San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Commission

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAN LUIS OBISPO MOTHERS No. 23-852
FOR PEACE; FRIENDS OF THE
NRC-2023-0043
EARTH; ENVIRONMENTAL
Nuclear
WORKING GROUP,
Regulatory
Commission
Petitioners,
v. OPINION

UNITED STATES NUCLEAR
REGULATORY
COMMISSION; UNITED STATES
OF AMERICA,

Respondents,

----------------------------------------

PACIFIC GAS & ELECTRIC
COMPANY,

Intervenor.

On Petition for Review of an Order of the
Nuclear Regulatory Commission

Argued and Submitted January 10, 2024
Pasadena, California
2 SAN LUIS OBISPO MOTHERS V. USNRC

Filed April 29, 2024

Before: Consuelo M. Callahan and Mark J. Bennett, Circuit
Judges, and Gary S. Katzmann, Judge. *

Opinion by Judge Callahan

SUMMARY **

Nuclear Regulatory Commission

The panel denied a petition for review of the U.S.
Nuclear Regulatory Commission (“NRC”)’s decision
granting Pacific Gas & Electric (“PG&E”)’s request for an
exemption to the deadline for a federal license renewal
application for the continued operation of the Diablo Canyon
Nuclear Power Plant.
In 2022, the California Legislature directed PG&E to
pursue any actions needed to extend operations at Diablo
Canyon. Prior to that point, PG&E had been working to
cease operations at Diablo Canyon’s two nuclear power
units, and the deadline to qualify for continued operation
during the NRC’s review of a license renewal application
had passed. In granting PG&E’s requested exemption to the
renewal deadline, the NRC found that the exemption was
authorized by law, there would be no undue risk to public

*
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SAN LUIS OBISPO MOTHERS V. USNRC 3

health and safety, and special circumstances were
present. The NRC also concluded that the exemption met
the eligibility criteria for a categorical exclusion, and no
additional environmental review under the National
Environmental Policy Act (“NEPA”) was required.
The panel first addressed whether the Hobbs Act granted
the court jurisdiction to hear a direct appeal from an NRC
exemption decision. Applying a case-by-case approach, the
panel held that where, as here, the substance of the
exemption is ancillary or incidental to a licensing
proceeding, there is jurisdiction.
The panel further concluded that petitioners, three non-
profit organizations concerned with the dangers posed by
nuclear power, had Article III standing to bring this
case. Petitioners alleged a non-speculative potential harm
from age-related safety and environmental risks;
demonstrated that under the Exemption Decision, Diablo
Canyon will in all likelihood continue operations beyond its
initial 40-year license term; and alleged members’ proximity
to the facility.
The panel held that NRC’s decision to grant the
exemption was not arbitrary, capricious, or contrary to
law. Nor did the NRC act arbitrarily or capriciously in
invoking the NEPA categorical exclusion when issuing the
Exemption Decision. The NRC was not required to provide
a hearing or meet other procedural requirements before
issuing the Exemption Decision because the Exemption was
not a licensing proceeding. NRC adequately explained why
California’s changing energy needs constituted a special
circumstance, and why the record supported its findings of
no undue risk to the public health and safety.
4 SAN LUIS OBISPO MOTHERS V. USNRC

COUNSEL

Diane Curran, I (argued), Harmon Curran Spielberg &
Eisenberg LLP, Washington, D.C., for Petitioner San Luis
Obispo Mothers for Peace.
Eric V. Michel (argued), Senior Attorney; Andrew P.
Averbach, Solicitor; Marian L. Zobler, General Counsel;
U.S. Nuclear Regulatory Commission, Office of the General
Counsel, Rockville, Maryland; Justin D. Heminger, Senior
Litigation Counsel; Todd Kim, Assistant Attorney General;
Environmental and Natural Resources Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
Michael E. Kenneally (argued), Ryan K. Lighty, and Paul M.
Bessette, Morgan Lewis & Bockius LLP, Washington, D.C.,
for Intervenor Pacific Gas & Electric Company.
Richard E. Ayres, Ayres Law Group, Washington, D.C., for
Petitioner Friends of the Earth.
Caroline Leary, Environmental Working Group,
Washington, D.C., for Petitioner Environmental Working
Group.
Megan K. Hey, Deputy Attorney General; Laura J.
Zuckerman, Supervising Deputy Attorney General; Edward
H. Ochoa, Senior Assistant Attorney General; Rob Bonta,
California Attorney General; California Attorney General’s
Office, Los Angeles, California; for Amicus Curiae State of
California.
 SAN LUIS OBISPO MOTHERS V. USNRC 5

OPINION

CALLAHAN, Circuit Judge:

In 2022, the State of California determined that it faces
significant uncertainty in the stability and reliability of its
electricity grid as it transitions to renewable energy
generation. To hedge against possible insufficient energy
supply in the face of climate-related incidents impacting
energy production such as drought, wildfire, and heat waves,
the California Legislature directed Pacific Gas & Electric
Co. (“PG&E”) to pursue any actions needed to extend
operations at the Diablo Canyon Nuclear Power Plant
(“Diablo Canyon”).
Prior to that point, PG&E, which holds the federal
licenses to operate Diablo Canyon, had been working to
cease operations at Diablo Canyon’s two nuclear power
units. California’s directive forced PG&E to change course
and seek renewal of its operating license. At that point, the
deadline to qualify for continued operation during the United
States Nuclear Regulatory Commission (“NRC”)’s review
of a license renewal application had passed. PG&E asked
for an exemption to this timely renewal deadline, and NRC
granted PG&E’s request.
Petitioners San Luis Obispo Mothers for Peace, Friends
of the Earth, and the Environmental Working Group
(collectively, “Petitioners”), three non-profit organizations
concerned with the dangers posed by nuclear power, 1 object

1
Mothers for Peace is “a non-profit membership organization concerned
with the dangers posed by Diablo Canyon and other nuclear reactors,
nuclear weapons, and radioactive waste” and it “has participated in NRC
6 SAN LUIS OBISPO MOTHERS V. USNRC

to the NRC’s decision and PG&E’s continued operation of
the power plant. They petition the Ninth Circuit for review
of NRC’s grant of an exemption and NRC’s issuance of a
categorical exclusion under the National Environmental
Policy Act (“NEPA”), arguing that under the Administrative
Procedure Act (“APA”), NRC’s decisions are not authorized
by law and not supported by the record.
This case requires us to first address whether the Hobbs
Act, 28 U.S.C. § 2324 grants this court jurisdiction to hear a
direct appeal from an NRC exemption decision. We
determine that where, as here, the substance of the
exemption is ancillary or incidental to a licensing
proceeding, we have jurisdiction. See Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 743 (1985); General
Atomics v. U.S. Nuclear Regul. Comm’n, 75 F.3d 536, 539
(9th Cir. 1996). Assured of our jurisdiction, we further
conclude that Petitioners have Article III standing to bring
this case, and that NRC’s decision to grant the exemption
was not arbitrary, capricious, or contrary to law. We deny
the petition.

