Emergencies, Terrorism and the Worst Case - Implications for Environmental Impact Statements When Things Go Wrong Presented by: Alan Waltner CLE International NEPA Conference February 23-24, 2009 (San Diego) March 5-6, 2009 (San Francisco)

NEPA on the Fringe Emergencies and how to deal with them under NEPA – NRDC v. Winter NEPA analysis in the face of uncertainty The risk of terrorism - Mothers for Peace v. NRC

Emergencies and how to deal with them under NEPA – NRDC v. Winter

NEPA analysis in the face of uncertainty

The risk of terrorism - Mothers for Peace v. NRC

What is an Emergency? NEPA lacks a specific definition of “emergency circumstances” The District Court in NRDC v. Winter relied on ordinary dictionary definitions that apply to “unexpected, suddenly arising situations that require agency action in a shorter time frame than would be required to prepare an EIS.”

NEPA lacks a specific definition of “emergency circumstances”

The District Court in NRDC v. Winter relied on ordinary dictionary definitions that apply to “unexpected, suddenly arising situations that require agency action in a shorter time frame than would be required to prepare an EIS.”

What is an Emergency? (Continued) Federal Stafford Act and California Emergency Services Act provide for a formal declaration Federal declaration appropriate where federal assistance is needed “to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe.” 42 U.S.C. 5122 State declaration to be based on the “existence of conditions of disaster or of extreme peril to the safety of persons and property . . .” Gov’t Code 8558

Federal Stafford Act and California Emergency Services Act provide for a formal declaration

Federal declaration appropriate where federal assistance is needed “to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe.” 42 U.S.C. 5122

State declaration to be based on the “existence of conditions of disaster or of extreme peril to the safety of persons and property . . .” Gov’t Code 8558

What is an Emergency? (Continued) CEQA defines an emergency as a “sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services.” Pub. Res. Code 21080(b)(4)

CEQA defines an emergency as a “sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services.” Pub. Res. Code 21080(b)(4)

Emergency Procedures under NEPA Stafford Act declaration directly exempts response actions Otherwise, special CEQ regulations apply Can be invoked when “emergency circumstances make it necessary to take an action . . . without observing the provisions of these regulations” Consultation with CEQ required to establish “alternative arrangements” The “arrangements” are limited to actions necessary to “control the immediate impacts of the emergency”

Stafford Act declaration directly exempts response actions

Otherwise, special CEQ regulations apply

Can be invoked when “emergency circumstances make it necessary to take an action . . . without observing the provisions of these regulations”

Consultation with CEQ required to establish “alternative arrangements”

The “arrangements” are limited to actions necessary to “control the immediate impacts of the emergency”

The CEQ Emergency Regulation “Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.”

“Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.”

Cases Upholding Application of NEPA Emergency Procedures Valley Citizens v. Vest (1991) – No supplemental EIS needed to support round the clock flights to supply Operation Desert Storm Nat’l Audubon v. Hester (1986) – Deference given where immediate action was necessary to prevent extinction of the California condor Crosby v. Young (1981) – Immediate response required for a city to meet a federal funding deadline for a project counteracting economic effects of the closure of a General Motors plant

Valley Citizens v. Vest (1991) – No supplemental EIS needed to support round the clock flights to supply Operation Desert Storm

Nat’l Audubon v. Hester (1986) – Deference given where immediate action was necessary to prevent extinction of the California condor

Crosby v. Young (1981) – Immediate response required for a city to meet a federal funding deadline for a project counteracting economic effects of the closure of a General Motors plant

NRDC v. Winter Addressed Navy exercises offshore Southern California using mid-frequency sonar, with effects on marine mammals The Navy was proceeding with the exercises based on an environmental assessment NRDC filed its NEPA action on March 22, 2007 The District Court issued a blanket injunction against the exercises on August 7, 2007 The Ninth Circuit directed the District Court to issue a revised injunction based on mitigation in November

