,772 Mario M. CUOMO, Governor of the State of New York and County of Suffolk, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Long Island Lighting Co., Intervenor. . Order Filed |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Herbert H. Brown, Lawrence Coe Lanpher, Washington, D.C., Karla J. Letsche and Robert Abrams, New York City, were on the emergency motion for stay filed by petitioners.
William H. Briggs, Jr., Solicitor, E. Leo Slaggie, Deputy Solicitor, Herzel H.E. Plaine, Gen. Counsel, Michael B. Blume and Karla D. Smith, Attorneys, Nuclear Regulatory Commission, Washington, D.C., were on the opposition to emergency motion for stay, filed by respondent United States Nuclear Regulatory Commission.
Donald P. Irwin and Robert M. Rolfe, Richmond, Va., was on the response to emergency motion for stay, filed by intervenor.
Before WRIGHT, WALD and EDWARDS, Circuit Judges.
Opinion PER CURIAM.
On Petitioners' Emergency Motion for Stay
Petitioners, Mario M. Cuomo, Governor of the State of New York, and Suffolk County, seek an emergency stay of a United States Nuclear Regulatory Commission Licensing Board decision, issued June 14, 1985, which authorizes the issuance of a license for low-power testing (up to five percent of rated power) at the Shoreham Nuclear Power Station. We have closely examined the petitioners' contentions, as well as those of the respondents, United States Nuclear Regulatory Commission ("NRC") and United States and intervenor, Long Island Lighting Company ("LILCO"). We conclude that petitioners have not met their burden of showing that exercise of the court's extraordinary injunctive powers is warranted.
The factors to be considered in determining whether a stay is warranted are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. WMATA v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). To justify the granting of a stay, a movant need not always establish a high probability of success on the merits. Probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa. We summarize our analysis of these factors, as applied to the circumstances of the instant case, as follows.
Without prejudice to a later contrary showing by petitioners, we conclude that petitioners have failed to make out "a substantial case on the merits." Holiday Tours, 559 F.2d at 843. We concentrate here on only the most significant objections to petitioners' position.
In this motion for stay, petitioners confine their argument to the claim that provisions of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Sec. 4321 et seq., require that the NRC supplement an environmental impact statement ("EIS") prepared in 1977. The essence of petitioners' NEPA argument is that the 1977 EIS did not consider the possibility that the Shoreham plant might never operate at full power. Petitioners further contend that circumstances have dramatically changed since 1977, in that Congress and the NRC now require that an emergency evacuation plan be developed and approved prior to the issuance of a full-power license. See Pub.L. No. 96-295, 94 Stat. 780 (1980); 10 C.F.R. Secs. 50.33(g), 50.47(d) (1984). In addition, petitioners contend that the likelihood that a final operating license will be granted is virtually nil, since both the State of New York and County of Suffolk have refused to participate in the preparation of an emergency evacuation plan. Petitioners, thus, would have the NRC prepare a supplemental EIS to consider the possibility that full-power operation will be denied, and to consider whether alternatives, such as delaying low-power operations until emergency planning issues are resolved, should be undertaken. See Memorandum Supporting Emergency Stay Motion at 28.
As with the duty to prepare an initial EIS, the duty to supplement an EIS is governed by a "rule of reason." San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1301 (D.C.Cir.1984), vacated in part and rehearing en banc granted on other grounds, 760 F.2d 1320 (D.C.Cir.1985); see Friends of the River v. FERC, 720 F.2d 93, 109 (D.C.Cir.1983) (citing reasonableness standard). In addition, "[g]enerally, the initial decision whether a supplemental EIS is required should be made by the agency, not by a reviewing court." Id. at 108-09.
Under this rule of reason, an agency is not required to supplement an EIS when "remote and highly improbable consequences" are alleged. San Luis Obispo Mothers, 751 F.2d at 1300; see Friends of the River, 720 F.2d at 109 (); 40 C.F.R. Sec. 1502.9(c)(1)(ii) (1984) () (Council on Environmental Quality guideline). Rather, as the Ninth Circuit states the rule:
Reasonableness depends on such factors as the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data.
Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir.1980); see People Against Nuclear Energy v. NRC, 678 F.2d 222, 234 (D.C.Cir.1982) (), rev'd on other grounds sub nom. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). Considering each of these factors in turn, it does not appear that the NRC has violated the rule of reason in this case.
Petitioners implicitly concede that there are no environmental consequences associated with low-power testing that were not considered in the 1977 EIS. Rather, the heart of petitioners' contention is that, because of the absence of a viable emergency evacuation plan, there is an increased likelihood that the environmental harms of low-power testing will not be balanced by eventual benefits from full-power operation. See Memorandum Supporting Emergency Stay Motion at 32.
The accuracy of petitioners' contention that no full-power license will ever be granted, due to the lack of an emergency evacuation plan, is far from indisputable. We note, in this regard, the recent actions of the Suffolk County Executive, suggesting the possibility of County cooperation in an emergency plan. See Suffolk County Exec. Order No. 1-1985 (May 30, 1985). Although this order has apparently been nullified by judicial action, see Order, In re Town of Southampton, No. 85-10520 (N.Y.Sup.Ct. Suffolk County June 10, 1985), aff'd, No. 3004E (N.Y.App.Div., 2d Dep't June 19, 1985), the dispute between the County Executive and Legislature remains, see Letter from Martin Bradley Ashare, Suffolk County Attorney, to Nunzio J. Palladino, Chairman of NRC (June 3, 1985) (indicating that counsel for Suffolk County has been discharged), and will undoubtedly result in additional litigation and political confrontations. Under these circumstances, it is virtually impossible to predict how long the State and County will maintain their opposition to the emergency evacuation plan.
The NRC's consideration of petitioners' contention has been neither cursory nor lacking in due process. The NRC has, on three occasions, considered and rejected petitioners' claim. See Memorandum and Order, In re Long Island Lighting Co., Docket No. 50-322-OL (NRC June 24, 1985); Order, In re Long Island Lighting Co., CLI-85-12 (NRC June 20, 1985); In re Long Island Lighting Co., 19 NRC 1323 (June 5, 1984). In one of these orders, moreover, the NRC explicitly determined that, even if some new calculation of the costs and benefits of low-power operation were required, consideration of the contentions advanced by petitioners would not necessitate denial of a low-power license. Order at 4-5, In re Long Island Lighting Co., CLI-85-12 (NRC June 20, 1985).
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