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Oglala Sioux Tribe v. U.S. Nuclear Regulatory Commission

ELR Citation: 48 ELR 20126
Nos. 17-1059, (D.C. Cir., 07/20/2018)

The D.C. Circuit granted in part a Native American tribe's petition to review NRC's license decision for construction of a uranium mining project in the Black Hills of South Dakota. The tribe, which has historical ties to the proposed project area, argued that the agency failed to comply with NEPA by allowing the mining project to proceed despite the agency's acknowledgement that it had not complied with the Act. The court agreed, concluding that the agency should not have permitted the project to continue once it determined there was a significant deficiency in its NEPA compliance. The Act's requirement that a detailed EIS be made for a "proposed" action makes clear that agencies must take the required "hard look" before taking that action, so that construction does not begin without knowledge of the affected cultural and historical sites. Because the agency's EIS failed to take the required "hard look" by not addressing the effects of the project on tribal resources, the agency violated NEPA by leaving the project license in effect. The tribe also challenged other aspects of the agency's decision, but the court lacked jurisdiction to consider those rulings. The court therefore granted in part the tribe's petition to review the aspects of the agency's decision over which the court had jurisdiction and remanded the matter to NRC for further consideration.