licensing cases involving the Diablo Canyon reactors since 1973.”
Friends of the Earth is a “nonprofit environmental advocacy organization
dedicated to improving the environment and creating a more healthy and
just world.” Environmental Working Group is a “non-profit, non-
partisan organization that works to empower people to live healthier
lives in a healthier environment.” Like Mothers for Peace, it has a strong
presence in California, has participated in utility commission
proceedings in the state, and is highly concerned about safety and
environmental hazards of Diablo Canyon.
 SAN LUIS OBISPO MOTHERS V. USNRC 7

I.
A.
Under the Atomic Energy Act of 1954, the Atomic
Energy Commission was made responsible for licensing and
regulating use of radioactive material, including the
construction and operation of commercial nuclear power
plants. 42 U.S.C. §§ 2201, 2131–33. In 1974, Congress
passed the Energy Reorganization Act, creating the NRC
and transferring to it “all the licensing and related regulatory
functions of the Atomic Energy Commission” and tasking it
with regulating use of radioactive materials to promote the
common defense and security and public health and safety.
42 U.S.C. § 5841(f); see also id. §§ 5841(a)(1), 2201(b).
The NRC has in turn promulgated extensive regulations
governing the issuance of licenses to operate nuclear power
plants. See 10 C.F.R. parts 50, 52.
The Atomic Energy Act specifies that the term of an
original license must not exceed forty years. 42 U.S.C.
§ 2133(c). A license can, however, be renewed for a
subsequent term not to exceed twenty years beyond the
license’s original expiration date. Id.; 10 C.F.R. § 54.31(b).
Alternatively, an operator of a nuclear power plant may
choose to terminate operations and enter a decommissioning
process by which a facility is removed from service and
nuclear materials are safely stored or disposed of. See
generally, 10 C.F.R part 20, subpart E; 10 C.F.R. § 30.36.
These different licensing-related “proceedings” typically
require a public notice and hearing process, see 42 U.S.C.
§ 2239, and more generally, “any person whose interest may
be affected by a proceeding and who desires to participate as
a party” can file a written request for a hearing, 10 C.F.R.
8 SAN LUIS OBISPO MOTHERS V. USNRC

§ 2.309(a); see also id. § 54.27 (hearing notice requirements
for license renewals).
NRC regulations addressing license renewals include
what is colloquially referred to as the “timely renewal rule.”
See 10 C.F.R. § 2.109. Under the APA, which applies to
NRC actions taken pursuant to the Atomic Energy Act, see
42 U.S.C. § 2231, “[w]hen a licensee has made timely and
sufficient application for a renewal . . . a license with
reference to an activity of a continuing nature does not expire
until the application has been finally determined by the
agency.” 5 U.S.C. § 558(c). This provision protects federal
license holders (like PG&E) “from harm associated with
delays in agency action on requests for license renewals.”
Comm. for Open Media v. FCC, 543 F.2d 861, 867 (D.C.
Cir. 1976). NRC regulations implementing this provision of
the APA require a licensee of a nuclear power plant to file
an application for license renewal at least five years before
the expiration of the existing license in order to qualify for
timely renewal protection. 10 C.F.R. § 2.109(b) 2; see also
10 C.F.R. § 54.17(a).
NRC regulations also authorize exemptions from certain
regulatory requirements if NRC finds that (1) the exemption
is authorized by law; (2) the exemption will not present an
undue risk to the public health and safety; (3) the exemption

2
The text of NRC’s timely renewal rule states:
“If the licensee of a nuclear power plant . . . files a
sufficient application for renewal of either an
operating license or a combined license at least 5 years
before the expiration of the existing license, the
existing license will not be deemed to have expired
until the application has been finally determined.”
10 C.F.R. § 2.109(b).
 SAN LUIS OBISPO MOTHERS V. USNRC 9

is consistent with the common defense and security; and
(4) that special circumstances are present. 10 C.F.R.
§ 50.12(a). NRC regulations identify six categories of
special circumstances:

(i) Application of the regulation in the
particular circumstances conflicts with other
rules or requirements of the Commission; or
(ii) Application of the regulation in the
particular circumstances would not serve the
underlying purpose of the rule or is not
necessary to achieve the underlying purpose
of the rule; or
(iii) Compliance would result in undue
hardship or other costs that are significantly
in excess of those contemplated when the
regulation was adopted, or that are
significantly in excess of those incurred by
others similarly situated; or
(iv) The exemption would result in benefit to
the public health and safety that compensates
for any decrease in safety that may result
from the grant of the exemption; or
(v) The exemption would provide only
temporary relief from the applicable
regulation and the licensee or applicant has
made good faith efforts to comply with the
regulation; or
(vi) There is present any other material
circumstance not considered when the
10 SAN LUIS OBISPO MOTHERS V. USNRC

regulation was adopted for which it would be
in the public interest to grant an exemption.

Id. § 50.12(a)(2), see id. § 54.15 (applying exemptions to
license renewals). NRC has previously issued exemptions
to the timely renewal rule, allowing licensees to file renewal
applications less than five years in advance of license
expiration dates and still qualify for timely renewal
protection. See, e.g., Oyster Creek Nuclear Generating
Station; Exemption, 69 Fed. Reg. 78054 (Dec. 22, 2004);
Perry Nuclear Power Plant Unit No. 1; Exemption, 85 Fed.
Reg. 43609 (July 17, 2020); Clinton Power Station Unit 1;
Exemption, 84 Fed. Reg. 34410 (July 18, 2019).
B.
Diablo Canyon is located in coastal San Luis Obispo
County and contains two units licensed by NRC—Unit 1 has
been in operation since 1985 and Unit 2 has been in
operation since 1986. The current licenses (granted for the
statutorily allowed maximum of forty years) will expire on
November 2, 2024, and August 26, 2025, respectively.
Consistent with NRC’s timely renewal rule, see 10 C.F.R.
§ 2.109(b), PG&E submitted a license renewal application
for Units 1 and 2 in November 2009. NRC docketed 3 the
applications thereby commencing its review of the renewal
application and conferring timely renewal status on PG&E.
However, PG&E changed course in 2018. PG&E submitted
an initial request to NRC to delay the decision on PG&E’s
pending renewal application, made a follow up request to
suspend review of the application, and submitted a third

3
Docketing is the formal acceptance by NRC of an application that is
sufficiently complete. See 10 C.F.R. § 2.101(a); see also § 2.303. The
public can access docketed materials at regulations.gov.
 SAN LUIS OBISPO MOTHERS V. USNRC 11

request on March 7, 2018, to withdraw the application. NRC
granted PG&E’s request to withdraw, terminated review,
and closed the docket. At that point, PG&E began
decommissioning efforts with the intent to suspend
operation of Units 1 and 2 at the end of their current
operating licenses.
In September 2022, California enacted Senate Bill No.
846 (“SB 846”). The bill invalidated the prior approval by
the state utilities commission of PG&E’s plans to retire
Diablo Canyon and directed PG&E (in coordination with the
relevant state agencies) to take actions necessary to extend
operation of Diablo Canyon until the new target retirement
dates specified in the legislation. The Legislature declared
that “seeking to extend the Diablo Canyon powerplant’s
operations for a renewed license term is prudent, cost
effective, and in the best interests of all California electricity
customers.” Cal. Pub. Res. Code § 25548(b). It explained:

[T]he purpose of the extension of the Diablo
Canyon powerplant operations is to protect
the state against significant uncertainty in
future demand resulting from the state’s
greenhouse-gas-reduction efforts involving
electrification of transportation and building
energy end uses and regional climate-related
weather phenomenon, and to address the risk
that currently ordered procurement will be
insufficient to meet this supply or that there
may be delays in bringing the ordered
resources online on schedule.

