Brodsky v. United States Nuclear Regulatory Commission

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

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2011

(Argued: May 3, 2012 Decided: January 7, 2013)

Docket No. 11-2016-cv

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.

UNITED STATES NUCLEAR REGULATORY COMMISSION,

Defendant-Appellee,

ENTERGY NUCLEAR OPERATIONS, INC.,

Defendant.

Before:
SACK and RAGGI, Circuit Judges, and SWAIN, District Judge.*

*
Judge Laura Taylor Swain of the United States District Court for the Southern
District of New York, sitting by designation.
 Appeal from an award of summary judgment by the United States District Court

for the Southern District of New York (Loretta A. Preska, Chief Judge), in favor of the

United States Nuclear Regulatory Commission (“NRC”) on plaintiffs’ challenge to the

NRC’s grant of an exemption to the Indian Point nuclear power plant from compliance

with certain fire safety regulations. A summary order filed today affirms the judgment in

part as to those of plaintiffs’ challenges that we hold to be without merit. This opinion

vacates the judgment in part, insofar as the district court rejected plaintiffs’ argument that

the exemption was granted in violation of the National Environmental Policy Act’s public

participation regulations, and remands the matter for further proceedings.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

RICHARD L. BRODSKY, Esq., White Plains, New York, for
Plaintiffs-Appellants.

BENJAMIN H. TORRANCE (Sarah S. Normand, on the brief), Assistant
United States Attorneys, on behalf of Preet Bharara, United
States Attorney for the Southern District of New York, New
York, New York, for Defendant-Appellee.

Kelly A. Berkell, Office of Assemblywoman Amy R. Paulin,
Scarsdale, New York, for Amicus Curiae New York
Legislators.

2
REENA RAGGI, Circuit Judge:

On September 28, 2007, defendant United States Nuclear Regulatory Commission

(“NRC”) granted defendant Entergy Nuclear Operations, Inc. (“Entergy”), an exemption

from compliance with certain fire safety regulations at its Indian Point nuclear power

plant operating unit No. 3 (“Indian Point 3”), located in Westchester County, New York.

In December 2007, plaintiffs Richard Brodsky, a former member of the New York State

Assembly; the Westchester’s Citizens Awareness Network; and the Sierra Club–Atlantic

Chapter, unsuccessfully petitioned the NRC to reopen the exemption proceeding and to

hold a public hearing on the merits of Entergy’s request. This court dismissed plaintiffs’

direct appeal from the NRC’s denial of that petition for lack of jurisdiction. See Brodsky

v. U.S. Nuclear Regulatory Comm’n, 578 F.3d 175, 180 (2d Cir. 2009). Plaintiffs

thereafter commenced the instant action in the United States District Court for the

Southern District of New York (Loretta A. Preska, Chief Judge), alleging that the NRC’s

award of the exemption to Entergy violated the Administrative Procedure Act (“APA”),

the Atomic Energy Act (“AEA”), and the National Environmental Policy Act (“NEPA”).

On this appeal, plaintiffs challenge the district court’s award of summary judgment in

favor of Entergy on these claims. See Brodsky v. U.S. Nuclear Regulatory Comm’n, 783

F. Supp. 2d 448, 450 (S.D.N.Y. 2011).

By summary order filed today, we affirm the challenged judgment in all respects

but one, which is the subject of this opinion. Specifically, insofar as plaintiffs contend

3
that the NRC granted the challenged exemption in violation of NEPA’s regulations,

which allow for public involvement where appropriate and practicable, see 40 C.F.R.

§§ 1501.4(b), 1506.6(c), we conclude that the agency record does not permit a reviewing

court to determine whether a reasoned basis exists for the NRC’s decision not to afford

any such public involvement in the exemption decision. We therefore vacate the

judgment of the district court, which implicitly rejected this argument, with respect to

plaintiffs’ NEPA challenge only, and we remand this case to the district court with

instructions for it in turn to remand to the NRC so that the agency may (1) supplement the

administrative record to explain why allowing public input into the exemption request

was inappropriate or impracticable, or (2) take such other action as it may deem

appropriate to resolve this issue. See Florida Power & Light Co. v. Lorion, 470 U.S. 729,

744 (1985) (“[I]f the reviewing court simply cannot evaluate the challenged agency action

on the basis of the record before it, the proper course, except in rare circumstances, is to

remand to the agency for additional investigation or explanation.”). This panel will retain

jurisdiction for the purpose of ruling, if necessary, on any appeal from a further district

court judgment addressing the agency’s action on remand. See United States v. Jacobson,

15 F.3d 19 (2d Cir. 1994).

I. Factual Background

The Atomic Energy Act of 1954 “establishes a comprehensive regulatory

framework for the ongoing review of nuclear power plants located in the United States”

4
and vests the Atomic Energy Commission, and its successor agency, the NRC, with broad

regulatory power to ensure “that the generation and transmission of nuclear power does

not unreasonably threaten the public welfare.” County of Rockland v. U.S. Nuclear

Regulatory Comm’n, 709 F.2d 766, 769 (2d Cir. 1983); accord Riverkeeper, Inc. v.

