ML20302A175
| ML20302A175 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/23/2020 |
| From: | Andrew Averbach, Ayres R, Cox K, Fettus G, Eric Michel, Reiser C, Rumelt K Ayres Law Group, Miami Waterkeeper, Natural Resources Defense Council, Vermont Law School |
| To: | NRC/OGC, US Federal Judiciary, District Court for the District of Columbia |
| References | |
| 1867982, 20-1026 | |
| Download: ML20302A175 (40) | |
Text
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 1 of 40 ORAL ARGUMENT NOT YET SCHEDULED No. 20-1026 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, INC., AND MIAMI WATERKEEPER, Petitioners, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, Respondents.
Petition for Review of a Final Order of the United States Nuclear Regulatory Commission INITIAL REPLY BRIEF OF PETITIONERS Richard E. Ayres Kelly Cox Ayres Law Group Miami Waterkeeper 2923 Foxhall Road, N.W. 2103 Coral Way 2nd Floor Washington, D.C. 20016 Miami, FL 33145 202-722-6930 305-905-0856 Counsel for Friends of the Earth Counsel for Miami Waterkeeper Kenneth J. Rumelt Caroline Reiser, Geoffrey Fettus Environmental Advocacy Clinic Natural Resources Defense Council Vermont Law School 1152 15th Street, NW, Suite 300 164 Chelsea Street, PO Box 96 Washington, DC 20005 South Royalton, VT 05068 202-289-2371 802-831-1031 Counsel for Natural Resources Counsel for Friends of the Earth Defense Council
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 2 of 40 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... iii GLOSSARY ............................................................................................................ viii
SUMMARY
OF ARGUMENT ..................................................................................1 ARGUMENT ..............................................................................................................1 I. ENVIRONMENTAL ORGANIZATIONS HAVE STANDING. ......................1 II. THE COURT HAS JURISDICTION TO REVIEW THE RECORD OF DECISION AND LICENSES BECAUSE THEY ARE FINAL ORDERS. ...3 A. The Record of Decision and licenses provide the Court jurisdiction under the Hobbs Act. .............................................................................................4 B. The Record of Decision and licenses are otherwise final for purposes of judicial review..............................................................................................6 C. The NRCs issuance of effective licenses also satisfies the Bennett v.
Spear finality test. ........................................................................................6 The NRC consummated its decisionmaking process once the licenses became effective. ...................................................................................6 The licenses grant legal rights and consequences now. ........................8 D. The Incurably Premature Doctrine Does Not Apply in This Case. .......10 E. Environmental Organizations claim is ripe. .............................................11 III. NRC failed to take a Hard Look at Environmental Impacts of operating turkey point FOR 80 years. ...........................................................................................12 A. 10 C.F.R. §51.53(c)(3) and the GEIS are plainly limiting in their applicability. ..............................................................................................12 i
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 3 of 40 B. The NRCs erroneous application of §51.53(c)(3) to the Environmental Report infected the Draft and Final SEIS, rendering the entire NEPA review deficient..........................................................................................16 C. Environmental Organizations claims are present in the Administrative Record and justiciable now. .......................................................................19 IV. THE NRC FAILED TO MAKE AN INFORMED DECISION AS REQUIRED by NEPA BECAUSE ITS ANALYSIS OF GROUNDWATER IMPACTS WAS ARBITRARY AND CAPRICIOUS........................................................20 A. The record is devoid of valid scientific evidence predicting that FPL can control groundwater impacts through mid-century. ..................................21 B. This Court owes no deference to the NRCs unscientific conclusions on groundwater impacts. .................................................................................23 The NRCs mere review of FPLs freshening plans does not deserve deference or satisfy NEPAs hard look standard. ............................24 The NRCs bare disclosure of uncertainty in modeling does not deserve deference or satisfy NEPAs hard look standard. ..............25 C. The NRCs ultimate reliance on state and county oversight of FPLs freshening efforts does not meet NEPAs hard look standard. ..............26 CONCLUSION .........................................................................................................29 ii
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 4 of 40 TABLE OF AUTHORITIES Judicial Decisions Allegheny Def. Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) .......................................................................8, 11 Am. Rivers v. FERC, 895 F.3d 32 (D.C. Cir. 2018) ...................................................................22, 27 Bennett v. Spear, 520 U.S. 154 (1997)......................................................................................... 6 Bhd. of Locomotive Engrs & Trainmen v. Fed. R.R. Admin.,
972 F.3d 83 (D.C. Cir. 2020) ....................................................................... 3, 4 Cajun Elec. Power Coop., Inc. v. FERC, 924 F.2d 1132 (D.C. Cir. 1991) ..................................................................... 13 Christensen v. Harris Cty.,
529 U.S. 576 (2000)....................................................................................... 13 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)....................................................................................... 23 City of Oberlin v. FERC, 937 F.3d 599 (D.C. Cir. 2019) ...................................................................... 27 Ctr. for Biological Diversity v. U.S. Dept of Interior, 563 F.3d 466 (D.C. Cir. 2009) ....................................................................... 11 Darby v. Cisneros, 509 U.S. 137 (1993)......................................................................................... 6 Dept of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020).....................................................................3, 4, 19, 20 iii
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 5 of 40 Dept of Transp. v. Pub. Citizen, 541 U.S. 752 (2004).................................................................................17, 18 EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016) ....................................................................... 27 Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985)......................................................................................... 4 Gage v. Atomic Energy Commn, 479 F.2d 1214 (D.C. Cir. 1973)....................................................................... 5 Honeycutt v. United States, 137 S. Ct. 1626 (2017)................................................................................... 14 Intl Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973) ....................................................................... 25 Kisor v. Wilkie, 139 S. Ct. 2400 (2009)................................................................................... 13 Malladi Drugs & Pharm., Ltd. v. Tandy, 552 F.3d 885 (D.C. Cir. 2009) ......................................................................... 5 Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991) ......................................................................... 3 Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) ..................................................................... 12 Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019) ............................................................................. 6 Natl Family Planning & Reprod. Health Assn, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992) .................................................................12, 13 NLRB v. SW Gen., Inc.,