Cal. Pub. Util. Code § 712.8(q). SB 846 directed state
agencies and PG&E to “act quickly and in coordination to
12 SAN LUIS OBISPO MOTHERS V. USNRC

take all actions necessary and prudent to extend Diablo
Canyon powerplant operations.” Cal. Pub. Res. Code
§ 25548(f). SB 846 was passed as an “urgency statute,”
effective immediately upon signing because it was
“necessary for the immediate preservation of the public
peace, health, or safety.” S.B. 846 § 18, 2021-2022 Leg.,
Reg. Sess. (Cal. 2022).
In response, PG&E submitted a letter to NRC on October
31, 2022. The letter requested that NRC either resume
review of PG&E’s previously submitted and withdrawn
renewal application or grant an exemption from the five-year
timely renewal submission deadline in 10 C.F.R. § 2.109(b).
In other words, PG&E requested an exemption that would
allow it to operate Diablo Canyon’s nuclear power units
beyond November 2024 and August 2025 until NRC issues
a final order on its license renewal application.
C.
On January 24, 2023, NRC staff responded to PG&E,
stating NRC would not resume review of the withdrawn
application and that the agency was still evaluating the
exemption request. On March 8, 2023, NRC granted PG&E
the requested exemption (the “Exemption Decision”),
determining that “pursuant to 10 C.F.R. [§] 54.15 and 10
C.F.R. [§] 50.12, the requested exemption is authorized by
law, will not present an undue risk to the public health and
safety, and is consistent with the common defense and
security” and that “special circumstances as defined in 10
C.F.R. [§] 50.12(a)(2), are present.” NRC conditioned the
grant of PG&E’s timely renewal status on PG&E’s
submission of a license renewal application by December
31, 2023, and on NRC’s determination that the application
 SAN LUIS OBISPO MOTHERS V. USNRC 13

was sufficient for docketing. 4 88 Fed. Reg. 14395 (Mar. 8,
2023). NRC also issued a categorical exclusion under the
NEPA.
In the Exemption Decision, NRC first found that the
requested exemption was “authorized by law,” noting that
nothing in the Atomic Energy Act or the APA prohibited
granting an exemption or required renewal applications be
submitted in the five-year period specified in 10 CFR
§ 2.109(b). Rather, the five-year period adopted in
regulation was a discretionary choice by the agency designed
to provide a reasonable amount of time to review a renewal
application prior to expiration of the license. Additionally,
because the exemption requested by PG&E was, at base, a
scheduling change and administrative in nature, and because
NRC has authority to grant an exemption from regulatory
requirements, NRC determined that granting PG&E’s
requested exemption was not in violation of any law or
regulation.
NRC next addressed the requirement that there be no
“undue risk to the public health and safety.” 10 C.F.R.
§ 50.12(a)(1). NRC noted the exemption would not change
the manner in which Diablo Canyon operates or otherwise
cause a change to the facility. 88 Fed. Reg. at 14397.
Furthermore, NRC would “continue to conduct all
regulatory activities associated with licensing, inspection,
and oversight” and “take whatever action may be necessary
to ensure adequate protection of the public health and
safety.” Id. Additionally, NRC stated it would undertake a
“focused, efficient review,” building on work already done

4
PG&E met this deadline, submitting its renewal application on
November 7, 2023. NRC docketed the application on December 19,
2023.
14 SAN LUIS OBISPO MOTHERS V. USNRC

on PG&E’s previously withdrawn application, to determine
if any immediate safety measures were needed. Id. NRC
also found that, because the exemption did not alter the
design, function, or operation of Diablo Canyon in any way,
the exemption was “consistent with the common defense and
security.” Id.
Next, NRC determined that “special circumstances were
present,” specifically that other material circumstances
existed which were not considered when the regulation was
adopted (see 10 C.F.R. § 50.12(a)(2)(vi)). NRC found that
the adoption of SB 846 and California’s policy directive to
keep Diablo Canyon operating “based, in part, on climate
change impacts and serious electricity reliability challenges”
constituted “other material circumstances” under 10 C.F.R.
§ 2.109(b)(vi). 88 Fed. Reg. at 14398. Overall, NRC found
the information PG&E provided was “compelling and
demonstrate[d] that the special circumstances . . . are present
and that it would be in the public interest to grant this
exemption.” Id.
Finally, NRC addressed environmental considerations
under NEPA. NRC evaluated whether the Exemption
Decision qualified for a categorical exclusion under NRC
regulation, which outlines six factors to consider. See 10
C.F.R. § 51.22(c)(25). Specifically, NRC found (1) the
Exemption Decision did not involve a significant hazard
(i.e., a significant increase in the probability or consequences
of an accident, a possibility of a new or different kind of
accident, or a significant reduction in margin of safety);
(2) there were no significant changes in the types or amount
of any effluents released offsite; (3) there was no significant
increase in public or occupational radiation exposure; (4) the
exempted regulation did not deal with construction so there
was no significant construction impact; (5) the exemption
 SAN LUIS OBISPO MOTHERS V. USNRC 15

was administrative in nature and did not impact the
probability or consequences of accidents; and (6) the
exemption involved scheduling requirements because it
modified a filing deadline. 88 Fed. Reg. at 14398. NRC
“conclude[d] that the proposed exemption meets the
eligibility criteria for a categorical exclusion set forth in 10
C.F.R. [§] 55.22(c)(25)” and no additional environmental
review under NEPA was required. Id.
Petitioners filed multiple letters with NRC opposing
PG&E’s requests. After NRC issued the Exemption
Decision, Petitioners submitted a request for the NRC to
reverse the decision. On April 28, 2023, Petitioners filed the
petition for review currently before us, challenging both the
Exemption Decision and the NEPA categorical exclusion.
PG&E intervened, and the State of California filed an amicus
brief.
II.
We first consider our jurisdiction to hear this case on
direct appeal from NRC. Judicial review of NRC decisions
is governed by the Hobbs Act, 28 U.S.C. § 2342, which
gives “[t]he court of appeals . . . exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part), or to
determine the validity of . . . all final orders of [the NRC]
made reviewable by [42 U.S.C. § 2239].” Under 42 U.S.C.
§ 2239(a)(1)(A), the court of appeals has direct jurisdiction
over a final order in “any proceeding . . . for the granting,
suspending, revoking, or amending of any license.”
Challenges to NRC actions that do not fit within this grant
of jurisdiction may still be brought in federal district court.
The parties dispute whether NRC’s grant of an
exemption to the timely renewal rule is a proceeding
granting, suspending, revoking, or amending a license such
16 SAN LUIS OBISPO MOTHERS V. USNRC

