United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2005 Decided August 8, 2006
No. 04-1309
STATE OF NEVADA,
PETITIONER
v.
DEPARTMENT OF ENERGY,
RESPONDENT
On Petition for Review of an Order of the
Department of Energy
Joseph R. Egan, Special Deputy Attorney General, State of
Nevada, argued the cause for the petitioner. Brian Sandoval,
Attorney General, Marta A. Adams, Deputy Attorney General,
Antonio Rossmann and Roger B. Moore, Special Deputy
Attorneys General, State of Nevada, and Martin G. Malsch,
Robert J. Cynkar, Charles J. Fitzpatrick and Paul H. Lamboley
were on brief.
John A. Bryson, Attorney, United States Department of
Justice, argued the cause for the respondent. Greer S. Goldman
and Ronald M. Spritzer, Attorneys, United States Department of
Justice were on brief.
Jean V. MacHarg, John C. Martin, Susan M. Mathiascheck,
and Michael A. Bauser were on the brief for amicus curiae
2
Nuclear Energy Institute, Inc. in support of respondent.
Before: HENDERSON and RANDOLPH, Circuit Judges; and
EDWARDS, Senior Circuit Judge.1
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Since
scientists split the atom in 1942, nuclear technology has
proliferated into many areas of society. No longer limited to the
defense of our nation, nuclear technology is used in energy
production, medical diagnosis and treatment, food processing
and agriculture and sterilization of consumer goods. For all of
the advances it has brought, however, those advances have come
at a price—the waste that is the inevitable byproduct.
What to do with the waste has plagued scientists and
policymakers for decades. As a result of scientific, political and
regulatory consultation and comment, the consensus is that the
waste should be stored in an underground repository to be
located at Yucca Mountain, Nevada (Yucca). The State of
Nevada (Nevada), concerned about the storage of nuclear waste
within its borders, has vigorously opposed the construction of a
nuclear repository at Yucca and, after failing in the political and
regulatory arenas, has attacked the statutory and regulatory
scheme governing the construction and operation of the Yucca
repository. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d
1251 (D.C. Cir. 2004).
In this petition for review, Nevada asks us to review both
the Final Environmental Impact Statement (FEIS) and that
portion of the Record of Decision (ROD) the Department of
Energy (DOE or Department) issued governing the
1
Senior Circuit Judge Edwards was in regular active service at the
time of oral argument.
3
transportation of nuclear waste from the production sources to
Yucca. Nevada alleges the FEIS is procedurally flawed and
therefore violates the National Environmental Policy Act (
NEPA), 42 U.S.C. §§ 4321 et seq. It challenges the ROD under
the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. For
the reasons discussed below, we conclude that some of Nevada’s
claims are unripe for review and the remaining claims are
without merit. Accordingly, we deny Nevada’s petition for
review.
I.
The Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.
§§ 10101 et seq., establishes the process for locating,
constructing, operating and closing any repository for spent
nuclear fuel (SNF) and high-level radioactive waste (HLW).
Under the statutory scheme, the DOE is responsible for the
development and operation of the repository once the Nuclear
Regulatory Commission (NRC) issues a license for the project
under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.
Pursuant to the NWPA, the DOE Secretary recommended
Yucca to the President for development as the nation’s
underground nuclear waste repository. Following the NWPA’s
procedures, the President then recommended Yucca to the
Congress. See Nuclear Energy Inst., 373 F.3d at 1261. Nevada
objected to the proposed site and submitted a notice of
disapproval, to which the Congress responded by passing the
Yucca Mountain Development Act, Pub. L. No. 107-200, 116
Stat. 735 (2002), a joint resolution approving the development
of a repository at Yucca.
On February 14, 2002, the DOE issued an FEIS for its
repository site selection decision. Although much of the FEIS
concentrated on the Yucca site, it also analyzed alternatives for,
and the “potential environmental consequences” of, transporting
nuclear waste from the many production sources throughout the
4
country to the repository at Yucca. See U.S. Department of
Energy, Final Environmental Impact Statement for a Geologic
Repository for the Disposal of Spent Nuclear Fuel and High-
Level Radioactive Waste at Yucca Mountain, Nye County,
Nevada 6-1 (February 12, 2002) (FEIS) (Joint Appendix (JA)
244). The FEIS analyzed two interstate transportation
proposals: the mostly legal-weight truck alternative and the
mostly-rail alternative. The FEIS also evaluated intrastate
transportation alternatives under the mostly-rail scenario to
transport waste from one of Nevada’s mainline railroads to
Yucca because there is currently no direct rail access to Yucca.
Under the mostly legal-weight truck scenario, virtually all
SNF2 and HLW would be placed in casks3 at the production
sources and the casks then shipped by truck directly to Yucca.
See FEIS 2-47 (JA 204). Each truck together with each cask
would meet legal-weight requirements. The mostly legal-weight
truck option would transport approximately 53,000 shipments
over 24 years. FEIS 6-4 (JA 247).
The mostly-rail scenario, by contrast, would provide for the
shipment of SNF and HLW primarily by rail. FEIS 6-35 (JA
278). There are seventy-two commercial production sources
and five DOE generator sources of nuclear waste nationwide.
Id. Sixty-six of the commercial production sources and the five
DOE generator sources have the capacity to load the waste into
large-capacity rail shipping casks. Forty-two of the sixty-six
2
Excepted would be SNF from the Idaho National Engineering and
Environmental Laboratory, which would be transported to Yucca by
rail. See FEIS 2-47 (JA 204).
