Pub. Watchdogs v. S. Cal. Edison Co.

• Decision Date: 29 December 2020
• Docket Number: No. 19-56531,19-56531
• Citation: 984 F.3d 744
• Parties: PUBLIC WATCHDOGS, a California 501(c)(3) corporation, Plaintiff-Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY; San Diego Gas & Electric Company; Sempra Energy; Holtec International; U.S. Nuclear Regulatory Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

984 F.3d 744

PUBLIC WATCHDOGS, a California 501(c)(3) corporation, Plaintiff-Appellant,

v.SOUTHERN CALIFORNIA EDISON COMPANY; San Diego Gas & Electric Company; Sempra Energy; Holtec International; U.S. Nuclear Regulatory Commission, Defendants-Appellees.

No. 19-56531

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2020 Pasadena, California

Filed December 29, 2020

Eric J. Beste (argued) and Charles G. La Bella, Barnes & Thornburg LLP, San Diego, California, for Plaintiff-Appellant.

Justin D. Heminger (argued), Senior Litigation Counsel; Eric Grant, Deputy Assistant Attorney General; Jeffrey Bossert Clark, Assistant Attorney General; Andrew P. Averbach, Solicitor, and James E. Adler, Senior Attorney, U.S. Nuclear Regulatory Commission; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellant U.S. Nuclear Regulatory Commission.

James R. Evans Jr. (argued), Edward J. Casey, and Alexander Akerman, Alston & Bird LLP, Los Angeles, California, for Defendants-Appellees Southern California Edison Company, San Diego Gas & Electric Company, Sempra Energy, and Holtec International.

Before: Johnnie B. Rawlinson and N. Randy Smith, Circuit Judges, and Edward R. Korman,^* District Judge.

N.R. SMITH, Circuit Judge:

Under the Administrative Orders Review Act—frequently referred to as the Hobbs Act—courts of appeals have "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ... all final orders of the [United States Nuclear Regulatory Commission ("NRC")] made reviewable by section 2239 of title 42." 28 U.S.C. § 2342(4). Section 2239 also provides for Hobbs Act review of "[a]ny final order entered in any proceeding," 42 U.S.C. § 2239(b)(1), "for the granting, suspending, revoking, or amending of any license ... and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees," id. § 2239(a)(1)(A). Because the scope of the Hobbs Act must be read broadly, the Hobbs Act thus encompasses not only all final NRC orders in licensing proceedings, but all NRC decisions that are preliminary, ancillary, or incidental to those licensing proceedings. See Fla. Power & Light Co. v. Lorion , 470 U.S. 729, 737, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ; Gen. Atomics v. U.S. Nuclear Regulatory Comm'n , 75 F.3d 536, 539 (9th Cir. 1996).

Plaintiff–Appellant Public Watchdogs, a non-profit corporation advocating for public safety, appeals the district court's dismissal with prejudice of its first amended complaint for a lack of subject-matter jurisdiction under the Hobbs Act. Because Public Watchdogs's complaint challenges final orders of the NRC related to licensing, NRC enforcement decisions related to NRC licenses and certifications, and conduct licensed or certified by the NRC, Public Watchdogs's action falls squarely within the scope of the Hobbs Act. Therefore, we affirm the district court's dismissal of Public Watchdogs's first amended complaint with prejudice for a lack of subject-matter jurisdiction under the Hobbs Act.

I. BACKGROUND

A. The NRC Regulates the Construction and Operation of Nuclear Power Plants and Spent Fuel Storage Facilities, and the Storage of Spent Nuclear Fuel

The NRC is an independent regulatory commission established by Congress in the Energy Reorganization Act of 1974 ("ERA"). See 42 U.S.C. § 5841(a)(1). The ERA transferred "all the licensing and related regulatory functions of the Atomic Energy Commission" to the NRC. Id. § 5841(f). Under the Atomic Energy Act of 1954 ("AEA"), the NRC is tasked with licensing and regulating civilian storage and use of radioactive material to promote the common defense and security and public health and safety. See id. § 2201(b), (h), (i); see also id. §§ 2131–33. "Consistent with its administrative mandate, the NRC is empowered to promulgate rules and regulations governing the construction and operation of nuclear power plants." Cnty. of Rockland v. U.S. Nuclear Regulatory Comm'n , 709 F.2d 766, 769 (2d Cir. 1983) ; see also U.S. Nuclear Regulatory Comm'n, NUREG-1350, vol. 31, 2019–2020 Information Digest 34 (2019) [hereinafter NRC Information Digest] ("The NRC establishes requirements for the design, construction, operation, and security of U.S. commercial nuclear power plants."). Accordingly, the NRC has promulgated extensive regulations governing the agency's issuance of licenses to construct and operate nuclear power plants and fuel storage facilities and to possess spent nuclear fuel. See 10 C.F.R. Parts 50, 52, 72.