that it is directly appealable to the courts of appeals. All
agree that a decision related to a license renewal or
amendment are within Hobbs Act jurisdiction. Petitioners
argue that the Hobbs Act must be read broadly to encompass
any NRC decision that is preliminary or incidental to
licensing, citing General Atomics v. U.S. Nuclear
Regulatory Commission, 75 F.3d 536, 538–39 (9th Cir.
1996). According to Petitioners, the Exemption Decision
fits into that category because, without the exemption,
PG&E would be unable to continue operations beyond the
expiration of Diablo Canyon’s current licenses and it is
therefore a decision that acts as an amendment to PG&E’s
license. NRC responds that issuance of an exemption is not
a license proceeding and therefore this court lacks
jurisdiction to hear the case.
A.
The existing case law discussing Hobbs Act jurisdiction
is instructive. The Supreme Court in Florida Power & Light
Co. v. Lorion considered the reviewability of NRC’s denial
of a citizen petition under 10 C.F.R. § 2.206 requesting that
the NRC institute a proceeding to modify, suspend, or
revoke the license of a nuclear reactor. 470 U.S. 729, 731
(1985). The Court’s primary concern was whether a
hearing—rather than the mere denial thereof—was
necessary to trigger the court of appeals’ initial review
jurisdiction under the Hobbs Act. Id. at 737. In holding that
a formal hearing was not a prerequisite to Hobbs Act
jurisdiction, the Court determined that “Congress decided on
the scope of judicial review . . . solely by reference to the
subject matter of the [NRC] action and not by reference to
the procedural particulars of the [NRC] action.” Id. at 739.
The Court ultimately held that § 2239 vests initial subject-
 SAN LUIS OBISPO MOTHERS V. USNRC 17

matter jurisdiction in the federal courts of appeals over NRC
orders denying § 2.206 petitions. Id. at 746.
In arriving at that conclusion, the Lorion Court explained
the consequences of a different outcome. Cases outside of
Hobbs Act jurisdiction would be within the jurisdiction of
the federal district courts. If direct appellate review of NRC
decisions depended on a hearing having occurred, different
decisions related to the same license proceedings might be
heard in either the court of appeals or the district courts—“a
seemingly irrational bifurcated system” whereby some
decisions received two layers of judicial review and some
received only one. Id. at 742 (quoting Crown Simpson Pulp
Co. v. Costle, 445 U.S. 193, 197 (1980)). The Court further
noted that the fact-finding function of a district court was
typically unnecessary in judicial review of agency decisions,
which are considered based on the record before the agency.
Id. at 743–44. The Court observed that “[o]ne purpose of the
Hobbs Act [was] to avoid the duplication of effort involved
in creation of a separate record before the agency and before
the district court.” Id. at 740. Such duplication and
associated delays “would defeat the very purpose of
summary or informal procedures before the agency—saving
time and effort in cases not worth detailed formal
consideration or not requiring a hearing on the record.” Id.
at 742–43. Therefore, “[a]bsent a firm indication that
Congress intended to locate initial APA review of agency
action in the district courts, [the Court] will not presume that
Congress intended to depart from the sound policy of placing
initial APA review in the courts of appeals.” Id. at 745. In
light of these considerations, the Court held that “review of
orders resolving issues preliminary or ancillary to the core
issue in a proceeding should be reviewed in the same forum
as the final order resolving the core issue.” Id. at 743.
18 SAN LUIS OBISPO MOTHERS V. USNRC

This court has also considered the scope of Hobbs Act
jurisdiction over NRC decisions. In General Atomics, we
attributed to the Lorion Court the proposition that “the
Hobbs Act is to be read broadly to encompass all final
N[RC] decisions that are preliminary or incidental to
licensing” and that § 2239 should be “read liberally.” 75
F.3d at 539. Based on those principles, we concluded that a
challenge to an NRC order holding a parent company jointly
and severally liable for cleanup costs that were the
responsibility of its subsidiary (the actual licensee) was
within the scope of our jurisdiction under the Hobbs Act. Id.
at 538–39. We explained that a determination of whether the
parent company was in fact a licensee “would directly
involve the granting and possible amending” of the plant’s
license. Id. at 539.
We confirmed this interpretation in Public Watchdogs v.
Southern California Edison Co., 984 F.3d 744 (9th Cir.
2020). There, we noted that “in view of Lorion and General
Atomics, it is clear we must read the Hobbs Act broadly to
encompass not only all final NRC actions in licensing
proceedings, but also all decisions that are preliminary,
ancillary, or incidental to those licensing proceedings.” Id.
at 757–58. In that case, a nuclear facility had begun the
decommissioning process, and NRC had granted related
license amendments and approved use of a certain system
for storing spent nuclear rods. Id. at 751–52. Petitioners
brought suit in federal district court seeking to enjoin the
allegedly deficient decommissioning activities and storage
system. Id. at 753–54. The district court dismissed for lack
of jurisdiction, finding the NRC decision fell within the
scope of the Hobbs Act and thus must be challenged before
the Ninth Circuit. Id. at 755. We affirmed. Despite
arguments that certain of the challenged decisions were
 SAN LUIS OBISPO MOTHERS V. USNRC 19

exemptions that fell outside the Hobbs Act, we held that the
challenged actions were properly characterized as related
and incidental to implementation of the license amendment
and therefore within our Hobbs Act jurisdiction. Id. at 757–
61.
Because we found the challenged actions in Public
Watchdogs were not properly considered to be exemptions,
we had no occasion to address the Second Circuit’s decision
in Brodsky v. U.S. Nuclear Regulatory Commission, 578
F.3d 175 (2d Cir. 2009). Here, NRC urges us to adopt the
Second Circuit’s approach. In Brodsky, petitioners
challenged NRC’s issuance to a nuclear power plant of an
exemption from a fire safety regulation without providing a
hearing. Id. at 177. The Second Circuit held that the Hobbs
Act did not grant the circuit court initial review jurisdiction
over exemptions, noting that “[t]he plain text of § 2239(a)
does not confer appellate jurisdiction over final orders issued
in proceedings involving exemptions.” Id. at 180. The
Second Circuit deferred to NRC’s view that an exemption
was distinct from “the granting, suspending, revoking, or
amending” of a license under § 2239(a). Id. at 180–81.
While recognizing policy advantages such as judicial
efficiencies, the Second Circuit found those policy
arguments insufficient to overcome what it viewed as the
plain intent of Congress. Id. at 181. Reviewing the
legislative history, the Second Circuit pointed out that
Congress did not choose to include exemptions within the
review provision despite the existence of the exemption
regulations prior to Congress’ amending § 2239(a). Id.
Therefore, the Brodsky court held that it “lack[ed]
jurisdiction under the Hobbs Act to review an NRC
exemption.” Id. at 182.
20 SAN LUIS OBISPO MOTHERS V. USNRC

