ML25058A036
| ML25058A036 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 02/26/2025 |
| From: | Curran R, Joseph Lopez Miami Waterkeeper, Stetson University, College of Law |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 24-1318, 2102986 | |
| Download: ML25058A036 (1) | |
Text
1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC.
and the SIERRA CLUB, INC.
Petitioners,
- v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, NUCLEAR ENERGY INSTITUTE, et al.,
Intervenors.
Case No. 24-1318 MIAMI WATERKEEPERS MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE Pursuant to Fed. R. App. P. 29(a)(3) and Circuit Rule 29(b), Miami Waterkeeper respectfully moves for leave to participate as amicus curiae in support of Petitioners Beyond Nuclear, Inc. and the Sierra Club, Inc. in the above-captioned action for review of a final rule promulgated by the U.S. Nuclear Regulatory Commission (NRC), Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 89 Fed. Reg. 64166 (Aug. 6, 2024) (to be codified at 10 C.F.R. pt. 51).
USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 1 of 7 (Page 1 of Total)
2 Circuit Rule 29(b) requires that [a]ny individual or non-governmental entity intending to participate as amicus curiae must file either a written representation that all parties consent to such participation, or, in the absence of such consent, a motion for leave to participate as amicus curiae. In accordance with both the Circuit Rule and Fed. R. App. P. 29(a)(3), such a motion must explain the movants interests along with the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.
All parties, except for counsel for Intervenors-Florida Power & Light Co.
(FPL) and NextEra, consented to Miami Waterkeepers participation. Miami Waterkeeper wishes to participate in this litigation to help the Court better understand the impacts of sea level rise and storms on coastal power plants and the need of the NRC to consider these impacts in relicensing nuclear reactors. Miami Waterkeeper has participated in several NRC proceedings regarding similar issues and offers a unique perspective as a neighbor to a particularly vulnerable power plant, Turkey Point Nuclear Generating Station. Miami Waterkeeper respectfully requests this Court grant its motion to participate as amicus curiae.
I.
Miami Waterkeepers interest in this matter is to help inform the Court about the threats coastal power plants face that have evaded NRCs review during the reactor relicensing process.
Miami Waterkeepers mission is to protect South Floridas waters by advocating for resilient solutions grounded in science, rooted in nature, and driven USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 2 of 7 (Page 2 of Total)
3 by community. Appreciating the importance of Floridas waters and coastlines for the states culture, economy, sustenance, and environmental stability, Miami Waterkeeper seeks multidisciplinary solutions to safeguard South Floridas waterways from sea level rise and pollution. To this end, Miami Waterkeeper works to protect South Floridas environment and communities against the risks posed by Turkey Point. Miami Waterkeeper and its members live within thirty miles of the power plant, and many of its members recreate in the waters immediately surrounding Turkey Point. This facility, located south of Miami, is adjacent to Biscayne Bay and sits atop the Biscayne Aquifer, which provides millions of South Florida residents with drinking water. It is also located between two national parks: Biscayne National Park and Everglades National Park.
Turkey Point uses a one-of-a-kind closed-loop cooling canal system, where heated water leaving the plant is circulated through miles of canals to cool down before returning for use again. With these unlined canals carved directly into the porous limestone bedrock, the hypersaline water from the cooling process gradually seeps into the Biscayne Aquifer, threatening the drinking water supply.
Furthermore, unlike Turkey Points reactors, which are elevated about twenty feet above sea level, the area surrounding the reactorsincluding the cooling canal system, backup power sources, roads, spent fuel, and other infrastructureonly sits just above existing sea level. These low-lying components are susceptible to USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 3 of 7 (Page 3 of Total)
4 inundation and impairment from sea level rise, storm surge, and extreme weather events, all of which are exacerbated by climate change. These are precisely the types of impacts NRC should be analyzing in relicensing nuclear reactors.
II.
