Friends of the Earth v. NRC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-1026 September Term, 2020
FILED ON: MARCH 4, 2021
FRIENDS OF THE EARTH, ET AL.,
PETITIONERS
v.
U.S. NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA,
RESPONDENTS
FLORIDA POWER & LIGHT COMPANY,
INTERVENOR
On Petition for Review of an Order
of the Nuclear Regulatory Commission
Before: HENDERSON and TATEL, Circuit Judges, and EDWARDS, Senior Circuit Judge.
JUDGMENT
This petition was considered on the record from the Nuclear Regulatory Commission and on
the briefs of counsel. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j). The Court has accorded the
issues full consideration and has determined that they do not warrant a published opinion. See
D.C. CIR. R. 36(d). For the reasons stated below, it is hereby
ORDERED and ADJUDGED that the petition be DISMISSED.
I.
Petitioners Friends of the Earth, Natural Resources Defense Council, Inc. and Miami
Waterkeeper challenge the Nuclear Regulatory Commission’s (NRC) second renewal of
operating licenses for two nuclear power reactor units at Turkey Point Nuclear Generating
Station in Florida. Petitioners set forth several merits claims challenging the sufficiency of the
Agency’s environmental impacts analysis performed pursuant to the National Environmental
Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. Before reaching Petitioners’ merits claims,
however, we must first assess our jurisdiction. We assume the parties’ familiarity with the
underlying facts and procedural history in this case, discussing only the facts and procedural history
necessary for our analysis.
II.
“It is well-established that a party may not simultaneously seek both agency reconsideration and
judicial review of an agency’s order[;] . . . a petition for review filed while a request for agency
reconsideration is pending [is] ‘incurably premature.’” Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980,
980–81 (D.C. Cir. 1993) (per curiam) (quoting TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C. Cir.
1989) (per curiam); citing Wade v. FCC, 986 F.2d 1433 (D.C. Cir. 1993) (per curiam)). In other words,
“a pending petition for administrative reconsideration renders the underlying agency action nonfinal,
and hence unreviewable, with respect to the petitioning party.” TeleSTAR, Inc., 888 F.2d at 133(quoting United Transp. Union v. ICC, 871 F.2d 1114, 1114 (D.C. Cir. 1989)). Recently, we
explained that the incurably premature doctrine applies even if the administrative appeal
involves a “separate decision[]” from the petition for review before us but the same “issue” is
being challenged in both. See Flat Wireless, LLC v. FCC, 944 F.3d 927, 933 (D.C. Cir. 2019).
When Petitioners filed their petition for review of the NRC’s license renewals on January
31, 2020, three administrative appeals were pending before the NRC. 1 The administrative
appeals raised the same legal issues that Petitioners raise in the petition for review sub judice.
See Joint Appendix 1201 n.46, 1361–91, 1918–45. As in Flat Wireless, it makes no difference
that Petitioners’ administrative appeals challenged Atomic Safety and Licensing Board orders
issued during the license renewal proceedings instead of the license renewals themselves. See
Flat Wireless, 944 F.3d at 933. Because the petition for review raises the same legal issues
raised in the administrative appeals and was filed while the administrative appeals were
pending, the petition is incurably premature.
Additionally, whether Petitioners had a choice under agency regulations to seek NRC
review before filing their petition does not affect our analysis. Although we have previously
clarified the limits of our “incurable prematurity” holdings, see TeleSTAR, Inc., 888 F.2d at
134, our court has never held that, if petitioners do not have a choice between seeking agency
reconsideration or judicial review, the lack of such choice allows them to pursue both avenues
of review simultaneously. Indeed, we have described the “incurably premature” principle as
a “bright line test,” id., and have not limited applicability of the doctrine based on petitioners’
options for review or reconsideration. See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108,
111–12 (D.C. Cir. 2002); Int’l Telecard Ass’n v. FCC, 166 F.3d 387, 388 (D.C. Cir. 1999) (per
curiam); Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489–90 (D.C. Cir. 1994); Tenn. Gas Pipeline
Co., 9 F.3d at 980–81; United Transp. Union, 871 F.2d at 1116. Further, that the request for
agency reconsideration may not be optional does not undercut the foundational consideration
underlying the “incurably premature” doctrine: “a favorable decision from the agency might
1
One of the administrative appeals—an interlocutory appeal certified to the NRC by the Atomic
Safety and Licensing Board—was resolved in April 2020. The other two administrative appeals—petitions
for review initiated by Petitioners—remain pending before the NRC.
2
yet obviate the need for review by the court.” Clifton Power Corp., 294 F.3d at 111–12 (citing
City of New Orleans v. SEC, 137 F.3d 638, 639 (D.C. Cir. 1998) (per curiam)).
Petitioners’ petition for review is thus incurably premature and we accordingly dismiss
it.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed
to withhold issuance of the mandate until seven days after resolution of any timely petition for
rehearing or rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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