The Second Circuit then turned to consider whether the
challenged order was in fact an exemption or more properly
regarded as a license amendment. Id. at 182–83. The
Second Circuit determined that NRC had reasonably applied
its regulations when it classified the order as an exemption
and not an amendment. Id. (citing Auer v. Robbins, 519 U.S.
452, 461 (1997)). Noting that NRC could likely have also
treated the order as an amendment, and that “under the NRC
regulations, little appears to distinguish an exemption from
an amendment,” the Second Circuit nonetheless held that it
must defer to NRC’s reasonable application of its own
regulations. Id. at 183. Finding that it therefore lacked
jurisdiction, the Brodsky court dismissed the petition. Id. at
184.
No other circuits have considered the question of Hobbs
Act jurisdiction over exemptions in as much detail as the
Second Circuit. However, many have reached the merits of
exemption decisions without pausing for jurisdictional
questions. See Massachusetts v. U.S. Nuclear Regul.
Comm’n, 878 F.2d 1516 (1st Cir. 1989); Kelley v. Selin, 42
F.3d 1501 (6th Cir. 1995); Commonwealth Edison Co. v.
U.S. Nuclear Regul. Comm’n, 830 F.2d 610 (7th Cir. 1987);
Shoreham-Wading River Cent. Sch. Dist. v. Nuclear Regul.
Comm’n, 931 F.2d 102 (D.C. Cir. 1991); see also Honeywell
Int’l, Inc. v. U.S. Nuclear Regul. Comm’n, 628 F.3d 568,
575–76 (D.C. Cir. 2010) (finding the challenged exemptions
were more properly considered license amendments, and
therefore fell within the ambit of the Hobbs Act).
Consistent with these cases, we decline to announce a
per se rule whereby exemptions categorically escape Hobbs
 SAN LUIS OBISPO MOTHERS V. USNRC 21

Act review. 5 None of our precedent suggests such a bright
line rule, and the NRC’s classification of an action cannot be
dispositive of our jurisdiction. 6 Exemptions “relieve[] an
NRC licensee of the duty to comply with certain regulatory
requirements,” and can vary as much as the regulations they
exempt. Public Watchdogs, 984 F.3d at 760 (citing Brodsky,
578 F.3d at 182). Many exemptions bear no direct
relationship to another license-related proceeding. See, e.g.,
Brodsky, 578 F.3d at 178 (exemption from enforcement of a
fire safety regulation that would have otherwise forbidden
use of a particular brand of fire barrier). Other regulations,
however, may relate directly to licensing proceedings. For
example, the § 2.206 petition at issue in Lorion resolved
“issues preliminary or ancillary to the core issue in a [Hobbs
Act-enumerated] proceeding.” Lorion, 470 U.S. at 743.
We therefore hold, consistent with Lorion, General
Atomics, and Public Watchdog, that NRC exemption
decisions must be examined on a case-by-case basis to
determine whether they fall within the broad and liberally
interpreted grant of jurisdiction over proceedings that are

5
Brodsky is not to the contrary. The Second Circuit in Brodsky rejected
the proposition that an exemption order is an order for “the granting,
suspending, revoking, or amending of any license.” See 578 F.3d at 180
(quoting Lorion, 470 U.S. at 743). As discussed below, Hobbs Act
jurisdiction exists here because the Exemption Decision resolves an issue
that is ancillary or incidental to the “core issue” of a license proceeding.
6
All courts agree that we should not take NRC’s labels at face value.
See Brodsky, 578 F.3d at 182 (“Whether the challenged order is an
exemption, as the NRC has labeled it . . . or is properly regarded as an
amendment . . . is itself an issue that is within our jurisdiction.”);
Honeywell, 628 F.3d at 575–76 (noting the exemption was memorialized
as an amendment to a license condition); Public Watchdogs, 984 F.3d at
760–61 (analyzing the challenged action to determine that claimed
exemption decisions were actually related to a prior license amendment).
22 SAN LUIS OBISPO MOTHERS V. USNRC

preliminary, ancillary, or incidental to the “core issue” of a
license proceeding. Lorion, 470 U.S. at 743.
B.
Applying our case-by-case approach here, we note the
highly unusual circumstances of this case. PG&E apparently
had every intent to decommission the Diablo Canyon facility
and had even taken steps to do so. But for the California
Legislature’s determination of a material change in the
electrical needs of its citizens, by all accounts PG&E would
have terminated operations at Diablo Canyon. The high
demands on electricity faced by Californians were caused by
unexpected harms to power transmission capabilities by
wildfires, the impacts of drought on hydropower, and
increasingly frequent extreme heat events. In response to
these changing needs, California found that the continued
operation of Diablo Canyon was necessary. However, that
determination came too late for PG&E to qualify for timely
renewal status under NRC’s five-year filing deadline.
Indeed, it came at a date when there was almost certainly
insufficient time for NRC to review a renewal application
before the expiration of Diablo Canyon’s current licenses.
These are unique circumstances.
The practical impact of the Exemption Decision
undermines NRC’s arguments that the decision is simply an
administrative scheduling change, one that merely provides
an alternative deadline to file a license renewal application
and does not impact the term of Diablo Canyon’s existing
licenses. Prior to the Exemption Decision, Diablo Canyon
was scheduled to terminate operations for Units 1 and 2 by
November 2, 2024, and August 26, 2025, respectively. After
the Exemption Decision and the grant of timely renewal
status, Diablo Canyon will operate until some indefinite
 SAN LUIS OBISPO MOTHERS V. USNRC 23