3
The casks would be NRC-certified reusable shipping casks, FEIS
2-47 (JA 204), which would meet the requirements of 10 C.F.R. §§
71.0-71.10, prescribing radiological performance standards for casks
that are subjected to specific test conditions.
5
production sources also have direct rail access and would place
the casks directly on the rail line while the twenty-four sources
able to load the casks but without rail access would ship the
waste by barge via navigable waterways or heavy-haul trucks
via highways to the nearest rail line.4 Id. From there the waste
would travel by rail to one of Nevada’s mainline railroads.
Under the mostly-rail scenario some waste would have to be
shipped by legal-weight trucks because at least six production
sources cannot accommodate rail casks. Id. Waste hauled by
legal-weight truck would proceed directly from the production
sources to Yucca, just as it would under the mostly legal-weight
truck scenario. Under the mostly-rail scenario, about 9,600 rail
shipments and 1,100 legal-weight truck shipments would occur
over 24 years. FEIS 6-4 (JA 247). The FEIS designated the
mostly-rail scenario as the DOE’s preferred alternative. FEIS 6-
35 (JA 278).
As noted earlier, because none of Nevada’s mainline
railroads connects to Yucca, the FEIS also considered
alternatives for transporting the waste from a mainline railroad
to Yucca. The first option was to construct an intermodal
transfer station at a point on a mainline railroad, where the rail
casks would be transferred from the rail cars to heavy-haul
trucks. The trucks would then haul the waste to Yucca on one
of Nevada’s five existing highways to Yucca. The second
option was to build a branch rail line from a mainline railroad to
Yucca. The DOE identified five alternative “rail
corridors”—each approximately one-quarter mile wide—in
which to build a branch rail line. While the FEIS analyzed the
environmental impact of building a rail line somewhere within
each corridor, it did not analyze the impact of specific
alternative track locations within each corridor. The DOE did
4
Barge shipment “could be possible” for 17 of the 24 commercial
sources on or near navigable waterways. See FEIS 6-35 (JA 278).
6
not indicate a preference among the five rail corridors in the
FEIS but it subsequently announced the Caliente Corridor as its
preferred one. See Notice of Preferred Nevada Rail Corridor, 68
Fed. Reg. 74,951, 74,951 (Dec. 29, 2003) (“The Department is
now announcing the Caliente rail corridor as its preferred
corridor in which to construct a rail line in Nevada, and Carlin
as a secondary preference.”).
On April 8, 2004, the DOE issued a ROD for transporting
SNF and HLW to Yucca. See Record of Decision on Mode of
Transportation and Nevada Rail Corridor for the Disposal of
Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca
Mountain, Nye County, NV, 69 Fed. Reg. 18,557 (April 8,
2004) (ROD). The ROD identified the mostly-rail option as the
DOE’s choice for the national transportation plan. Id. at 18,558.
The Department also decided to construct a branch rail line from
one of Nevada’s existing mainline railroads to the repository at
Yucca and selected the Caliente Corridor for any branch rail line
it might decide to build. See id. (“In addition, the Department
has decided to select the Caliente rail corridor in which to
examine potential alignments within which to construct that rail
line. Should the Department select an alignment within that
corridor, it will obtain all necessary regulatory approvals before
beginning construction.” (footnote omitted)).
The ROD further noted that if the repository at Yucca
became operational before a branch line could be completed, the
DOE could nonetheless begin shipment of waste. Under this
contingency, the waste would be shipped on legal-weight truck
casks placed on rail cars which, once they arrived in Nevada,
would be transferred to legal-weight trucks at an intermodal
transfer station and then continue by truck to Yucca. The DOE
did not supplement the FEIS notwithstanding this contingency,
noted in the ROD, that it might transport waste in legal-weight
truck casks via rail. The ROD alluded to a March 10, 2004
Supplemental Analysis (SA) the DOE had prepared, concluding
7
that no Supplemental Environmental Impact Statement (SEIS)
was necessary because the FEIS’s analysis of the mostly legal-
weight truck and mostly-rail scenarios comprehended the
environmental impact of an interim use of legal-weight truck
casks by rail. Id. at 18,561 n.7.
Nevada then filed its petition for review of the FEIS and the
ROD. Nevada argues that the DOE violated NEPA in several
ways, that it exceeded its authority in selecting the Caliente
Corridor and that its conditional decision to ship waste in legal-
weight truck casks by rail, should the repository at Yucca be
operational before completion of a branch rail line, was arbitrary
and capricious.
II.
Under the ripeness doctrine, “an Article III court cannot
entertain the claims of a litigant unless they are ‘constitutionally
and prudentially ripe.’ ” Wyo. Outdoor Council v. U.S. Forest
Serv., 165 F.3d 43, 48 (D.C. Cir. 1999) (quoting La. Envtl.
Action Network v. Browner, 87 F.3d 1379, 1381 (D.C. Cir.
1996)). In our review of agency action, the ripeness doctrine
takes into account questions regarding “the institutional
capacities of, and the relationship between, courts and
agencies.” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915
(D.C. Cir. 1985). The questions include “the agency’s interest
in crystallizing its policy before that policy is subjected to
judicial review,” “the court’s interests in avoiding unnecessary
adjudication and in deciding issues in a concrete setting” and
“the petitioner’s interest in prompt consideration of allegedly
unlawful agency action.” Id. In Abbott Laboratories v.