Miami Waterkeepers participation is desirable and the matters it asserts are relevant because they illustrate why NRCs assessment of changing climate conditions on coastal power plants during licensing renewal is vital to ensure plant safety.
Miami Waterkeeper has deeply engaged in the Turkey Point relicensing process for over five years. Through Intervenor-FPLs efforts to obtain a subsequent relicensing of two of its reactorsextending operations through 2053Miami Waterkeeper has closely examined both the Government Accountability Offices report and the NRCs failure to analyze these impacts in its licensing renewal process. Miami Waterkeepers brief puts in sharp relief the potential gravity of the NRCs shortcomings in failing to analyze the impacts of climate change, specifically slow-onset sea level rise and stochastic storms, on the safety of nuclear reactors on our coasts in the coming decades.
III.
Conclusion Miami Waterkeeper respectfully seeks leave of this Court to submit an amicus curiae brief. It seeks to share its knowledge with the Court, providing the perspective of a community in the shadow of a low-lying, coastal power plant which simply asks that the federal government follow its Congressional mandate to USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 4 of 7 (Page 4 of Total)
5 consider the reasonably foreseeable impacts of the actions it authorizes in extending the lives of nuclear reactors.
Respectfully submitted,
/s/ Rachael Curran Rachael Curran D.C. Cir. Bar #65500 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 537-0802 rcurran1@law.stetson.edu
/s/ Jaclyn Lopez Jaclyn Lopez D.C. Cir. Bar #62797 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 490-9190 jmlopez@law.stetson.edu Counsel for Miami Waterkeeper Dated: February 26, 2025 USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 5 of 7 (Page 5 of Total)
6 CERTIFICATE AS TO PARTIES AND AMICI Pursuant to Circuit Rule 27(a)(4), Miami Waterkeeper provides the following:
All parties and intervenors appearing in this Court are listed in the Brief for Petitioners. Pursuant to Circuit Rule 29(d), Miami Waterkeeper states that it is not aware of any other planned amicus brief in this petition.
RULE 26.1 DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, Circuit Rule 26.1, and Circuit Rule 27(a)(4),
Miami Waterkeeper certifies that it is a 501(c)(3) nonprofit organization. It has no parent company, and no publicly held company has a 10% or greater ownership interest in it.
CERTIFICATE OF COMPLIANCE Counsel hereby certifies, in accordance with Fed. R. App. P. 32(g)(1) and 27(d)(2)(A), that this motion contains 800 words, as counted by counsels word processing system, and thus complies with the 5,200-word limit. Further, this document complies with the typeface and type-style requirements of Fed. R. App.
P. 27(d)(1)(E) and 32(a)(5)-(6) because this document has been prepared using Microsoft Word for Microsoft 365 in proportionally spaced 14-point Times New Roman typeface.
Dated: February 26, 2025
/s/ Rachael Curran Rachael Curran USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 6 of 7 (Page 6 of Total)
7 CERTIFICATE OF SERVICE I hereby certify that on this 26th day of February 2025, the foregoing MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE was served electronically on all registered counsel through the Courts CM/ECF system.
/s/ Rachael Curran Rachael Curran D.C. Cir. Bar #65500 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 rcurran1@law.stetson.edu (727) 537-0802 USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 7 of 7 (Page 7 of Total)
ORAL ARGUMENT NOT YET SCHEDULED No. 24-1318 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC. and the SIERRA CLUB, INC.,
Petitioners,
- v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, NUCLEAR ENERGY INSTITUTE, et al.,
Intervenors.
On Petition for Review of a Final Rule by the United States Nuclear Regulatory Commission BRIEF OF AMICUS CURIAE MIAMI WATERKEEPER IN SUPPORT OF PETITIONERS Jaclyn Lopez D.C. Cir. Bar #62797 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 490-9190 jmlopez@law.stetson.edu Rachael Curran D.C. Cir. Bar #65500 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 537-0802 rcurran1@law.stetson.edu Counsel for Miami Waterkeeper USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 1 of 22 (Page 8 of Total)
ii CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), Miami Waterkeeper provides the following:
(A)
Parties, Intervenors, and Amici.