Addressed Navy exercises offshore Southern California using mid-frequency sonar, with effects on marine mammals

The Navy was proceeding with the exercises based on an environmental assessment

NRDC filed its NEPA action on March 22, 2007

The District Court issued a blanket injunction against the exercises on August 7, 2007

The Ninth Circuit directed the District Court to issue a revised injunction based on mitigation in November

NRDC v. Winter (continued) The District Court issued a revised preliminary injunction based on mitigation measures on January 3, 2008, and modified it on January 10, 2008 The Navy, unsatisfied with the mitigation measures, sought and obtained the approval of “alternative arrangements” from CEQ on January 15 allowing the exercises to continue while an EIS was being prepared CEQ’s action was based upon claimed “emergency circumstances” resulting from the Navy’s inability to proceed with the exercises

The District Court issued a revised preliminary injunction based on mitigation measures on January 3, 2008, and modified it on January 10, 2008

The Navy, unsatisfied with the mitigation measures, sought and obtained the approval of “alternative arrangements” from CEQ on January 15 allowing the exercises to continue while an EIS was being prepared

CEQ’s action was based upon claimed “emergency circumstances” resulting from the Navy’s inability to proceed with the exercises

NRDC v. Winter (continued) The Ninth Circuit issued a decision on February 29, 2008, upholding the District Court’s injunction The Court found that no emergency under the CEQ regulation was presented The Court interpreted the CEQA regulation based on the “plain meaning” of an “emergency” -- Suddenly arising Unexpected Creating exigent circumstances Demanding immediate action The Ninth Circuit did not give deference to CEQ’s interpretation

The Ninth Circuit issued a decision on February 29, 2008, upholding the District Court’s injunction

The Court found that no emergency under the CEQ regulation was presented

The Court interpreted the CEQA regulation based on the “plain meaning” of an “emergency” --

Suddenly arising

Unexpected

Creating exigent circumstances

Demanding immediate action

The Ninth Circuit did not give deference to CEQ’s interpretation

Factors Leading to Lack of an Emergency The Navy had known of its obligation to prepare an EIS for nearly a year Sufficient time had existed for the Navy to prepare an EIS A setback in litigation cannot be considered unexpected, and therefore does not create an emergency The Ninth Circuit accepted the District Court’s conclusion that “emergency circumstances” under the CEQ regulation refer to “unexpected, suddenly arising situations that require agency action in a shorter time frame than would be required to prepare an EIS.”

The Navy had known of its obligation to prepare an EIS for nearly a year

Sufficient time had existed for the Navy to prepare an EIS

A setback in litigation cannot be considered unexpected, and therefore does not create an emergency

The Ninth Circuit accepted the District Court’s conclusion that “emergency circumstances” under the CEQ regulation refer to “unexpected, suddenly arising situations that require agency action in a shorter time frame than would be required to prepare an EIS.”

The November 2008 Supreme Court Decision Reversed the Ninth Circuit regarding the issuance of the injunction Nominally did not address the merits Implicitly assumed that an EIS was necessary and that no emergency was presented Left the Ninth Circuit decision intact regarding the application of emergency procedures

Reversed the Ninth Circuit regarding the issuance of the injunction

Nominally did not address the merits

Implicitly assumed that an EIS was necessary and that no emergency was presented

Left the Ninth Circuit decision intact regarding the application of emergency procedures

Emergency Declarations and Disaster Area Designations Stafford Act - actions “restoring a facility substantially to its condition prior to the disaster or emergency” are not a major federal action under NEPA (42 USC 5159) Endangered Species Act Section 7(p) contains a similar exception from the Section 7 consultation process in “disaster areas” Other statutes (TSCA, CZMA, ESA, CWA, etc) allow the President to exempt activities with “paramount” national security concerns

Stafford Act - actions “restoring a facility substantially to its condition prior to the disaster or emergency” are not a major federal action under NEPA (42 USC 5159)

