This document discusses NEPA's treatment of emergencies, uncertainty, and terrorism. It summarizes key cases on NEPA's emergency provisions and the definition of an emergency. It also examines cases related to uncertainty in environmental analyses, including worst-case analyses and terrorism risks. The document analyzes the Mothers for Peace v. NRC case, which required consideration of terrorism risks for a spent nuclear fuel storage facility. Subsequent developments in the treatment of terrorism risks under NEPA and CEQA are also discussed.

1. Emergencies, Terrorism and the Worst
Case - Implications for Environmental
Impact Statements
When Things Go Wrong
Presented by: Alan Waltner
CLE International NEPA Conference
February 23-24, 2009 (San Diego)
March 5-6, 2009 (San Francisco)

2. NEPA on the Fringe
• Emergencies and how to deal with them under
NEPA – NRDC v. Winter
• NEPA analysis in the face of uncertainty
• The risk of terrorism - Mothers for Peace v. NRC

5. What is an Emergency?
• NEPA lacks a specific definition of
“emergency circumstances”
• The District Court in NRDC v. Winter
relied on ordinary dictionary definitions
that apply to “unexpected, suddenly
arising situations that require agency action
in a shorter time frame than would be
required to prepare an EIS.”

6. What is an Emergency? (Continued)
• Federal Stafford Act and California Emergency
Services Act provide for a formal declaration
• Federal declaration appropriate where federal
assistance is needed “to save lives and to protect
property and public health and safety, or to lessen
or avert the threat of a catastrophe.” 42 U.S.C.
5122
• State declaration to be based on the “existence of
conditions of disaster or of extreme peril to the
safety of persons and property . . .” Gov’t Code
8558

7. What is an Emergency? (Continued)
• CEQA defines an emergency as a “sudden,
unexpected occurrence, involving a clear and
imminent danger, demanding immediate action to
prevent or mitigate loss of, or damage to, life,
health, property, or essential public services.”
Pub. Res. Code 21080(b)(4)

8. Emergency Procedures under NEPA
• Stafford Act declaration directly exempts
response actions
• Otherwise, special CEQ regulations apply
• Can be invoked when “emergency circumstances
make it necessary to take an action . . . without
observing the provisions of these regulations”
• Consultation with CEQ required to establish
“alternative arrangements”
• The “arrangements” are limited to actions
necessary to “control the immediate impacts of
the emergency”

9. The CEQ Emergency Regulation
“Where emergency circumstances make it necessary
to take an action with significant environmental
impact without observing the provisions of these
regulations, the Federal agency taking the action
should consult with the Council about alternative
arrangements. Agencies and the Council will limit
such arrangements to actions necessary to control
the immediate impacts of the emergency. Other
actions remain subject to NEPA review.”

10. Cases Upholding Application of NEPA
Emergency Procedures
• Valley Citizens v. Vest (1991) – No supplemental
EIS needed to support round the clock flights to
supply Operation Desert Storm
• Nat’l Audubon v. Hester (1986) – Deference
given where immediate action was necessary to
prevent extinction of the California condor
• Crosby v. Young (1981) – Immediate response
required for a city to meet a federal funding
deadline for a project counteracting economic
effects of the closure of a General Motors plant

12. NRDC v. Winter
• Addressed Navy exercises offshore Southern
California using mid-frequency sonar, with
effects on marine mammals
• The Navy was proceeding with the exercises
based on an environmental assessment
• NRDC filed its NEPA action on March 22, 2007
• The District Court issued a blanket injunction
against the exercises on August 7, 2007
• The Ninth Circuit directed the District Court to
issue a revised injunction based on mitigation in
November

13. NRDC v. Winter (continued)
• The District Court issued a revised preliminary
injunction based on mitigation measures on January
3, 2008, and modified it on January 10, 2008
• The Navy, unsatisfied with the mitigation measures,
sought and obtained the approval of “alternative
arrangements” from CEQ on January 15 allowing the
exercises to continue while an EIS was being
prepared
• CEQ’s action was based upon claimed “emergency
circumstances” resulting from the Navy’s inability to
proceed with the exercises

14. NRDC v. Winter (continued)
• The Ninth Circuit issued a decision on February 29, 2008,
upholding the District Court’s injunction
• The Court found that no emergency under the CEQ
regulation was presented
• The Court interpreted the CEQA regulation based on the
“plain meaning” of an “emergency” --
• Suddenly arising
• Unexpected
• Creating exigent circumstances
• Demanding immediate action
• The Ninth Circuit did not give deference to CEQ’s
interpretation

15. Factors Leading to Lack of an Emergency
• The Navy had known of its obligation to prepare an EIS
for nearly a year
• Sufficient time had existed for the Navy to prepare an
EIS
• A setback in litigation cannot be considered unexpected,
and therefore does not create an emergency
• The Ninth Circuit accepted the District Court’s
conclusion that “emergency circumstances” under the
CEQ regulation refer to “unexpected, suddenly arising
situations that require agency action in a shorter time
frame than would be required to prepare an EIS.”