All parties and intervenors appearing in this Court are listed in the Brief for Petitioners. Pursuant to Circuit Rule 29(d), Miami Waterkeeper states that it is not aware of any other planned amicus brief in this petition.
(B)
Rulings Under Review.
References to the rulings at issue appear in the Brief for Petitioners.
(C)
Related Cases.
There are no other related cases within the meaning of Circuit Rule 28(a)(1).
RULE 26.1 DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, Circuit Rule 26.1, and Circuit Rule 29(b),
Miami Waterkeeper certifies that it is a 501(c)(3) nonprofit organization. It has no parent company, and no publicly held company has a 10% or greater ownership interest in it.
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iii TABLE OF CONTENTS TABLE OF AUTHORITIES................................................................................... iv GLOSSARY OF ABBREVIATIONS, ACRONYMS, AND TERMSvi IDENTITY OF AMICUS CURIAE, INTERESTS IN THE CASE, AND THE SOURCE OF AUTHORITY TO FILE..................................................................... 1 BACKGROUND....................................................................................................... 1 ARGUMENT............................................................................................................. 3 I. The NRC must analyze the impacts of climate change on all aspects of its nuclear power plant safety analysis.................................................................. 4 II. The 2024 GAO Report reveals the NRC has failed to fully analyze the significant climate change risks Americas nuclear power plants face............ 6 A. Climate change is increasing the frequency and severity of natural hazards that may negatively impact the safety and stability of nuclear power plants.
..6 B. The NRCs regulatory processes do not address the scope of climate change........................................................................................................... 9
- 1. The NRCs licensing and inspection processes do not adequately consider the risks of natural hazards exacerbated by climate change....10
- 2. The NRC fails to use the best available data..........................................12 CONCLUSION........................................................................................................14 CERTIFICATE OF COMPLIANCE.......................................................................16 USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 3 of 22 (Page 10 of Total)
iv TABLE OF AUTHORITIES Cases Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983)..........4, 5 Pub. Citizen v. Dep't of Just., 541 U.S. 752 (2004)................................................... 6 Statutes 42 U.S.C. § 2133(a)................................................................................................... 2 42 U.S.C. § 2133(c)................................................................................................... 2 42 U.S.C. § 2201(b).......................................................................................... 1, 4, 6 42 U.S.C. § 4321....................................................................................................5, 6 42 U.S.C. § 4331........................................................................................................ 4 42 U.S.C. § 5841(f).................................................................................................... 1 Other Authorities Carper, Senators Request 5 GAO Reports to Examine Federal Response and Planning for Climate Change Risks, U.S. Senate Comm. on Envt & Pub. Works (May 13, 2019), https://www.epw.senate.gov/public/index.cfm/2019/5/carper-senators-request-5-gao-reports-to-examine-federal-response-and-planning-for-climate-change-risks.............................................................................................. 2 Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change, U.S. Govt Accountability Off.,
https://www.gao.gov/products/gao-24-106326...................................................14 Process for the Ongoing Assessment of Natural Hazard Information (POANHI),
U.S. Nuclear Regul. Commn, https://www.nrc.gov/reactors/operating/ops-experience/poanhi.html (Feb. 13, 2024)..............................................................14 U.S. Govt Accountability Off., GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (2024).............................................................. 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14 USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 4 of 22 (Page 11 of Total)
v Rules 10 C.F.R. § 54.31 (2025)........................................................................................... 2 Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 89 Fed. Reg. 64166 (Aug. 6, 2024) (to be codified at 10 C.F.R. pt. 51)................3, 5 USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 5 of 22 (Page 12 of Total)
vi GLOSSARY OF ABBREVIATIONS, ACRONYMS, AND TERMS EIS Environmental Impact Statement GAO Government Accountability Office GEIS General Environmental Impact Statement NEPA National Environmental Policy Act NRC Nuclear Regulatory Commission POANHI Process for the Ongoing Assessment of Natural Hazard Information USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 6 of 22 (Page 13 of Total)
1 IDENTITY OF AMICUS CURIAE, INTERESTS IN THE CASE, AND THE SOURCE OF AUTHORITY TO FILE Pursuant to Fed. R. App. P. 29(a)(4)(D), Miami Waterkeeper states that its mission is to protect South Floridas waters by advocating for resilient solutions grounded in science, rooted in nature, and driven by community. As an amicus curiae in this litigation, Miami Waterkeeper seeks to assist this Court in understanding the Nuclear Regulatory Commissions (NRC) duty to analyze the reasonably foreseeable impacts of relicensing the Nations nuclear reactors particularly, the effects of sea level rise and extreme storms on their aging infrastructure. Miami Waterkeeper seeks leave to submit this amicus brief pursuant to Fed. R. App. P. 29(a)(3) and Circuit Rule 29(b).
