11-2016-cv
Brodsky v. U.S. Nuclear Regulatory Comm’n


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of January, two thousand thirteen,

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges,
                 LAURA TAYLOR SWAIN,
                                 District Judge.*
----------------------------------------------------------------------
RICHARD L. BRODSKY, New York State Assemblyman,
from the 92nd Assembly District, in his official and
individual capacities, WESTCHESTER’S CITIZENS
AWARENESS NETWORK (WESTCAN), SIERRA CLUB
– ATLANTIC CHAPTER (SIERRA CLUB),
                                 Plaintiffs-Appellants,

PUBLIC HEALTH AND SUSTAINABLE ENERGY
(PHASE),
                 Plaintiff,

                              v.                                         No. 11-2016-cv

UNITED STATES                       NUCLEAR         REGULATORY
COMMISSION,
                                        Defendant-Appellee,


          *
         Judge Laura Taylor Swain of the United States District Court for the Southern
District of New York, sitting by designation.
ENTERGY NUCLEAR OPERATIONS, INC.,
                                 Defendant.
----------------------------------------------------------------------

APPEARING FOR APPELLANTS:                         RICHARD L. BRODSKY, Esq., pro se, White
                                                  Plains, New York.

APPEARING FOR APPELLEE:                          BENJAMIN H. TORRANCE (Sarah S. Normand,
                                                 on the brief), Assistant United States Attorneys,
                                                 for Preet Bharara, United States Attorney for the
                                                 Southern District of New York, New York, New
                                                 York.

FOR AMICUS CURIAE:                                Kelly A. Berkell, Office of Assemblywoman Amy
                                                  R. Paulin, for amicus curiae New York
                                                  Legislators.

        Appeal from a judgment of the United States District Court for the Southern District

of New York (Loretta A. Preska, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on March 11, 2011, is AFFIRMED IN PART.

        Plaintiffs appeal from an award of summary judgment to defendants in this action

under the Administrative Procedure Act (“APA”), see 5 U.S.C. § 701 et seq., challenging a

decision of the United States Nuclear Regulatory Commission (“NRC”) granting an

exemption from fire safety regulations, see 10 C.F.R. § 50.48; id. pt. 50 App. R, to the Indian

Point 3 nuclear power plant operated by defendant Entergy in Westchester County, New

York. This order addresses all of plaintiffs’ claims except one charging the NRC with

violating public participation requirements under the National Environmental Policy Act

(“NEPA”), see 42 U.S.C. §§ 4321–47, which is the subject of an opinion issued


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simultaneously with this order. We assume the parties’ familiarity with the underlying facts

and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm the judgment with respect to the claims addressed herein.

1.     The NRC’s Authority To Issue Exemptions

       Plaintiffs challenge the NRC’s authority to issue exemptions from its regulations

promulgated under the Atomic Energy Act (“AEA”), see 42 U.S.C. § 2011 et seq. The

argument is defeated by well-established precedent “that an agency’s authority to proceed

in a complex area . . . by means of rules of general application entails a concomitant authority

to provide exemption procedures in order to allow for special circumstances.” United States

v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 755 (1972); see also Alabama Power Co.

v. Costle, 636 F.2d 323, 357 (D.C. Cir. 1979) (recognizing power of agency to grant

dispensation from general rule in particular cases).

       The AEA “establishes a comprehensive regulatory framework for the ongoing review

of nuclear power plants located in the United States,” pursuant to which “the NRC is

empowered to promulgate rules and regulations governing the construction and operation of

nuclear power plants.” County of Rockland v. U.S. Nuclear Regulatory Comm’n, 709 F.2d

766, 769 (2d Cir. 1983). In its regulations, the NRC has specifically provided for an

exemption procedure, which it applied in this case. See 10 C.F.R. § 50.12. In so doing, the

agency acted well within the scope of its regulatory discretion. Plaintiffs’ argument that the

AEA’s scattered references to “exemptions” from certain statutory requirements signals

congressional intent to deprive the agency of power to exempt entities from its own

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regulatory requirements is unpersuasive. The statutory language supports no such inference.

Equally unavailing is plaintiffs’ suggestion that even if the AEA authorized the NRC to grant

exemptions, NRC regulations allowed only a “one-time” exemption in 1980. That contention

finds no support in the current regulatory text. See id.