Endangered Species Act Section 7(p) contains a similar exception from the Section 7 consultation process in “disaster areas”

Other statutes (TSCA, CZMA, ESA, CWA, etc) allow the President to exempt activities with “paramount” national security concerns

Emergency Wetland Permits (33 C.F.R. 325.2(e)(4)) An ‘emergency’ is a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship Expedited procedures can be adopted by the division engineer tailored to the situation and the amount of time available Regional General Permits available in certain districts

An ‘emergency’ is a situation which would result in

an unacceptable hazard to life,

a significant loss of property,

or an immediate, unforeseen, and significant economic hardship

Expedited procedures can be adopted by the division engineer tailored to the situation and the amount of time available

Regional General Permits available in certain districts

Emergency ESA Section 7 Consultation Procedures Apply to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc. Consultation may be conducted informally through alternative procedures consistent with the requirements of ESA sections 7(a)-(d) Formal consultation must be initiated as soon as practicable after the emergency is under control

Apply to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.

Consultation may be conducted informally through alternative procedures consistent with the requirements of ESA sections 7(a)-(d)

Formal consultation must be initiated as soon as practicable after the emergency is under control

Terrorism Under NEPA

Projects with an Uncertain Terrorist Risk Nuclear Power Plants Ports Bridges Rail transportation Pipelines and powerlines Refineries and chemical plants Stadiums and other places of public assembly

Nuclear Power Plants

Ports

Bridges

Rail transportation

Pipelines and powerlines

Refineries and chemical plants

Stadiums and other places of public assembly

Other Uncertain Risks Global warming Sea level rise Changes in water supply Seismic risks Risks of biotechnology and nanotechnology Facility failures (i.e. bridge collapse)

Global warming

Sea level rise

Changes in water supply

Seismic risks

Risks of biotechnology and nanotechnology

Facility failures (i.e. bridge collapse)

Approaches to Uncertainty Undertake a worst case analysis Develop additional information and present what you know Speculate Ignore the issue Cost vs. benefit of additional information

Undertake a worst case analysis

Develop additional information and present what you know

Speculate

Ignore the issue

Cost vs. benefit of additional information

Early Litigation Scientists’ Institute for Public Information v. Atomic Energy Commission (1973) - reasonable forecasting required State of Alaska v. Andrus (1978) - approval does not need to be delayed to develop definitive information No bright lines were drawn, although cases generally required a reasonable level of additional inquiry, and declined to excuse ignoring key issues on the basis of uncertainty

Scientists’ Institute for Public Information v. Atomic Energy Commission (1973) - reasonable forecasting required

State of Alaska v. Andrus (1978) - approval does not need to be delayed to develop definitive information

No bright lines were drawn, although cases generally required a reasonable level of additional inquiry, and declined to excuse ignoring key issues on the basis of uncertainty

1978-1986 - CEQ’s Worst Case Regulation Worst case analysis required in an EIS if information relevant to the agency’s decision is not known and cannot reasonably be obtained In that case, “the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence.” Example - total cargo loss by a supertanker (Sierra Club v. Sigler - 1983)

Worst case analysis required in an EIS if information relevant to the agency’s decision is not known and cannot reasonably be obtained

In that case, “the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence.”

Example - total cargo loss by a supertanker (Sierra Club v. Sigler - 1983)

1986 - Revocation and Replacement of the Worst Case Regulation If information relevant to reasonably foreseeable significant impacts is essential to a reasoned choice among alternatives, and it is either unavailable or exorbitant, agency must: State that information is incomplete or unavailable State the relevance of the information Summarize the credible scientific evidence Evaluate the impacts “based upon theoretical approaches or research methods generally accepted in the scientific community.”

If information relevant to reasonably foreseeable significant impacts is essential to a reasoned choice among alternatives, and it is either unavailable or exorbitant, agency must:

State that information is incomplete or unavailable

State the relevance of the information

Summarize the credible scientific evidence

Evaluate the impacts “based upon theoretical approaches or research methods generally accepted in the scientific community.”