Gardner, 387 U.S. 136 (1967), the United States Supreme Court
announced the now-familiar two-pronged test for ripeness that
balances these interests. A court is to evaluate “both the fitness
of the issues for judicial decision and the hardship to the parties
of withholding court consideration.” Id. at 149. The Supreme
Court has more recently elaborated on ripeness, concluding that
8
a court must consider “(1) whether delayed review would cause
hardship to the plaintiffs; (2) whether judicial intervention
would inappropriately interfere with further administrative
action; and (3) whether the courts would benefit from further
factual development of the issues presented.” Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
A.
Nevada claims that the DOE’s adoption of what Nevada
calls the “interim transportation plan”—“building an intermodal
capability at a rail line in Nevada to take legal-weight truck
casks from rail cars and transport them the rest of the way to the
repository via highway, should the rail system be unavailable at
the time of the opening of the repository,” ROD, 69 Fed. Reg. at
18,561—required the DOE to prepare an SEIS. The DOE is
required to prepare an SEIS if, inter alia, it makes “substantial
changes in the proposed action that are relevant to
environmental concerns.” 10 C.F.R. § 51.92(a)(1); see also 40
C.F.R. § 1502.9(c). Because the FEIS did not evaluate the
interim transportation plan, further NEPA analysis might be
required. See 40 C.F.R. § 1502.9(c)(1)(i). This issue, however,
is not yet ripe for our review.
The DOE’s discussion of the interim transportation plan in
the ROD does not represent its final determination regarding the
plan. As outlined in the ROD, the plan might be implemented
at some future time but the DOE’s language is replete with
conditional phrases. See ROD, 69 Fed. Reg. at 18,561 (“The
Department would use truck transport where necessary,
depending on certain factors such as the timing of the
completion of the rail line proposed to be constructed in Nevada.
This could include building an intermodal capability at a rail line
in Nevada to take legal-weight truck casks from rail cars and
transport them the rest of the way to the repository via highway,
should the rail system be unavailable at the time of the opening
of the repository.” (emphases added)). The DOE’s uncertainty
9
makes it plainly premature for us to review an interim
transportation plan that may never materialize. Until and unless
the NRC issues a permit for a nuclear repository at Yucca—a
precondition of its construction and operation—it is possible, if
not probable, that the branch rail line will be constructed before
the repository becomes operational. Moreover, even if it
becomes operational before the branch rail line is completed, the
ROD recites only that the DOE “could” implement the plan in
that event. Id. Only when the DOE’s plan has sufficiently
“crystallized” and the FEIS is used to support a concrete
decision will Nevada’s challenge to the DOE’s failure to prepare
an SEIS be ripe. See Ohio Forestry Ass’n, 523 U.S. at 733–37
(withholding consideration of forest management plan because
of uncertainty whether and to what extent plan would be used to
support future logging decisions). Nor do we foresee hardship
to Nevada by our withholding judicial review. See id. at 735
(requiring party to participate in further administrative or
judicial proceedings is not sufficient hardship); AT&T Corp. v.
FCC, 349 F.3d 692, 700 (D.C. Cir. 2003) (same).
B.
Nevada also attacks the interim transportation plan as
arbitrary and capricious. The APA requires that we set aside
agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Comtys.
Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 685
(D.C. Cir. 2004) (quoting 5 U.S.C. § 706(2)(A)). As with
Nevada’s claim that the DOE was required to prepare an SEIS,
however, we find this claim is not ripe for review.
A claim generally satisfies the first prong of the Abbott
Laboratories test—“fitness of the issue[ ] for judicial
decision”—if “the issue tendered is a purely legal one.” Abbott
Labs., 387 U.S. at 149. Whether an agency decision is arbitrary
and capricious is a purely legal question. See Sprint Corp. v.
FCC, 331 F.3d 952, 956 (D.C. Cir. 2003) (citing Fox Television
10
Stations, Inc. v. FCC, 280 F.3d 1027, 1039 (D.C. Cir.), modified
on reh’g on other ground by 293 F.3d 537 (D.C. Cir. 2002)).
Nonetheless, “even purely legal issues may be unfit for review,”
Atl. States Legal Found. v. EPA, 325 F.3d 281, 284 (D.C. Cir.
2003), if the agency action is not “final agency action” under the
APA, see Sprint Corp., 331 F.3d at 956. Indeed, we have held
that “[f]inal agency action pursuant to the Administrative
Procedure Act is a ‘crucial prerequisit[e]’ to ripeness.” Id.
(quoting Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 88
(D.C. Cir. 1986), and citing Abbott Labs., 387 U.S. at 149)
(second alteration in original). See also Trudeau v. FTC, No.
05-5363, 2006 WL 2087122, *4 (D.C. Cir. July 28, 2006);
Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety
Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003).
The ROD makes clear that the Department “could”
implement the plan, not that it will, and, in any event, that it will
do so only “where necessary, depending on certain factors.”
ROD, 69 Fed. Reg. at 18,561. “A claim is not ripe for
adjudication if it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.” Texas
v. United States, 523 U.S. 296, 300 (1998) (internal quotation
marks and citation omitted). In Fourth Branch Associates v.
FERC, 253 F.3d 741 (D.C. Cir. 2001), FERC issued a notice of
its intent to initiate “surrender” proceedings (used for the
implied surrender of a joint license to operate a hydroelectric
plan) and Fourth Branch Associates petitioned for review. We
dismissed the petition, observing “[t]here is nothing definitive
in an agency’s intending to do something.” Id. at 746. So too
here. The ROD, in relevant part, does nothing more than
announce the DOE’s intent to do something if certain conditions
obtain. The interim transportation plan “rests upon contingent
future events that may not occur as anticipated, or indeed may
not occur at all.” Texas, 523 U.S. at 300 (internal quotation
marks and citation omitted). It is not fit for judicial review
because “ ‘further administrative action is needed to clarify the
11
agency’s position.’ ” Nat’l Treasury Employees Union v.
