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Riverkeeper, Inc. v. Collins

ELR Citation: 34 ELR 20018
Nos. No. 03-4313, (2d Cir., 02/24/2004)

The court holds that it lacked jurisdiction over the Nuclear Regulatory Commission's (NRC's) decision denying environmental groups' request that the licensing of two nuclear power plants in New York be conditioned on several safety-related changes in the wake of the September 11, 2001, terrorist attacks. The NRC denied the group's request to implement a permanent no-fly zone over the plants, a defense system to protect this no-fly zone, and conversion of the spent-fuel storage at the plants to a dry cask system. The group argued that the court had jurisdiction to review the NRC's decision because it constituted an abdication of the NRC's statutory duty to protect and ensure the health and safety of the public. The group, however, failed to point to an NRC policy expressly abdicating any relevant statutory responsibility. Nor could the court infer a general NRC policy of abdication. The NRC's conclusion that the problem before it was being adequately addressed by other governmental agencies and its consequent decision to leave the matter to those agencies cannot amount to an "abdication" of its statutory duty under the Atomic Energy Act to ensure that the public health and safety is adequately protected. Relying on other governmental bodies to address a risk is not equivalent to ignoring the risk. The NRC, therefore, did not abdicate its statutory duties in refusing to implement the specific requests nor in turning the issue over to other agencies, and, thus, jurisdiction could not arise on that basis.

Counsel for Petitioner
Karl S. Coplan
Pace Environmental Litigation Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Respondent
Jared K. Heck
U.S. Nuclear Regulatory Commission
Washington DC 20530
(301) 492-7000/415-7000