Public Interest Groups’ Court Case Forces Nuclear Regulatory Commission to Conduct Public Rulemaking

Sept. 21, 2004

Public Interest Groups’ Court Case Forces Nuclear Regulatory Commission to Conduct Public Rulemaking

WASHINGTON, D.C. – The public’s right to comment on security regulations at nuclear power plants has been restored as the result of a lawsuit filed by Public Citizen and the California environmental group San Luis Obispo Mothers for Peace, Public Citizen said today.

The groups earlier this year sued the U.S. Nuclear Regulatory Commission (NRC), accusing the agency of violating federal law on rulemaking procedures when it issued new rules in 2003 on the “design basis threat” (DBT) – the terrorist attack scenario that nuclear plants are required to be able to guard against – without first notifying the public and allowing an opportunity for public comment.

The U.S. Court of Appeals for the District of Columbia Circuit has now issued an order that effectively tells the agency to provide the rulemaking proceeding sought in the lawsuit. Technically, the order holds the case “in abeyance” to give the agency an opportunity to make good on its assurance to the court that it now intends to conduct a proper rulemaking. If the agency fails to live up to that commitment, the lawsuit would be revived. The order was issued Friday but attorneys in the case first learned of it late yesterday when they received it by mail.

The lawsuit asked the court to order the agency to conduct a notice‑and‑comment rulemaking that complied with the Administrative Procedure Act and the Atomic Energy Act.  The agency responded that it was not required to do so and that the court had no jurisdiction to order it to, but after briefs were filed in the case and shortly before it was argued before the appeals court on Sept. 10, the NRC reversed course and advised the court that it now intended to conduct a rulemaking proceeding. The court’s order followed only a week after the argument.

“What the court has decided to do is wait and see whether the agency follows through on its commitment to conduct a rulemaking,” said Scott Nelson, the Public Citizen attorney who argued the case. “We’d have preferred that the court order the agency to engage in rulemaking, but this order is nearly as good because it makes it pretty clear that the court expects the agency to live up to its promises.”

Yet to be determined is whether the agency’s rulemaking will provide a meaningful opportunity for public comment, given the NRC’s penchant for secrecy regarding security matters, and whether the comments received by the agency are taken into account in recrafting the rule.

“We’ll be watching the NRC closely to make sure they follow through on the public’s right to know,” said Wenonah Hauter, director of Public Citizen’s energy program.  “This is really something they should have done a year and a half ago when they issued the rule.  It’s a shame the NRC continues to waste so much time in properly upgrading a rule that was flawed even before September 11.”

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To view the petitioners’ brief, click here.

To view the petitioners’ reply brief, click here.

To read the court order, click here.