future date. Based on NRC’s own guidance documents
indicating an average 18-month application review period,
that indefinite future date is almost guaranteed to be after the
current expiration date of least one of the licenses. In that
way, the Exemption Decision has modified the terms of the
licenses. An NRC decision that has the almost certain effect
of allowing for operation of a facility beyond its license
period must be considered ancillary or incidental to “the core
issue” of a license.
Nevertheless, NRC argues that unlike the denial of a
hearing in Lorion, the Exemption Decision is not “the first
step in a process that will . . . culminate in full formal
proceedings under [§ 2239(a)(1)]” as it does not require
PG&E to submit a license renewal application or impact the
availability of a formal proceeding should such an
application be submitted. See 470 U.S. at 729. However,
while the Exemption Decision does not legally trigger the
renewal proceeding in the way a citizen petition could have
triggered a proceeding in Lorion, the practical consequence
of the Decision was to facilitate PG&E’s license renewal
process and it is therefore incidental the renewal proceeding.
We do not read Lorion’s application of “basic principles
respecting the allocation of judicial review of agency action”
to turn on the formal legal relationship between two
proceedings. 470 U.S. at 746. Additionally, NRC’s
argument focuses on Lorion’s forward-looking analysis
regarding a future proceeding while ignoring the impact on
the license that already exists. See General Atomics, 75 F.3d
at 539 (finding jurisdiction over an NRC action that would
impact the existing license by determining if a company was
a de facto licensee); Public Watchdogs, 984 F.3d at 758–59
(determining there was jurisdiction over an NRC decision
24 SAN LUIS OBISPO MOTHERS V. USNRC

related to implementation of an existing license and related
amendment).
Under the NRC’s approach, Petitioners would challenge
the Exemption Decision in district court. NRC also suggests
that Petitioners could file a citizen petition under 10 C.F.R.
§ 2.206 to challenge the legality or safety of operations
during timely renewal. But these arguments support our
determination that the Exemption Decision fits within our
Hobbs Act jurisdiction. See Public Watchdogs, 984 F.3d at
761–63 (noting in support of its finding of Hobbs Act
jurisdiction that the petitioners there could have brought (and
later did bring) the same challenge under a § 2.206 petition).
Requiring Petitioners to bring this current petition in district
court but later allowing them to challenge a § 2.206 petition
on the same issues in the Ninth Circuit would lead to the
“‘seemingly irrational bifurcated system’ where the court of
review would be determined by the ‘procedural particulars
of the [NRC] action’ rather than the ‘subject matter of the
[NRC] action.’” Id. at 763 (alterations in original) (quoting
Lorion, 470 U.S. at 739, 742). The additional policy
rationale articulated in Lorion further bolsters our decision.
District court proceedings could not aid us in evaluating the
agency’s action. Lorion, 470 U.S. at 743–44 (“The
factfinding capacity of the district court is . . . typically
unnecessary to judicial review of agency decisionmaking.”).
Rather, review in the district court would create duplication
of judicial effort and delay resolution, defeating the purpose
of informal proceedings before an agency. Id. at 742.
In the unique context of this case, where the timing of
NRC’s decision has the almost guaranteed practical impact
of extending operations at Diablo Canyon—impacting both
implementation of the existing license and the progress of
the license renewal proceeding—we hold that the Exemption
 SAN LUIS OBISPO MOTHERS V. USNRC 25

Decision is fairly considered as ancillary or incidental to the
“core issue” of the existing Diablo Canyon license under the
required broad reading of our Hobbs Act jurisdiction.
III.
Having determined that we have jurisdiction to hear this
petition on direct appeal, we next address NRC’s arguments
that Petitioners lack Article III standing to bring this suit.
Standing is “an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). Article III
standing is required at all stages of the litigation. See United
States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997)
(“[T]he jurisdictional issue of standing can be raised at any
time . . . .”). To establish standing, the plaintiff or petitioner
must show that an injury-in-fact was caused by the
challenged conduct and can be redressed by a favorable
judicial decision. Phillips v. U.S. Customs & Border
Protection, 74 F.4th 986, 991 (9th Cir. 2023) (citing Lujan,
504 U.S. at 560–61). The party invoking federal jurisdiction
(here, Petitioners) has the burden to establish standing.
Lujan, 504 U.S. at 561. Each Petitioner can establish
standing by showing at least one of its members would have
standing. See Sierra Club v. Morton, 405 U.S. 727, 739
(1972) (standing of an organization is derivative of the
standing of its members).
NRC argues that Petitioners have failed to show injury-
in-fact. 7 Injury in fact requires a showing of harm that is

7
In briefing before this court, NRC also originally argued the case was
not ripe because timely renewal protection would not vest until
(1) PG&E submitted a renewal application and (2) NRC approved the
26 SAN LUIS OBISPO MOTHERS V. USNRC

actual and imminent. Lujan, 504 U.S. at 560. To show
future harm, Petitioners must allege an injury that is
“certainly impending, or there must be a substantial risk that
the harm will occur.” Phillips, 74 F.4th at 991 (cleaned up).
According to NRC, Petitioners raise only the speculative
possibility of future risks of natural disaster or operational
accident at the Diablo Canyon facility as there will be no
changes in the way Diablo Canyon operates. However, NRC
recognized that age-related degradation of nuclear facilities
may lead to safety and environmental risks beyond the initial
40-year license term that are different than those considered
at the time in which the initial license was evaluated. Based
on NRC’s own guidance documents providing an average
18-month application review period and Diablo Canyon’s
current expiration dates, the likelihood of at least one of
Diablo Canyon’s nuclear power units continuing operations
past its initial 40-year license term is almost guaranteed, not
speculative. See Nat. Res. Def. Council v. U.S. EPA, 735
F.3d 873, 878 (9th Cir. 2013) (noting “probabilistic harm”
may be considered “actual or imminent” when “there is a
‘credible threat’ that the probabilistic harm will
materialize”). This is not a situation in which multiple steps
are required before the alleged harm may come into being.
See e.g., Munns v. Kerry, 782 F.3d 402, 409–10 (9th Cir.
2015) (finding plaintiff’s alleged harm was too speculative
when it required him to be hired, sent to Iraq, have a
government policy reinstated, and be kidnapped); South
Carolina v. United States, 912 F.3d 720, 727–28 (4th Cir.
2019) (noting harm was too speculative given the multiple

application for docketing. However, NRC has acknowledged that both
conditions have since been met and that the Diablo Canyon licenses are
now in timely renewal status. Therefore, ripeness is not at issue.
 SAN LUIS OBISPO MOTHERS V. USNRC 27

steps that needed to happen before South Carolina became a
repository for nuclear storage).
Additionally, NRC concedes that persons living within a
50-mile radius of a nuclear power facility face a realistic
threat of harm should there be a release of radioactive
materials from the facility. See Calvert Cliffs 3 Nuclear
Project, L.L.C. and Unistar Nuclear Operating Servs.,
L.L.C., 2009 WL 3297553 at *2–3 (Oct. 13, 2009 N.R.C.)
(applying a “proximity presumption” to find injury-in-fact). 8
Mothers for Peace and Friends of the Earth have each alleged
at least one of their respective members live, work, and own
property within 50 miles of Diablo Canyon. 9 To
summarize, Mothers for Peace and Friends of the Earth have
(1) alleged a non-speculative potential harm from age-
related safety and environmental risks, (2) shown that under
the Exemption Decision, Diablo Canyon will in all
likelihood continue operations beyond its initial 40-year
license term while NRC completes review of a license
renewal application, and (3) alleged members’ proximity to
the facility. The harm does not “lie[] at the end of a ‘highly
attenuated chain of possibilities,’” South Carolina, 912 F.3d

