State of S.C. ex rel. Beasley v. O'Leary
| Decision Date | 30 December 1996 |
| Docket Number | No. 3:96-2264-17.,3:96-2264-17. |
| Citation | 953 F.Supp. 699 |
| Parties | STATE OF SOUTH CAROLINA ex rel., David M. BEASLEY, Governor of South Carolina, Plaintiff, v. Hazel R. O'LEARY, Secretary of Energy, and the United States Department of Energy, Defendants, and Austrian Research Seibersdorf, BR2 Nuclear Reactor of Belgium Hahn-Meitner Institut of Berlin, GDSS Forschungszentrum of Germany, McMaster University Nuclear of Canada, Paul Scherrer Institut of Switzerland, and Risoe National Laboratory of Denmark, Defendant-Intervenors. |
| Court | South Carolina Supreme Court |
Charles Molony Condon, Attorney General of South Carolina, Treva G. Ashworth, Kenneth Paul Woodington, Christie Newman Barrett, Columbia, SC, for plaintiff.
Raymond E. Clark, Assistant United States Attorney, Columbia, SC, Wells D. Burgess, Beverly Sherman Nash, U.S. Department of Justice, Environment and Natural Resources Division, Janine M. Sweeney, U.S. Department of Energy, Washington, DC, William Patrick Donelan, Jr., Howard A. VanDine, III, James Cranston Gray, Jr., Nelson, Mullins, Riley & Scarborough, Columbia, SC, Joseh R. Egan, John W. Lawrence, Egan & Associates, P.C., Washington, DC, Ralph E. Tupper, Davis, Tupper, Grimsley & Seelhoff, L.L.P., Ladson F. Howell, Howell, Gibson and Hughes, P.A., Beaufort, SC, for defendants.
The State of South Carolina brought this action on July 29, 1996 alleging that an Environmental Impact Statement ("EIS") prepared by the Department of Energy does not meet the requirements of the National Environmental Policy Act ("NEPA"). 42 U.S.C. §§ 4321-4361. The disputed EIS addresses shipments of foreign spent nuclear fuel to the Savannah River Site. The State seeks an order requiring the preparation and circulation of a supplemental EIS and an injunction against deposit of spent fuel into the Savannah River Plant's L-Reactor Disassembly Basin until the supplemental EIS is completed.
This matter is presently before the court on Cross Motions for Summary Judgment by all parties.1 The court heard oral argument on the motions on December 18, 1996 and took the motions under advisement. The court's judgement is explained herein.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987).
The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
The National Environmental Policy Act, as suggested by its title, is a Congressional declaration of a policy of environmental awareness. 42 U.S.C. § 4331 et seq. The Act requires agencies to evaluate and consider effects on the environment prior to undertaking any major federal action. NEPA recognizes that many factors are important in any decision making process, but demands that the environment be included as one of those many factors. See Calvert Cliffs' Coordinating Committee, Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109 (D.C.Cir.1971).
Because of the procedural nature of NEPA, the judiciary's role is limited to making two determinations. The court may review whether an agency considered the relevant environmental consequences of its actions, and the court may consider if the agency's decisions were arbitrary and capricious. When all significant environmental consequences have been considered by an agency, the court has no choice but to find that the agency's action complies with NEPA's procedural requirements. See Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir.1982). NEPA does not require that "environmentally friendly" results be reached in the decision making process; it only requires that agencies take a "hard look" at the environmental consequences before undertaking a major action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 1845-47, 104 L.Ed.2d 351 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). A court must "ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas & Elec. v. Natural Resources Defense Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252-53, 76 L.Ed.2d 437 (1983).2
As stated above, NEPA is a statutory declaration of the policy of the United States. That policy is "to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony." 42 U.S.C. § 4331(a). The court cannot enforce a declaration of policy, that is for the Legislative and Executive branches alone, but it should keep that policy in mind when construing the requirements of NEPA.
