Save Strawberry Canyon v. Steven Chu , 491 F. App'x 787 ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             JUL 31 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    SAVE STRAWBERRY CANYON,                          No. 11-15364
    a non-profit California public benefit
    corporation,                                     D.C. No. 3:10-cv-00797-VRW
    Plaintiff - Appellant,
    MEMORANDUM *
    v.
    STEVEN CHU, Secretary of the
    United States Department of Energy;
    AUNDRA RICHARDS, Site Office
    Manager, United States Department of
    Energy Berkeley Site Office; UNITED
    STATES DEPARTMENT OF ENERGY,
    a federal agency,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Northern District of California
    Vaughn R. Walker, District Judge, Presiding
    Argued and Submitted July 16, 2012
    San Francisco, California
    Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Save Strawberry Canyon appeals the district court’s grant of summary
    judgment to the Department of Energy on Save Strawberry Canyon’s challenge to
    the adequacy of the Department of Energy’s Environmental Assessment (“EA”)
    and the Department’s subsequent Finding of No Significant Impact (“FONSI”) for
    a proposed plasma accelerator project (the “BELLA project”) at a Department of
    Energy Laboratory in Berkeley, California. We affirm.
    We conclude that the Department took the necessary “hard look” at the
    potential impacts of the plasma accelerator project in the EA and that the FONSI
    was not arbitrary or capricious. See Native Ecosystems Council v. U.S. Forest
    Serv., 
    428 F.3d 1233
    , 1239 (9th Cir. 2005). The EA sufficiently analyzed in
    context the possibility of radiation exposure to the public, and it was not arbitrary
    or capricious to determine that any radiation exposure would not be significant.
    The Department described the system and procedures to minimize any possible
    radiation to a level far below regulatory limits. The EA discussed the Lab’s
    specialized expertise, to which we defer, in controlling and preventing radiation
    exposure as a result of operating accelerators like the proposed plasma accelerator
    for many years at the proposed project site. It was not arbitrary or capricious for
    the Department to continue to utilize its own well-established technical procedures
    and expertise in handling radiation from particle accelerators for the BELLA
    2
    project. Tri-Valley CAREs v. U.S. Dep’t of Energy, 
    671 F.3d 1113
    , 1124 (9th Cir.
    2012) (“A court generally must be at its most deferential when reviewing scientific
    judgments and technical analyses within the agency’s expertise.” (internal
    quotation marks omitted)). Additionally, none of the intensity factors indicated
    that the project will have a significant impact on the human environment.
    We also conclude that the EA satisfied the procedural requirements of the
    National Environmental Policy Act. See Ctr. for Biological Diversity v. U.S.
    Forest Serv., 
    349 F.3d 1157
    , 1165 (9th Cir. 2003). The EA sufficiently addressed
    concerns regarding the impact of radiation from regular operation, accidents,
    cumulative impacts, and other unauthorized use. The EA was not required to
    address mitigation measures because the FONSI was not based on mitigating any
    impacts. Akiak Native Cmty. v. U.S. Postal Serv., 
    213 F.3d 1140
    , 1147 (9th Cir.
    2000). The EA also adequately addressed hazardous materials and possible
    alternatives for the project. Native Ecosystems, 
    428 F.3d at 1246
    . The EA
    adequately responded to comments and appropriately cited to outside documents.
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-15364

Citation Numbers: 491 F. App'x 787

Judges: Tashima, Clifton, Murguia

Filed Date: 7/31/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024