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Oglala Sioux Tribe v. U.S. Nuclear Regulatory Commission

United States Court of Appeals, District of Columbia Circuit

July 20, 2018

Oglala Sioux Tribe, Petitioner
v.
U.S. Nuclear Regulatory Commission and United States of America, Respondents Powertech (USA), Inc., Intervenor

          Argued March 20, 2018

          On Petition for Review of an Order of the United States Nuclear Regulatory Commission

          Jeffrey C. Parsons argued the cause for petitioner. With him on the briefs was Travis Stills. Roger Flynn entered an appearance.

          James E. Adler, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, U.S. Department of Justice, Eric Grant, Deputy Assistant Attorney General, Lane N. McFadden, Attorney, and Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory Commission.

          Christopher S. Pugsley argued the cause for intervenor-respondent. With him on the brief was Anthony J. Thompson.

          Before: Garland, Chief Judge, and Henderson and Griffith, Circuit Judges.

          OPINION

          GARLAND, CHIEF JUDGE

         Powertech (USA), Inc. applied to the Nuclear Regulatory Commission for a license to construct a uranium mining project in the Black Hills of South Dakota. The Oglala Sioux Tribe, which has historical ties to the proposed project area, intervened in opposition because it feared the destruction of its cultural, historical, and religious sites. The staff of the Commission granted the license.

         On administrative appeal, the Commission decided to leave the license in effect -- notwithstanding its own determination that there was a significant deficiency in its compliance with the National Environmental Policy Act -- pending further agency proceedings to remedy the deficiency. The Commission grounded this decision on the Tribe's inability to show that noncompliance with the Act would cause irreparable harm. In so doing, the Commission was following what appears to be the agency's settled practice to require such a showing.

         The National Environmental Policy Act, however, obligates every federal agency to prepare an adequate environmental impact statement before taking any major action, which includes issuing a uranium mining license. The statute does not permit an agency to act first and comply later. Nor does it permit an agency to condition performance of its obligation on a showing of irreparable harm. There is no such exception in the statute.

         In fact, such a policy puts the Tribe in a classic Catch-22. In order to require the agency to complete an adequate survey of the project site before granting a license, the Tribe must show that construction at the site would cause irreparable harm to cultural or historical resources. But without an adequate survey of the cultural and historical resources at the site, such a showing may well be impossible. Of course, if the project does go forward and such resources are damaged, the Tribe will then be able to show irreparable harm. By then, however, it will be too late.

         The Commission's decision to let the mining project proceed violates the National Environmental Policy Act. Indeed, it vitiates the requirements of the Act. We therefore find the decision contrary to law and grant the petition for review in part. The Tribe also challenges other aspects of the Commission's order but, as we explain, we lack jurisdiction to consider those rulings.

         I

         The Atomic Energy Act, 42 U.S.C. § 2011 et seq., authorizes the Nuclear Regulatory Commission (NRC) to issue licenses to qualified applicants to transfer, deliver, or receive source material from in-situ leach uranium mining (also known as ISL or ISR mining), a process used to recover underground uranium for subsequent use in nuclear power plants. 42 U.S.C. § 2092; see Va. Uranium, Inc. v. Warren, 848 F.3d 590, 596 (4th Cir. 2017). No one can conduct such activities without an NRC license. 42 U.S.C. § 2092. The Act also creates hearing rights. Anyone "whose interest may be affected by [a] proceeding" to grant a license has the right to intervene and present "contentions" challenging the license. Id. § 2239(a)(1)(A); 10 C.F.R. § 2.309(a), (f).

         The licensing process involves three relevant components of the NRC.

         The first is the Commission Staff, which is responsible for reviewing a license application, analyzing the environmental effects and other features of the proposed project, and issuing an initial decision approving or denying the application. 10 C.F.R. §§ 2.103, 51.80, 51.102.