2.     Hearing Rights Under the AEA and APA

       Plaintiffs’ contention that the NRC was required to hold a hearing under the AEA and

APA before granting the exemption is foreclosed by our prior decision in this case, Brodsky

v. U.S. Nuclear Regulatory Comm’n, 578 F.3d 175 (2d Cir. 2009) (“Brodsky”). In there

concluding that we lacked subject matter jurisdiction, see id. at 179–84, we necessarily

concluded that the proceeding granting the exemption in this case was not one for the

“granting, suspending, revoking or amending of any license” or “for the issuance or

modification of rules and regulations dealing with the activities of licensees,” 42 U.S.C.

§ 2239(a); see 28 U.S.C. § 2342(4) (providing that courts of appeals have exclusive appellate

jurisdiction over orders reviewable under 42 U.S.C. § 2239). As such proceedings are the

only ones for which the AEA grants the right to a hearing, see 42 U.S.C. § 2239(a); Brodsky,

578 F.3d at 180 (recognizing that § 2239(a) both defines proceedings over which courts of

appeals have direct jurisdiction and proceedings with hearing rights), plaintiffs’ hearing

challenge under the AEA is meritless.1




       1
         Brodsky similarly disposes of any request for a hearing under the APA, which
applies only to “rule making.” 5 U.S.C. § 553(c).

                                              4
       Plaintiffs argue on appeal that Brodsky specifically reserved the question of a right

to a hearing, see 578 F.3d at 183–84, and that anything Brodsky said on the subject was tied

to its strict construction of jurisdictional provisions, see id. at 180, pursuant to a canon of

interpretation not applicable here. The points merit little discussion. Even if this court would

have lacked jurisdiction to answer a stand-alone question as to plaintiffs’ right to a hearing,

it certainly had jurisdiction to decide its jurisdiction, and the conclusion that plaintiffs have

no right to a hearing remains a necessary consequence of that jurisdictional decision. Section

2239(a) does not envision the possibility that some proceedings may fall within its ambit for

hearing rights but not for jurisdictional purposes. Cf. Clark v. Martinez, 543 U.S. 371, 380

(2005) (concluding that where canon of constitutional avoidance mandates one construction

of statute, that construction must prevail even when no such constitutional concerns are

present). Accordingly, we affirm the grant of summary judgment to defendants on plaintiffs’

hearing challenge under the AEA.

3.     Compliance with Regulations

       Plaintiffs contend that the NRC failed adequately to support its findings that (1) the

grant of the exemption was (a) “authorized by law” and (b) “consistent with the common

defense and security,” and (2) special circumstances are present. 10 C.F.R. § 50.12. The

record defeats these arguments.

       First, we do not read 10 C.F.R. § 50.12, which mandates simply that the grant of an

exemption be “authorized by law,” to require the NRC to provide a detailed explanation as

to why a grant is consistent with the provisions of the AEA, APA, or NEPA. To the extent

                                               5
plaintiffs allege that the exemption does not comport with any of these statutes, we address

those particular contentions separately. But insofar as the NRC generally considered whether

any law prohibited granting the exemption and concluded that none did, we hold that no

more was required by § 50.12.

       Second, plaintiffs’ contention that the NRC failed to justify the challenged exemption

as “consistent with the common defense and security” is in some tension with their

concession that the NRC developed at least a facial basis for its finding that the exemption

presented no “undue risk to the public health and safety.” 10 C.F.R. § 50.12. Plaintiffs’

speculation that a terrorist attack would disable more firefighting personnel than would a

significant fire, thus making increased reliance on manual fire suppression unsafe, is

insufficient to demonstrate that the agency’s defense-and-security finding was arbitrary and

capricious. Insofar as the NRC concluded the “change to the plant requirements for the

specific configuration in this fire zone” resulting from the exemption bore “no relation to

security issues,” J.A. 515, the agency is much better situated than is this court to make such

a finding on the record presented, see Natural Res. Def. Council v. U.S. EPA, 658 F.3d 200,

215 (2d Cir. 2011) (reiterating that we will not “substitute [our] judgment for that of the

agency” (internal quotation marks omitted)).

