Los Alamos Study Grp. v. U.S. Dep't of Energy

• Decision Date: 27 August 2012
• Docket Number: No. 11–2141.,11–2141.
• Citation: 692 F.3d 1057
• Parties: LOS ALAMOS STUDY GROUP, Plaintiff–Appellant, v. UNITED STATES DEPARTMENT OF ENERGY; The Honorable Steven Chu, in his capacity, Secretary, Department of Energy; National Nuclear Security Administration; The Honorable Thomas Paul D'Agostino, in his capacity as Administrator, National Nuclear Security Administration, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

692 F.3d 1057

LOS ALAMOS STUDY GROUP, Plaintiff–Appellant,

v.UNITED STATES DEPARTMENT OF ENERGY; The Honorable Steven Chu, in his capacity, Secretary, Department of Energy; National Nuclear Security Administration; The Honorable Thomas Paul D'Agostino, in his capacity as Administrator, National Nuclear Security Administration, Defendants–Appellees.

No. 11–2141.

United States Court of Appeals,Tenth Circuit.

Aug. 27, 2012.

Thomas M. Hnasko, Hinkle, Hensley, Shanor & Martin, LLP, Santa Fe, NM, (Dulcinea Z. Hanuschak, Hinkle, Hensley, Shanor & Martin, LLP, and Lindsay A. Lovejoy, Jr., Law Office of Lindsay A. Lovejoy, Jr., Santa Fe, NM, with him on the brief), for Plaintiff–Appellant.

Robert P. Stockman, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, (Ignacia S. Moreno, Assistant Attorney General, Washington, DC; Andrew A. Smith, John P. Tustin, Environment & Natural Resources Division, United States Department of Justice, and Janet Masters, Matthew F. Rotman, of counsel, Office of the General Counsel, U.S. Department of Energy, with him on the brief), for Defendants–Appellees.

Before BRISCOE, Chief Judge, McKAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

On August 16, 2010, Plaintiff Los Alamos Study Group filed a complaint for declaratory and injunctive relief under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4347, and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706. Defendants were the National Nuclear Security Administration (NNSA), the United States Department of Energy (DOE), NNSA's administrator, and the DOE secretary. The complaint alleged that the design proposed for construction of a Chemistry and Metallurgy Research Replacement Nuclear Facility (the Nuclear Facility) at the Los Alamos National Laboratory (the Laboratory) had changed so much since the original environmental analysis in 2003 that a new analysis was required and that all work on the facility should be halted until the conclusion of such analysis. The district court dismissed the claims on two grounds: (1) that they were prudentially moot because Defendants began an environmental analysis after the complaint was filed and committed to refraining from all construction on the Nuclear Facility until the analysis was complete, and (2) that the case was not yet ripe because there had been no final agency action. We agree with the district court on the ripeness issue. We therefore need not address prudential mootness.

I. BACKGROUNDA. Regulatory Overview

NNSA is an agency within the DOE whose responsibilities include managing and securing the nation's nuclear weapons. As part of these responsibilities, NNSA administers the Laboratory in Los Alamos, New Mexico. The Laboratory supports various activities relating to nuclear weapons, including “nuclear materials handling, processing and fabrication; stockpile management; materials and manufacturing technologies; nonproliferation programs; and waste management activities.” 69 Fed.Reg. 6967, 6968 (Feb. 12, 2004).

As a federal agency, NNSA must comply with the provisions of NEPA, which “declares a broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA does not require agencies to reach particular substantive environmental results. See id. at 350–51, 109 S.Ct. 1835. But it “requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir.2010) (internal quotation marks omitted). Its dual goals are that the agency “consider every significant aspect of the environmental impact of a proposed action” and “inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotation marks omitted).

