Emergencies, Terrorism and the Worst
Case - Implications for Environmental
Impact Statements
When Things Go Wrong
Presente...
NEPA on the Fringe
• Emergencies and how to deal with them under
NEPA – NRDC v. Winter
• NEPA analysis in the face of unce...
What is an Emergency?
• NEPA lacks a specific definition of
“emergency circumstances”
• The District Court in NRDC v. Wint...
What is an Emergency? (Continued)
• Federal Stafford Act and California Emergency
Services Act provide for a formal declar...
What is an Emergency? (Continued)
• CEQA defines an emergency as a “sudden,
unexpected occurrence, involving a clear and
i...
Emergency Procedures under NEPA
• Stafford Act declaration directly exempts
response actions
• Otherwise, special CEQ regu...
The CEQ Emergency Regulation
“Where emergency circumstances make it necessary
to take an action with significant environme...
Cases Upholding Application of NEPA
Emergency Procedures
• Valley Citizens v. Vest (1991) – No supplemental
EIS needed to ...
NRDC v. Winter
• Addressed Navy exercises offshore Southern
California using mid-frequency sonar, with
effects on marine m...
NRDC v. Winter (continued)
• The District Court issued a revised preliminary
injunction based on mitigation measures on Ja...
NRDC v. Winter (continued)
• The Ninth Circuit issued a decision on February 29, 2008,
upholding the District Court’s inju...
Factors Leading to Lack of an Emergency
• The Navy had known of its obligation to prepare an EIS
for nearly a year
• Suffi...
The November 2008 Supreme Court
Decision
• Reversed the Ninth Circuit regarding the issuance
of the injunction
• Nominally...
Emergency Declarations and Disaster
Area Designations
• Stafford Act - actions “restoring a facility
substantially to its ...
Emergency Wetland Permits (33
C.F.R. 325.2(e)(4))
• An ‘emergency’ is a situation which would result
in
• an unacceptable ...
Emergency ESA Section 7
Consultation Procedures
• Apply to situations involving acts of God,
disasters, casualties, nation...
Terrorism Under NEPA
Projects with an Uncertain Terrorist
Risk
• Nuclear Power Plants
• Ports
• Bridges
• Rail transportation
• Pipelines and p...
Other Uncertain Risks
• Global warming
• Sea level rise
• Changes in water supply
• Seismic risks
• Risks of biotechnology...
Approaches to Uncertainty
• Undertake a worst case analysis
• Develop additional information and present what
you know
• S...
Early Litigation
• Scientists’ Institute for Public Information v.
Atomic Energy Commission (1973) - reasonable
forecastin...
1978-1986 - CEQ’s Worst Case
Regulation
• Worst case analysis required in an EIS if information
relevant to the agency’s d...
1986 - Revocation and Replacement of
the Worst Case Regulation
• If information relevant to reasonably foreseeable
signifi...
Key Elements of the Current
Regulation
• Generally applies a “rule of reason” and does not
mandate a worst case analysis i...
Metropolitan Edison v. People Against
Nuclear Power (1983)
• Does NEPA require an evaluation of the
psychological effects ...
Key Elements of the Metropolitan
Edison Decision
• Psychological effects may be covered by NEPA
• Those effects were “indi...
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 a...
NRC’s Key Arguments
• Under the Metropolitan Edison standard, the
possibility of a terrorist attack lacks a reasonably
clo...
Failure to Apply the Metropolitan
Edison “causal relationship” Standard
• 9th Circuit held Metropolitan Edison inapplicabl...
Conflicts with Ninth Circuit Precedent
• NoGWEN v Aldridge (1988) - addressed the
relationship between the establishment o...
Conflicts with Decisions in Other
Circuits
• New York v. US Dept of Transportation (2d Cir.
1982) - risks of sabotage need...
Mothers for Peace is Much Easier to
Square with the CEQ Regulations
CEQ Standard:
• If information relevant to reasonably ...
Inability to Provide a Meaningful
Analysis
• “The numeric probability of a specific attack is
not required” in order to pr...
A Worst Case Analysis is not
Required
• NRC attempted to portray the evaluation of a
terrorist attack as a “worst case” an...
Risks of Addressing the Issue in a
Public Forum
• Given the option of a confidential, non-public EIS,
security interests d...
Conclusion
• Mothers for Peace arguably is the right result
under the CEQ regulations, but the wrong result
under Metropol...
Subsequent Developments
• Tri-Valley Cares v. DOE (9th
Cir. 2006) –
unpublished decision applied Mothers for Peace
to requ...
Subsequent Developments (Continued)
• August, 2007 – NRC issues a brief EA supplement in
response to the Court’s decision ...
Subsequent Developments (Continued)
• December, 2008 – Mothers for Peace petitions for
review in the Ninth Circuit, conten...
Treatment of Risk Under CEQA
• CEQA requires consideration of “reasonably
foreseeable” consequences of a project
• Specula...
Conclusions
• An extensive regulatory “safety net” has been
established for emergencies but the Courts may
second guess th...
Alan Waltner
Law Offices of Alan Waltner
415-641-4641
waltnerlaw@gmail.com
www.waltnerlaw.com
CLE International NEPA Conference Presentation 2009   Alan Waltner
CLE International NEPA Conference Presentation 2009   Alan Waltner
CLE International NEPA Conference Presentation 2009   Alan Waltner
CLE International NEPA Conference Presentation 2009   Alan Waltner
CLE International NEPA Conference Presentation 2009   Alan Waltner
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Conference presentation on the use of emergency procedures and consideration of terrorism under NEPA

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  • CLE International NEPA Conference Presentation 2009 Alan Waltner

    1. 1. 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)
    2. 2. 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
    3. 3. 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.”
    4. 4. 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
    5. 5. 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)
    6. 6. 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”
    7. 7. 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.”
    8. 8. 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
    9. 9. 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
    10. 10. 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
    11. 11. 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
    12. 12. 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.”
    13. 13. 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
    14. 14. 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
    15. 15. 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
    16. 16. 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
    17. 17. Terrorism Under NEPA
    18. 18. 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
    19. 19. 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)
    20. 20. 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
    21. 21. 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
    22. 22. 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)
    23. 23. 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.”
    24. 24. 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”
    25. 25. Metropolitan Edison v. People Against Nuclear Power (1983) • Does NEPA require an evaluation of the psychological effects from the risk of a nuclear accident?
    26. 26. 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
    27. 27. PG&E’s Interim Spent Fuel Storage Installation
    28. 28. 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
    29. 29. 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
    30. 30. 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”
    31. 31. 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
    32. 32. 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
    33. 33. 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.”
    34. 34. 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”
    35. 35. 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
    36. 36. 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
    37. 37. 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
    38. 38. Subsequent Developments • Tri-Valley Cares v. DOE (9th 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
    39. 39. 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
    40. 40. 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
    41. 41. 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
    42. 42. 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
    43. 43. Alan Waltner Law Offices of Alan Waltner 415-641-4641 waltnerlaw@gmail.com www.waltnerlaw.com

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