137 S. Ct. 929 (2017)..................................................................................... 14 iv
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 6 of 40 New York , et al. v. NRC, 681 F.3d 471 (D.C. Cir. 2012) .................................................................23, 27 NRDC v. Daley, 209 F.3d 747 (D.C. Cir. 2000) ....................................................................... 23 NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016) ....................................................................... 17 NRDC v. NRC, 879 F.3d 1202 (D.C. Cir 2018) ........................................................................ 9 Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir. 2018) ......................................................................... 7 Ohio Forestry Assn, Inc. v. Sierra Club, 523 U.S. 726 (1998)....................................................................................... 11 Perez v. Mortg. Bankers Assn, 575 U.S. 92 (2015)......................................................................................... 12 Pub. Employees for Envtl. Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016) ..................................................................... 22 Sec. & Exch. Commn v. Chenery Corp.,
318 U.S. 80 (1943)........................................................................................... 6 Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008) ....................................................................... 13 Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) ....................................................................... 1 Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988) ....................................................................... 7, 8 v
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 7 of 40 Summers v. Earth Island Inst.,
555 U.S. 488 (2009)......................................................................................... 2 Theodore Roosevelt Conservation Pship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) ....................................................................... 28 Vt. Dept. of Pub. Serv. v. United States, 684 F.3d 149 (D.C. Cir. 2012) ..................................................................... 3-5 WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) ..................................................................... 1-3 Administrative Decisions Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),
LBP-19-03, 89 NRC 245 (2019) .......................................................13, 15, 18 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),
CLI-20-03, __ NRC __ (slip op) (Apr. 23, 2020) ...................................14-16 Statutes 5 U.S.C. § 704 ............................................................................................................ 6 Rules and Regulations 10 C.F.R. § 2.309(f)(2) ............................................................................................ 17 10 C.F.R. § 51.41 ..................................................................................................... 17 10 C.F.R. § 51.14(a) ................................................................................................. 17 10 C.F.R. § 51.45(b)(3) ............................................................................................ 17 10 C.F.R. § 51.45(c)................................................................................................17 vi
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 8 of 40 10 C.F.R. § 51.53 .........................................................................................12, 14, 16 10 C.F.R. § 51.53(c)(3) ......................................................................7, 12-17, 19, 20 10 C.F.R. § 51.71(d) ................................................................................................ 18 10 C.F.R. § 51.95(c)(4) ............................................................................................ 18 10 C.F.R. § 54.31(c) ............................................................................................... 8, 9 vii
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 9 of 40 GLOSSARY APA The Administrative Procedure Act Board The Atomic Safety and Licensing Board Commission The five-member board of Commissioners for the Nuclear Regulatory Commission EIS Environmental Impact Statement FPL Florida Power & Light Company GEIS Generic Environmental Impact Statement Initial license renewal The first 20-year operating license renewal following an original 40-year operating license NEPA The National Environmental Policy Act NRC The federal agency known as the Nuclear Regulatory Commission Environmental Petitioners Friends of the Earth, Natural Resources Organizations Defense Council, and Miami Waterkeeper SEIS Supplemental Environmental Impact Statement Subsequent license The second 20-year operating license renewal renewal subsequent to the original 40-year operating license and one 20-year initial license renewal Turkey Point Turkey Point Nuclear Generating Station, Units 3 and 4 viii
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 10 of 40
SUMMARY
OF ARGUMENT The Record of Decision and renewed licenses are final orders under the Hobbs Act. The record below is complete and judicial review is appropriate.
Environmental Organizations have standing to pursue each of their claims under the National Environmental Policy Act (NEPA) now. This Court should vacate the Record of Decision and licenses and remand this case to the Nuclear Regulatory Commission (NRC) to ensure it fully complies with NEPA and its own NEPA regulations.
ARGUMENT I. ENVIRONMENTAL ORGANIZATIONS HAVE STANDING.
Environmental Organizations have standing to pursue all of their claims because, as the NRC concedes, Environmental Organizations have standing for one of their NEPA claims. NRC Br. 49 (citing Silverstein and Bauman Declarations);
see WildEarth Guardians v. Jewell, 738 F.3d 298, 307 (D.C. Cir. 2013). An agencys procedural deficiency need not be directly tied to the [organizational]
members specific injuries. Sierra Club v. FERC, 867 F.3d 1357, 1366 (D.C. Cir.
2017). A single concrete injury stemming from a deficient NEPA analysis provides standing for any alleged inadequacy in the agencys environmental review. Id.; see also WildEarth Guardians, 738 F.3d at 318.
1
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 11 of 40 The NRCs fatal blunder lies in ignoring the form of relief sought by Environmental Organizations. NRC Br. 41-42. Standing, rather, is measured by the relief sought, not the arguments made. WildEarth Guardians, 738 F.3d at 308 n.3 (noting the familiar principle that a plaintiff must demonstrate standing for each form of relief sought) (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)) (emphasis added). Environmental Organizations seek only one type of relief relevant herethe vacatur of the [Record of Decision and licensing]
decision. They simply advance several arguments in support of that claim. Id.
Each argument is based on the archetypal procedural injuryan agencys failure to prepare (or adequately prepare) an [Environmental Impact Statement (EIS)] before taking action with adverse environmental consequences. Id. at 305.
Environmental Organizations injuries are tethered to [a] concrete interest adversely affected by the procedural deprivation, here, groundwater impacts (at a minimum). Id. This injury follows from an inadequate [Final Supplemental Environmental Impact Statement (SEIS)] whether or not the inadequacy concerns the same environmental issue that causes [Petitioners] injury. Id. at 307.