To further these goals, NEPA requires thorough environmental studies before official action:

[B]efore an agency may take major Federal actions significantly affecting the quality of the human environment, an agency must prepare an environmental impact statement (EIS) in which the agency considers the environmental impacts of the proposed action and evaluates alternatives to the proposed action, including the option of taking no action. In doing so, the agency must take a hard look at information relevant to its decision.Forest Guardians, 611 F.3d at 711 (citations, brackets, and internal quotation marks omitted). If, after an EIS has been prepared, “there are substantial changes to the proposal or significant new circumstances or information relevant to environmental concerns,” then a supplemental EIS (an SEIS) must be prepared. 10 C.F.R. § 1021.314(a). An SEIS is prepared in the same manner as the original EIS, except that the DOE is not required to allow the public to comment on the scope of an SEIS. See id. § 1021.311(a), (f); id. § 1021.314(d); 40 C.F.R. § 1501.7 (defining scoping as “an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action”). If the DOE takes action on a proposal in an EIS or SEIS, it must prepare a public record of decision (ROD), see 10 C.F.R. § 1021.315(b); id.§ 1021.314(d), which states what the decision is, identifies and analyzes the alternatives considered, and discusses means of avoiding or minimizing environmental harm from the selected alternative, see40 C.F.R. § 1505.2.

B. Chemistry and Metallurgy Research Building

Many of the Laboratory's activities require facilities equipped to handle radioactive materials. The most important of these facilities are located in the Chemistry and Metallurgy Research building (the CMR Building) and a separate plutonium facility (which is being upgraded in another project). Some of the CMR Building's capabilities are apparently unique, such as its analytical-chemistry and materials-characterization functions. In the late 1990s NNSA concluded that the CMR Building was “near the end of its useful life,” 69 Fed.Reg. 6967, 6968, both because a seismic analysis had revealed that the building lacked sufficient structural integrity and because its components were aging. NNSA therefore began considering options for how and where to continue the functions performed at the CMR Building. An EIS in 2003 analyzed four alternatives for the Chemistry and Metallurgy Research Building Replacement Project. They varied in what buildings would be constructed and where they would be placed. The ultimate choice for the project in the 2004 ROD, see id. at 6967–72, was “Alternative 1”: replacing the CMR Building with a new facility at Technical Area 55 comprised of two buildings: a “consolidated nuclear material-capable, Hazard Category 2 laboratory building” (the Nuclear Facility), and “a separate, adjacent administrative office and support functions building,” referred to as the Radiological Laboratory Utility Office Building (the Office Building). 75 Fed.Reg. 60745, 60746 (Oct. 1, 2010). The project also involved the “construction of a parking areas(s) [sic], tunnels, vault area(s), and other infrastructure support needs.” 69 Fed.Reg. 6967, 6968. The 2004 ROD was never challenged.

Over the following years the design changed, primarily to accommodate seismic and safety concerns. The changes have increased the scale and estimated cost of the proposed construction. For example, the original design for the Nuclear Facility called for a building with “a footprint of 300 by 275 feet, with one story below ground and one story above ground,” Aplt.App., Vol. 3 at 568; but as of August 2010 the proposed building had a footprint of 342 by 304 feet, “with three levels below ground and one-and-a-half levels above ground,” id. at 569. The estimated cost increased from $745 to $975 million for both the Office Building and the Nuclear Facility in 2005 to over $2 billion for just the Nuclear Facility in 2009.

C. Later Environmental Studies

By July 30, 2010, these changes (and perhaps communications from Plaintiff) had led NNSA to conclude that it should prepare a Supplement Analysis to determine whether it needed an SEIS to update the 2003 EIS. See10 C.F.R. § 1021.314(c) (requiring preparation of Supplement Analysis when “it is unclear whether or not an EIS supplement is required”). Before completing a Supplement Analysis, however, NNSA decided to prepare an SEIS. Donald Cook, the Deputy Administrator for Defense Programs at NNSA, filed a sworn declaration stating that no Nuclear Facility construction would occur during the preparation of the SEIS. After two public meetings and a 45–day comment period, NNSA issued a Draft SEIS in April 2011. It held three public hearings on the Draft SEIS and accepted comments for 45 days. The final SEIS was published in August 2011—several months after the district court had issued its opinion in this case—and the Amended ROD was published in October 2011. Plaintiff is challenging the SEIS and the Amended ROD in a different action.

D. Ongoing Activity at the Laboratory

Even as there have been reevaluations of the Nuclear Facility component of the project approved by the 2004 ROD, some other authorized actions have continued. Construction of the Office Building, for example, is complete. Construction of the Nuclear Materials Safeguards and Security Upgrades Project Phase II, which provides a security system at Technical Area 55, is ongoing. Also, design work for the Nuclear Facility has continued. The district court found that the design for the overall project was less than 50% complete, and during the SEIS process the design was expected to advance by only about 15%....