8
At least two circuits have similarly recognized this potential injury
from proximity to nuclear facilities. See Shoreham-Wading, 931 F.2d at
105 (noting the organization was suing on behalf of members that live in
the area of the facility and finding standing to challenge an exemption
decision); Rockford League of Women Voters v. U.S. Nuclear Regul.
Comm’n, 679 F.2d 1218, 1221–22 (7th Cir. 1982) (noting members who
live near enough to a facility to be endangered should the facility be
unsafe had standing to pursue a proceeding).
9
Because we find that Mothers for Peace and Friends of the Earth have
standing based on the standing of their members, we have Article III
jurisdiction to hear this case. No party specifically addressed the
organizational standing of the Environmental Working Group, so we
decline to address it here.
28 SAN LUIS OBISPO MOTHERS V. USNRC

at 727 (citation omitted), but is rather a “credible threat” that
qualifies as an actual and imminent harm, Natural Resources
Defense Council, 735 F.3d at 878.
We easily find Petitioners meet the remaining
requirements of standing, which NRC does not challenge.
Petitioners’ injury from the continued operation of Diablo
Canyon is directly caused by NRC’s approval of the
Exemption Decision, and reversal of that Decision would
redress the harm by eliminating Diablo Canyon’s timely
renewal status and thereby forcing operations to cease at the
end of the license term. See Lujan, 504 U.S. at 560–61
(discussing causation and redressability requirements.).
IV.
Having established both our jurisdiction and Petitioners’
Article III standing, we turn to the merits of Petitioners’
challenge. Petitioners assert that both the Exemption
Decision and the related NEPA categorical exclusion are
unauthorized by law and not supported by substantial
evidence.
A.
Review of agency action under the Hobbs Act is
governed by the familiar APA standard—a court may set
aside an agency action that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law.”
5 U.S.C. § 706(2)(A); Public Citizen v. U.S. Nuclear Regul.
Comm’n, 573 F.3d 916, 923 (9th Cir. 2009). An agency
action is arbitrary and capricious if:

the agency has relied on factors which
Congress has not intended it to consider,
entirely failed to consider an important aspect
 SAN LUIS OBISPO MOTHERS V. USNRC 29

of the problem, offered an explanation for its
decision that runs counter to the evidence
before the agency, or is so implausible that it
could not be ascribed to a difference in view
or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). The scope of review is
narrow and does not allow a court to substitute its judgment
for that of the agency. Id. The court should consider
“whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.” Id. (citation omitted). “Where scientific and
technical expertise is necessarily involved in agency
decision-making . . . a reviewing court must be highly
deferential to the judgment of the agency. Nat’l Wildlife
Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1174
(9th Cir. 2004).
Petitioners argue the Exemption Decision is
unauthorized by law because NRC made the decision
without following statutory requirements for public
hearings, safety findings, and NEPA compliance that attach
to a license amendment or renewal. These arguments are
premised on the assumption that the Exemption Decision
should be considered a renewal or amendment of Diablo
Canyon’s existing licenses. However, such a
characterization is incorrect. While we have found that the
decision is ancillary or incidental to a licensing proceeding
for the purposes of our jurisdiction, there is a difference
between an action that is ancillary to a proceeding and the
actual proceeding. As the Supreme Court noted in Lorion,
NRC must sometimes undertake “summary or informal
procedures” which do not require “detailed formal
30 SAN LUIS OBISPO MOTHERS V. USNRC

consideration or . . . a hearing on the record.” 470 U.S. at
742–43. We draw a distinction here between a decision that
is ancillary and incidental to a proceeding (such that it
confers jurisdiction under the mandated broad interpretation
of the Hobbs Act) and the actual license proceeding itself (to
which full procedural requirements attach).
Therefore, we reject Petitioners’ arguments. There is no
violation of 42 U.S.C. § 2133(c) (limiting the license term to
40 years) because NRC’s action was not in itself a license
amendment proceeding (even though it was ancillary or
incidental to licensing). For the same reason, NRC was not
required to provide a public hearing under 42 U.S.C.
§ 2239(a)(1), make assurances that it would complete the
license renewal review before the license expired, make
findings related to public safety, or complete an
environmental impact statement under 10 C.F.R. § 51.95(c).
Petitioners next argue the Exemption Decision violates
or implicitly revokes NRC’s timely renewal rule (10 C.F.R.
§ 2.109(b)) thereby rendering the Decision unlawful, as well
as arbitrary and capricious. More specifically, Petitioners
argue that the purpose of the rule is to provide a reasonable
amount of time to complete review of renewal applications
before the license expiration date, which the rulemaking
history and past exemption decisions have shown to be a
minimum of three years. Yet here, argue Petitioners, NRC
did not commit in any way to completion of either
environmental review or a hearing process before Diablo
Canyon’s licenses expire. Additionally, insist Petitioners,
the rationale that NRC oversight will ensure adequate health
and safety measures is inconsistent with NRC’s previously
adopted statements that nuclear reactors operating beyond
the 40-year license term raise unique safety concerns.
 SAN LUIS OBISPO MOTHERS V. USNRC 31

Petitioners argue that by its action here NRC has implicitly
repudiated that rationale.
These arguments are not persuasive. The prior NRC
exemptions to the timely renewal rule referenced by
Petitioners are inapposite as those exemptions were granted
because of a different special circumstance—that
“[a]pplication of the regulation in the particular
circumstances would not serve the underlying purpose of the
rule or is not necessary to achieve the underlying purpose of
the rule.” 10 C.F.R. § 50.12(a)(2)(ii). To make the required
special circumstances finding in those prior exemptions,
NRC needed to explain why a shortened review period
would still serve the purposes of the rule (i.e., providing
adequate time for agency review prior to the expiration of
the licenses at issue). Here, the Exemption Decision relies
on a different special circumstance—that there are “other
material circumstance[s] not considered when the regulation
was adopted for which it would be in the public interest to
grant an exemption.” Id. § 50.12(a)(2)(vi). NRC is of
course required to, and did, explain its decision, but
deviation from the rationale supporting past decisions is not
an implicit repudiation or repeal of the timely renewal rule;
rather, it is a logical outcome when addressing the different
circumstances presented by different exemption requests.
Additionally, to the extent Petitioners argue that the
exemption ignores the unique environmental concerns of
continued operations past the initial 40-year license term,
they fail to present any specific evidence of concerns with
Diablo Canyon. And as previously discussed, the
Exemption Decision does not, in itself, commence a
licensing renewal proceeding and therefore does not require
the same level of environmental review or a hearing process.
32 SAN LUIS OBISPO MOTHERS V. USNRC