Environmental Organizations may challenge each of the alleged [NEPA]
inadequacies because each constitutes a procedural injury connected to their members injuries. Id. at 308. The NRC brief is incorrect. NRC Br. 47. This 2
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 12 of 40 Court can ultimately redress Environmental Organizations injuries by vacating the Record of Decision and licenses, regardless of whether the specific flaw in the NRCs NEPA process relates to its analysis of groundwater impacts or some other procedural violation. WildEarth Guardians, 738 F.3d. at 307.
II. THE COURT HAS JURISDICTION TO REVIEW THE RECORD OF DECISION AND LICENSES BECAUSE THEY ARE FINAL ORDERS.
The NRC fails to cite a single case holding an effective NRC license is not a final order under the Hobbs Act. Yet it cites several cases where courts have exercised Hobbs Act jurisdiction under situations similar to those here. NRC Br.
23 n.11 (citing Vt. Dept. of Pub. Serv. v. United States, 684 F.3d 149, 156 n.8 (D.C. Cir. 2012) (finding Hobbs Act jurisdiction based on the license renewal itself instead of an adjudicatory order)); NRC Br. 26 (citing Massachusetts v.
NRC, 924 F.2d 311, 322 (D.C. Cir. 1991) (exercising Hobbs Act jurisdiction over order allowing the plant to operate at full power pending the Commissions further review of the licensing issues)). These cases track the Supreme Courts strong presumption in favor of judicial review. Bhd. of Locomotive Engrs &
Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 102 (D.C. Cir. 2020) (citing two recent Supreme Court cases) (internal quotation marks omitted); see also Dept of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (The 3
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 13 of 40
[Administrative Procedure Act (APA)] establishes a basic presumption of judicial review [for] one suffering legal wrong because of agency action.) (internal quotation marks omitted). This presumption requires courts to, where feasible, adopt a reading of a statute that accords with the basic principle that executive determinations generally are subject to judicial review. Bhd. of Locomotive Engrs, 972 F.3d at 102. (internal quotations and citations omitted).
A. The Record of Decision and licenses provide the Court jurisdiction under the Hobbs Act.
An effective NRC license is a final order for purposes of Hobbs Act review. The NRC misrepresents controlling precedent and claims that the Record of Decision and licenses do not provide jurisdiction under the Hobbs Act because they were not granted in an adjudicatory process. NRC Br. 21-22. The Supreme Court is clear: Congress intended to provide for initial court of appeals review of all final orders in licensing proceedings whether or not a hearing before the Commission occurred or could have occurred. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985). Further, in Vermont Department of Public Service v.
United States, this Court held that Hobbs Act jurisdiction attached to the final order the license renewal itself, not the proceeding order which resolved all challenges. 684 F.3d at 156 n.8 (emphasis added). If a final order were limited to a final Commission order expressly terminating the adjudicatory proceeding, 4
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 14 of 40 (NRC Br. 23 n.11) this Court would have dismissed the Vermont case for exceeding the statute of limitations.1 Environmental Organizations provided the NRC every opportunity, consistent with its regulations, to address the concerns raised here before it completed its NEPA review and issued the licenses. In the two cases the NRC relies on, the petitioners sought judicial review based on arguments they never presented to the agency. See NRC Br. 23 (citing Gage v. Atomic Energy Commn, 479 F.2d 1214, 1218 (D.C. Cir. 1973) (rejecting jurisdiction over request for rulemaking that petitioner did not bring to agency first) and Malladi Drugs &
Pharm., Ltd. v. Tandy, 552 F.3d 885, 889 (D.C. Cir. 2009) (rejecting jurisdiction where petitioner failed to exhaust mandatory administrative remedies)). No such problem exists here. Rather, the NRC is attempting to avoid judicial review by extending an already complete administrative process that resulted in a Final SEIS, a Record of Decision, and two effective licenses.
1 The NRCs attempt to distinguish Vermont is misplaced. NRC Br. 23 n.11. The NRC concedes this Court found jurisdiction for the petitioners challenge was properly grounded in the license. The Court held, the claimed aggrievement
[was] the absence of a section 401 WQC when the license renewal itself issued, not the adjudicatory order from 10 days beforehand. Vt. Dept. of Pub. Serv., 684 F.3d at 156 n.8.
5
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 15 of 40 B. The Record of Decision and licenses are otherwise final for purposes of judicial review.
The NRC is silent on the role §704 of the APA plays in the finality determination. Compare Pet. Br. 7-10 with NRC Br. 24-33. That section provides that an otherwise final agency action may be final even when on appeal to superior agency authority. 5 U.S.C. § 704. Bennett v. Spear established the test for finality of agency actions under the first sentence of §704, not the language that determines finality for otherwise final agency actions. 520 U.S. 154, 177-78 (1997). Here, the issuance of the Record of Decision and licenses is otherwise final and the Commission is the superior agency authority under §704. 5 U.S.C. § 704; Darby v. Cisneros, 509 U.S. 137, 152 (1993).
C. The NRCs issuance of effective licenses also satisfies the Bennett v.
Spear finality test.
The NRC consummated its decisionmaking process once the licenses became effective.
Petitions for Commission review that predate the issuance of an effective license do not render the NRCs process incomplete. NRC Br. 25. [T]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based. Mozilla Corp. v. FCC, 940 F.3d 1, 82 (D.C. Cir. 2019) (emphasis added) (quoting Sec. & Exch. Commn v. Chenery Corp., 318 U.S. 80, 87 (1943)). Here, the actions are the Record of Decision and 6
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 16 of 40 licenses, and the record consists of each step of the NRCs process below leading up to those actions.2 Anything the Commission does now is post hoc, particularly for NEPA, which commands agencies to look before they leap. Oglala Sioux Tribe v. NRC, 896 F.3d 520, 523 (D.C. Cir. 2018) (NEPA does not permit an agency to act first and comply later.).3 The NRC does not dispute that issuing the renewed licenses are the major federal actions requiring the NEPA review. NRC Br. 31.