       Third, plaintiffs’ challenge to the special-circumstances finding rests solely on the

NRC’s purported consideration of a document not in the record, Entergy’s “Fire Hazards

Analysis.” The point merits little discussion. After considering at length the propriety of

granting the exemption, the NRC referred to its consideration of “the information in the

                                              6
licensee’s Fire Hazards Analysis” only in passing. J.A. 515 (emphasis added). Thus, we

understand the NRC simply to have noted that it considered the information submitted by the

licensee relating to its analysis of fire hazards, information that plaintiffs do not dispute was

in the record.

4.     Challenges to the NRC’s Creation and Consideration of the Record

       Plaintiffs fault the NRC for limiting the administrative record and failing to consider

23 documents in its possession. We disagree that these documents should have been added

to the administrative record simply because they “‘might have influenced’” the decision.

Appellants’ Br. 32 (quoting National Courier Ass’n v. Bd. of Governors of Fed. Reserve

Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975)). The administrative record is what was

“compiled by th[e] agency when it made the decision.” National Audubon Soc’y v.

Hoffman, 132 F.3d 7, 14 (2d Cir. 1997); see Fed. R. App. P. 16(a)(3) (noting record on

review of agency order comprises “the pleadings, evidence, and other parts of the

proceedings before the agency” (emphasis added)). That the agency compiled the record in

this case after this litigation commenced does not alter the presumption that the agency has

properly discharged this function. See Estate of Landers v. Leavitt, 545 F.3d 98, 113 (2d Cir.

2008) (referring to “‘presumption of honesty and integrity in those serving as agency

adjudicators’” (alterations omitted) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975))).

       More fatal to plaintiffs’ claim, they have not shown that these documents are in fact

relevant or probative. Plaintiffs did not present the documents at issue for review by the



                                               7
district court,2 nor do they include them in the record on appeal for consideration by this

court. See generally National Audubon Soc’y v. Hoffman, 132 F.3d at 14–15 (recognizing

that reviewing court may sometimes consider materials outside administrative record “to

determine that the information available to the decisionmaker includes an adequate

discussion of . . . effects [of] and alternatives” to agency action). We afford deference to the

agency’s determination that the record represents the documents it needed to consider to

evaluate the exemption. See Natural Res. Def. Council v. U.S. EPA, 658 F.3d at 215.

5.     The Need for an Environmental Impact Statement Under NEPA

       Plaintiffs contend that the NRC erred in failing to produce an environmental impact

statement (“EIS”) under NEPA, instead producing only an environmental assessment (“EA”)

and a finding of no significant impact (“FONSI”). We disagree.

       “Judicial review of agency decisions regarding whether an EIS is needed is essentially

procedural,” Friends of Ompompanoosuc v. FERC, 968 F.2d 1549, 1556 (2d Cir. 1992), and

“the decision not to prepare an EIS is left to the informed discretion of the agency proposing

the action,” City of New York v. Slater, 145 F.3d 568, 571 (2d Cir. 1998). “[A] reviewing

court must ensure that [the agency] has taken a ‘hard look’ at the environmental

consequences and assess whether the agency has convincingly documented its determination

of no significant impact.” Friends of Ompompanoosuc v. FERC, 968 F.2d at 1556.



       2
         Indeed, in the district court, the parties introduced only the administrative record and
plaintiffs acquiesced in the district court’s decision to convert the government’s motion to
dismiss to a motion for summary judgment.

                                               8
       The NRC’s EA and FONSI satisfy the agency’s minimal burden to justify forgoing

the EIS. The EA contains extended discussion of why the exemption does not create any fire

safety risk, examines whether this exemption would have any other adverse environmental

effect, and considers the alternative of not granting the exemption (and thereby requiring

compliance). The NRC was not required to say more. See id. at 1558 (observing that “range

of alternatives an agency must consider is narrower when, as here, the agency has found that

a project will not have a significant environmental impact”).

6.     Conclusion

       We have considered plaintiffs’ remaining arguments and, with the exception of the

public participation challenge under NEPA addressed in our related opinion issued today,

conclude they are without merit. The judgment of the district court is therefore AFFIRMED

IN PART in accordance with this order.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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