State of S.C. ex rel. Campbell v. O'Leary
| Decision Date | 22 August 1995 |
| Docket Number | HAHN-MEITNER,Nos. 95-1182,95-1183,s. 95-1182 |
| Parties | Nuclear Reg. Rep. P 20,570, 41 ERC 1849, 26 Envtl. L. Rep. 20,246 STATE of SOUTH CAROLINA, ex rel.; Carroll A. CAMPBELL, Jr., Governor of South Carolina; T. Travis Medlock, Attorney General of South Carolina; Barbara G. Campbell; Janine Graham; Edlis Hunt; Geneva Lucas; Alice Seals; the Center for Community Action; Blue Ridge Environmental Defense League, Incorporated; the Conservation Council of North Carolina, Incorporated, Plaintiffs-Appellees, v. Hazel O'LEARY, Secretary of Energy; United States Department of Energy, Defendants-Appellants, and Hahn-Meitner Institut Berlin; Paul Scherrer Institute of Switzerland; Austrian Research Centre Siebersdorf; Risoe National Laboratory of Denmark; SKB Swedish Nuclear Fuel & Waste Management Company; Delft University of Technology in the Netherlands, Defendants. STATE of SOUTH CAROLINA, ex rel.: Carroll A. CAMPBELL, Jr., Governor of South Carolina; T. Travis Medlock, Attorney General of South Carolina; Barbara G. Campbell; Janine Graham; Edlis Hunt; Geneva Lucas; Alice Seals; the Center for Community Action; Blue Ridge Environmental Defense League, Incorporated; the Conservation Council of North Carolina, Incorporated, Plaintiffs-Appellees, v.INSTITUT BERLIN; Paul Scherrer Institute of Switzerland, Defendants-Appellants, and Hazel O'Leary, Secretary of Energy; United States Department of Energy; Austrian Research Centre Siebersdorf; Risoe National Laboratory of Denmark; SKB Swedish Nuclear Fuel & Waste Management Company; Delft University of Technology in the Netherlands, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice, Washington, DC; Joseph Richard Egan, Egan & Associates, P.C., Washington, DC, for appellants. Kenneth Paul Woodington, Assistant Attorney General, Columbia, SC; John David Runkle, Chapel Hill, NC, for appellees. ON BRIEF: Peter R. Steenland, Jr., Charles W. Findlay, Edward J. Shawaker, Environment & Natural Resources Division, United States Department of Justice, Washington, DC; Mark Johnston, Deputy General Counsel, United States Department of Energy, Washington, DC; John W. Lawrence, Egan & Associates, P.C., Washington, DC; James C. Gray, Jr., Howard A. VanDine, III, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, SC, for appellants. Charles Molony Condon, Attorney General, Cameron B. Littlejohn, Jr., Assistant Attorney General, Columbia, SC; Henry L. Deneen, Chief Legal Counsel to the Governor, Elizabeth B. Partlow, Legal Counsel to the Governor, Columbia, SC; Melany Earnhardt, North State Legal Services, Hillsborough, NC; Dale G. Deese, Lumbee River Legal Services, Pembroke, NC, for appellees.
Before RUSSELL, HALL and NIEMEYER, Circuit Judges.
Reversed and vacated by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge HALL concurred. Judge DONALD RUSSELL wrote a separate dissenting opinion.
On January 27, 1995, the district court in South Carolina enjoined the United States from honoring its commitment, made in furtherance of its nuclear nonproliferation policy, to receive into this country and store 409 spent nuclear fuel rods from European research reactors. The United States Department of Energy planned to store the rods in existing and available storage spaces located at its Savannah River Site near Aiken, South Carolina. The district court held that even though the Department of Energy had conducted an Environmental Assessment of its action, in which it found that the action would cause no significant environmental impact, the agency still was required to prepare a full Environmental Impact Statement. The Department of Energy appealed, arguing that its Environmental Assessment was adequate and that if the district court's injunction were not vacated on an expedited basis, the United States' nonproliferation policy would be at risk.
Because the admission of these 409 spent fuel rods has become a matter of urgency for United States foreign policy, we stayed the district court's injunction pending the issuance of this opinion. After reviewing the Department of Energy's Environmental Assessment in light of applicable law, we now conclude that the agency fulfilled its responsibilities under the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq., and related statutes. Accordingly, we reverse the district court's judgment and vacate the injunction.