If a person's interests will be affected by an NRC proceeding "for the granting, suspending, revoking, or amending of any license or construction permit" or by a "proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees," then that person may request a hearing before the NRC. 42 U.S.C. § 2239(a)(1)(A). However, the hearing request must state "that one or more of the acceptance criteria in the ... license ha[s] not been, or will not be met, and the specific operational consequences of nonconformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety." See id. § 2239(a)(1)(B)(ii). Regardless of whether a hearing is requested or actually held, the NRC's final order in these proceedings is subject to initial judicial review in the courts of appeals under the Hobbs Act. See id. § 2239(b)(1) ; 28 U.S.C. § 2342(4) ; see also Lorion , 470 U.S. at 737, 105 S.Ct. 1598 ("Congress intended to provide for initial court of appeals review of all final orders in licensing proceedings whether or not a hearing before the [NRC] occurred or could have occurred.").

Aside from the NRC's licensing and rule-making responsibilities, the agency is also responsible for: (1) "conducting criminal, civil, and administrative investigations of alleged violations by NRC licensees"; (2) "inspecting NRC licensees to ensure adequate performance of safety and security programs"; and (3) "enforcing NRC regulations and the conditions of NRC licenses and imposing, when necessary, civil sanctions and penalties." NRC Information Digest at 5; see also 42 U.S.C. § 2282 (authorizing the NRC to issue civil penalties for licensing or certification violations). Relatedly, the NRC may issue orders modifying, suspending, or revoking a license to remedy license violations or other "potentially hazardous conditions." See 10 C.F.R. § 2.202. The NRC regulations also provide a mechanism through which "[a]ny person" may file a request with the NRC to "institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license, or for any other action as may be proper." 10 C.F.R. § 2.206(a).

The NRC also regulates the storage of spent nuclear fuel ("SNF"), which is the radioactive byproduct that results from the "burning" of nuclear fuel (i.e., uranium fuel rods bundled into fuel assemblies) in nuclear reactors. See U.S. Nuclear Regulatory Comm'n, NUREG/BR-0528, Safety of Spent Fuel Storage at 1 (April 2017) [hereinafter NRC Spent Fuel Storage]; see generally 10 C.F.R. Part 72. After SNF is removed from a nuclear reactor, it is first stored in deep pools of continuously flowing water that cool the spent fuel. NRC Information Digest at 70–71; NRC Spent Fuel Storage at 1. Once the SNF has cooled sufficiently, it is often transferred into dry casks. Information Digest 71–72; NRC Spent Fuel Storage at 1–2. Dry casks are "typically made of leak-tight, welded, and bolted steel and concrete surrounded by another layer of steel or concrete." NRC Information Digest at 68. There are two basic designs of dry casks that are widely used to store SNF: (1) a canister-based system that utilizes an inner steel canister that contains the SNF that is then surrounded by three feet or more of steel and concrete; and (2) a "bolted cask system" that does not have an inner canister but instead encases the SNF in "thick steel shells, sometimes with several inches of radiation shielding inside." NRC Spent Fuel Storage at 2. The dry casks are normally stored on site in facilities called independent spent fuel storage installations ("ISFSI"). NRC Information Digest at 68.

The NRC regulates the on-site storage of SNF in one of two ways: (1) it grants a site-specific license based on a safety review of the technical requirements and operating conditions for the specific ISFSI; or (2) it issues a general license that authorizes the licensee to store SNF in dry storage casks certified by the NRC for the storage of SNF. See id. ; see also 10 C.F.R. § 72.210 (issuing a general license for the storage of spent fuel in an ISFSI for individuals "authorized to possess or operate nuclear power reactors under" 10 C.F.R. Parts 50 or 52). The NRC regulations impose several conditions on a general licensee, including requiring the licensee to use only "casks approved under the provisions of this part" and ensuring the cask used by the licensee "conforms to the terms, conditions, and specifications of a [Certificate of Compliance] or amended [Certificate of Compliance] listed in § 72.214." 10 C.F.R. § 72.212(a)(2), (b)(3). Once the NRC approves a dry cask for the storage of SNF under the specific conditions noted in the Certificate of Compliance, it adds the approved cask system to a list of approved storage systems. See id. § 72.214 (listing approved casks for storage of SNF).

Prior to the NRC's approval of a cask for storage of SNF in a Certificate of Compliance, the agency subjects the storage system to a rigorous review process, including public scrutiny through notice-and-comment rule making. See, e.g. , id. § 72.232 (requiring the applicant for a Certificate of Compliance to: (1) allow the NRC "to inspect the premises and facilities where a spent fuel storage cask is designed, fabricated, and tested"; (2) "make available to the NRC for...