Save Strawberry Canyon v. Steven Chu

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NOT FOR PUBLICATION JUL 31 2012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
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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.
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