Vol. XLI No. 2

Nuclear Facility Licensing, Terrorist Threats, and NEPA Section 102(2)(C) Compliance

The conflicting decisions for the Courts of Appeals for the Third and Ninth Circuits in New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, respectively, leave it an open question outside those jurisdictions whether the Nuclear Regulatory Commission (NRC) must account for the environmental impacts of terrorism under the National Environmental Policy Act (NEPA) § 102(2)(C). Courts should follow the Ninth Circuit’s approach of requiring such an analysis because the impacts of terrorism are not too far removed from the underlying agency action. Although programmatic treatment of the environmental effects of terrorism satisfies NEPA’s mandate, the NRC’s current approach of implicitly accounting for terrorism within its “accident” analysis is insufficient. This Note argues that the NRC should supplement its Generic Environmental Impact Statement with a section explicitly addressing the potential environmental impacts of terrorism. Accounting for a wider array of reasonably foreseeable impacts in this manner will ensure statutory compliance and promote environmental preservation.

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