Collins, 359 F.3d 156, 168 (2d Cir. 2004) (noting NRC’s mission to “insure adequate

protection of public health and safety from risks associated with nuclear plants”).

Pursuant to that authority, in 1980, the NRC upgraded its fire safety rules in response to a

catastrophic fire at the Browns Ferry power plant near Decatur, Alabama. See Fire

Protection Program for Operating Nuclear Power Plants, 45 Fed. Reg. 76,602 (Nov. 19,

1980); 10 C.F.R. pt. 50, App. R. Regulations authorize the NRC to grant exemptions

from specific fire safety protocols, provided the applied-for exemption does “not present

an undue risk to the public health and safety,” 10 C.F.R. § 50.12(a)(1), and “special

circumstances” warrant the exemption, id. § 50.12(a)(2). The exemption process has

been recognized to afford a “critical element of flexibility” in potentially cumbersome fire

safety compliance by allowing power plants “to show that alternative fire protection

systems protect the public safety at the same high level as the system chosen by the

Commission.” Connecticut Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d

525, 530, 537 (D.C. Cir. 1982).

In both 1984 and 1987, Indian Point 3 secured exemptions from fire safety

regulations not relevant here. The grant of these exemptions was by no means pro forma.

5
As the district court observed, the NRC has had “a long history of reviewing the [fire

safety] regulations at [Indian Point 3] and in most cases has denied requests for

exemptions.” Brodsky v. U.S. Nuclear Regulatory Comm’n, 783 F. Supp. 2d at 452 n.3

(noting that NRC staff recommended granting only eight of twenty-six exemptions

requested after regulations took effect).

Existing rules contemplate a “defense-in-depth” approach to fire protection with

three objectives: (1) “[t]o prevent fires from starting”; (2) “[t]o detect rapidly, control,

and extinguish promptly those fires that do occur”; and (3) “[t]o provide protection for

structures, systems, and components important to safety so that a fire that is not promptly

extinguished by the fire suppression activities will not prevent the safe shutdown of the

plant.” 10 C.F.R. pt. 50, App. R, II.A. A plant may satisfy the third objective by

enclosing a redundant safety shutdown system in a barrier that will withstand a fire for at

least one hour, if accompanied by fire detectors and an automatic fire suppression system.

See id. III.G.2.

Since at least 1987, Indian Point 3 has relied on a fire barrier called Hemyc,

originally rated for one hour of fire protection, to satisfy the third objective of the NRC’s

fire safety regulations. The NRC first began to develop concerns about Hemyc’s

effectiveness in 1999, prompting renewed testing of that material. On April 1, 2005, the

NRC informed its licensees that Hemyc and another fire barrier material, MT, did not

perform for one hour as designed because of shrinkage of the material during testing.

6
Later that month, NRC staff held a public meeting with licensees and interested members

of the public to discuss these concerns.

In May 2005, a number of citizen groups petitioned the NRC pursuant to 10 C.F.R.

§ 2.206 to modify or suspend the operating licenses of various nuclear power plants,

including Indian Point 3, that were using Hemyc or MT for fire safety, arguing that the

plants were “operating in violation of NRC fire protection requirements . . . resulting in a

degradation of defense-in-depth fire protection and safe shut down in the event of a

significant fire.” All Nuclear Power Plants That Use Hemyc/MT Fire Barriers, 71 Fed.

Reg. 3,344-01, 3,345 (Jan. 20, 2006) (notice of decision under § 2.206). On January 20,

2006, the NRC granted the citizens groups’ petition in part, publicly stating that it would

“review all affected plants in detail” in an effort to “take appropriate actions to resolve the

issues with the use of Hemyc[] material commensurate with the safety significance of the

protected systems.” Id.; see also In re Carolina Power & Light Co. (Shearon Harris

Nuclear Power Station, Unit 1; H.B. Robinson Plant, Unit 2), 63 N.R.C. 133, 140 (2006)

(stating that NRC shared citizens groups’ concerns and was addressing Hemyc

“performance issues in an expeditious manner”). Pursuant thereto, on April 10, 2006, the

NRC issued a generic letter entitled “Potentially Nonconforming Hemyc and MT Fire

Barrier Configurations,” directing all its power plant licensees to evaluate their facilities

to ensure compliance with applicable fire safety regulations and to furnish information

confirming such compliance.