Pursuant to Fed. R. App. P. 29(a)(4)(E), Miami Waterkeeper further states that no partys counsel authored this brief in whole or in part; no party or partys counsel contributed money that was intended to fund preparing or submitting this brief; and no person, other than the amicus curiae, its members, and its counsel, contributed money that was intended to fund preparing or submitting this brief.
BACKGROUND The NRC oversees nuclear power in the United States, Energy Reorganization Act of 1974 § 201(f), 42 U.S.C. § 5841(f), and is responsible for ensuring the protection of the publics health and safety. Atomic Energy Act of 1954 § 161(b), 42 U.S.C. § 2201(b). The NRC issues and renews nuclear reactor USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 7 of 22 (Page 14 of Total)
2 operation licenses. Id. at § 2133(a). An initial license permits reactor operation for up to forty years, a license renewal extends this period by twenty years, and a subsequent license renewal provides yet another twenty years for a total of 80 years. Id. at § 2133(c); 10 C.F.R. § 54.31(b), (d) (2025).
In 2019, Senators Joe Manchin and Tom Carper requested that the Government Accountability Office (GAO) analyze the vulnerability of the nations power plants to climate change and determine whether the NRC is adequately addressing the associated risks. Carper, Senators Request 5 GAO Reports to Examine Federal Response and Planning for Climate Change Risks, U.S. Senate Comm. on Envt & Pub. Works (May 13, 2019),
https://www.epw.senate.gov/public/index.cfm/2019/5/carper-senators-request gao-reports-to-examine-federal-response-and-planning-for-climate-change-risks.
The GAO interviewed agency officials, stakeholders, and NRC staff and visited two nuclear power plants, including Turkey Point. U.S. Govt Accountability Off.,
GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change 2 (2024) [hereinafter GAO Report]. It also comprehensively reviewed data and literature regarding climate change impacts on nuclear power plants. Id. at 2-4. It found that Turkey Point is exposed to current and future climate hazards including high flood hazard, Category 5 storm surge level, and high to very high wildfire potential, with the USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 8 of 22 (Page 15 of Total)
3 most significant projected change in maximum temperature exceeding historical highs. Id. at 56. The GAO concluded that the NRCs efforts to address climate change in its licensing process were inadequate and proposed recommendations for future NRC action to fill the exposed gaps. Id. at 39-40.
National Environmental Policy Act (NEPA) requires the NRC to prepare an environmental impact statement (EIS) for a license renewal review. Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 89 Fed. Reg. 64166, 64167 (Aug. 6, 2024) (to be codified at 10 C.F.R. pt. 51). To inform its license renewal process, the NRC created a Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), which requires an applicant to provide (1) a generic analysis of a plants greenhouse gas emissions and contribution to climate change and (2) a site-specific review of the effects of climate change on environmental resources affected by nuclear energy production.
Id. at 64180-81. The NRC created the GEIS to evaluate the impacts of continued plant operation on the environment, including the climate, id. at 61467, yet the GEIS fails to adequately consider the impacts of climate change upon the relicensed plants themselves.