Chertoff, Nos. 05-5436 & 05-5437, 2006 WL 1736216, *12
(D.C. Cir. June 27, 2006) (quoting Action Alliance of Senior
Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 940 (D.C.
Cir. 1986)).
Nor will Nevada suffer any hardship from delaying review.
The ROD’s discussion of the interim transportation plan results
in no “adverse effects of a strictly legal kind”; it “do[es] not
command anyone to do anything, or to refrain from doing
anything; [it does] not grant, withhold, or modify any formal
legal license, power, or authority; [it does] not subject anyone to
any civil or criminal liability; and [it] creates no legal rights or
obligations.” Ohio Forestry Ass’n, 523 U.S. at 733. The plan is
nothing more than a possible course of action the DOE may take
given a possible turn of events. Any injury to Nevada will not
occur until the DOE makes a concrete decision. See Toilet
Goods Ass’n v. Gardner, 387 U.S. 158, 164 (1967) (no hardship
where “regulation merely state[d] that the Commissioner may
authorize inspectors to examine certain processes or formulae”
because regulation did not affect petitioner’s “primary
conduct”). Nor does hardship flow from the uncertainty of the
DOE’s implementation of the plan, cf. Nat’l Park Hospitality
Ass’n v. Dep’t of Interior, 538 U.S. 803, 811 (2003) (rejecting
notion that “mere uncertainty as to the validity of a legal rule
constitutes a hardship for purposes of the ripeness analysis”),
nor from the fact that Nevada may have to participate in
additional administrative or judicial proceedings, see Nuclear
Energy Inst., 373 F.3d at 1313 (“[R]equiring a party to
participate in further administrative or judicial proceedings is
not a hardship sufficient to outweigh a determination that an
issue is unfit for review.”).
C.
Nevada next claims that the DOE selected the Caliente
Corridor in which to build the branch rail line without the
12
approval of the Surface Transportation Board (STB) and thus
invaded the latter’s exclusive jurisdiction over common carrier
rail lines. Under the APA, we must “hold unlawful and set aside
agency action . . . found to be . . . not in accordance with law
[or] . . . in excess of statutory jurisdiction, authority, or
limitations.” 5 U.S.C. § 706(2)(C). The STB has exclusive
jurisdiction over “transportation by rail carrier,” 49 U.S.C. §
10501(a)(1), and a “rail carrier” is defined as “a person
providing common carrier railroad transportation for
compensation,” 49 U.S.C. § 10102(5). The STB has determined
that a “railroad is a common carrier railroad if it purports to hold
itself out as a common carrier for hire and if there is an
ostensible and actual movement of traffic for the public for hire.
The principal test is whether there is a bona fide holding out
coupled with the ability to carry for hire.” Hanson Natural Res.
Co. -- Non-Common Carrier Status -- Pet. for a Declaratory
Order, Finance Docket No. 32248, 1994 WL 673712, *14
(decision served Dec. 5, 1994).
This challenge is also unripe because it is speculative. The
STB’s jurisdiction comes into play only if the DOE decides to
operate the branch rail line as a common carrier. See 49 U.S.C.
§ 10901(a). Nevada claims that the branch rail line’s
construction and operation as a common carrier is a “fait
accompli.” Pet’r’s Br. 13. That decision, however, has not been
made. Further, the DOE has declared that “[s]hould the
Department select an alignment within [the Caliente] corridor,
it will obtain all necessary regulatory approvals before
beginning construction.” ROD, 69 Fed. Reg. at 18,557.
Nevada’s threatened harm, therefore, is speculative and thus not
fit for judicial review. See Texas, 523 U.S. at 300 (“A claim is
not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all.” (internal quotation marks and citation omitted)). Moreover,
we can see no hardship to Nevada in delaying review because
the threatened harm—operation of the branch rail line as a
13
common carrier without STB certification—can occur only if
the DOE determines to operate the branch rail line as a common
carrier. See Nuclear Energy Inst., 373 F.3d at 1313 (“Nevada
may raise its substantive claims against the FEIS if and when
NRC or DOE makes such a final decision. Our decision to
postpone consideration of Nevada’s claims therefore works no
hardship on Nevada sufficient to render its claims ripe.”).
III.
We now turn to the State’s five remaining claims, all of
which are brought under NEPA. NEPA’s mandate “is
essentially procedural,” Vt. Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 558 (1978); the statute requires each
agency to assess the environmental consequences of “major
[f]ederal actions” by following certain procedures during the
decision-making process, 42 U.S.C. § 4332(2)(C); see Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C.
Cir. 1991). Before approving a project, an agency must prepare
a “detailed statement . . . [on] the environmental impact of the
proposed action, any adverse environmental effects which
cannot be avoided should the proposal be implemented, [and]
alternatives to the proposed action.” 42 U.S.C. §
4332(2)(C)(i)–(iii). Guiding the DOE’s NEPA analysis are
regulations promulgated by the Council on Environmental
Quality (CEQ), as well as the DOE’s own regulations, which
track the CEQ regulations.5 At the “heart of the environmental
5
NEPA established “in the Executive Office of the President a
Council on Environmental Quality,” “composed of three members
who shall be appointed by the President to serve at his pleasure, by
and with the advice and consent of the Senate.” 42 U.S.C. § 4342.