7
 In its June 8, 2006 response to this NRC directive, Entergy reported that Indian

Point 3 was not in compliance with agency fire safety protocols due to its use of Hemyc.

Entergy stated that it had instituted compensatory measures, such as conducting hourly

fire-watch tours and ensuring the operability of its fire detection systems. On July 24,

2006, Entergy applied to the NRC for an expansion of its existing exemptions to require

only a 30-minute fire resistance rating in two areas of Indian Point 3 protected by Hemyc.

By August 16, 2007, however, Entergy had concluded that it could not guarantee

satisfaction of a 30-minute resistance rating in one of the areas and sought NRC

allowance for a 24-minute rating at that site.

On August 27, 2007, the NRC’s Fire Protection Branch recommended granting

Entergy the requested exemption. On September 24, 2007, the NRC issued a related

environmental assessment (“EA”), see 40 C.F.R. § 1508.9, and finding of no significant

impact (“FONSI”), see id. § 1508.13. These were published in the Federal Register on

September 28, 2007, see Entergy Nuclear Operations, Inc., Indian Point Nuclear

Generating Unit No. 3, 72 Fed. Reg. 55,254-01 (Sept. 28, 2007) (EA and FONSI), the

same day that the NRC awarded the exemption, which itself was published in the Federal

Register on October 4, 2007, see Entergy Nuclear Operations, Inc., Indian Point Nuclear

Generating Unit No. 3, 72 Fed. Reg. 56,798-02 (Oct. 4, 2007) (revision to existing

exemptions).1
1
In granting the exemption, the NRC concluded that the requested 30- and 24-minute
fire barriers sufficed to “ensure that one of the redundant trains necessary to achieve and
8
 Plaintiffs submit that the September 28, 2007 publication of the EA and FONSI

was the first public notice of Entergy’s 2006 exemption request. On the day the

exemption grant was made public, New York’s Attorney General filed a written request

for the NRC to reconsider the exemption and to solicit public comment, which the NRC

denied. On December 3, 2007, plaintiffs presented the NRC with a similar request,

contending, among other things, that it was implausible that the steps needed to control a

fire could be taken in 24 minutes, that such a scenario had not been adequately tested, and

that the generic testing relied upon by Entergy and the NRC did not adequately consider

the conditions or equipment present at Indian Point 3.2 Plaintiffs offered various

supporting documents, including an affidavit from Ulrich Witte, a mechanical engineer

whose 24 years’ experience included responsibility for fire safety compliance at the

Rancho Seco Nuclear Power Station in Sacramento, California. Witte labeled Entergy’s

maintain hot shutdown conditions remains free of fire damage in the event of a fire,” 72 Fed.
Reg. at 56,801, and thus that “application of the regulation [wa]s not necessary to achieve
the underlying purpose of the rule,” id. (citing 10 C.F.R. § 50.12(a)(2)(ii) (listing stated
reason among “special circumstances” justifying exemption)). The NRC also emphasized
Indian Point 3’s compliance with the first and second objectives of “defense-in-depth”
protection, noting the relative absence of ignition sources in the affected fire areas, the fact
that the principal combustibles were flame-retardant asbestos-jacketed cables, and the
presence of automatic fire detection systems and automatic and manual fire suppression
systems, all of which would limit the severity of a credible fire. Referencing this reasoning,
the EA and FONSI stated that Indian Point 3’s continued use of the “Hemyc fire barrier in
these zones . . . will not significantly increase the probability or consequences of accidents.”
72 Fed. Reg. at 55,254.
2
Plaintiffs also asserted that the NRC’s decision did not factor in security risks posed
by plant employees or from a light aircraft strike on the facility.
9
24-minute timeframe “entirely unrealistic.” Witte Decl. 3. He also faulted the NRC for

offsetting the high risks posed in the event of a fire at Indian Point 3 against the low risk

that a fire would ignite or that the areas at issue would combust. The NRC denied

plaintiffs’ request on January 30, 2008, stating only that Entergy’s application did not

trigger hearing rights under the AEA.

On March 27, 2008, plaintiffs, with the support of New York State as amicus

curiae, petitioned this court for review of the NRC’s denial pursuant to 28 U.S.C.