Having taken these actions, the NRC cannot now add to the administrative record and drag out its administrative procedures to prevent judicial review. To rule otherwise would thwart the environmental values protected by NEPA that Congress declared are of a high order, Oglala Sioux, 896 F.3d at 529, and would fail to serve[] the interest of insuring prompt review by deterring lengthy and 2
The Record of Decision incorporates by reference the Final SEIS and represents that it is NRCs final decision regarding the environmental review . Record of Decision for the Subsequent License Renewal Application for Turkey Point Nuclear Generating Unit Nos. 3 and 4 at 5 (Dec. 4, 2019) (Rec._No._191) [JA-
___].
3 This Court can treat the Commissions post hoc decision on §51.53(c)(3) as supplemental authority consistent with the rule of civil procedure under which the NRC offered it. Notice of Suppl. Auth. at 1, ECF No. 1839720. It is not, however, part of the record on review. See Pet. Br. 29 n.15.
7
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 17 of 40 indefinite extensions of the NRC review period. Sierra Club v. NRC, 862 F.2d 222, 225 (9th Cir. 1988). The NRC fails to offer a single case in support of its assertion a major federal action under NEPA is not also a final order that confers jurisdiction in this Court to review its NEPA compliance. NRC Br. 30-31.
The NRCs effort to distinguish Allegheny Defense Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) supports Environmental Organizations point. NRC Br.
27-28. In the absence of any statutory deadline that would otherwise trigger finality and enable judicial review, (NRC Br. 28), the NRC can keep petitioners in perpetual limbo and, as in Allegheny, effectively moot petitioners claims. This result is what the Court sought to prevent in that case.4 The licenses grant legal rights and consequences now.
The NRC makes the bizarre argument that the renewed licenses lack legal effect in a pragmatic sense for Florida Power and Light (FPL) and Environmental Organizations. FPL Br. 31-32. But renewal licenses are not abstract slips of paper that only matter once the previous licenses expire in the 2030sthey are legally effective now. 10 C.F.R. § 54.31(c). A renewed license 4
The NRC wrongly highlights the choices of one of the Environmental Organizations in unrelated litigation involving drastically different circumstances.
NRC Br. 29. Those choices have no bearing here.
8
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 18 of 40 does not start when the existing license is set to expire. Rather, it becomes effective immediately upon its issuance, thereby superseding the license previously in effect. Id.
While the NRC regulations recognize that further appellate review can set aside the subsequent renewed licenses and reinstate previous ones (unless the former licenses expire under their terms), this possibility does not render todays licenses without legal effect. The NRCs reliance on NRDC v. NRC on this point is misplaced. NRC Br. 32 (citing 879 F.3d 1202, 1210 (D.C. Cir. 2018)). In that case, this Court considered whether it was appropriate to remand to the NRC having found the NRC violated NEPA before issuing a license. The Court allowed the agency to cure the defects in an EIS after a license was issued, but before the EIS was challenged in court. NRDC, 879 F.3d at 1211. The Court referred to the provisional nature of the license for purposes of remand, not jurisdiction, as the NRC suggests here. Id. at 1210.
The currently effective subsequent renewed licenses obligate FPL to take certain actions by 2024years before its prior licenses would have expired. See, e.g., Turkey Point Nuclear Generating, Unit No. 3, Renewed Facility Operating License No. DPR-31 at 7 ¶ J(3) (Dec. 4, 2019) (Rec._No._192) [JA-___]. These obligations exist now, not sometime in the future. FPL is also now free to take any 9
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 19 of 40 actions it wishes to prepare for operating Turkey Point Units 3 and 4 until the 2050s. Neither the NRC nor FPL dispute that FPL has already used its new licenses to book savings by depreciating its decommissioning costs over the expanded operational lifetime of Units 3 and 4. Pet. Br. 8 n.7.
D. The Incurably Premature Doctrine Does Not Apply in This Case.
The NRC fails to cite any decisions where an appeal was incurably premature even though a party had no choice of forum for appeal. NRC Br. 33-36 (arguing choice of forum is not dispositive). Nor does the NRC respond to the unique circumstances presented here, namely that the NRC concluded its NEPA review and issued effective licenses before addressing Environmental Organizations timely filed petitions for further agency review. Pet. Br. 12. There was no choice of forum available when those petitions were filed because the NEPA claims had yet to ripen. The procedural posture here is a far cry from those cases the NRC cites where petitioners sought reconsideration of an agency action already taken. NRC Br. 33-36. The NRC would have this Court cook up a recipe for agency abuse of the administrative review process that it flatly rejected in Allegheny while also turning NEPA on its head.
10
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 20 of 40 E. Environmental Organizations claim is ripe.
NEPA is a procedural statute, and therefore when the procedure is not followed, a claim for failure to comply is ripe. Ohio Forestry Assn, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998). Environmental Organizations claims cannot get any riper than at the time NEPAs obligation commenced and was disregarded, i.e., when the action requiring an EIS becomes effective without an adequate NEPA review. Ctr. for Biological Diversity v. U.S. Dept of Interior, 563 F.3d 466, 481 (D.C. Cir. 2009).
The claim is also ripe now because withholding judicial review would foreclose reasonable alternatives. A NEPA-compliant EIS could lead the NRC to condition the granting of the licenses on selecting the cooling tower alternative as an environmentally-preferable means of addressing groundwater degradation problems caused by Turkey Points cooling canal system. Neither the NRC nor FPL disputes that it could take nearly a decade for FPL to complete a cooling tower project. Pet. Br. 9-10. It is therefore necessary to complete the hard look demanded by NEPA in time to avoid foreclosing reasonable alternatives.5 5
This Court should reject the NRCs request to hold this Petition in abeyance for these reasons. See NRC Br. 39.
11
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 21 of 40 III. NRC FAILED TO TAKE A HARD LOOK AT ENVIRONMENTAL IMPACTS OF OPERATING TURKEY POINT FOR 80 YEARS.
