United States Court of Appeals, District of Columbia Circuit
March 20, 2018
Petition for Review of an Order of the United States Nuclear
Jeffrey C. Parsons argued the cause for petitioner. With him
on the briefs was Travis Stills. Roger Flynn entered an
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
Christopher S. Pugsley argued the cause for
intervenor-respondent. With him on the brief was Anthony J.
Before: Garland, Chief Judge, and Henderson and Griffith,
GARLAND, CHIEF JUDGE
(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.
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.
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.
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.
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.
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. §
licensing process involves three relevant components of 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.
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).
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).
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). The NRC's chief
administrative judge established an Atomic Safety and
Licensing Board to preside over Powertech's licensing
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.
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). After publishing the EIS, the Staff
granted Powertech's application and issued the requested
license. Record of Decision at 1 (J.A. 738).
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).
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. 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
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
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).
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).
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.
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).
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).
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
[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
The Commission should suspend the license until the Staff has
. . . demonstrat[ed] that the [EIS] complies ...