§ 2342(4) (conferring exclusive jurisdiction on Courts of Appeals to review “all final

orders of the [NRC] made reviewable by [42 U.S.C. § 2239]”). This court dismissed the

petition on August 27, 2009, concluding sua sponte that we lacked jurisdiction under the

“plain text” of § 2239. Brodsky v. U.S. Nuclear Regulatory Comm’n, 578 F.3d at 180–81

(construing § 2239(a)(1)(A)’s reference to “granting, suspending, revoking, or amending

of any license,” over which direct appellate review may be had, not to include issuance of

exemption).

Plaintiffs commenced the instant action in the district court on December 30, 2009,

alleging violations of the APA, AEA, and NEPA. By Opinion and Order dated March 4,

2011, the district court awarded summary judgment to defendants on all claims. See

Brodsky v. U.S. Nuclear Regulatory Comm’n, 783 F. Supp. 2d 448. While the district

court discussed various of plaintiffs’ challenges, it did not specifically address their

10
argument that the NRC violated their NEPA right, as members of the public, to

participate in the exemption process. We consider that claim here.

II. Discussion

A. Standard of Review

NEPA is, at its core, “a procedural statute that mandates a process rather than a

particular result.” Stewart Park & Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545,

557 (2d Cir. 2003). Thus, judicial “review of administrative choices under

NEPA . . . focuses primarily on the procedural regularity of the decision,” rather than on

its substance. Sierra Club v. U.S. Army Corps of Eng’rs, 772 F.2d 1043, 1055 (2d Cir.

1985); see Coalition on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 310 (2d Cir.

2009) (reiterating that reviewing court’s role is limited to “insur[ing] that the agency has

taken a hard look at environmental consequences . . . of the action to be taken,” rather

than evaluating merits of decision (internal quotation marks omitted)).

Because NEPA does not itself provide for judicial review, the APA controls. See

Sierra Club v. U.S. Army Corps of Eng’rs, 772 F.2d at 1050. Pursuant to the APA, courts

review contested agency action to determine if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Although

highly deferential, this standard “does not equate to no review.” Wilson v. CIA, 586 F.3d

171, 185 (2d Cir. 2009) (describing boundaries of deferential review in another context).

Notably, the APA contemplates that, in deciding a challenge to agency action, a court will

11
review the administrative record to ensure “that the agency examined the relevant data

and articulated a satisfactory explanation for its action. Moreover, the agency’s decision

must reveal a rational connection between the facts found and the choice made.” Natural

Res. Def. Council, Inc. v. U.S. EPA, 658 F.3d 200, 215 (2d Cir. 2011) (internal quotation

marks and alterations omitted); see also National Audubon Soc’y v. Hoffman, 132 F.3d 7,

14 (2d Cir. 1997) (confining judicial review to administrative record compiled by agency

when it made challenged decision). Further, while a court can “uphold a decision of less

than ideal clarity if the agency’s path may reasonably be discerned,” it may not itself

“supply a reasoned basis for the agency’s action that the agency itself has not given.”

Natural Res. Def. Council, Inc. v. U.S. EPA, 658 F.3d at 215 (internal quotation marks

omitted). Thus, when an administrative record is insufficient to permit a court to discern

an agency’s reasoning or to conclude that the agency has considered all relevant factors, a

court may remand the matter to the agency to allow for supplementation of the record.

See Florida Power & Light Co. v. Lorion, 470 U.S. at 744; National Audubon Soc’y v.

Hoffman, 132 F.3d at 14. This is such a case.

B. Public Participation in the NEPA Process

NEPA’s animating purposes and methods of operation have been discussed at

length in prior decisions. See, e.g., Department of Transp. v. Pub. Citizen, 541 U.S. 752,

757–58 (2004) (describing NEPA’s statutory and regulatory scheme); National Audubon

Soc’y v. Hoffman, 132 F.3d at 12. For purposes of this appeal, we focus on those parts of

12
the statute and regulations providing for public disclosure and input regarding the

environmental impact of contemplated agency action. See Pogliani v. U.S. Army Corps

of Eng’rs, 306 F.3d 1235, 1237–38 (2d Cir. 2002) (recognizing that Congress enacted

NEPA “to ensure that federal agencies examine and disclose the potential environmental

impacts of projects before allowing them to proceed,” which process “must involve the

public”).