A. 10 C.F.R. §51.53(c)(3) and the GEIS are plainly limiting in their applicability.
Environmental Organizations endorse 10 C.F.R. § 51.53(c)(3) as it is written. The NRC, on the other hand, seeks to circumvent APA requirements by interpreting the unambiguous plain meaning of §51.53(c)(3) out of the regulation. See Pet. Br. 30-38.6 Because the NRC ignored the plain meaning of its own regulations, the NRC failed to take a hard look at environmental effects of extending the Turkey Point licenses demanded by NEPA.
NRC adopted §51.53 through notice-and-comment rulemaking. Therefore, for NRC to adopt[] a new position inconsistent with the plain language of §51.53 requires notice-and-comment. Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir.
2014) (citing Natl Family Planning & Reprod. Health Assn, Inc. v. Sullivan, 979 F.2d 227, 237 (D.C. Cir. 1992)); see also Pet. Br. 35-36 (quoting Perez v. Mortg.
Bankers Assn, 575 U.S. 92, 101 (2015)). Because [t]he regulation is clear on its face [no party] has the authority to effectively amend [it] to reflect new 6
By merging all license renewal applications into one category the NRC would not only delete initial from the regulation, it would also strike the exception for reactors licensed prior to June 30, 1995 (another 15 words). See Pet. Br. 35.
12
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 22 of 40 Commission intent outside of the notice and comment process. Fla. Power &
Light Co. (Turkey Point Nuclear Generating Station Units 3 and 4), LBP-19-3, 89 NRC 245, 303-304 (Abreu dissent) (2019) (hereinafter Board Order)
(Rec._No._116) [JA-___]. Any lesser action (such as the interpretation FPL claims NRCs action to be, FPL Br. 22, would be the NRC illegally creat[ing] de facto a new regulation. Christensen v. Harris Cty., 529 U.S. 576, 588 (2000).
Deference from the Court is not due because §51.53(c)(3) is not ambiguous, as FPL suggests it is. FPL Br. 27. Courts review whether a regulation is ambiguous de novo. See Pet. Br. 29 (citing Cajun Elec. Power Coop. Inc v. FERC, 924 F.2d 1132, 1136 (D.C. Cir. 1991)). Deference to an agencys interpretation is due only where a regulation remains genuinely ambiguous after exhaust[ing] all the traditional tools of construction. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)
(internal quotations omitted).
FPL erroneously invokes the canon of interpretation expressio unius est exclusion alterius, to suggest §51.53(c)(3) is silent as to its application. FPL Br. 28-29. This is a red herring. Environmental Organizations argument rests on the courts duty to give effect, if possible, to every clause and word of a regulation. Sierra Club v. EPA, 536 F.3d 673, 680 (D.C. Cir. 2008) (internal citations omitted); see Pet. Br. 31-36. The NRCs interpretation of §51.53(c)(3) 13
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 23 of 40 would negate[] its plain text. Honeycutt v. United States, 137 S. Ct. 1626, 1635 n.2 (2017).
The expressio unius canon applies when circumstances support a sensible inference that the term left out must have been meant to be excluded. FPL Br. 29 (citing NLRB v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017)). But the circumstances here support the plain language that the NRC meant to limit the section only to applicants seeking initial license renewals. See Pet. Br. 37-42.
FPL cannot suggest the drafters of §51.53 made a mistake in including the word initial in subsection (c)(3). The NRC adopted §51.53(c)(3) and the Generic Environmental Impact Statement (GEIS) with the intent that both apply only to initial license renewals. Id.
Furthermore, the GEIS only analyzed a single 20-year extension of the original license to a total of 60 years; it did not examine the environmental impacts of operating nuclear reactors beyond that. Id. 38-42. The NRCs and FPLs arguments to the contrary are almost exclusively definitional. NRC Br. 54; FPL Br. 18. The NRC cannot discharge its NEPA obligations to assess the impact of operating a nuclear reactor for 80 years by citing the conclusions of the GEIS addressing 60 years of operations. Fla. Power & Light Co. (Turkey Point Nuclear Generating Station Units 3 & 4), CLI-20-03, __ NRC __ (slip op. Baran dissent at 14
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 24 of 40
- 9) (Apr. 23, 2020) [JA-___] ([T]he 2013 GEIS alone does not provide the required environmental review for operating a reactor beyond the initial twenty-year license renewal the majoritys retroactive expansion of the scope of the GEIS is essentially unlimited the GEIS could be referenced to definitively address every Category 1 issue for a license renewal from 80 to 100 years, from 100 to 120 years, or even from 200 to 220 years.).
Environmental Organizations raise[d] and forcefully present[d] before the NRC their argument that the GEIS analyzes only an initial 20-year extension of operation, contrary to the NRCs depiction. NRC Br. 55-56. Environmental Organizations specifically detailed their GEIS argument to the Atomic Safety and Licensing Board (Board) in a 20-page filing. Petitioners Response to Applicants Surreply (Oct. 1, 2018) [JA-___] (included sub-headings The temporal scope of the 1996 GEIS is clearly limited to the 40-year initial license term plus one renewal term and The NRC did not expand the temporal scope of the License Renewal GEIS in the 2013 Revised GEIS). The Board, in referring its interpretation of §51.53(c)(3) to the Commission, included the argument regarding the temporal scope of the GEIS. Board Order, 89 NRC at 269-70 (Rec._No._116)
[JA-___]; id. at 307-08 (Abreu dissent) [JA-___]. The Commissions post hoc Order also addressed this argument, making it perfectly clear that it has never been 15
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 25 of 40 abandoned. Fla. Power & Light Co. (Turkey Point Nuclear Generating Station Units 3&4), CLI-20-03, __ NRC __ (slip op. at 16) (Apr. 23, 2020) [JA-___]; id.
(slip op. Baran dissent at 6-10) [JA-___].
Environmental Organizations argument has been consistent: the NRC is required to adhere to NEPAs hard look doctrine, APA notice-and-comment rulemaking, and NRCs own regulations. NRCs failure to do so for the environmental review of extending Turkey Points license to 80 years renders its decision to grant the Record of Decision and licenses arbitrary and capricious, and this Court should vacate them.