Key Elements of the Current Regulation Generally applies a “rule of reason” and does not mandate a worst case analysis in every situation Analysis of “low probability, high impact” events still required “if the analysis of the impact is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason”

Generally applies a “rule of reason” and does not mandate a worst case analysis in every situation

Analysis of “low probability, high impact” events still required “if the analysis of the impact is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason”

Metropolitan Edison v. People Against Nuclear Power (1983) Does NEPA require an evaluation of the psychological effects from the risk of a nuclear accident?

Does NEPA require an evaluation of the psychological effects from the risk of a nuclear accident?

Key Elements of the Metropolitan Edison Decision Psychological effects may be covered by NEPA Those effects were “indirect” and did not need to be covered in an EIS given the lack of a “reasonably close causal relationship” between the action and the effect The element of risk and its perception by the public was a key middle link in the causal chain The Court applied tort theory of proximate cause by analogy Was expressly limited to the impacts of the risk itself, in contrast to the impacts if the risk were realized

Psychological effects may be covered by NEPA

Those effects were “indirect” and did not need to be covered in an EIS given the lack of a “reasonably close causal relationship” between the action and the effect

The element of risk and its perception by the public was a key middle link in the causal chain

The Court applied tort theory of proximate cause by analogy

Was expressly limited to the impacts of the risk itself, in contrast to the impacts if the risk were realized

PG&E’s Interim Spent Fuel Storage Installation

Mothers for Peace v. NRC (2006) NRC relied on an environmental assessment to conclude that the construction, operation and decommissioning of the ISFSI will not result in a significant impact on the environment The NRC had concluded categorically that NEPA does not require consideration of the effects of potential terrorist attacks In parallel, NRC included consideration of terrorism in its facility safety review process and programmatic anti-terrorism efforts

NRC relied on an environmental assessment to conclude that the construction, operation and decommissioning of the ISFSI will not result in a significant impact on the environment

The NRC had concluded categorically that NEPA does not require consideration of the effects of potential terrorist attacks

In parallel, NRC included consideration of terrorism in its facility safety review process and programmatic anti-terrorism efforts

NRC’s Key Arguments Under the Metropolitan Edison standard, the possibility of a terrorist attack lacks a reasonably close causal relationship to the NRC’s action Since the risk of a terrorist attack cannot be determined quantitatively, analyzing that risk would be meaningless NEPA does not require a “worst case” analysis NEPA’s public process is not an appropriate forum for sensitive security issues

Under the Metropolitan Edison standard, the possibility of a terrorist attack lacks a reasonably close causal relationship to the NRC’s action

Since the risk of a terrorist attack cannot be determined quantitatively, analyzing that risk would be meaningless

NEPA does not require a “worst case” analysis

NEPA’s public process is not an appropriate forum for sensitive security issues

Failure to Apply the Metropolitan Edison “causal relationship” Standard 9th Circuit held Metropolitan Edison inapplicable because it addressed a “different link” in the causal chain The major Federal action A change in the physical environment An effect Distinction was artificial and illogical since risk or uncertainty can apply to any “link”

9th Circuit held Metropolitan Edison inapplicable because it addressed a “different link” in the causal chain

The major Federal action

A change in the physical environment

An effect

Distinction was artificial and illogical since risk or uncertainty can apply to any “link”

Conflicts with Ninth Circuit Precedent NoGWEN v Aldridge (1988) - addressed the relationship between the establishment of a military communication system and the effects of a nuclear war, concluding that the connection is too attenuated to trigger a NEPA requirement to analyze the effects Ground Zero Center v. Navy (2004) – Navy’s conclusion that Trident missile loading operations present minimal accident risks accepted as the basis for excluding consideration of those risks in an EA