NEPA directs agencies contemplating “major [f]ederal actions significantly

affecting the quality of the human environment” to prepare an Environmental Impact

Statement (“EIS”) demonstrating agency consideration of the reasonably foreseeable

environmental effects. 42 U.S.C. § 4332(2)(C); accord City of New York v. Slater, 145

F.3d 568, 571 (2d Cir. 1998). Implementing regulations promulgated by the Council on

Environmental Quality (“CEQ”) permit agencies categorically to exclude certain classes

of actions from the EIS requirement on the ground that such actions do not individually or

cumulatively have a significant effect on the environment. See 40 C.F.R.

§§ 1507.3(b)(2), 1508.4; see also 10 C.F.R. § 51.22(c) (establishing categorical

exclusions for various NRC actions).3 In the absence of such a categorical exclusion, any
3
At oral argument, the government suggested that the law was unclear as to whether
CEQ’s NEPA regulations bind the NRC. See Taxpayers of Mich. Against Casinos v. Norton,
433 F.3d 853, 861 (D.C. Cir. 2006) (noting that “binding effect of CEQ regulations is far
from clear” because authority derived from executive order rather than legislation); Limerick
Ecology Action, Inc. v. U.S. Nuclear Regulatory Comm’n, 869 F.2d 719, 725 (3d Cir. 1989)
(“CEQ guidelines are not binding on an agency that has not expressly adopted them.”). The
weight of authority, however, holds CEQ regulations binding on federal agencies. See, e.g.,
Piedmont Envtl. Council v. FERC, 558 F.3d 304, 318 (4th Cir. 2009); City of Dallas v. Hall,
13
doubt as to whether contemplated action requires an EIS must be resolved by preparing

an EA. See Department of Transp. v. Pub. Citizen, 541 U.S. at 757 (describing EA as

“concise public document that briefly provides sufficient evidence and analysis for

determining whether to prepare an EIS” (alterations omitted) (citing 40 C.F.R.

§ 1508.9(a))). If, pursuant to the EA, the agency concludes that no EIS is required, it

must provide its reasons in a FONSI. See id. at 757–58; 40 C.F.R. §§ 1501.4(e), 1508.13.

As discussed in the background section of this opinion, the NRC published an EA and

FONSI with respect to the exemption challenged in this case on September 28, 2007, the

same date that it granted the exemption.

While NEPA itself does not assign the public any particular role in the

aforementioned processes, see generally Hanly v. Kleindienst, 471 F.2d 823, 835 (2d Cir.

1972) (recognizing that “[t]here is no statutory requirement” for public hearings under

NEPA), implementing regulations identify public scrutiny as an “essential” part of the

NEPA process, 40 C.F.R. § 1500.1(b) (“Accurate scientific analysis, expert agency

comments, and public scrutiny are essential to implementing NEPA.”). Thus, the

562 F.3d 712, 722 (5th Cir. 2009); Colorado Wild v. U.S. Forest Serv., 435 F.3d 1204, 1209
(10th Cir. 2006); Defenders of Wildlife v. Hogarth, 330 F.3d 1358, 1369 (Fed. Cir. 2003);
Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947, 949 (7th Cir. 2000). Because the
government conceded, at least for purposes of this appeal, that it would be fair to assume that
the regulations do bind the NRC, cf. 10 C.F.R. § 51.10 (noting NRC policy voluntarily to
take account of CEQ regulations, subject to certain conditions), we operate on that
assumption here, deeming any contrary argument forfeited, see Norton v. Sam’s Club, 145
F.3d 114, 117 (2d Cir. 1998) (holding that “stating an issue without advancing an argument”
forfeits issue on appeal).
14
regulations provide that “NEPA procedures must insure that environmental information is

available to public officials and citizens before decisions are made and before actions are

taken.” Id. Moreover, “[a]gencies shall” both “[m]ake diligent efforts to involve the

public in preparing and implementing their NEPA procedures” and “solicit appropriate

information from the public.” Id. § 1506.6(a), (d). Such involvement can include public

hearings “whenever appropriate,” a determination informed by whether there is

“[s]ubstantial environmental controversy concerning the proposed action or substantial

interest in holding the hearing.” Id. § 1506.6(c). Given the discretion afforded agencies

by the regulatory text, however, we will not readily second guess an agency decision not

to hold a public hearing in a particular case. See Friends of Ompompanoosuc v. FERC,

968 F.2d 1549, 1557 (2d Cir. 1992) (upholding agency decision to forgo public hearing in

connection with licensing of hydroelectric power station despite panel’s view that

“hearing might have been beneficial”).