B. The NRCs erroneous application of §51.53(c)(3) to the Environmental Report infected the Draft and Final SEIS, rendering the entire NEPA review deficient.
The NRCs application of §51.53(c)(3) to the Turkey Point subsequent license renewal was an early procedural violation that set the agency up to fail its duty to take a hard look at most environmental impacts. Had the NRC required FPL to analyze all Category 1 issues on a site-specific basis in the Environmental Report, as §51.53 requires, then the agency would have had the full panoply of information that its own regulations require it have before completing its environmental review. Instead, NRC failed to do this by erroneously applying 16
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 26 of 40
§51.53(c)(3) to FPLs Environmental Report, and wrongly relying on the inapplicable GEIS.
The NRC made the choice to require an environmental report as the first mandatory step in the agencys NEPA process, contrary to FPLs inaccurate dismissal of the report. FPL Br. 15-18, 23; see NRDC v. NRC, 823 F.3d 641, 652 (D.C. Cir. 2016) (where a statute does not create procedures, agency procedures control). It is the original source of information upon which the NRC bases the draft and final SEIS. See e.g., 10 C.F.R. § 51.14(a) (its purpose is to aid the Commission in complying with Section 102(2) of NEPA); see also id. at §§ 51.41, 51.45(b)(3) & (c). Further, the environmental report is also the first step in the NRCs public review process, as NRC regulations require a petitioner to challenge the environmental report before mounting a challenge to the SEIS. Id. at
§ 2.309(f)(2). Without the benefit of information from a complete environmental report, some of which (like the recalibrated salinity model) may not be public, the NRC cannot fully discharge its NEPA responsibilities. See Dept of Transp. v.
Pub. Citizen, 541 U.S. 752, 754 (2004) ([T]he purposes of NEPAs EIS requirement [are] to ensure both that an agency has information to make its decision and that the public receives information so it might also play a role in the decisionmaking process .).
17
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 27 of 40 The importance of the environmental reports early and initial presentation of environmental impacts is not diminished by other NRC regulations. Reading the NRC regulations to compel the agency to rely exclusively on the GEISs discussion of Category 1 issues and ignore all other information, as NRC and FPL suggest, would lead to absurd results.7 NRC Br. 54 (emphasis in original); see also FPL Br. 18 (citing 10 C.F.R. §§ 51.71(d), 51.95(c)(4)). For example, if the environmental reports site-specific review demonstrated that the hypersaline plume would render the drinking water for Miami-Dade County unpotable, would the NRC be compelled to ignore those findings and rely exclusively on the small impact conclusions in the GEIS? Of course not. In the Final SEIS, even though groundwater is a Category 1 issue, the NRC diverged from the GEIS and instead attempted a (deficient) site-specific analysis for the term of the subsequent renewed license. Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 5, Second Renewal, Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Final Report, 4-7 In fact, it would be less absurd to read initial into the NRC regulations, as dissenting Board Judge Abreu suggests, as that would ensure the agency complies with NEPA by taking a hard look at all environmental impacts. Board Order, 89 NRC at 308-10 (Abreu dissent) (Rec._No._116) [JA-___].
18
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 28 of 40 21-4-29 (NUREG-1437) (Oct. 2019) (hereinafter Final SEIS) (Rec._No._191)
[JA-___]; see also FPL Br. 248 (acknowledging site-specific analysis of groundwater).
To be clear, NRCs deficient analysis of a single Category 1 issue in no way cures the failure to take the requisite hard look. As discussed in Section IV below, NRC did an inadequate job of analyzing groundwater impact. And, groundwater is just one of approximately 78 Category 1 issues for which the NRC did not have the full set of information. See Pet. Br. 19 (NRC relied on GEIS for approximately 78 environmental issues).
C. Environmental Organizations claims are present in the Administrative Record and justiciable now.
The record before the NRC at the time it issued the Record of Decision and licenses is before this court nowincluding the NRCs application of §51.53(c)(3) and the GEIS as laid out in the Environmental Report, Draft and Final SEIS, and Board Orders. Dept of Homeland Sec., 140 S. Ct. at 1907 (It is a foundational principle of administrative law that judicial review of agency action is limited to 8
Even though the NRC included the groundwater analysis as potentially new and significant information, it does not change the fact that NRC needed to consider such information for all Category 1 issues because the GEIS only analyzes the first 20 years after an initial license, not the subsequent license renewal time frame.
19
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 29 of 40 the grounds that the agency invoked when it took action.) (internal citations omitted). The Commissions post-license Order is not the official and authoritative interpretation of §51.53(c)(3) for this licensing proceeding (as the NRC suggests at NRC Br. 50-53), because the agency issued the Order after issuing the Record of Decision and licenses. Had the NRC wished the Commissions Order to be part of the record, it could have withheld issuing the Record of Decision and the licenses to await the Commissions Order. Because the NRC chose not to wait on the Commission, the Order can never be more than a post hoc supplemental authority. Reaching the merits here is therefore not a pointless exercise, id. 52, but rather an appropriate review of the administrative record at the time the NRC made its decision.
IV. THE NRC FAILED TO MAKE AN INFORMED DECISION AS REQUIRED BY NEPA BECAUSE ITS ANALYSIS OF GROUNDWATER IMPACTS WAS ARBITRARY AND CAPRICIOUS.
No valid scientific evidence supports the NRCs conclusion that extended operation will have small impacts on groundwater because FPL will effectively 20
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 30 of 40 manage salinity in the cooling canal system. Consequently, the NRC failed to take a hard look at Turkey Points impacts on groundwater.9 A. The record is devoid of valid scientific evidence predicting that FPL can control groundwater impacts through mid-century.
There is only one scientific study in the Final SEIS that predicts FPL can control salinity in the cooling canal system through mid-century, and that model produced skewed results that overpredict the beneficial impact of freshening.