Under NEPA, the CEQ is charged with, inter alia, “develop[ing] and
recommend[ing] to the President national policies to foster and
promote the improvement of environmental quality to meet the
conservation, social, economic, health, and other requirements and
14
impact statement” is the requirement that an agency “rigorously
explore and objectively evaluate” the projected environmental
impacts of all “reasonable alternatives” to the proposed action.
40 C.F.R. § 1502.14.
Again, we apply the APA’s arbitrary and capricious
standard to a NEPA challenge. See, e.g., Olmsted Falls v. FAA,
292 F.3d 261, 269 (D.C. Cir. 2002). We apply this standard to
review both the agency’s procedural compliance with NEPA and
the adequacy of an EIS. See id. (citing Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 376 (1989)). Under NEPA, the
“role of the courts is simply to ensure that the agency has
adequately considered and disclosed the environmental impact
of its actions and that its decision is not arbitrary or capricious.”
Id. (citing Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97–98
(1983)).
A.
Before the issuance of an EIS, the responsible official “shall
consult with and obtain the comments of any Federal agency
which has jurisdiction by law or special expertise with respect
to any environmental impact involved.” 42 U.S.C. § 4332(C);
see 40 C.F.R. § 1503.1(a) (same). Furthermore, the CEQ
goals of the Nation” and “review[ing] and apprais[ing] the various
programs and activities of the Federal Government in the light of the
policy set forth in title I of [NEPA] for the purpose of determining the
extent to which such programs and activities are contributing to the
achievement of such policy, and to make recommendations to the
President with respect thereto.” 42 U.S.C. § 4344(3)–(4). Because the
CEQ “has no express regulatory authority under [NEPA],” City of
Alexandria v. Slater, 198 F.3d 862, 866 n.3 (D.C. Cir. 1999)—it was
empowered to issue regulations only by executive order—“the binding
effect of CEQ regulations is far from clear,” TOMAC v. Norton, 433
F.3d 852, 861 (D.C. Cir. 2006). The DOE accepts them as binding, as
do we for purposes of this appeal.
15
regulations require an agency with jurisdiction by law or special
expertise to comment on “statements within [its] jurisdiction,
expertise, or authority.” 40 C.F.R. § 1503.2. “Jurisdiction by
law” is defined as “agency authority to approve, veto, or finance
all or part of the proposal,” 40 C.F.R. § 1508.15, and “special
expertise” is defined as “statutory responsibility, agency
mission, or related program experience,” 40 C.F.R. § 1508.26.
Nevada contends that the DOE violated 42 U.S.C. §
4332(C) and 40 C.F.R. § 1503.1(a) by failing to consult with the
STB regarding the DOE’s branch rail line proposal. We do not
reach the merits of Nevada’s claim, however, because it has
waived the argument by failing to raise it at the administrative
level. As the Supreme Court has long admonished, “[p]ersons
challenging an agency’s compliance with NEPA must ‘structure
their participation so that it . . . alerts the agency to the [parties’]
position and contentions,’ in order to allow the agency to give
the issue meaningful consideration.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 764 (2004) (citing Vt. Yankee, 435 U.S.
at 553) (alterations in original); cf. Nebraska v. EPA, 331 F.3d
995, 997 (D.C. Cir. 2003); Appalachian Power Co. v. EPA, 251
F.3d 1026, 1036 (D.C. Cir. 2001); Omnipoint Corp. v. FCC, 78
F.3d 620, 635 (D.C. Cir. 1996); Tex Tin Corp. v. EPA, 935 F.2d
1321, 1323 (D.C. Cir. 1991). The Court also cautioned that
administrative proceedings should not be a game or a
forum to engage in unjustified obstructionism by
making cryptic and obscure references to matters that
“ought to be” considered and then, after failing to do
more to bring the matter to the agency’s attention,
seeking to have that agency determination vacated on
the ground that the agency failed to consider matters
“forcefully presented.”
Vt. Yankee, 435 U.S. at 553–54.
16
Applying these principles to Nevada’s petition for review,
we believe Nevada’s comments nowhere alerted the DOE to
Nevada’s contention that the DOE was obligated to consult with
the STB. Although judicial review may be had if an issue was
raised at the administrative level by a party other than the
petitioner, see Cellnet Commc’n, Inc. v. FCC, 965 F.2d 1106,
1109 (D.C. Cir. 1992) (“Consideration of the issue by the
agency at the behest of another party is enough to preserve it.”);
see also Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936,
948 (D.C. Cir. 2004) (per curiam); Reytblatt v. U.S. Nuclear
Regulatory Comm’n, 105 F.3d 715, 721 (D.C. Cir. 1997), here
the voluminous administrative record contains only one lone
comment regarding the STB’s jurisdiction. Eureka County,
Nevada noted that “it is not clear whether construction and
operation of proposed rail corridors . . . would require . . .
[a]pproval by the Surface Transportation Board.” JA 546–47.
This bare comment alerted the DOE, at most, that it might need
to obtain the STB’s approval to build and operate a branch rail
line; it did not touch on what Nevada argues here, that is, that
the DOE had a duty to consult with the STB. Accordingly, we
conclude that Nevada has waived this argument.
B.