As some courts have recognized, these regulations do not clearly define how

public involvement requirements might apply where, as here, an agency prepares only an

EA (and FONSI) and not an EIS. See Taxpayers of Mich. Against Casinos v. Norton,

433 F.3d 852, 861 (D.C. Cir. 2006); Greater Yellowstone Coal. v. Flowers, 359 F.3d

1257, 1279 (10th Cir. 2004). Whereas regulations require a draft EIS to be circulated for

public comment prior to its adoption, see 40 C.F.R. §§ 1502.9, 1503.1, in the case of an

EA, the agency is required to “involve environmental agencies, applicants, and the

15
public” only “to the extent practicable,” id. § 1501.4(b). And only in “limited

circumstances” must an agency make a FONSI “available for public review . . . for 30

days” prior to agency action. Id. § 1501.4(e)(2); see Pogliani v. U.S. Army Corps of

Eng’rs, 306 F.3d at 1238 (citing § 1501.4(e)(2) in rejecting argument that Army Corps, in

issuing permit for construction of gas-fired power plant, “erred by failing to release its

draft EA and FONSI for public comment prior to their issuance”). Thus, at the same time

that the regulations “encourage public involvement in” EAs, Town of Rye v. Skinner, 907

F.2d 23, 24 (2d Cir. 1990), they afford agencies considerable discretion to decide the

extent to which such public involvement is “practicable,” 40 C.F.R. § 1501.4(b); see

generally Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d at 861 (noting

agency’s “significant discretion in determining” how it complies with NEPA’s public

participation regulations in preparing EA). When the exercise of that discretion is

challenged on appeal, the reviewing court properly considers whether the lack of public

input prevented the agency “from weighing all the factors essential to exercising its

judgment [under NEPA] in a reasonable manner.” Friends of Ompompanoosuc v. FERC,

968 F.2d at 1557.

C. The Record Is Insufficient To Permit Judicial Review of Plaintiffs’ Public
Participation Challenge to the Granted Exemption

In opposing plaintiffs’ NEPA challenge to the exemption granted to Indian Point 3,

the NRC maintains that “no hearing was required under the NEPA regulations.” NRC Br.

16
58. That proposition is not novel, see Friends of Ompompanoosuc v. FERC, 968 F.2d at

1557, but it misses the point of plaintiffs’ argument. Plaintiffs do not contend that the

NRC was required to afford a specific type of public participation; rather, they complain

that the NRC failed to notify or solicit feedback from the public at all regarding the

challenged exemption. See Appellants’ Br. 53.

The NRC cites no case in which a court has held an agency’s issuance of an EA

and FONSI to satisfy NEPA despite a comparable lack of public participation. While we

have on two occasions ruled that an agency complied with NEPA despite failing to

circulate final versions of its analyses for comment prior to their publication, the agencies

had previously held multiple hearings or afforded other opportunities for public input.

See Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d at 1238; Town of Rye v. Skinner,

907 F.2d at 24. Conversely, in a case in which we held that no public hearing under

NEPA was required, we reviewed an administrative record showing that public input in

other forms had alerted the agency to the citizenry’s concerns before the challenged

decision was reached. See Friends of Ompompanoosuc, 968 F.2d at 1552 (noting that, in

preparing EA, agency had “obtained comments on the application from local citizens and

citizens groups” as well as State of Vermont). The record before us fails to provide any

agency explanation for why no public participation was deemed practicable or

appropriate with respect to the challenged exemption.4
4
In a post-argument letter filed with the court pursuant to Fed. R. App. P. 28(j), the
NRC suggests that plaintiffs had effective notice of Entergy’s exemption request before the
17
 Certainly, the record does not demonstrate, nor does the government argue, that

exigent circumstances made it impracticable to afford public notice or participation in the

fifteen months between Entergy’s June 2006 application and the NRC’s September 2007

publication of the EA and FONSI on the same day that it granted the exemption. Nor

does the record reveal a basis for the NRC to conclude that notice and opportunity for

public comment would not have been appropriate. Indeed, a contrary conclusion finds

support in the record evidence of public interest in the question of how nuclear plants

satisfied their fire barrier obligations. Once NRC testing raised questions about Hemyc’s

effectiveness, several environmental groups filed petitions with the NRC to modify or

suspend the licenses of certain nuclear power plants, including Indian Point 3, relying on

