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San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission

ELR Citation: 41 ELR 20093
Nos. No. 08-75058, (9th Cir., 02/15/2011)

The Ninth Circuit, in a case concerning the NRC's approval of a proposed interim spent fuel storage installation at the Diablo Canyon Power Plant, held that the NRC's refusal to grant a nonprofit group access to sensitive information in a closed adjudicatory hearing was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The group sought access to the documents in connection with their claim that the NRC erred in determining that an EIS addressing the likelihood and potential consequences of a terrorist attack at the plant was unnecessary. Understanding that its request could involve classified or sensitive information, the group sought protected access to these materials in a closed hearing. But neither NEPA nor the Atomic Energy Act requires such a hearing, and the NRC did not abuse its discretion by concluding that holding one would present unacceptable security risks. The court also held that in its supplemental EA, the NRC considered the relevant factors and reasonably concluded that an EIS was not necessary.