As an important aspect of the United States' longstanding policy for the nonproliferation of nuclear weapons, the United States has sought to convert foreign nuclear reactors from using highly-enriched uranium, which may readily be employed in the construction of nuclear weapons, to low-enriched uranium, which cannot be so employed. Adopting a formal program to encourage that conversion, known as the Reduced Enrichment for Research and Test Reactors program (the "Reduced Enrichment program"), the United States has committed to accept highly-enriched spent nuclear fuel rods from European research reactors for storage in facilities in the United States. Since the 1950s, the United States has supplied nuclear fuel to these foreign research reactors, and until 1992, it agreed to "reprocess" the spent fuel rods. The reprocessing involved a procedure by which the highly-enriched uranium was chemically separated from the spent nuclear fuel and was recycled back into research reactors as fresh fuel or, alternatively, into the United States' nuclear weapons program. With the end of the Cold War, however, the United States stopped reprocessing spent fuel rods. It also modified the policy of its Reduced Enrichment program, committing to do nothing more than permanently store spent fuel rods in domestic facilities.
Because recently enacted statutes and regulations require that the modified Reduced Enrichment program receive environmental review before the Department of Energy can officially implement the policy, foreign nuclear reactors have been forced to retain spent fuel rods at their sites. Over time, storage space for spent fuel rods at foreign reactor sites began to run out, creating the risk that that the foreign reactors would transfer their spent fuel rods to other countries for reprocessing, thus perpetuating the use of highly-enriched uranium in nuclear fuel in contravention of the United States' nonproliferation policy. A market in highly-enriched uranium would promote the fabrication of nuclear weapons.
In July 1993, Hazel O'Leary, the Secretary of Energy, announced a three-tiered proposal to establish a policy for dealing with the problem created by the Department of Energy's cessation of the receipt of foreign reactor spent fuel. Under the proposal, the Department of Energy recommended: (1) the preparation of an Environmental Impact Statement in connection with a long term plan of selecting a site and constructing a facility to receive 24,000 spent fuel rods from European research reactors; (2) the preparation of an Environmental Assessment in connection with the immediate receipt of a few hundred spent fuel rods in urgent need of shipment for storage at the Department of Energy's existing storage facility at the Savannah River Site; and (3) the declaration of an emergency situation, pursuant to 40 C.F.R. Sec. 1506.11, for reactor facilities whose situation was so urgent that they could not await completion of an Environmental Assessment.
The United States does not have the capacity to receive and store 24,000 spent nuclear fuel rods. If it were to adhere to its policy to receive this large number of rods, a site would have to be selected and a facility constructed following the preparation of a full Environmental Impact Statement. The Department of Energy's Savannah River Site, which is the only site currently available for storing spent nuclear fuel rods, had approximately 1,400 storage spaces remaining when the Department of Energy announced its plan. Accordingly, the site could be used only for the few hundred rods in urgent need of shipment.
In connection with the proposal to receive immediately those spent fuel rods in urgent need of shipment, representatives of the Department of Energy and the State Department conducted an inspection tour of European reactors. Following their tour and the preparation of a draft Environmental Assessment, the Department of Energy released a final Environmental Assessment in April 1994, determining that 409 spent fuel rods were in urgent need of shipment and that there would be no significant environmental impact if these rods were shipped to the Savannah River Site. The Department thus committed to receiving 409 spent fuel rods from eight research reactors located in Austria, Denmark, the Netherlands, Sweden, Germany, Switzerland, and Greece.
In the fall of 1994, pursuant to that Environmental Assessment, the Department of Energy received the first shipment of 153 of the 409 spent fuel rods and stored them at the Savannah River Site. Because 99 rods originally scheduled for delivery as part of the 409 were later found not to meet the requirements for urgency set out in the Environmental Assessment, only 157 of the 409 spent fuel rods in need of urgent shipment remain to be delivered. Approximately 1,150 spaces remain open at the Savannah River Site.
In September 1994, South Carolina filed this action, seeking an injunction to prohibit receipt of the 409 fuel rods. It contended that the Environmental Assessment prepared by the Department of Energy was inadequate and that a full Environmental Impact Statement was required. The district court granted a preliminary injunction barring entry into the United States of the first shipment of 153 spent fuel rods. At the time the injunction was entered, these rods were...
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