Discussion of “Major Federal Actions” Under NEPA - [PDF Document] (2024)

Discussion of “Major Federal Actions” Under NEPA


Russell E. Chazell

US Nuclear Regulatory Commission

Rockville, MD

April 2014

Capstone paper submitted in partial fulfillment of the

requirements for the Certificate in NEPA

Duke Environmental Leadership Program

Nicholas School of the Environment at

Duke University



This paper was prepared by an employee of the U.S. Nuclear Regulatory Commission (NRC) on

his own time apart from his regular duties. The NRC has neither approved nor disapproved of its

content. The views expressed in this paper are those of the author and not necessarily those of

the U.S. Nuclear Regulatory Commission.

Discussion of “Major Federal Actions” Under NEPA i


Section 102(2)(C) of the NEPA statute requires that significant effects to the human environment

be documented in “a detailed statement by the responsible official” for “major Federal actions”.

The statute itself does not plainly define what constitutes a major Federal action other than to say

that “recommendation[s] and report[s] on proposals” qualify.

This capstone paper will discuss the legislative history, case law, and practical application of

NEPA’s “major Federal action” concept as it has been interpreted by the Nuclear Regulatory

Commission (NRC) and Federal court litigation. This author is particularly interested in the

recent decision by the US Circuit Court of Appeals for the District of Columbia Circuit which

vacated the NRC’s 2010 Waste Confidence Rule. One of the bases for vacating the rule was the

fact that the Court considered the Waste Confidence Rule a major Federal action under NEPA.

The paper will conclude with a discussion of the appropriateness, under NEPA, of deeming a

policy decision like the Waste Confidence Rule, a major Federal action when the final Agency

action, issuing or renewing a license, relies on a separate and distinct environmental impact

statement (EIS).

Discussion of “Major Federal Actions” Under NEPA ii

Table of Contents

I. Introduction ..........................................................................................................................1

II. Context of a Major Federal Action under NEPA .................................................................2

III. Definition of a Major Federal Action ..................................................................................3

IV. Interpretation of the Definition ............................................................................................3

a. CEQ..........................................................................................................................3

b. NRC .........................................................................................................................4

c. Case Law ..................................................................................................................5

d. Other Thoughts ........................................................................................................7

V. Why licensing actions are considered Major Federal Actions .............................................8

VI. Is NRC Waste Confidence Rule a Major Federal Action? ................................................10

VII. Case Study: New York v. NRC ...........................................................................................12

VIII. Discussion of the Ruling ....................................................................................................12

IX. Conclusion .........................................................................................................................14

X. References ..........................................................................................................................15

Discussion of “Major Federal Actions” Under NEPA 1

I. Introduction

The National Environmental Policy Act of 1969 (NEPA)i was enacted by Congress in an

attempt to stop and reverse, where possible, the worsening damage to America’s air, water, and

biota from decades of industrial pollution beginning at the start of the industrial revolution in the


century. NEPA was intended to force Federal government decision makers to stop and think

about how proposed actions bear on the sustainability of the environment. The courts call it

taking a “hard look” at the proposed action to inform agency decision making.ii Regardless of

what one calls the process, it is intended to drive governmental behavior to reasonable and

responsible environmental stewardship.

NEPA is not a directive piece of legislation; rather, it is a procedural statute. NEPA

cannot force a Federal agency to abandon a proposed project; it can only force the agency to

consider the impacts of the proposal on the environment. Of course, if an agency finds itself in

Federal court defending its process, it would be prudent for that agency to be able to

substantively demonstrate that it carried out the “hard look”iii

required by NEPA and that the

agency had considered the information derived from the process before making the final decision

to proceed with the proposal or not. That substantive demonstration takes the form of a “detailed

statement”, now known as an environmental impact statement (EIS), an environmental

assessment (EA) or a categorical exclusion (CatX).iv

Without such a substantive demonstration,

the agency is likely to be enjoined from pursuing the project, or required to readdress the aspects

of the agency’s NEPA process the court found lacking.v

Additionally, NEPA served as the gateway to a plethora of other environmental laws (or

amendments to existing laws) such as CERCLA, RCRA, TSCA, CAA, and CWA.vi


statutes have the legal “teeth” necessary to force individual, corporate, and governmental

compliance with their provisions as well as hold actors accountable, civilly and criminally, for

their actions.vii

The question of whether NEPA – and its follow-on statutory daughters – has worked to

improve America’s environment is debatable and outside the scope of this paper. Suffice it to

say that there are those that believe, at a minimum, the environment is cleaner and healthier than

it was in 1969. Others might even say that today’s American environment is cleaner and

Discussion of “Major Federal Actions” Under NEPA 2

healthier than it has been since the beginning of the industrial revolution.viii

NEPA has played a

part in this success and therefore, viewed in that light, NEPA is an unqualified success.