NoGWEN v Aldridge (1988) - addressed the relationship between the establishment of a military communication system and the effects of a nuclear war, concluding that the connection is too attenuated to trigger a NEPA requirement to analyze the effects

Ground Zero Center v. Navy (2004) – Navy’s conclusion that Trident missile loading operations present minimal accident risks accepted as the basis for excluding consideration of those risks in an EA

Conflicts with Decisions in Other Circuits New York v. US Dept of Transportation (2d Cir. 1982) - risks of sabotage need not be considered in selection of nuclear material transportation routes Limerick Ecology Action v. NRC (3d Cir. 1989) - same result re sabotage of nuclear power plant Mid States Coalition for Progress v. Surface Transportation Board (8th Cir. 2003) - terrorist threat to rail transportation system need not be evaluated since the threat is general in nature and not specific to any project

New York v. US Dept of Transportation (2d Cir. 1982) - risks of sabotage need not be considered in selection of nuclear material transportation routes

Limerick Ecology Action v. NRC (3d Cir. 1989) - same result re sabotage of nuclear power plant

Mid States Coalition for Progress v. Surface Transportation Board (8th Cir. 2003) - terrorist threat to rail transportation system need not be evaluated since the threat is general in nature and not specific to any project

Mothers for Peace is Much Easier to Square with the CEQ Regulations CEQ Standard: If information relevant to reasonably foreseeable significant impacts is essential to a reasoned choice among alternatives, and it is either unavailable or exorbitant, agency must: State that information is incomplete or unavailable State the relevance of the information Summarize the credible scientific evidence Evaluate the impacts “based upon theoretical approaches or research methods generally accepted in the scientific community.”

CEQ Standard:

If information relevant to reasonably foreseeable significant impacts is essential to a reasoned choice among alternatives, and it is either unavailable or exorbitant, agency must:

State that information is incomplete or unavailable

State the relevance of the information

Summarize the credible scientific evidence

Evaluate the impacts “based upon theoretical approaches or research methods generally accepted in the scientific community.”

Inability to Provide a Meaningful Analysis “The numeric probability of a specific attack is not required” in order to provide a meaningful analysis “If the risk of a terrorist attack is not insignificant, then NEPA obligates the NRC to take a ‘hard look’ at the environmental consequences of that risk”

“The numeric probability of a specific attack is not required” in order to provide a meaningful analysis

“If the risk of a terrorist attack is not insignificant, then NEPA obligates the NRC to take a ‘hard look’ at the environmental consequences of that risk”

A Worst Case Analysis is not Required NRC attempted to portray the evaluation of a terrorist attack as a “worst case” analysis The Court found that all that was being requested was “an analysis of the range of environmental impacts likely to result in the event of a terrorist attack” and not a “worst case” scenario

NRC attempted to portray the evaluation of a terrorist attack as a “worst case” analysis

The Court found that all that was being requested was “an analysis of the range of environmental impacts likely to result in the event of a terrorist attack” and not a “worst case” scenario

Risks of Addressing the Issue in a Public Forum Given the option of a confidential, non-public EIS, security interests do not avoid the need to undertake an EIS “ There is no ‘national defense’ exception to NEPA” (cited in NRDC v. Winter) Recent attention being paid to the policy consideration that non-public NEPA documents undermine the public information purposes of NEPA Confidentiality also impedes judicial review

Given the option of a confidential, non-public EIS, security interests do not avoid the need to undertake an EIS

“ There is no ‘national defense’ exception to NEPA” (cited in NRDC v. Winter)

Recent attention being paid to the policy consideration that non-public NEPA documents undermine the public information purposes of NEPA

Confidentiality also impedes judicial review

Conclusion Mothers for Peace arguably is the right result under the CEQ regulations, but the wrong result under Metropolitan Edison Given the denial of certiorari, Metropolitan Edison now appears to be even more clearly limited to its facts Broader reliance on tort law analogies could be risky The plain language of the CEQ regulations should control