         The second is an Atomic Safety and Licensing Board (ASLB), a panel that can be designated to preside over a licensing hearing, at which the Board hears contentions from intervenors and then issues an initial decision on those contentions. Id. §§ 2.313(a), 2.321, 2.1210. Through the Board hearing process, intervenors can challenge the agency's compliance with the National Environmental Policy Act (NEPA), which requires federal agencies to prepare a detailed Environmental Impact Statement (EIS) for any "proposed" major federal action that "significantly affect[s] the quality of the human environment," 42 U.S.C. § 4332(2)(C), including granting the kind of license at issue here, see 10 C.F.R. § 51.20(b)(8).

         Third is the Commission itself. Once the Board issues an initial decision on the contentions before it, parties can seek review from the Commission. Id. § 2.341(b). The Commission "may adopt, modify, or set aside" the Board's decision. Id. § 2.344(b).

         In 2009, Powertech applied for an NRC license authorizing it to "construct and operate" a uranium mining project, called the "Dewey-Burdock project," in the southwest corner of South Dakota. NRC, Record of Decision for the Dewey-Burdock Uranium In-Situ Recovery Project at 1 (2014) ("Record of Decision ") (J.A. 738). The NRC described the project as follows:

The proposed facility will encompass approximately . . . 10, 580 acres[, ] which consists of two contiguous mining units . . . . Powertech intends to recover uranium and produce yellowcake at the Dewey-Burdock site. Powertech's proposed activities include construction, operation, aquifer restoration, and decommissioning of its ISR facility. In addition, Powertech has proposed that liquid wastewater generated during uranium recovery be disposed of through one of the following methods: (i) deep well disposal via Class V injection wells, (ii) land application, or (iii) a combination of deep well disposal and land application.

Id. at 1-2 (J.A. 738-39).[1] The NRC's chief administrative judge established an Atomic Safety and Licensing Board to preside over Powertech's licensing proceeding.

         The petitioner here, the Oglala Sioux Tribe, intervened to challenge Powertech's application. The Tribe's Pine Ridge Reservation is located roughly fifty miles from the project site, Powertech USA, Inc., 81 N.R.C. 618, 656 (2015) ("ASLB Initial Decision") (J.A. 455), and the project lands are within the Tribe's traditional territory, see Trina Lone Hill Decl. ¶ 5. A sizable number of cultural, historical, and archaeological sites have already been identified in the project area, including burial sites. EIS for Dewey-Burdock Project, NUREG-1910 at 4-159 to -182 (Jan. 2014) ("EIS") (J.A. 655-78). The Tribe also owns lands near the proposed project, which it has "leased for domestic, agricultural, water development, conservation, and other purposes." Oglala Br. 4. The Tribe's primary concerns regarding the project are protecting the Tribe's cultural and historical resources, as well as protecting groundwater from mining contamination. Id.

         While the Board set the stage for the Powertech hearing, the Commission Staff drew up environmental documents for the Dewey-Burdock project, including an EIS, which it published in 2014. See EIS, NUREG-1910 (J.A. 567-737).[2] After publishing the EIS, the Staff granted Powertech's application and issued the requested license. Record of Decision at 1 (J.A. 738).

         The Tribe promptly moved to stay the license. Without assessing the merits of the Tribe's contentions, the Board denied the stay. It did so on the ground, inter alia, that the Tribe's allegations "lack[ed] the specificity needed to demonstrate a serious, immediate, and irreparable harm to cultural and historic resources." Order, Powertech USA, Inc., No. 40-9075-MLA at 6 (May 20, 2014) ("ASLB Stay Denial Order") (J.A. 516).

         After denying the stay, the Board held a hearing on the merits of the contentions pending before it. The Board ruled against the Tribe, and in favor of the Staff and Powertech, on the bulk of those contentions.[3] However, on two of the Tribe's contentions, Contentions 1A and 1B, the Board ruled in favor of the Tribe. ASLB Initial Decision, 81 N.R.C. at 708-10 (J.A. 507-09).