This paper will focus on how an agency decision maker determines which proposals

require the “hard look” necessary under NEPA. On its face, the test is simple – “major Federal

actions significantly affecting the quality of the human environment….”ix

In practicality,

defining what constitutes a “major Federal action” is far from simple or straightforward.

II. Context of a Major Federal Action under NEPA

The primary driver for triggering a NEPA analysis is the undertaking, by the Federal

government, of a major Federal action. As stated in the introduction, determining what

constitutes a major Federal action was somewhat unclear in the beginning days of NEPA

practice. There has been litigation on the issue with the primary question coming down to – as it

often does in legal interpretation – defining the concept of “major Federal action” by looking at

the different aspects of the definition. This is sort of like “integration by parts” in mathematics.

One takes a complex expression, breaks it down into smaller parts, applies a resolution method

to each of the parts individually, and then adds those individual resolutions together to arrive at a

comprehensive result. In the case of a major Federal action, the NEPA practitioner – usually

some Federal agency or its contractor – will determine whether or not the contemplated action

constitutes a major Federal action for NEPA purposes. Then, if that action is deemed to be a

major Federal action, determining what level of scrutiny – categorical exclusion, environmental

analysis, or environmental impact statement – is required.

Title II of NEPA establishes the Council of Environmental Quality (CEQ) in the

Executive Office of the President.x CEQ is charged with a number of statutory responsibilities

related to the effective implementation and compliance with NEPA by executive branch Federal

agencies. CEQ rules are set out in Title 40 of the U.S. Code of Federal Regulations (40 CFR)

Parts 1500 to 1508.xi

The U.S. Nuclear Regulatory Commission (NRC) is an independent

agency established by the Energy Reorganization Act of 1974, as amended.xii

The NRC has

promulgated administrative rules to implement Section 102(2) of NEPA in Title 10 of the U.S.

Code of Federal Regulations (10 CFR) Part 51.xiii

As an independent agency, the NRC is not

bound, per se, by CEQ regulations. However, the Commission has committed to “[e]xamine any

Discussion of “Major Federal Actions” Under NEPA 3

future interpretation or change to the Council’s [CEQ] NEPA regulations[.]”xiv

Further, in some

instances, the Commission has adopted CEQ regulations, including the CEQ definition of a

major Federal action.xv

III. Definition of a Major Federal Action

A “major Federal action” is defined in NEPA as an agency action that “significantly

affect[s] the quality of the human environment.”xvi

IV. Interpretation of the Definition

The term “major Federal action”, in its simplest structure, is comprised of three

subordinate terms – “major”, “Federal”, and “action” – all of which require independent

definitions thereby adding multiplicative complexity to what might seemingly be a

straightforward concept. However, to get to the kernel of the concept, one must “integrate by

parts” these varied underlying concepts to attempt to derive a working framework for identifying

what agency actions are truly major Federal actions and then to interpret the NEPA requirement

of preparing “a detailed statement” to that particular action. As one might imagine, this

definitional complexity makes for disparate conclusions between agencies on what, in any given

circ*mstance, qualifies as a major Federal action under NEPA.

a. CEQ

CEQ has interpreted the NEPA definition of “major Federal action” to “include

actions with effects that may be major and which are potentially subject to Federal control and


CEQ appears to be defining a word – major – by using the same the word in

the definition. Such a practice tends to be problematic as it does not really define the term at

hand. CEQ attempts to resolve that circular logic through qualifying the term “major” by stating

that “[m]ajor reinforces but does not have a meaning independent of significantly (40 CFR


The qualification of “major” seems to modify the CEQ definition to actions with

effects that may be both major and significant. Adding the term “significant” to the mix requires

more clarification.

Discussion of “Major Federal Actions” Under NEPA 4

CEQ goes on to define “significant” both in terms of “context and intensity”.xix


defines “context” being “that the significance of an action must be analyzed in several contexts

such as society as a whole …, the affected region, the affected interests, and the locality.

Significance varies with the setting of the proposed action.” “Intensity” is defined as “the

severity of impact” and gives a list of considerations to be evaluated to determine intensity such

as, among others, “beneficial and adverse” impacts, controversy of the proposed action, and

“whether the action is related to other actions with individually insignificant but cumulatively

significant impacts.” xx

Again, CEQ is defining “significance” using the same term in some

evaluations like whether a cumulative impact is “insignificant” but “cumulatively significant.”

Such “dog chasing its tail” definitional logic leaves one to conclude that the determination of

whether an agency action is “major” or “significant” is an inherently subjective determination.