Mothers for Peace arguably is the right result under the CEQ regulations, but the wrong result under Metropolitan Edison

Given the denial of certiorari, Metropolitan Edison now appears to be even more clearly limited to its facts

Broader reliance on tort law analogies could be risky

The plain language of the CEQ regulations should control

Subsequent Developments Tri-Valley Cares v. DOE (9 th Cir. 2006) – unpublished decision applied Mothers for Peace to require terrorism analysis in EA for biological weapons research laboratory near San Francisco February, 2007 - NRC decides not to evaluate terrorist risks outside of the Ninth Circuit (In re Amergen Energy Company) NEPA/terrorism issue currently pending before the DC Circuit in Private Fuel Storage appeal No other cases citing the decision on the NEPA/terrorism question

Tri-Valley Cares v. DOE (9 th Cir. 2006) – unpublished decision applied Mothers for Peace to require terrorism analysis in EA for biological weapons research laboratory near San Francisco

February, 2007 - NRC decides not to evaluate terrorist risks outside of the Ninth Circuit (In re Amergen Energy Company)

NEPA/terrorism issue currently pending before the DC Circuit in Private Fuel Storage appeal

No other cases citing the decision on the NEPA/terrorism question

Subsequent Developments (Continued) August, 2007 – NRC issues a brief EA supplement in response to the Court’s decision in MFP October, 2008 – NRC (with one dissent) rejects challenges brought by MFP against the EA No reference made to Metropolitan Edison Continued to assert that the probability of an attack is low, but addressed the risk qualitatively Added analysis showing that potential effects would be low in the event of a successful attack under “plausible” scenarios Failed to analyze land contamination impacts

August, 2007 – NRC issues a brief EA supplement in response to the Court’s decision in MFP

October, 2008 – NRC (with one dissent) rejects challenges brought by MFP against the EA

No reference made to Metropolitan Edison

Continued to assert that the probability of an attack is low, but addressed the risk qualitatively

Added analysis showing that potential effects would be low in the event of a successful attack under “plausible” scenarios

Failed to analyze land contamination impacts

Subsequent Developments (Continued) December, 2008 – Mothers for Peace petitions for review in the Ninth Circuit, contending that - an EIS was required, and a closed hearing should have been held on whether the environmental impacts of terrorist attacks should have been analyzed in an EIS An injunction against fuel loading may be sought

December, 2008 – Mothers for Peace petitions for review in the Ninth Circuit, contending that -

an EIS was required, and

a closed hearing should have been held on whether the environmental impacts of terrorist attacks should have been analyzed in an EIS

An injunction against fuel loading may be sought

Treatment of Risk Under CEQA CEQA requires consideration of “reasonably foreseeable” consequences of a project Speculative effects need not be evaluated Reasonable attempts to forecast impacts required based on available methods The Ninth Circuit’s decision in Mothers for Peace could now be used to argue that the risks of a terrorist attack are sufficiently foreseeable to require analysis

CEQA requires consideration of “reasonably foreseeable” consequences of a project

Speculative effects need not be evaluated

Reasonable attempts to forecast impacts required based on available methods

The Ninth Circuit’s decision in Mothers for Peace could now be used to argue that the risks of a terrorist attack are sufficiently foreseeable to require analysis

Conclusions An extensive regulatory “safety net” has been established for emergencies but the Courts may second guess the agencies Causation analysis under Metropolitan Edison may have limited application CEQ regulations and the “rule of reason” likely will govern Terrorism and other “low probability, high impact” scenarios should be considered carefully

An extensive regulatory “safety net” has been established for emergencies but the Courts may second guess the agencies

Causation analysis under Metropolitan Edison may have limited application

CEQ regulations and the “rule of reason” likely will govern

Terrorism and other “low probability, high impact” scenarios should be considered carefully

Alan Waltner Law Offices of Alan Waltner 415-641-4641 [email_address] www.waltnerlaw.com