Nevada next contends that the DOE violated NEPA by
failing to consult with the Nevada State Engineer. Under
NEPA, an agency’s duty to obtain the comments of state and
local agencies differs from its duty with respect to federal
agencies. NEPA imposes a duty on the agency to consult with
and obtain written comments from the appropriate federal
agencies. See 42 U.S.C. § 4332(2)(C); Warm Springs Dam Task
Force v. Gribble, 621 F.2d 1017, 1022 (9th Cir. 1980) (“[T]he
statute imposes on the agency a duty to obtain written
comments.”). And the CEQ regulations implementing NEPA
not only require the proposing agency to “obtain the comments”
of federal agencies with jurisdiction and/or expertise, see 40
17
C.F.R. § 1503.1(a)(1), but also affirmatively require those
agencies to comment, see 40 C.F.R. § 1503.2. See Warm
Springs Dam Task Force, 621 F.2d at 1022.
By contrast, NEPA itself is silent regarding an agency’s
duty to obtain comments from state and local agencies. The
CEQ regulations, however, require the proposing agency to
“[r]equest the comments of [a]ppropriate State and local
agencies which are authorized to develop and enforce
environmental standards.” 40 C.F.R. § 1503.1(a)(2)(i). While
under both NEPA and the CEQ regulations, a proposing agency
must “obtain” the comments of certain federal agencies, see 42
U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1503.2, 1503.1(a), it must
only “[r]equest” the comments of “[a]ppropriate State and local
agencies,” 40 C.F.R. § 1503.1(a)(2). If the agency makes a
request for comments and receives none, it has met its obligation
under 40 C.F.R. § 1503.1(a)(2). If, after requesting comment,
the agency receives comment, NEPA then requires that
“[c]opies of . . . the comments and views of the appropriate
Federal, State, and local agencies . . . shall be made available to
the President, the Council on Environmental Quality and to the
public.” 42 U.S.C. § 4332(2)(C).
Here, the DOE submitted a copy of the draft EIS, with a
cover letter inviting comment, to Michael Turnipseed, the
Nevada State Engineer. Thus, it “request[ed]” the comments of
the “[a]ppropriate State . . . agenc[y].” See 40 C.F.R. §
1503.1(a)(2). The State Engineer did not individually submit
any comment to the DOE. Nevada, however, submitted
comments on the draft EIS (DEIS) to the DOE, acknowledging
the contribution of, inter alia, the “Nevada Division of Water,”
the state agency headed by the State Engineer. The DOE made
copies of Nevada’s comments available to the President, the
CEQ and the public and thus complied with 40 C.F.R. §
1503.1(a)(2) and 42 U.S.C. § 4332(2)(C).
C.
18
Nevada maintains that the DOE violated NEPA because it
did not identify the Caliente Corridor as its preferred alternative
in the FEIS. The CEQ regulations provide “that agencies
shall . . . [i]dentify the agency’s preferred alternative or
alternatives, if one or more exists, in the draft statement and
identify such alternative in the final statement unless another
law prohibits the expression of such a preference.” 40 C.F.R. §
1502.14(e). Nevada interprets this provision to affirmatively
require that the FEIS include a preferred alternative and
therefore claims that the DOE’s failure to identify one with
regard to rail corridor selection violated this requirement. The
DOE counters that it fulfilled its obligation under section
1502.14(e) by identifying Yucca as its preferred alternative for
the site of a repository for the disposal of nuclear waste and that
it was not obliged to specify preferred alternatives for any other
proposed action outlined in the FEIS. The argument, thus,
centers on the level of specificity required under the regulation.
We need not dissect the regulation because we believe that
even if the DOE violated section 1502.14(e), the violation was
harmless error. The APA provides that, in reviewing agency
action, the court “shall” take account of “the rule of prejudicial
error,” 5 U.S.C. § 706,6 that is, whether the error caused
prejudice. We have applied the prejudicial error rule in the
NEPA context where the proposing agency engaged in
significant environmental analysis before reaching a decision
but failed to comply precisely with NEPA procedures. See Ill.
Commerce Comm’n v. ICC, 848 F.2d 1246, 1257 (D.C. Cir.
1988); see also Save Our Heritage, Inc. v. FAA, 269 F.3d 49,
59–62 (1st Cir. 2001); Sierra Club v. Slater, 120 F.3d 623, 637
(6th Cir. 1997); Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp.,
6
5 U.S.C. § 706 provides, inter alia, “the court shall review the
whole record or those parts of it cited by a party, and due account shall
be taken of the rule of prejudicial error.”
19
42 F.3d 517, 527 (9th Cir. 1994). For example, in Illinois
Commerce Commission v. ICC, 848 F.2d at 1257, we found the
agency’s failure to prepare a required environmental assessment
(EA) harmless error because the agency had considered
environmental consequences during the rulemaking and had
developed procedures for subsequent consideration in making
individual authorization decisions. There, we noted, “An order
to the Commission to prepare an EA or an EIS and engage in
rulemaking for a third time would be a meaningless gesture, not
necessary to guarantee that the Commission will consider
environmental concerns when it authorizes abandonments.” Id.
(citing Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.1965)
(remand for procedural error unnecessary where it would
accomplish nothing “save further expense and delay”)).
Similarly, we see no purpose in declaring the FEIS
inadequate because of the DOE’s failure to identify the Caliente
Corridor as its preferred alternative therein. PDK Labs. Inc. v.
DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“If the agency’s
mistake did not affect the outcome, if it did not prejudice the
petitioner, it would be senseless to vacate and remand for
reconsideration.”). NEPA’s goal of ensuring that relevant
information is available to those participating in agency
decision-making was not frustrated by the absence of language
designating the Caliente Corridor as the DOE’s preferred
alternative. See Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989) (NEPA “guarantees that the relevant
information will be made available to the larger audience that
may also play a role in both the decisionmaking process and the
implementation of that decision.”). The many comments
submitted in response to the FEIS manifest that the public had
sufficient information to comment on the five
20
corridors—including Caliente—the DOE evaluated in the FEIS.7
ROD, 69 Fed. Reg. at 18,558. Moreover, as noted earlier, the
DOE subsequently announced its preferred rail corridor
selection, see Notice of Preferred Nevada Rail Corridor, 68 Fed.
Reg. at 74,951, thereby allowing the public to address comments
more specifically to that Corridor. In a December 29, 2003
Notice published in the Federal Register, the DOE stated, “The
Department is now announcing the Caliente rail corridor as its
preferred corridor in which to construct a rail line in Nevada,
and Carlin as a secondary preference.” Id. To order the DOE to
revise the FEIS because it failed to identify its preferred rail
corridor, in the FEIS, especially in light of its later disclosure in
the Federal Register, would be a “meaningless gesture.” Ill.
Commerce Comm’n, 848 F.2d at 1257.
D.
Nevada also challenges the FEIS for failing to address rail
corridor selection—i.e., in which corridor to build a branch rail
line—and rail corridor alignment—i.e., where in the preferred
corridor to place the tracks—in a single EIS. It argues that
corridor selection and alignment selection are “closely related”
actions requiring evaluation in a single EIS under 40 C.F.R.
7
Moreover, the DOE elicited public comment on its DEIS and
supplemental DEIS (SDEIS). It received more than 13,000 comments
on the DEIS and the SDEIS, 3,600 of which addressed transportation
issues. See ROD, 69 Fed. Reg. at 18,558.
21
§ 1508.25(a)(1).8 The DOE maintains that it appropriately
“tiered” its proposed action under 40 C.F.R. § 1508.28.9
8
Under 40 C.F.R. § 1508.25(a)(1), an agency must discuss
“[c]onnected actions”—that is, “closely related” actions—“in the same
impact statement.” “Actions are connected if they;” (i)
“[a]utomatically trigger other actions which may require
environmental impact statements”; (ii) “[c]annot or will not proceed
unless other actions are taken previously or simultaneously”; or (iii)
“[a]re interdependent parts of a larger action and depend on the larger
action for their justification.”
9
40 C.F.R. § 1508.28 provides:
“Tiering” refers to the coverage of general matters in broader
environmental impact statements (such as national program or
policy statements) with subsequent narrower statements or
environmental analyses (such as regional or basinwide
program statements or ultimately site-specific statements)
incorporating by reference the general discussions and
concentrating solely on the issues specific to the statement
subsequently prepared. Tiering is appropriate when the
sequence of statements or analyses is:
(a) From a program, plan, or policy environmental
impact statement to a program, plan, or policy
statement or analysis of lesser scope or to a site-
specific statement or analysis.
(b) From an environmental impact statement on a
specific action at an early stage (such as need and
site selection) to a supplement (which is preferred) or
a subsequent statement or analysis at a later stage
(such as environmental mitigation). Tiering in such
cases is appropriate when it helps the lead agency to
focus on the issues which are ripe for decision and
exclude from consideration issues already decided or
not yet ripe.
The CEQ regulations encourage “tiering” for certain proposed actions.
22
Tiering refers to a procedure by which an agency prepares
a broad EIS—called a programmatic EIS—and subsequently
prepares a narrower analysis—called a site-specific EIS—of an
action included in the program. The subsequent analysis need
only summarize, and incorporate by reference, the
environmental issues discussed in the programmatic EIS. See
Laub v. Dep’t of Interior, 342 F.3d 1080, 1088–89 (9th Cir.
2003). Tiering of a national program like the repository at
Yucca recognizes the reality that its completion involves many
separate sub-projects and will take many years. The agency
evaluates each sub-project as it becomes ready and that
evaluation can be done with “subsequent narrower statements or
environmental analyses.” 40 C.F.R. § 1508.28.
We have characterized a programmatic EIS as follows:
A programmatic EIS reflects the broad environmental
consequences attendant upon a wide-ranging federal
program. The thesis underlying programmatic EISs is
that a systematic program is likely to generate
disparate yet related impacts . . . . Whereas the
programmatic EIS looks ahead and assimilates “broad
issues” relevant to [the program], the site-specific EIS
addresses more particularized considerations . . . .
Found. on Econ. Trends v. Heckler, 756 F.2d 143, 159 (D.C.
Cir. 1985) (quoting Nat’l Wildlife Fed’n v. Appalachian Reg’l
Comm’n, 677 F.2d 883, 888 (D.C. Cir. 1981)) (alterations in
original). Under the CEQ regulations a programmatic EIS
should be prepared if actions are “connected,” “cumulative,” or
sufficiently “similar” that a programmatic EIS is “the best way
to assess adequately the combined impacts of similar actions or
reasonable alternatives to such actions.” 40 C.F.R. §
1508.25(a). The Supreme Court has noted that 42 U.S.C. §
See id. § 1502.20.
23
4332(2)(C) “may require a comprehensive impact statement in
certain situations where several proposed actions are pending at
the same time.” Kleppe v. Sierra Club, 427 U.S. 390, 409
(1976). It elaborated that “[b]y requiring an impact statement
Congress intended to assure such consideration during the
development of a proposal or—as in this case—during the
formulation of a position on a proposal submitted by private
parties. A comprehensive impact statement may be necessary
in some cases for an agency to meet this duty.” Id. (footnote
omitted). In determining whether a comprehensive
statement—that is, a programmatic EIS—is necessary, the Court
considers “the extent of the interrelationship among proposed
actions and practical considerations of feasibility.” Id. at 412.
