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Beyond Nuclear Appeals to U.S. Supreme Court in Opposition to Fermi 3 Proposed New Atomic Reactor

On Monday, Lodge submitted a Petition for a Writ of Certiorari to the U.S. Supreme Court. (A link to the Petition, and related documents, is posted at the Beyond Nuclear website.) The appeal, of a November 27, 2017 U.S. Court of Appeals for the District of Columbia Circuit ruling, questions: Did the NRC commit segmentation, and violate the longstanding recognition of the pre-eminence of NEPA, when it redefined “construction” in its Atomic Energy Act regulations to exclude environmental impact analysis of a major, integral transmission line corridor through critical habitat for endangered and threatened species? Lodge further questioned: Did the NRC violate its duty to obey NEPA when it denied admission of public intervenors’ contention because of an arbitrarily short deadline and simultaneously rejected its own Atomic Safety and Licensing Board Panel’s (ASLBP) sua sponte recommended adjudication of the matter?

The ASLBP presiding over the Fermi 3 licensing proceeding from 2009 to 2015 found the environmental coalition’s transmission corridor NEPA contention merited it to request permission from the NRC Commissioners to undertake its own review of the matter. Such ASLBP sua sponte initiatives have only occurred a small handful of times in decades. The NRC Commission, however, blocked the ASLBP review, just as it rejected the environmental coalition’s appeals, leading to this federal lawsuit.

“This is the first time the NRC’s 2007 Limited Work Authorization (LWA) rule change has been challenged,” said Kevin Kamps of Beyond Nuclear, a national watchdog on the nuclear power industry based in Takoma Park, Maryland. “LWA allowed ground to be broken, and major excavation and construction to begin in a great big hurry, at proposed new reactors at Vogtle in Georgia, and Summer in South Carolina. We are striving to prevent such high-speed bulldozing, in violation of NEPA, at Fermi 3,” said Kamps.

The NRC LWA rule change was brought to public light by Bloomberg reporter Elliot Blair Smith in a September 25, 2007 article entitled “Nuclear Utilities Redefine One Word to Bulldoze for New Plants.” Critics blasted the rule change, undermining NEPA, as Orwellian. (For a Beyond Nuclear backgrounder, see this link.) To exclude such major nuclear power plant construction projects as transmission line corridors as “preconstruction activities,” in an end run around many decades of established environmental protection law, critics slammed as “Nukespeak.”

“In one of the worst revolving door scandals in NRC history, NRC Commissioner Jeffrey Merrifield shepherded the LWA rule change into regulations, upending decades of agency policy by redefining the word ‘construction’ to now exclude such major construction projects as transmission corridors,” said Michael Keegan of Don’t Waste Michigan. “After this favor to the nuclear industry, Merrifield then immediately went to work for the Shaw Group, which specialized in new reactor construction, taking a senior vice president position with an annual salary topping a million dollars,” said Keegan, who has watchdogged the Fermi nuclear power plant for more than three decades.

“This jurisdictional grab is clearly not in the public interest,” Keegan added.

“NEPA is one of the top environmental protection laws in our country,” said Toledo attorney Terry Lodge. “NRC cannot be allowed to excuse itself from obeying this half-century old, hard won law,” said Lodge, who has served as legal counsel for Beyond Nuclear and the environmental coalition since the beginning of this licensing proceeding in 2008.

“The list of endangered and threatened species likely inhabiting this corridor, that would be damaged or destroyed by the transmission lines and towers, includes the Indiana bat, mussels such as the Snuffbox, Northern Riffleshell, and Purple Lilliput, snakes such as the Eastern Massasauga rattler and Eastern Fox constrictor, and plants such as the Eastern Prairie fringed orchid, to name but some,” said Lodge.

This U.S. Supreme Court appeal caps a decade of resistance to Fermi 3. Detroit Edison (DTE) announced the proposed new reactor in February 2007, as part of the so-called “Nuclear Renaissance.” DTE applied to NRC for a combined construction and operation license in September 2008. The bi-national environmental coalition, comprised of Beyond Nuclear, Citizens for Alternatives to Chemical Contamination, Citizens Environment Alliance of Southwestern Ontario, Don’t Waste Michigan, and Sierra Club Michigan Chapter, legally intervened in March 2009. The coalition, with Lodge as legal counsel, ultimately submitted some three-dozen technical contentions to the NRC’s ASLB. Oral hearings were held in downtown Monroe, MI at Halloween, 2013. When the NRC approved DTE’s Fermi 3 license in May 2015, the coalition immediately appealed to the federal courts.

This appeal to the U.S. Supreme Court not only culminates this decade of resistance. It carries on a tradition of anti-nuclear resistance at Fermi dating back six decades, to when the United Auto Workers appealed its case against Fermi Unit 1 to the U.S. Supreme Court. Fermi 3 would be built on the very spot where Fermi 1 had a partial core meltdown on October 5, 1966, as documented in John G. Fuller’s book We Almost Lost Detroit.