16. The November 2008 Supreme Court
Decision
• Reversed the Ninth Circuit regarding the issuance
of the injunction
• Nominally did not address the merits
• Implicitly assumed that an EIS was necessary and
that no emergency was presented
• Left the Ninth Circuit decision intact regarding
the application of emergency procedures

17. Emergency Declarations and Disaster
Area Designations
• Stafford Act - actions “restoring a facility
substantially to its condition prior to the disaster
or emergency” are not a major federal action
under NEPA (42 USC 5159)
• Endangered Species Act Section 7(p) contains a
similar exception from the Section 7 consultation
process in “disaster areas”
• Other statutes (TSCA, CZMA, ESA, CWA, etc)
allow the President to exempt activities with
“paramount” national security concerns

18. Emergency Wetland Permits (33
C.F.R. 325.2(e)(4))
• An ‘emergency’ is a situation which would result
in
• an unacceptable hazard to life,
• a significant loss of property,
• or an immediate, unforeseen, and significant
economic hardship
• Expedited procedures can be adopted by the
division engineer tailored to the situation and the
amount of time available
• Regional General Permits available in certain

19. Emergency ESA Section 7
Consultation Procedures
• Apply to situations involving acts of God,
disasters, casualties, national defense or
security emergencies, etc.
• Consultation may be conducted informally
through alternative procedures consistent with
the requirements of ESA sections 7(a)-(d)
• Formal consultation must be initiated as soon
as practicable after the emergency is under
control

21. Terrorism Under NEPA

23. Projects with an Uncertain Terrorist
Risk
• Nuclear Power Plants
• Ports
• Bridges
• Rail transportation
• Pipelines and powerlines
• Refineries and chemical plants
• Stadiums and other places of public assembly

24. Other Uncertain Risks
• Global warming
• Sea level rise
• Changes in water supply
• Seismic risks
• Risks of biotechnology and nanotechnology
• Facility failures (i.e. bridge collapse)

25. Approaches to Uncertainty
• Undertake a worst case analysis
• Develop additional information and present what
you know
• Speculate
• Ignore the issue
• Cost vs. benefit of additional information

26. Early Litigation
• Scientists’ Institute for Public Information v.
Atomic Energy Commission (1973) - reasonable
forecasting required
• State of Alaska v. Andrus (1978) - approval does
not need to be delayed to develop definitive
information
• No bright lines were drawn, although cases
generally required a reasonable level of additional
inquiry, and declined to excuse ignoring key
issues on the basis of uncertainty

27. 1978-1986 - CEQ’s Worst Case
Regulation
• Worst case analysis required in an EIS if information
relevant to the agency’s decision is not known and
cannot reasonably be obtained
• In that case, “the agency shall weigh the need for the
action against the risk and severity of possible
adverse impacts were the action to proceed in the face
of uncertainty. If the agency proceeds, it shall
include a worst case analysis and an indication of the
probability or improbability of its occurrence.”
• Example - total cargo loss by a supertanker (Sierra
Club v. Sigler - 1983)

28. 1986 - Revocation and Replacement of
the Worst Case Regulation
• If information relevant to reasonably foreseeable
significant impacts is essential to a reasoned choice
among alternatives, and it is either unavailable or
exorbitant, agency must:
• State that information is incomplete or unavailable
• State the relevance of the information
• Summarize the credible scientific evidence
• Evaluate the impacts “based upon theoretical
approaches or research methods generally
accepted in the scientific community.”

29. Key Elements of the Current
Regulation
• Generally applies a “rule of reason” and does not
mandate a worst case analysis in every situation
• Analysis of “low probability, high impact” events
still required “if the analysis of the impact is
supported by credible scientific evidence, is not
based on pure conjecture, and is within the rule of
reason”

30. Metropolitan Edison v. People Against
Nuclear Power (1983)
• Does NEPA require an evaluation of the
psychological effects from the risk of a nuclear
accident?

31. Key Elements of the Metropolitan
Edison Decision
• Psychological effects may be covered by NEPA
• Those effects were “indirect” and did not need to be
covered in an EIS given the lack of a “reasonably
close causal relationship” between the action and the
effect
• The element of risk and its perception by the public
was a key middle link in the causal chain
• The Court applied tort theory of proximate cause by
analogy
• Was expressly limited to the impacts of the risk itself,
in contrast to the impacts if the risk were realized

32. PG&E’s Interim
Spent Fuel Storage
Installation

33. Mothers for Peace v. NRC (2006)
• NRC relied on an environmental assessment to
conclude that the construction, operation and
decommissioning of the ISFSI will not result in a
significant impact on the environment
• The NRC had concluded categorically that NEPA
does not require consideration of the effects of
potential terrorist attacks
• In parallel, NRC included consideration of terrorism
in its facility safety review process and programmatic
anti-terrorism efforts

34. NRC’s Key Arguments
• Under the Metropolitan Edison standard, the
possibility of a terrorist attack lacks a reasonably
close causal relationship to the NRC’s action
• Since the risk of a terrorist attack cannot be
determined quantitatively, analyzing that risk
would be meaningless
• NEPA does not require a “worst case” analysis
• NEPA’s public process is not an appropriate
forum for sensitive security issues