See Pet. Br. 52-53. Neither FPL nor the NRC deny the model in fact produced skewed results or point to any evidence in the record to suggest otherwise. See FPL Br. 31-43. FPL represents that it developed a newer, refined model that indicates a longer period of time is needed to reduce salinity levels in the event of an extended dry period or drought. FPL Br. 40.10 There is no evidence that the NRC reviewed the refined model. Instead, the NRC assumed, on the basis of the skewed model, without any further scientific evidence, data, or inquiry, that FPL would fully control salinity by 2032. See, e.g., Final SEIS at 4-28 to 4-29 9
FPL incorrectly characterizes Environmental Organizations claims. FPL Br. 36.
Environmental Organizations are not asking the NRC to wait to act. Id. Rather, Organizations argue that the NRC failed to take a hard look at the mitigation measures currently in place. See Pet. Br. 46-49.
10 The newer, refined model is not in the record and was never subject to public scrutiny. See Pet. Br. 53 n.19. Neither FPL nor the NRC dispute this fact.
21
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 31 of 40 (Rec._No_191) [JA-___]. This leap of faith is arbitrary and capricious, and fails to take a hard look at the problem. See Pub. Employees for Envtl. Responsibility v.
Hopper, 827 F.3d 1077, 1082-83 (D.C. Cir. 2016) (agencys EIS failed to take a hard look by relying on inadequate data); see also Am. Rivers v. FERC, 895 F.3d 32, 54 (D.C. Cir. 2018) (holding that it was irrational for [agency] to cast []
significant environmental impacts aside in reliance on some sort of mitigation measures, which the [agency] was content to leave as TBD.).
The so-called measure of success that FPLs efforts have yielded does not demonstrate groundwater impacts will be small. See FPL Br. 33. Impacts today are moderate, and could only become small if FPL were to fully control its salinity problems. FEIS at 4-28. There is no valid scientific evidence in the record demonstrating FPL will attain that goal. Thus, the NRCs conclusion was arbitrary and capricious because it is unsupported in the record.
22
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 32 of 40 B. This Court owes no deference to the NRCs unscientific conclusions on groundwater impacts.
Because FPL fails to identify any valid scientific support for the NRCs conclusion that groundwater impacts will be small,11 this Court owes the NRC no deference, even on this technical subject. FPL Br. 39.12 This Court has a duty to perform a thorough, probing, in-depth review of the NRCs NEPA review under the APA. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.
402, 415 (1971). The NRC cannot rely on reminders that its scientific determinations are entitled to deference in the absence of reasoned analysis to cogently explain itself. See NRDC v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000)
(internal quotation marks omitted). Nothing in the NRCs or FPLs briefs justifies deference to the NRCs conclusions on groundwater impacts. Cf., New York, et al
- v. NRC, 681 F.3d 471, 481 (D.C. Cir. 2012) (refusing to give NRC deference when 11 The NRC defines small as not detectable or so minor that they will
[not] noticeably alter any important attribute of the resource. Final SEIS at 1-4 (Rec._No_191) [JA-___].
12 If any agency were owed deference here, it would be the U.S. Environmental Protection Agency, which is tasked with protecting groundwater and called for a reopener in the FPL licenses in light of uncertainty over the success of FPLs freshening efforts. See Pet. Br. 50.
23
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 33 of 40 agency claimed future leaks would not occur merely because past leaks were harmless and a compliance program was in place).
The NRCs mere review of FPLs freshening plans does not deserve deference or satisfy NEPAs hard look standard.
The NRC did not thoroughly address[] the groundwater issue merely because it reviewed the skewed model and failed to identify any significant issues. FPL Br. 39-40.13 The NRC can review a mountain of information and still overlook critical information or rely on inadequate scientific information in reaching its conclusions. The record demonstrates, moreover, that the NRCs review of FPLs modeling was not detailed. Tr. of Proceedings at 367, Fla.
Power & Light Co. (Turkey Point Nuclear Generating Station Units 3 & 4) (50-250-SLR and 50-251-SLR) (NRC Sep. 9, 2019) (Rec._No._180) [JA-___]. The NRC did not question whether the state was correct or not in accepting results or in getting whatever modifications to the studies that they may have determined to be appropriate. Id. at 366. The Final SEIS merely describes FPLs comments, it does not describe the results or provide public access to the new model.
13 The skewed model forms the lynchpin of FPLs freshening plan, a fact that neither FPL nor the NRC dispute.
24
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 34 of 40 The NRCs bare disclosure of uncertainty in modeling does not deserve deference or satisfy NEPAs hard look standard.
Merely disclosing that uncertainty exists is an ultimately meaningless observation. See FPL Br. 41 ([T]he SEIS fully discloses and considers this source of uncertainty in the modeling.). The key issue is the degree of uncertainty and whether the conclusions are within the range of acceptable outcomes. Cf. Intl Harvester Co. v. Ruckelshaus, 478 F.2d 615, 647 (D.C. Cir. 1973) (it would seem incumbent on the [agency] to estimate the possible degree of error in [its]
prediction) (emphasis added). Here, the NRC never addressed the degree of uncertainty in its groundwater impacts analysis or how that uncertainty effected its conclusions. FPLs claim that the NRCs analysis contemplated the possibility of a substantial margin of error in the modeling (i.e., 13 years rather than 4 years) is simply false. See FPL Br. 42.
Nor did the NRC exercise caution or take a conservative approach. FPL Br. 41-42. To the contrary, when faced with uncertainty, the NRC chose the least conservative path. For example, FPL had so little confidence in its original model that it commissioned a new refined model, yet the NRC continued to rely on the original model that overpredicted success. The NRC never even explained why FPLs admission that the original model produced skewed results was not a significant issue. See FPL Br. 40 (the NRC did not find any significant issues 25
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 35 of 40 with FPLs modeling). When faced with FPLs admission that drier conditions would take more time and water to lower salinity levels sufficiently, the NRC speculatively (and conveniently) concluded FPL would reach the target levels by 2032 and maintain them thereafter. See FPL Br. 41-42 (quoting Final SEIS at A-103 to A-104 (Rec._No_191) [JA-___]). Likewise, the NRC acknowledged climate change conditions will make it harder for FPL to meet the salinity targets, yet it failed to discuss the magnitude of the impact or reconcile them with its ultimate conclusion that groundwater impacts will be small. See FPL Br. 43.14 The NRC did not exercise caution; it threw caution to the wind.