ARGUMENT The NRC must address projected climate change impacts on U.S. nuclear power plantsincluding the effects of climate change on nuclear accident riskin USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 9 of 22 (Page 16 of Total)
4 its license renewal processes. Both the Atomic Energy Act of 1954 and NEPA require the NRC to consider all potential consequences of climate change and their impacts on nuclear power plant safety. Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983). The GAO has determined that the NRCs licensing procedures are inadequate to address the scope of risks that climate change poses to the nations nuclear power plants. GAO Report, supra, at 34.
Since every single nuclear power plant in the U.S. will be impacted by at least one natural hazard due to climate change, id. at 13-14, the NRC must analyze how these hazards may impact plant safety when renewing licenses.
I.
The NRC must analyze the impacts of climate change on all aspects of its nuclear power plant safety analysis.
The Atomic Energy Act of 1954 enabled the NRC, as an independent agency, to regulate the use of nuclear material to promote common defense and security or to protect health or to minimize danger to life or property. 42 U.S.C. § 2201(b). Yet because the NRC omits from its NEPA requirements for license renewals an evaluation of the impacts of climate change on aging reactors, it leaves a troubling gap in the analysis. GAO Report, supra, at 34-36.
Congress enacted NEPA in recognition of the symbiotic relationship between human and environmental welfare. 42 U.S.C. § 4331. NEPAs approach to addressing agency environmental accountability imposes a general requirement that agencies consider the environmental impacts of their actions. Balt. Gas &
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5 Elec. Co., 462 U.S. at 97. NEPA both imposes on all federal agencies an obligation to consider the environmental impact of every aspect of a proposed action, and requires that agencies inform the public of the environmental concerns they consider in the decision-making process. Id. NEPA Section 102 requires an agency to give a detailed statement on all reasonably foreseeable environmental effects for any major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4321. The NRC classifies license renewal as a major Federal action and subject to the detailed statement requirement of NEPA. 89 Fed. Reg. at 64167.
In enacting NEPA, Congress required agencies to take a hard look at the environmental consequences of their proposed actions before taking them. Balt.
Gas & Elec. Co., 462 U.S. at 97. The Supreme Court has interpreted the hard look standard as...not an abstract exercise of the agency, but a requirement that they actually factor in all significant environmental risks. Id. at 100. To comply with this mandate, agencies must ensure their detailed statements of the environmental impacts of the proposed action maintain professional integrity, including proper and thorough use of scientific data. 42 U.S.C. § 4321. NEPA imposes not only stringent data and research requirements but requires that those resources be used to the fullest extent possible through proactive agency review.
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6 Id. Thus, the NRCs GEIS must consider not just how the NRC uses data but also when it fails altogether to address certain aspects of an issue by data omission.
The Supreme Court in Public Citizen v. Department of Justice held that federal agencies must analyze reasonably foreseeable impacts when the agency has the statutory authority to address it. 541 U.S. 752, 768 (2004). The NRC has the statutory authority to analyze the risks of licensing the continuing operation of reactors and this must include the reasonably foreseeable impacts climate change will have on nuclear reactor safety. 42 U.S.C. § 2201(b). In renewing licenses, the NRC is responsible for protecting the publics health and safety. Id. The GAO Report concluded that the NRC has the opportunity to consider climate risks more fullysuch as the effects of exacerbated natural hazards on plant safetyand, in doing so, to better fulfill its mission to protect public health and safety. GAO Report, supra, at 40.
II.
The 2024 GAO Report reveals the NRC has failed to fully analyze the significant climate change risks Americas nuclear power plants face.
A. Climate change is increasing the frequency and severity of natural hazards that may negatively impact the safety and stability of nuclear power plants.