The decision whether to prepare a programmatic EIS is
committed to the agency’s discretion. See Izaak Walton League
of Am. v. Marsh, 655 F.2d 346, 374 n.73 (D.C. Cir. 1981)
(“Even when the proposal is one of a series of closely related
proposals, the decision whether to prepare a programmatic
impact statement is committed to the agency’s discretion.”).
Only if the decision is arbitrary and capricious will we overturn
it. See Kleppe, 427 U.S. at 412 (“Respondents conceded at oral
argument that to prevail they must show that petitioners have
acted arbitrarily in refusing to prepare one comprehensive
statement on this entire region, and we agree.”). The DOE
prepared a programmatic FEIS for the entire Yucca project as
authorized by 40 C.F.R. § 1508.25. Nevada claims that the
FEIS wholly failed to analyze the environmental impacts of rail
corridor alignment, focusing only on rail corridor selection. Not
so. The FEIS analyzed both rail corridor selection and rail
corridor alignment for each alternative. ROD, 69 Fed. Reg. at
18,562–64. The DOE is now preparing a site-specific
EIS—namely a Caliente Corridor EIS—for rail corridor
alignment as permitted under 49 C.F.R. § 1508.28. Resp’t’s Br.
56. The DOE has acted well within its discretion in following
24
the tiered approach regarding rail corridor selection and
alignment and, accordingly, has not violated NEPA.
E.
Nevada’s final claim is that the DOE did not take the
requisite “hard look” at the environmental impacts of the DOE’s
rail corridor selection. See Comtys. Against Runway Expansion,
355 F.3d at 685 (“We review the EIS to ensure that the agency
took a ‘hard look’ at the environmental consequences of its
decision to go forward with the project . . . .” (internal quotation
marks omitted)). Specifically, Nevada contends that the FEIS
inadequately and incompletely analyzed the environmental
effects of placing a branch rail line within each of the five
alternative corridors under consideration. Although the contours
of the “hard look” doctrine may be imprecise, our task is
“simply to ensure that the agency has adequately considered and
disclosed the environmental impact of its actions and that its
decision is not arbitrary or capricious.” Balt. Gas & Elec. Co.,
462 U.S. at 97–98. We have recognized that a “rule of reason”
applies both to an agency’s identification of the available
alternatives and to its examination of their relative merits.
Citizens Against Burlington, Inc., 938 F.2d at 196–97. We must
ensure that “the statement contains sufficient discussion of the
relevant issues and opposing viewpoints” and that the agency’s
decision is “fully informed” and “well-considered.” NRDC v.
Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988); see also Robertson,
490 U.S. at 350 (agency must assure that “the adverse
environmental effects of the proposed action are adequately
identified and evaluated” (quotation omitted)); 40 C.F.R. §
1502.14(a) (agency is to “[r]igorously explore and objectively
evaluate all reasonable alternatives” (emphases added)).
We conclude that the DOE’s analysis of the environmental
impacts of rail corridor selection in its FEIS is adequate. Fully
one-third—more than 80 pages—of the FEIS’s analysis of
transportation issues addressed rail corridor impacts. ROD, 69
25
Fed. Reg. at 18,562–64; FEIS 6-72–156 (JA 315–399). For each
of the five corridors, the DOE analyzed more than twelve
different environmental factors: land use, air quality, hydrology,
biological resources and soils, cultural resources, occupational
and public health and safety, socioeconomic factors, noise and
vibration, aesthetics, utilities, energy and material, wastes and
environmental justice. FEIS 6-72–156 (JA 315–399).
Nevada points to a handful of alleged inadequacies in the
FEIS related to environmental impacts on cultural resources and
flood plains as well as archaeological and historic impacts.
Pt’r’s Br. 53–54. It is well settled that the court will not
“flyspeck” an agency’s environmental analysis, looking for any
deficiency no matter how minor. See Fuel Safe Wash. v. FERC,
389 F.3d 1313, 1323 (10th Cir. 2004) (describing inquiry as
“deciding whether claimed deficiencies in a FEIS are merely
flyspecks, or are significant enough to defeat the goals of
informed decision making and informed public comment.”
(internal quotation marks and citation omitted)); Half Moon Bay
Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 508 (9th
Cir. 1988) (“The reviewing court may not ‘flyspeck’ an EIS.”).
Moreover, as noted earlier, the FEIS is a programmatic EIS and
the DOE, consistent with the CEQ’s “tiering” regulations, is
preparing a site-specific EIS on rail corridor alignment. Resp’t’s
Br. 56. While the “tiering” regulations do not relieve the DOE
from taking a “hard look” at the environmental impacts,
including those included in a programmatic EIS, we do not think
that the inadequacies to which Nevada points make the FEIS
inadequate. The DOE’s selection of the Caliente Corridor
therefore was not arbitrary or capricious.
For the foregoing reasons, we deny Nevada’s petition for
review of the Department of Energy’s Final Environmental
Impact Statement for a Geologic Repository for the Disposal of
Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca
Mountain, Nye County, Nevada (February 12, 2002) and its
26
Record of Decision on Mode of Transportation and Nevada Rail
Corridor for the Disposal of Spent Nuclear Fuel and High-Level
Radioactive Waste at Yucca Mountain, Nye County, NV, 69
Fed. Reg. 18,557 (April 8, 2004).10
So ordered.
10
We summarily deny any claims not specifically addressed in this
opinion.