C. The NRCs ultimate reliance on state and county oversight of FPLs freshening efforts does not meet NEPAs hard look standard.
The NRC abdicated its responsibility under NEPA not by taking state and county oversight into account, FPLs strawman argument, but by arbitrarily concluding this oversight alone will guarantee small groundwater impacts. See FPL Br. 34-35. The consent order between FPL and Florida Department of 14 Environmental Organizations cannot make sense of FPLs argument at 41 claiming our arguments are internally inconsistent. Environmental Organizations have never argued freshening will not improve salinity levels.
FPL Br. 41. Rather, the evidence does not support the NRCs conclusion that FPLs freshening efforts will control salinity levels and result in small groundwater impacts through mid-century.
26
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 36 of 40 Environmental Protection makes no guarantee that water quality impacts will be minimal, so it is arbitrary to assert that the order will achieve that effect. See Pet.
Br. 47. City of Oberlin v. FERC is inapposite. FPL Br. 35. There, the agency explained in detail how compliance with [the relevant regulatory] standards would address the specific [] concerns that commenters raised. 937 F.3d 599, 610 (D.C. Cir. 2019) (emphasis added). Here, FPL already violated the applicable standards and the consent order represents an attempt to bring the reactor impacts back into compliance. Pet. Br. 47-48. The NRCs evaluation is akin to American Rivers v. FERC and New York, et al. v. NRC where the agencies relied on unproven mitigation measures. 895 F.3d at 54; 681 F.3d at 481.
EarthReports, Inc. v. FERC does not support FPLs argument either. FPL Br. 35, 39. In that case the agency substantially relied on relevant Coast Guard rules that supplied best management practices for handling ballast water. 828 F.3d 949, 957 (D.C. Cir. 2016). These preventative measures were both known and proven. See id. The agency also independently evaluat[ed] the relevant impacts and concluded that existing [ballast water control] measures are adequate. Id. Here, in contrast, the NRC did not independently evaluate FPLs revised model to determine whether the freshening efforts will succeed. Even for the models it did review, the NRC rel[ied] upon [the relevant] agencies to 27
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 37 of 40 establish appropriate goals and to assure themselves that the technical analyses that
[were] provided by Florida Power and Light [were] adequate. Tr. of Proceedings at 366, Fla. Power & Light Co. (Turkey Point Nuclear Generating Station Units 3 & 4) (50-250-SLR and 50-251-SLR) (NRC Sep. 9, 2019)
(emphasis added) (Rec._No._180) [JA-___]. Here too, the NRC admitted to uncertainty in timing and ultimate effectiveness of the freshening plan. Pet. Br.
55 (quoting Final SEIS at A-89 (Rec._No_191) [JA-___]); see also id. at 50 (EPA asked the NRC to include a reopener clause in the license due to this uncertainty).
The NRC cast these concerns aside [b]ecause the regulatory oversight is anticipated to remain in place and the regulatory agencies retain the authority to require FPL to continue its current freshening activities. Final SEIS at A-89 (Rec._No_191) [JA-___].15 15 Nor is this a case of adaptive management. FPL Br. 37. In Theodore Roosevelt Conservation Pship v. Salazar, this Court identified several features of adaptive management that are absent here. 616 F.3d 497, 515-17 (D.C. Cir. 2010)
(recognizing that the adaptive management plan at issue outline[d] various performance goals and incorporate[d] a detailed, thirteen-page list of specific protective measures that the review team is to consider). There too, the Record of Decision outlined relatively detailed mitigation measures accompanied by discussions of environmental studies supporting the Bureaus decisions. Id.
28
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 38 of 40 CONCLUSION Environmental Organizations respectfully request that this Court vacate the Turkey Point subsequent renewed licenses and remand this matter to the NRC.
Respectfully Submitted,
/s/ Richard E. Ayres Richard E. Ayres Kelly Cox Ayres Law Group Miami Waterkeeper 2923 Foxhall Road, N.W. 2103 Coral Way 2nd Floor Washington, D.C. 20016 Miami, FL 33145 202-722-6930 305-905-0856 Counsel for Friends of the Earth Counsel for Miami Waterkeeper Kenneth J. Rumelt Caroline Reiser, Geoffrey Fettus Environmental Advocacy Clinic Natural Resources Defense Council Vermont Law School 1152 15th Street, NW, Suite 300 164 Chelsea Street, PO Box 96 Washington, DC 20005 South Royalton, VT 05068 202-289-2371 802-831-1031 Counsel for Natural Resources Counsel for Friends of the Earth Defense Council Counsel for Petitioners
- Counsel for Petitioners would like to express appreciation for the contributions of Andrew Cliburn.
October 23, 2020 Here, the NRC merely speculates that the impacts can be addressed by some unspecified future plan.
29
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 39 of 40 CERTIFICATE OF COMPLIANCE
- 1. This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6) because it has been prepared in 14-point Times New Roman, a proportionally spaced font.
- 2. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 6,287 words, excluding the parts of the brief excluded by Circuit Rule 32(e)(1) and Fed. R. App. P. 32(f).
October 23, 2020 /s/ Caroline Reiser Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-717-8341 creiser@nrdc.org 30
USCA Case #20-1026 Document #1867982 Filed: 10/23/2020 Page 40 of 40 CERTIFICATE OF SERVICE I certify that on October 23, 2020 I electronically filed the foregoing Reply Brief of Petitioners with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and service will be accomplished by the CM/ECF system.
October 23, 2020 /s/ Caroline Reiser Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-717-8341 creiser@nrdc.org 31