The United States Court of Appeals, Ninth Circuit, heard oral arguments presented by San Luis Obispo Mothers for Peace attorney Diane Curran during the afternoon of November 4, 2010 in San Francisco. The case pits the San Luis Obispo Mothers for Peace (SLOMFP) against the Nuclear Regulatory Commission (NRC) and Pacific Gas and Electric Company (PG&E).
Attorney Curran argued that the NRC violated federal environmental law when it refused to prepare an Environmental Impact Statement addressing the potentially catastrophic impact of an attack on the Diablo Canyon spent fuel storage facility.
SLOMFP attorney Curran summarized the significance of her oral arguments presented to the federal court today: "Mothers for Peace continues to press for an Environmental Impact Statement assessing the potentially devastating environmental impacts of an attack on the Diablo Canyon spent fuel storage facility. The NRC and PG&E take the position that the NRC’s refusal to prepare an Environmental Impact Statement is not subject to court review because the NRC decision is based on classified information. Mothers for Peace argues that the NRC must explain its decision in a closed hearing. Mothers for Peace believes that the need for an Environmental Impact Statement is critical, because it could lead to design changes that might better protect the casks and the public safety."
The SLOMFP Brief for the case is accessible at http://mothersforpeace.org/20090209brief
Audio of this Court session available at http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000006605
SLOMFP, an all-volunteer non-profit group, has challenged NRC regulatory practices as applied to Diablo Canyon since 1973, and has litigated issues related to sabotage and terrorism since 1976. The Diablo Canyon plant is sited on the Central Coast of California, in an area that includes over a dozen earthquake faults, some of them active and one of them as yet unstudied. The plant includes two nuclear reactors, two pools storing radioactive wastes, and a new dry cask storage facility that is at the heart of this legal case. All of these plant components lack adequate protection from terrorist attacks.
SLOMFP attorney Diane Curran, from Washington D.C., filed this challenge of the NRC in December of 2008 with several objectives:
- to force the NRC to prepare an Environmental Impact Statement that thoroughly analyzes the potential effects of attack on the dry cask storage facility and weighs the relative costs and benefits of measures to protect against those attacks.
- to require the NRC to comply with the Atomic Energy Act by granting MFP access to classified security documents in a closed hearing. MFP has demonstrated in its legal briefs that the government has no lawful right to refuse affected members of the public access to classified information in licensing hearings. Access to this information will allow MFP to determine whether the NRC is taking rigorous enough measures to protect Diablo Canyon against attack, or whether it has used the veil of secrecy to hide the fact that it is not doing enough. SLOMFP has not asked that any classified documents be made public. It has consistently asserted that SLOMFP attorney Diane Curran, who has the necessary security clearances, should be allowed access to the documents upon which the NRC claims to have relied in reaching its conclusion that even a successful terrorist attack on the dry casks at Diablo Canyon would have “no significant impact” on the environment.
- to restore a more appropriate balance between the influence of the nuclear industry and the public over the NRC. Because it has so many more resources at its disposal, the regulated industry has always had the upper hand in advocating for its interests before the NRC. After the 9/11 attacks, the increased level of secrecy at the NRC tilted the playing field even more dramatically in favor of the industry, which now has virtually unlimited access to sensitive information while the public was completely shut out.
The precedent-setting case began in 2002, when the NRC refused to evaluate the environmental impacts of an attack on the proposed dry cask facility before issuing a permit to Pacific Gas & Electric Co. (PG&E) to store spent fuel on the site. In 2006, the Ninth Circuit of the U.S. Court of Appeals agreed with SLOMFP and ordered the NRC to do such a study in compliance with the National Environmental Policy Act (NEPA). In response, the NRC Staff produced an extremely abbreviated environmental study, devoting just a few pages to its conclusion that the impacts of an attack would be insignificant. SLOMFP's expert witness, Dr. Gordon Thompson of the Institute for Resource and Security Studies, contended that the agency’s technical analysts erred by assuming a cask could be punctured without also recognizing that its contents could be ignited, allowing a large quantity of radioactive cesium and other contaminants to become airborne and transported over a broad geographic area. The resulting damage to public health and the environment would cost billions of dollars.