35. Failure to Apply the Metropolitan
Edison “causal relationship” Standard
• 9th Circuit held Metropolitan Edison inapplicable
because it addressed a “different link” in the
causal chain
• The major Federal action
• A change in the physical environment
• An effect
• Distinction was artificial and illogical since risk
or uncertainty can apply to any “link”

36. Conflicts with Ninth Circuit Precedent
• NoGWEN v Aldridge (1988) - addressed the
relationship between the establishment of a
military communication system and the effects of
a nuclear war, concluding that the connection is
too attenuated to trigger a NEPA requirement to
analyze the effects
• Ground Zero Center v. Navy (2004) – Navy’s
conclusion that Trident missile loading operations
present minimal accident risks accepted as the
basis for excluding consideration of those risks in
an EA

37. Conflicts with Decisions in Other
Circuits
• New York v. US Dept of Transportation (2d Cir.
1982) - risks of sabotage need not be considered
in selection of nuclear material transportation
routes
• Limerick Ecology Action v. NRC (3d Cir. 1989) -
same result re sabotage of nuclear power plant
• Mid States Coalition for Progress v. Surface
Transportation Board (8th Cir. 2003) - terrorist
threat to rail transportation system need not be
evaluated since the threat is general in nature and
not specific to any project

38. Mothers for Peace is Much Easier to
Square with the CEQ Regulations
CEQ Standard:
• If information relevant to reasonably foreseeable
significant impacts is essential to a reasoned choice
among alternatives, and it is either unavailable or
exorbitant, agency must:
• State that information is incomplete or unavailable
• State the relevance of the information
• Summarize the credible scientific evidence
• Evaluate the impacts “based upon theoretical
approaches or research methods generally
accepted in the scientific community.”

39. Inability to Provide a Meaningful
Analysis
• “The numeric probability of a specific attack is
not required” in order to provide a meaningful
analysis
• “If the risk of a terrorist attack is not insignificant,
then NEPA obligates the NRC to take a ‘hard
look’ at the environmental consequences of that
risk”

40. A Worst Case Analysis is not
Required
• NRC attempted to portray the evaluation of a
terrorist attack as a “worst case” analysis
• The Court found that all that was being requested
was “an analysis of the range of environmental
impacts likely to result in the event of a terrorist
attack” and not a “worst case” scenario

41. Risks of Addressing the Issue in a
Public Forum
• Given the option of a confidential, non-public EIS,
security interests do not avoid the need to undertake an
EIS
• “There is no ‘national defense’ exception to NEPA” (cited
in NRDC v. Winter)
• Recent attention being paid to the policy consideration
that non-public NEPA documents undermine the public
information purposes of NEPA
• Confidentiality also impedes judicial review

42. Conclusion
• Mothers for Peace arguably is the right result
under the CEQ regulations, but the wrong result
under Metropolitan Edison
• Given the denial of certiorari, Metropolitan
Edison now appears to be even more clearly
limited to its facts
• Broader reliance on tort law analogies could be
risky
• The plain language of the CEQ regulations should
control

43. Subsequent Developments
• Tri-Valley Cares v. DOE (9th
Cir. 2006) –
unpublished decision applied Mothers for Peace
to require terrorism analysis in EA for biological
weapons research laboratory near San Francisco
• February, 2007 - NRC decides not to evaluate
terrorist risks outside of the Ninth Circuit (In re
Amergen Energy Company)
• NEPA/terrorism issue currently pending before
the DC Circuit in Private Fuel Storage appeal
• No other cases citing the decision on the
NEPA/terrorism question

44. Subsequent Developments (Continued)
• August, 2007 – NRC issues a brief EA supplement in
response to the Court’s decision in MFP
• October, 2008 – NRC (with one dissent) rejects
challenges brought by MFP against the EA
• No reference made to Metropolitan Edison
• Continued to assert that the probability of an attack is
low, but addressed the risk qualitatively
• Added analysis showing that potential effects would be
low in the event of a successful attack under
“plausible” scenarios
• Failed to analyze land contamination impacts

45. Subsequent Developments (Continued)
• December, 2008 – Mothers for Peace petitions for
review in the Ninth Circuit, contending that -
• an EIS was required, and
• a closed hearing should have been held on
whether the environmental impacts of terrorist
attacks should have been analyzed in an EIS
• An injunction against fuel loading may be sought

46. Treatment of Risk Under CEQA
• CEQA requires consideration of “reasonably
foreseeable” consequences of a project
• Speculative effects need not be evaluated
• Reasonable attempts to forecast impacts required
based on available methods
• The Ninth Circuit’s decision in Mothers for Peace
could now be used to argue that the risks of a
terrorist attack are sufficiently foreseeable to
require analysis

47. Conclusions
• An extensive regulatory “safety net” has been
established for emergencies but the Courts may
second guess the agencies
• Causation analysis under Metropolitan Edison
may have limited application
• CEQ regulations and the “rule of reason” likely
will govern
• Terrorism and other “low probability, high
impact” scenarios should be considered carefully

48. Alan Waltner
Law Offices of Alan Waltner
415-641-4641
waltnerlaw@gmail.com
www.waltnerlaw.com