September 2007 publication of the EA and FONSI because (1) on March 15, 2007, the NRC
placed in its online document repository a request it had made to Entergy for more
information regarding the exemption sought; and (2) on August 29, 2007, it similarly placed
online Entergy’s actual exemption application. Even if we were to take judicial notice of
these belatedly proffered facts, which have been known to the government throughout this
litigation, they would not alter our conclusion that remand is required. Nothing in the
administrative record indicates that the agency itself relied on the existence of these
electronic filings to deny plaintiffs’ motion to reopen the exemption proceeding on the theory
that plaintiffs had been provided with sufficient notice and opportunity to comment on the
requested exemption before a final decision was made. See Natural Res. Def. Council, Inc.
v. U.S. EPA, 658 F.3d at 215 (holding that reviewing court may not supply reasoned basis
for agency action that agency itself has not given); cf. Theodore Roosevelt Conservation
P’ship v. Salazar, 616 F.3d 497, 519–20 (D.C. Cir. 2010) (affirming Bureau of Land
Management’s compliance with NEPA in granting drilling permits, where agency had
provided website notice that it was preparing EAs for drilling sites approximately one month
before granting permits and had made permit applications available for public inspection
beginning almost two years earlier). On the record before us, we cannot confidently
conclude that this website notice afforded plaintiffs “a substantial opportunity to comment
on [Entergy’s] proposals before they were approved.” Theodore Roosevelt Conservation
P’ship v. Salazar, 616 F.3d at 519 (internal quotation marks omitted).
18
Hemyc as a fire barrier. See 71 Fed. Reg. at 3,345. Insofar as the NRC argues that

plaintiffs have failed to demonstrate a public controversy in the subject matter of

Entergy’s particular exemption request, we are not inclined to assume in light of these

petitions, and in the absence of a more specific agency statement, see National Audubon

Soc’y v. Hoffman, 132 F.3d at 14, that the NRC’s rationale for not providing notice of the

exemption request or an opportunity for public comment represents a reasonable

perception of public indifference to the matter, see generally American Bird

Conservancy, Inc. v. FCC, 516 F.3d 1027, 1035 (D.C. Cir. 2008) (recognizing

“Catch-22” in requiring plaintiffs to show public interest in or controversy over agency

action that has not been meaningfully disclosed). In fact, events occurring immediately

after public disclosure of the exemption caution against any such assumption by this

court.

The very day the NRC’s grant of an exemption to Indian Point 3 was published in

the Federal Register, the State of New York lodged objections. Two months later,

plaintiffs filed their own petition to reopen for reconsideration and public input. Contrary

to the NRC’s urging, plaintiffs’ lengthy submission does not assert simple “opposition to

a use.” Friends of Ompompanoosuc v. FERC, 968 F.2d at 1557 (internal quotation marks

omitted). Rather, it reveals a specific controversy regarding the NRC’s conclusion that a

24-minute fire barrier is sufficient to protect Indian Point 3 from a catastrophic fire.

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 The NRC submits that even if these circumstances show that a public hearing

might have been “beneficial,” id., that is not enough to conclude that a hearing was

legally required. We do not suggest otherwise. But the record in this case—devoid of

any evidence of public input on Entergy’s exemption request, and with no explanation by

the NRC of its decision not to afford public participation of any kind—does not permit us

to decide whether the agency nevertheless was capable of “weighing all the factors

essential to exercising its judgment in a reasonable manner.” Id.

In arguing otherwise, the NRC submits that its rationale for not granting plaintiffs’

petition to reopen may reasonably be discerned from the fact that “[t]he EA here shows

NRC found no risk of environmental effect at all,” and therefore no possible “substantial

environmental controversy.” NRC 28(j) Letter 2. We are not persuaded. The NRC’s

own conclusion that the fire safety exemption grant to Entergy “will not have a significant

effect on the quality of the human environment,” 72 Fed. Reg. at 55,254; see 40 C.F.R.

§ 1508.13, cannot itself prove that there is no objective controversy regarding the subject

matter of the exemption. Indeed, to the extent that the NRC found that the exemption will

not “significantly increase the probability or consequences of accidents,” 72 Fed. Reg. at

55,254, this conclusion is precisely the point disputed by plaintiffs and on which they

seek to be heard. Insofar as the NRC declines to hear plaintiffs’ concerns—not in a

particular form, but at all—we think it best not to guess at the agency’s reasons, but to

remand for the agency to supplement the record so that it may explain its denial or

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otherwise demonstrate that it has in fact taken the kind of “hard look at environmental

consequences” that it would have taken if the public were allowed to comment on the

exemption request. Coalition on W. Valley Nuclear Wastes v. Chu, 592 F.3d at 310

(internal quotation marks omitted).