Most of the nuclear power plants in the U.S. began operating in the 1960s and 1970s. Id. at 1. The GAO identified seven natural hazards that are projected to worsen with climate change and increasingly jeopardize nuclear power plants:
heat, drought, wildfires, flooding, hurricanes, sea level rise, and extreme cold. Id.
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7 at 12-13. These phenomena put plant safety at risk due to their impacts on the two critical components of plant operationwater and power. Id. at 6-9. The GAO explains that [c]limate change is expected to affect every aspect of the electricity gridfrom generation, transmission, and distribution, to demand for electricity.
Id. at 8, n.11. It also identifies these hazards as a threat to the proper functioning of nuclear power plants cooling systems. Id. at 13.
Turkey Point illustrates many of these hazards. In 2014, Turkey Point exceeded its maximum permitted cooling water temperature as a result of enduring drought conditions and water blockages from excessive algae growth. Id. at 15.
The NRC responded by amending the plants license to increase the maximum allowable water temperature, but the conditions posed a risk to the local drinking water supply. Id. The high-heat and drought conditions led to increased evaporation and created saline water in the cooling canals, which may have intruded into the Biscayne Aquifer. Id.
Increased heat and drought brought about by climate change result in increased wildfire frequency as well. Id. There are several ways that wildfires threaten nuclear power plants: they may directly damage plant infrastructure, they could halt electricity availability by damaging power lines, and they can hinder support resources from reaching the plant in emergency situations. Id. About twenty percent of the nations nuclear power plants are situated in areas of high USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 13 of 22 (Page 20 of Total)
8 wildfire risk, particularly in the South and West, id. at 15-16, and the GAO Report identifies high to very high fire risk for Turkey Point. Id. at 56.
Flooding, hurricanes, and sea level rise will be exacerbated by climate change. Id. at 18. These hazards introduce numerous additional risks for the nations nuclear power plants, particularly those located in coastal regions. Id. And unfortunately, [b]ecause light water reactors rely on water for key safety and operational functions, nuclear power plants are typically located next to lakes, rivers, or oceans. Id. at 7. Indeed, nearly half of all operating plants are in a coastal region, with seven of those located directly on a coastline. Id. at 23 n.33.
Forty-two of the nations fifty-four operating nuclear power plants are in areas with high flood hazard, id. at 5, 19 n.26, and eleven of these plants are at risk of inundation by storm surge from Category 4 or Category 5 hurricanes. Id. at 21 n.27. Flooding jeopardizes a plants cooling capacity because flood waters may obstruct ventilation ports and impede critical heat removal processes. Id. at 19.
Furthermore, saltwater may corrode spent fuel casks, increasing the risk of a radioactive release. Id. And as with wildfires, flooding may also directly damage plant components and impede personnel and supplies from reaching the plant in an emergency. Id. In addition to amplifying the aforementioned threats with storm surge, hurricanes further threaten plants with their high winds that can damage plant parts and power lines. Id. at 20-21.
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9 Furthermore, sea levels are expected to rise, which would increase flooding, storm surge, and high tides in these coastal regions. Id. at 22-23. By 2050, the Northwest is projected to see sea level rise by 0.5 feet, and the Western Gulf by as much as 1.9 feet. Id. at 23. Over time, rising sea levels may erode the coastal cliffs where some plants are located. Id. at 22-23. This phenomenon may also cause complications for nuclear power plants through saltwater intrusion. Id. The National Oceanic and Atmospheric Administration acknowledged that Turkey Point is particularly vulnerable to this riskas sea levels rise, saltwater may intrude into the plants cooling canals, replicating the risks to the plants cooling systems and the local drinking water supply seen in 2014. Id. at 23 n.31, n.34.
B. The NRCs regulatory processes do not address the scope of climate change.
After conducting its review of existing NRC procedures and the impacts of climate change, the GAO concluded that the NRCs actions to address risks to nuclear power plants from natural hazards in its licensing, license renewal, and inspection processes do not fully consider the potential increased risks from natural hazards that may be exacerbated by climate change. Id. at 34. The GAO recommended that, for the NRC to meet its obligation to protect public health and safety, the agency should address gaps in its risk assessment by utilizing climate projections data and securing its access to the best available information. Id. at 39-
- 40.