It is now well recognized that NEPA has two main goals. First, NEPA is an attempt to force agencies to consider environmental consequences when making decisions. Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. at 2252-53. Second, NEPA is an attempt to ensure that relevant information is available to members of the public.
Agencies comply with NEPA by formulating an Environmental Impact Statement (EIS). 42 U.S.C. § 4332. The purpose of this statement is to "serve as an action-forcing device to insure that the policies and goals defined in the Act" are met by agencies. 40 C.F.R. § 1502.1 (1996). The EIS must "provide full and fair discussion of significant environmental impacts and shall inform the decision makers and the public of reasonable alternatives." Id. To serve this purpose, the EIS should be "concise, clear, and to the point." Id.
A major thrust of the regulations dealing with Environmental Impact Statements has been to reduce paperwork and the accumulation of extraneous background data in the statements. Id. For example, regulations require that usually the main body of an EIS must be less than 150 pages, and proposals of unusual scope or complexity must be less than 300 pages. 40 C.F.R. § 1502.7 (1996). The regulations also allow incorporation of material by reference, but only when the effect is not to impede public review of the action. 40 C.F.R. § 1502.21 (1996).
The developments leading up to the present controversy stretch back over several decades. In the 1950's, the United States began what was known as the "Atoms for Peace" program. As part of this program, the United States provided nuclear technology to foreign nations for peaceful applications, in exchange for their promises to forego development of nuclear weapons. A key part of this program was the provision, by the United States, of highly enriched uranium used to fuel research reactors in other countries. The United States also agreed to receive spent fuel after it had been completely used in foreign reactors. This part of the program has sometimes been referred to as the "take back" provision.
In the past, the used fuel elements were transported to the United States, where they were reprocessed to extract the uranium still remaining in the spent fuel. In this way, the United States was able to maintain control over disposition of the enriched uranium that it had provided to other nations. The United States was thus able to keep the spent fuel from being used for illicit purposes.
In 1978, DOE initiated the "Reduced Enrichment for Research and Test Reactors" program in an attempt to further reduce the dangers of nuclear weapons proliferation. Pursuant to this program, the United States has sought to stop foreign nuclear research reactors from using highly enriched uranium, which may readily be used in the construction of nuclear weapons. Instead, the United States began advocating the use, by foreign countries, of low enriched uranium. The ultimate goal of this program is to eliminate the use of highly enriched uranium in civilian programs altogether.
The participation of foreign governments and reactor operators in this program has been based in part on mutual expectations that the United States would continue to accept foreign spent fuel for disposition. The United States accepted highly enriched foreign spent fuel until 1988, and low enriched fuel until 1992. However, the United States has not accepted foreign spent fuel for several years now, with the exception of limited shipments sent to the Savannah River Site as allowed by South Carolina v. O'Leary, 64 F.3d 892 (4th Cir.1995). Therefore, in the recent past, nuclear reactors overseas have retained spent fuel elements at their sites.
In July of 1993, Secretary of Energy Hazel O'Leary announced an intention to resume the take-back program as soon as feasible. (O'Leary letter of 7/13/93, State's Ex. 3). The Department of Energy has since then been in the process of developing a plan to begin receiving shipments of this spent fuel once again. That planning, and the decision ultimately reached in the plan, resulted in the present litigation.
Also in 1993, a United States District Court forced the Department of Energy to reevaluate its policy in regards to storing spent nuclear fuel in an Idaho storage facility. See Public Service Co. of Colorado v. Andrus, 825 F.Supp. 1483 (D.Idaho 1993). In 1995 under the shadow of this court...
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...decision." 40 C.F.R. § 1502.2(f). There is little case law discussing these requirements. In the case of South Carolina v. O'Leary, 953 F.Supp. 699, 707 n. 5 (D.S.C.1996), a district court in South Carolina held that evidence of some commitment of resources as to a South Carolina site for t......