The Ninth Circuit Court of Appeals has ruled that the Nuclear Regulatory Commission (NRC) is not required to hold a closed hearing on its decision to forgo an environmental impact statement (EIS) on the potential effects of a terrorist attack before approving additional nuclear waste storage at a California power plant. San Luis Obispo Mothers for Peace v. NRC, No. 08-75058 (9th Cir. 2/15/11).

Petitioners, including a nuclear energy watchdog and the Sierra Club, argued that the NRC’s obligation under NEPA and the Atomic Energy Act (AEA) required a closed hearing to share sensitive security information with petitioners. The petitioners sought review of NRC orders denying requests for a closed adjudicatory hearing on the agency’s decision not to prepare a full EIS and rejecting claims that a supplemental environmental assessment was inadequate under NEPA. They sought access, in a closed hearing, to sensitive documents that were exempt from the Freedom of Information Act’s public disclosure requirements.

In an earlier decision, the Ninth Circuit had remanded the matter to NRC for further proceedings to assess the risks of a terrorist attack, but did not dictate the nature of those proceedings. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006). On remand, the NRC ordered its staff to prepare a revised environmental assessment. That document concluded that the storage of spent fuel at the power plant would “not have a significant effect on the quality of the human environment,” and the agency determined that an EIS was not necessary.

The court rejected petitioner’s arguments, ruling that the NRC complied with the requirements of NEPA and AEA, neither of which require a closed hearing. The court also held that NEPA does not require the NRC to disclose sensitive information in a closed hearing and that the agency considered relevant factors and reasonably concluded that an EIS was not required.