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10
- 1. The NRCs licensing and inspection processes do not adequately consider the risks of natural hazards exacerbated by climate change.
First, rather than incorporate climate projections data into its analysis of long-term risks to nuclear power plants, the NRC instead relies on historical data to predict the natural hazard events that may arise throughout the licensing period. Id.
at 35. The GAO found that the NRC does not use climate projections data to identify and assess risk as part of the safety reviews it conducts or the probabilistic risk assessments it reviews during the initial licensing process. Id. As part of its safety evaluation in the licensing process, the NRC ensures that the designs of reactors and plants are sufficient to withstand the sites expected exposure to natural hazards. Id. at 28. Similarly, the NRC uses probabilistic risk assessments during licensing and inspections to analyze what can go wrong, its likelihood, and its potential consequencessuch as the risks of reactor damage and nuclear releasebased on the plants design and operations. Id.
The GAO found these NRC processes insufficient, id. at 34, finding the NRCs method unreliable because [e]xtrapolating historical data into the future assumes that existing climatological trends will continue. Id. at 35. The NRC claims it relies on historical data in part because its regulations require the use of this data in its assessments of reactor site and design safety. Id. at 38 n.57.
However, these regulations do not preclude the incorporation of available other data, like climate projections. Id. at 39, 35 n.51. The NRC also claimed it would be USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 16 of 22 (Page 23 of Total)
11 challenging and uncertain to incorporate climate projections data into site-specific design and safety reviews. Id. at 38-39. Nevertheless, the existing licensing processes fail to incorporate this best available information, creating foreseeable and unnecessary safety risks.1 Id. at 35 n.50, 39.
These inadequacies extend into the license renewal process. Id. at 35. The safety reviews for license renewals do not include an updated evaluation of the risks from natural hazards on the nuclear power plant. Id. Since the initial licensing process addresses the sufficiency of the plants design regarding natural hazards, the license renewal process only addresses managing the plants signs of aging. Id.
at 36, n.53. The NRC has renewed the licenses of forty-nine of the nations fifty-four operating nuclear power plants for an initial license extension, meaning most plants are operating on the basis of assessments of natural hazard risk that are over 40 years old. Id. at 36.
The NRCs plant inspections do not remedy these inadequacies. Id. NRC inspectors scrutinize nuclear power plants for the purpose of maintaining their immediate day-to-day safety, rather than continuously analyzing their potential 1 The GAOs third explicit recommendation to the NRC was for the agency to develop and finalize guidance on incorporating climate projections data into relevant processes, including what sources of climate projections data to use and when and how to use climate projections data. GAO Report, supra, at 40.
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12 long-term safety risks. Id. The NRC neglects to consider climate projection data throughout this process as well. Id.
- 2. The NRC fails to use the best available data.
The GAO also found that the NRC has not used the best available data including climate projectionsin its licensing and management procedures. Id. at 39-40. Without incorporating the best available information into its licensing and oversight processes, it is unclear whether the safety margins for nuclear power plants established during the licensing periodin most cases over 40 years ago are adequate to address the risks that climate change poses to plants.2 Id. at 39. An example of the NRCs shortcomings in this realm is its struggling Process for the Ongoing Assessment of Natural Hazard Information (POANHI) program. Id. at 31.
Established in May 2017, POANHIs mission is to gather, store, and review the best available information on natural hazards to identify potential new risks to plant safety. Id. at 31-32. The NRC gathers this information, including reports of extreme weather events and trends, in the Natural Hazards Information Digest to inform the agency on whether a hazard may significantly interfere with plant safety. Id. at 32 n.45. If the NRCs review of the information reveals a potential safety risk, the agency directs the issue to the proper internal regulatory program to 2 The GAOs second explicit recommendation to the NRC was for the agency to develop, finalize, and implement a plan to address any gaps identified in its assessment of existing processes. GAO Report, supra, at 40.