         In Contention 1A, which is most significant for our purposes, the Tribe charged that the EIS did not satisfy NEPA because it failed to adequately address the environmental effects of the Dewey-Burdock project on Native American cultural, religious, and historical resources. The Board agreed with this charge, finding that:

[T]he [EIS] in this proceeding does not contain an analysis of the impacts of the project on the cultural, historical, and religious sites of the Oglala Sioux Tribe and the majority of the other consulting Native American tribes. . . . Because the cultural, historical, and religious sites of the Oglala Sioux Tribe have not been adequately catalogued, the [EIS] does not include mitigation measures sufficient to protect this Native American tribe's cultural, historical, and religious sites that may be affected by the Powertech project.
Accordingly, as to Contention 1A, the Board finds and concludes that the [EIS] has not adequately addressed the environmental effects of the Dewey-Burdock project on Native American cultural, religious, and historic resources. . . . NEPA's hard look requirement has not been satisfied.

Id. at 655 (citations omitted) (J.A. 454).

         In Contention 1B, the Tribe charged that the NRC Staff had failed to fulfill its responsibilities regarding consultation with Native American tribes under the National Historic Preservation Act (NHPA), 54 U.S.C. § 306108. For a variety of reasons, the Board agreed that the consultation process between the NRC Staff and the Tribe was inadequate to satisfy the statute. ASLB Initial Decision, 81 N.R.C. at 655-57 (J.A. 454-56).

         Despite what the Board concluded was a "significant deficiency in the NRC Staff's NEPA review," it did not suspend Powertech's previously issued license. Id. at 658 (J.A. 457). Instead, it retained jurisdiction and directed the Staff to cure "the deficiencies in Contentions 1A and 1B." Id. In the interim, it said, the Tribe "may . . . petition this Board for a stay of the license's effectiveness, as may be necessary to halt ground disturbing activities," but only "if the . . . Tribe can identify specific cultural, historic, or religious sites that are subject to immediate and irreparable harm by the Powertech project." Id.

         The action then moved to the Commission. The Tribe, the Staff, and Powertech all petitioned the Commission for review of the Board's decision. The Staff and Powertech challenged the Board's partial resolution of Contentions 1A and 1B in favor of the Tribe. With respect to those same contentions, the Tribe argued that NEPA and the National Historic Preservation Act "prohibit[ed] the Board from leaving [Powertech's] license in place," given the project's inadequate environmental review. Powertech (USA), Inc., 84 N.R.C. 219, 245 (2016) ("NRC Order") (J.A. 268). The Tribe also challenged the Board's rejection of its other contentions. Id. at 224-26 (J.A. 240-43).

         The Commission generally upheld the Board's rulings. Id. It left in place the findings that the Staff had failed to comply with NEPA and the National Historic Preservation Act. See id. at 248 (J.A. 272). Nonetheless, it affirmed the Board's decision to leave the license in effect because the Tribe "has not articulated any harm or prejudice" from the Staff's failure. Id. at 245 (J.A. 268). The Commission then directed that the proceeding "remain open for the narrow purpose of resolving the deficiencies identified by the Board." Id. at 262 (J.A. 292). And it denied the Tribe's other challenges. Id. at 229, 237, 253, 256, 262 (J.A. 246, 258, 279-80, 283, 291-92).

         Commissioner Baran dissented on the point that is now at issue before us: the Commission's decision to leave Powertech's license in effect while the Staff attempted to resolve the deficiencies in its NEPA review. His dissent stated as follows:

[A] core requirement of NEPA is that an agency decisionmaker must consider an adequate environmental review before making a decision on a licensing action. If the Commission allows a Board to supplement and cure an inadequate NEPA document after the agency has already made a licensing decision, then this fundamental purpose of NEPA is frustrated.
In this case, the Board found that the Staff's [EIS] did not meet the requirements of NEPA because the [EIS] was deficient with respect to the effects of the licensing action on Native American cultural, religious, and historic resources. Thus, the agency did not have an adequate environmental analysis at the time it decided whether to issue the license. In fact, the deficiencies in the NEPA analysis remain unaddressed today, and therefore the Staff still cannot make an adequately informed decision on whether to issue the license. The Staff's licensing decision was based on (and continues to rest on) an inadequate environmental review. As a result, the Staff has not complied with NEPA.
The Commission should suspend the license until the Staff has . . . demonstrat[ed] that the [EIS] complies ...

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