Beyond these contentions of legal error, Petitioners also
argue that the Exemption Decision is not supported by the
record. First, regarding NRC’s finding of no undue risk to
the public health and safety, Petitioners argue PG&E failed
to provide certain safety reports in the years following the
withdrawal of the prior renewal application and therefore the
record lacked information on maintenance activities and
other environmental safeguards. This argument is
insufficient to show the NRC decision is unsupported by the
record. It is true that NRC’s statements related to the
continuing status quo of operation are somewhat
contradictory to prior statements the agency made regarding
the general concerns with age-related degradation in periods
of extended operation beyond the initial 40-year licensing
term. And the prompt review of safety issues promised by
NRC may be hindered if PG&E has failed to provide certain
safety reports in recent years when it was pursuing
decommissioning. However, NRC’s continuing oversight
authority assuages safety concerns. See, e.g., 42 U.S.C.
§ 2236(a); 10 C.F.R. § 50.100; 10 C.F.R. § 2.206(a).
Furthermore, Petitioners do not identify any specific safety
concerns with operations at Diablo Canyon. According to
NRC, the process of review to implement any interim safety
measures is consistent with its usual process upon submittal
of renewal applications. See 10 C.F.R. § 54.30. In other
words, while there are general concerns with the safety of
aging nuclear plants, Petitioners offer no safety concerns
specific to Diablo Canyon to be balanced against NRC’s
technical expertise in monitoring nuclear reactors, as well as
its knowledge as to its staff’s capabilities to review the
renewal application. Given our deference to the technical
expertise of the agency, see Nat’l Wildlife Fed’n, 384 F.3d
 SAN LUIS OBISPO MOTHERS V. USNRC 33

at 1174, we conclude the record is sufficient to support
NRC’s finding of no undue risk to public health and safety.
Arguments that NRC’s finding of special circumstances
is not supported by the record are similarly unavailing.
PG&E’s letter requesting the exemption fairly asserts that
changes in California’s needs for reliable electricity
constitute circumstances not considered when NRC adopted
the timely renewal rule. The California Legislature
determined that extending Diablo Canyon’s operations
would be “prudent, cost effective, and in the best interests of
all California electricity customers.” While SB 846 does
provide an off-ramp if costs become too expensive, it also
directs PG&E to “take all actions that would be necessary to
operate the powerplant beyond the current expiration dates.”
Even if Petitioners present alternative or contradictory
interpretations of the legislation, NRC reasonably relied on
the California Legislature’s statements as to both the need
for continued operation and the public interest.
Therefore, the Exemption Decision was not arbitrary,
capricious, an abuse of discretion, or otherwise contrary to
law.
B.
The same is true as to NRC’s issuance of a NEPA
categorical exclusion. Although NEPA generally requires
an agency to prepare an environmental assessment or
environmental impact statement for proposed actions that
significantly affect the quality of the human environment,
see 42 U.S.C. § 4332(C), actions that fit within a specified
categorical exclusion do not require these steps. 40 C.F.R.
§ 1501.4. Categorical exclusions cover actions that the
agency (through a rulemaking process) has determined do
not have a significant effect on the human environment. 40
34 SAN LUIS OBISPO MOTHERS V. USNRC

C.F.R. § 1507.3(e)(2)(ii). NRC has adopted certain
categorical exclusions, see 10 C.F.R. § 51.22, one of which
applies to exemption decisions assuming certain conditions
are met.
“The [APA] sets the standards for our review of agency
decisions under NEPA . . . . Under the APA, we set aside
agency action only if we find it to be ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.’” Mountain Communities for Fire Safety v. Elliot, 25
F.4th 667, 674 (9th Cir. 2022) (quoting Idaho Sporting
Cong., Inc. v Rittenhouse, 305 F.3d 957, 964 (9th Cir. 2022
(citing 5 U.S.C. § 706)). If an agency has reasonably
determined that the activity in question falls within the scope
of a categorical exclusion, its decision to invoke the
exclusion is not arbitrary and capricious. Id. at 680; see also
Earth Island Inst. v. Muldoon, 82 F.4th 624, 633 (9th Cir.
2023) (noting an agency satisfies NEPA with a categorical
exclusion “so long as the application of the exclusions to the
facts of the particular action is not arbitrary and capricious”).
Pursuant to 10 C.F.R. § 51.22(c)(25), NRC found that
the Exemption Decision qualified for a NEPA categorical
exclusion. NRC explained why each criterion for exclusion
was met (i.e., no significant hazards, no significant
construction impacts or changes in the types or amounts of
effluents, no significant increase in potential for radiological
accidents, etc.), largely based on the fact that the Exemption
did not alter the status quo at Diablo Canyon but simply
allowed for a change in the schedule for submission of a
renewal application. Petitioners argue NRC’s reasoning is
incorrect given (1) NRC’s acknowledgment of unique safety
and environmental risks from aging equipment, (2) this
exemption was different from the types of exemptions
mentioned as examples during the rulemaking for the NEPA
 SAN LUIS OBISPO MOTHERS V. USNRC 35

exclusion regulation, and (3) NRC incorrectly characterized
the exemption as a procedural as opposed to a license
extension that will expose the public to unevaluated accident
risks. Petitioners insist that NRC must complete an
environmental impact statement to renew or amend the
license.
We conclude that NRC’s issuance of the NEPA
categorical exclusion is supported by the record. Despite
Petitioners’ arguments to the contrary, there is nothing in the
language of the categorical exclusion that limits its use to
certain types of exemptions. See 10 C.F.R. § 51.22(c)(25).
Additionally, NRC historically has approved timely renewal
exemption requests using the very same NEPA categorical
exclusion. As previously discussed, the Exemption Decision
was not a license proceeding, and therefore a full
environmental impact statement was not required. Again,
Petitioners do not present any arguments of specific safety
concerns with Diablo Canyon but only reference NRC’s
general prior acknowledgement that operation after 40 years
may present unique age-degradation concerns.
Therefore, NRC did not act arbitrarily or capriciously in
invoking the NEPA categorical exclusion when issuing the
Exemption Decision.
V.
This is a singular case. In circumstances like these where
NRC’s decision has the almost guaranteed practical effect of
extending the operating timeframe of a license beyond its
original expiration date, such a decision is directly
reviewable in our court under our broad and liberal reading
of the Hobbs Act. Additionally, we hold that at least two of
the Petitioners have standing. We deny the petition, finding
NRC’s grant of the Exemption and issuance of the NEPA
36 SAN LUIS OBISPO MOTHERS V. USNRC

categorical exclusion complied with the APA. NRC was not
required to provide a hearing or meet other procedural
requirements before issuing the Exemption Decision
because the Exemption was not a licensing proceeding.
NRC adequately explained why California’s changing
energy needs constitute a special circumstance, and why the
record supported its findings of no undue risk to the public
health and safety. Despite Petitioners’ arguments to the
contrary, there are no limitations on the types of exemptions
that may be encompassed by a NEPA categorical exclusion,
and NRC did not act arbitrarily and capriciously in its
determination that this Exemption met the eligibility criteria
in its categorical exclusion regulation.
The petition is DENIED.