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13 assess whether it should be addressed in any relevant NRC processes, such as licensing. Id. at 32.
Although the programs framework seems promising, NRC officials admit that the agency has not taken any regulatory actions as a result of POANHI. Id.
The GAO pointed out several shortcomings of the program that may have contributed to this result. Id. at 37. First, the NRC does not uniformly or consistently review the full extent of available natural hazard information to determine whether POANHI assessments are warranted. Id. For example, as of the GAOs review, the NRC was focused on analyzing the available information for only seismic hazards with no plan for what hazards to analyze next. Id. NRC officials [said that] POANHI requires continuous evaluation of new information on natural hazards, but in reality, the agency only uses the system to tackle individual risks when it becomes aware of them. Id.
The GAO also identified issues with recordkeeping and consistency regarding POANHI. Id. The GAO found that the NRC did not have a system for documenting what information has been reviewed under the program or why the agency determines whether to take, or not to take, further action in response to it.
Id. Finally, the GAOs investigation also revealed that POANHI had not been introduced throughout all levels of the agency. Id. In fact, several regional branch USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 19 of 22 (Page 26 of Total)
14 chiefs and resident inspectors [the GAO] interviewed were unaware of POANHI and this information database. Id.
As of February 2025, all of the GAOs recommendations for the NRCs improvement remain in an open status, meaning the NRC still has not addressed them or is still in the process of taking remedial action. Nuclear Power Plants:
NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change, U.S. Govt Accountability Off., https://www.gao.gov/products/gao 106326 (last visited Feb. 12, 2025). The NRCs website also has not been reviewed or updated since the release of the GAO Report. Process for the Ongoing Assessment of Natural Hazard Information (POANHI), U.S. Nuclear Regul.
Commn, https://www.nrc.gov/reactors/operating/ops-experience/poanhi.html (Feb. 13, 2024).
CONCLUSION The NRC nuclear power plant licensing process falls short of statutory requirements under both the Atomic Energy Act of 1954 and NEPA because the process does not analyze climate change impacts on nuclear power plant safety. As demonstrated at Turkey Point, climatic changes like increased temperatures, drought, intensified storms, and sea level rise jeapordize plants reliable access to crucial cooling water and electricity sources. These natural hazards create a pressing and foreseeable safety risk by exacerbating the risk of plant failure and USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 20 of 22 (Page 27 of Total)
15 radiological release. As the Nations nuclear reactors age and are impacted by increasingly intense and variable climate stressors, the NRC must understand the consequences of renewing them for decades at a time.
Respectfully submitted,
/s/ Jaclyn Lopez Jaclyn Lopez D.C. Cir. Bar #62797 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 490-9190 jmlopez@law.stetson.edu
/s/ Rachael Curran Rachael Curran D.C. Cir. Bar #65500 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 537-0802 rcurran1@law.stetson.edu Counsel for Miami Waterkeeper Dated: February 26, 2025 USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 21 of 22 (Page 28 of Total)
16 CERTIFICATE OF COMPLIANCE Counsel hereby certifies, in accordance with Fed. R. App. P. 29(a)(5) and 32(a)(7)(A), that this brief is comprised of 15 pages and thus complies with the requirement that an amicus brief may not exceed more than one-half the maximum length of a partys principal brief. This document also complies with the typeface and type-style requirements of Fed. R. App. P. 32(a)(5)-(6) because this document has been prepared using Microsoft Word for Microsoft 365 in proportionally spaced 14-point Times New Roman typeface.
Dated: February 26, 2025
/s/ Rachael Curran Rachael Curran D.C. Cir. Bar #65500 Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 (727) 537-0802 rcurran1@law.stetson.edu USCA Case #24-1318 Document #2102986 Filed: 02/26/2025 Page 22 of 22 (Page 29 of Total)