The NRC argues additionally that any failure to afford public participation before

granting the exemption in this case was harmless because plaintiffs were free to initiate a

citizen petition to challenge the exemption after the fact. See 10 C.F.R. § 2.206. It is by

no means apparent that the mere availability of a post-hoc petition process renders

harmless any and every failure by an agency to abide by NEPA’s public participation

regulations. Cf. Friends of Ompompanoosuc v. FERC, 968 F.2d at 1557–58 (holding that

petitioner could not show prejudice from agency’s failure to circulate EA supplement

given its ability “to petition [agency] for reconsideration and rehearing,” combined with

fact that it had obtained document with “ample time” to comment before agency

decision). Were we to entertain this argument, we would have to consider it in the

context of CEQ regulations providing that “NEPA procedures must insure that

environmental information is available to public officials and citizens before decisions are

made and before actions are taken,” 40 C.F.R. § 1500.1(b) (emphasis added), as well as

the Supreme Court’s admonition that the purpose of “the broad dissemination of

information mandated by NEPA” is to “permit[] the public and other government

agencies to react to the effects of a proposed action at a meaningful time,” and not “after

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it is too late to correct,” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989).

We do not foreclose the possibility that the availability of the citizen-petition process may

dissuade a court from vacating a NEPA-defective agency decision that might still be

corrected. Nevertheless, we think that where, as here, we order remand to afford the

agency an opportunity to supplement the record to show that there was no error at all—or

to take whatever steps it deems necessary to remove any doubt in that regard—it is in the

interest of all parties, and of the public served by Indian Point 3, to proceed in that

manner before considering whether the alleged errors should be dismissed as harmless.

In ordering remand, we are mindful that the Ninth Circuit has held that a

“complete failure to involve or even inform the public about an agency’s preparation of

an EA and a FONSI” violates NEPA’s public participation regulations. Citizens For

Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 970 (9th Cir. 2003) (identifying

violation despite fact that draft rule was published and public meetings held); cf. Bering

Strait Citizens v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 953 (9th Cir. 2008) (holding

that, on facts presented, agency had satisfied its NEPA obligation when preparing EA to

“provide the public with sufficient environmental information, considered in the totality

of circumstances, to permit members of the public to weigh in with their views and thus

inform the agency decision-making process”). This court, however, has previously

suggested otherwise with respect to the right of advance public access to these particular

analyses. See Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d at 1238. Thus, we deem

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it premature to consider any categorical rule until after the agency has had the opportunity

on remand to supplement the record as provided in the next section of this opinion.

D. Procedure on Remand

Our decision today is narrow. We pronounce no rule as to the degree or form of

public participation required before the NRC can grant exemptions from its protocols.

Nor do we hold that agencies always need to explain their decisions as to how much

public participation to afford pursuant to NEPA. We conclude only that, on the record

presented in this case, we cannot conduct even deferential judicial review of plaintiffs’

claim that the NRC granted the challenged exemption in violation of NEPA’s public

participation provisions.

We therefore vacate the judgment of the district court with respect to plaintiffs’

NEPA challenge only, and we remand the matter to the district court with instructions for

it in turn to remand to the NRC so that the agency may: (1) supplement the administrative

record to provide an explanation, with supporting affidavits or findings of fact, as to why

affording public input into the exemption request was inappropriate or impracticable; or

(2) take other such action as it may deem appropriate to resolve this issue. See Florida

Power & Light Co. v. Lorion, 470 U.S. at 744; National Audubon Soc’y v. Hoffman, 132

F.3d at 14.

If plaintiffs conclude that the agency’s response fails to allay their NEPA

concerns, they should timely seek further review in the district court, which shall take

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whatever steps it deems appropriate under the circumstances to dispose of plaintiffs’

renewed NEPA claim. This panel will retain jurisdiction for the purpose of ruling, if

necessary, on any timely appeal from the district court’s final judgment. See United

States v. Jacobson, 15 F.3d at 22. On a further appeal, we will set a schedule for

expedited review on the basis of the augmented record. No oral argument will be heard

absent further order of this Court.

III. Conclusion

To summarize, we conclude that plaintiffs’ challenges to the NRC’s grant of an

exemption to Entergy from certain fire safety regulations in the operation of its Indian

Point 3 nuclear power plant are generally without merit. In one respect, however—i.e.,

plaintiffs’ claim that the NRC awarded the challenged exemption in violation of NEPA’s

public participation provisions—the administrative record is insufficient to permit

meaningful judicial review. Thus, remand is necessary to allow the agency to supplement

its decision.

The judgment of the district court is AFFIRMED IN PART in accordance with the

summary order filed today and VACATED IN PART in accordance with this opinion, and the

case is REMANDED for further proceedings consistent with this opinion, which

proceedings are to be concluded within 120 days of the issuance of the mandate or such

further time as this court shall authorize.

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