Returning to the base definition from NEPA, one must determine whether the action

is a Federal action. CEQ states that actions are Federal in nature if a Federal agency “partly

financed, assisted, conducted, regulated, or approved” an action.xxi

Further, CEQ also deems

“new or revised agency rules, regulations, plans, policies, or procedures; and legislative

proposals” as Federal actions.xxii

Finally, CEQ defines an action as something that falls into

several categories including “[a]doption of official policy”,xxiii

“[a]doption of formal plans”,xxiv

“[a]doption of programs, such as a group of concerted actions to implement a specific policy or

plan; systematic and connected agency decisions allocating agency resources to implement a

specific statutory program or executive directive”,xxv

and “[a]pproval of specific projects, such as

construction or management activities located in a defined geographic area” to include “actions

approved by permit or other regulatory decision as well as Federal and Federally assisted


b. NRC

The Commission has adopted the CEQ definition of a major Federal action in its

NEPA implementing rules.xxvii

By doing so, the Commission has adopted the circular logic and

subjectivity of the CEQ definition. However, in some NRC actions, that subjectivity has been

resolved because the Commission has dispensed with the exercise of determining whether

certain, specific actions are major Federal actions. In these circ*mstances, the Commission has

directed that a detailed statement, or environmental impact statement (EIS), will be developed,

Discussion of “Major Federal Actions” Under NEPA 5

by policy, in all instances of similar agency action. Particularly, the Commission has directed

that an EIS will be developed for, among others, construction permits and operating licenses for

nuclear power plants, licenses to possess and use special nuclear materialsxxviii

for processing and

fuel fabrication, and licenses to mill uranium or produce uranium hexafluoride.xxix


the Commission has directed that an EIS may be developed in circ*mstances where a categorical

exclusion would ordinarily suffice.xxx

In special cases, the NRC will prepare an EIS in response,

for example, to a court order, as is the case with the Waste Confidence Rule resulting from the

recent decision by U.S. Circuit Court of Appeals for the District of Columbia Circuitxxxi

on the

Commission’s Waste Confidence Rule.xxxii

c. Case Law

Subjectivity generates litigation. Litigation requires interpretation. Interpretation

creates precedent that then provides a framework for future implementation and practice. The

subjective nature of the definition of a major Federal action has generated litigation since the

passage of NEPA in 1969.xxxiii

Several early cases took on the challenge of defining a major Federal action under

NEPA. Again, one needs to look at all aspects of the term – whether it is major; whether it is

Federal; and whether it is significant.

The NEPA statute itself defines “Federal” in very broad terms. First, NEPA states

that “all agencies of the Federal Government shall – [act]….”xxxiv

And, that such action, by

Congressional authorization and direction will be “to the fullest extent possible….”xxxv


strong, all-inclusive language appears to include all Federal entities, including independent

agencies like the NRC.xxxvi

The Atomic Energy Commission (AEC), predecessor agency to the

NRC, argued that NEPA did not apply to it because the Atomic Energy Act of 1954xxxvii

did not

include environmental protection in the AEC’s statutory mandate. This position was quickly put

to bed by D.C. Circuit in the Calvert Cliffs casexxxviii

and later by and the U.S. Supreme Court in

the Vermont Yankee case.xxxix

The Supreme Court decision established that “NEPA contains

largely “procedural” requirements that are supplemental to existing statutory requirements of

the federal agencies.” (Emphasis added).xl

Inasmuch as the NRC is a Federal agency without an

exemption, its actions – including licensing actions – are “Federal” actions under NEPA.

Discussion of “Major Federal Actions” Under NEPA 6

The determinations of “major” and “significant” are somewhat more complicated. In

fact, the early court cases were mixed on whether a “major” action was, per se, a “significant”

one. In the case Hanly v. Kleindienst, the court determined that the definition of the word

“significant” as contained in NEPA was a stand-alone question of law whose legal determination

could be made by them.xli

The court characterized the term “significantly” as “amorphous” and

stated that almost every major federal action, no matter how limited in scope, has some adverse

effect on the human environment.”xlii

The court further stated that if Congress had intended for

all major Federal actions to require an environmental impact statement, it would not have

qualified the language with the term “significant.” Since neither Congress nor CEQ clearly

defined “significant” in this context, the court reasoned that “Congress apparently was willing to

depend principally upon the agency's good faith determination as to what conduct would be

sufficiently serious from an ecological stand-point to require use of the full-scale procedure.”xliii

To define “significant” this court ultimately fashioned a two-pronged threshold determination to

ascertain whether an action was significant. The Court stated that:

we are persuaded that in deciding whether a major federal action will

"significantly" affect the quality of the human environment the agency in charge,

although vested with broad discretion, should normally be required to review the

proposed action in the light of at least two relevant factors: (1) the extent to which

the action will cause adverse environmental effects in excess of those created by

existing uses in the area affected by it, and (2) the absolute quantitative adverse

environmental effects of the action itself, including the cumulative harm that

results from its contribution to existing adverse conditions or uses in the affected

area. Where conduct conforms to existing uses, its adverse consequences will

usually be less significant than when it represents a radical change.xliv

Finally, the court reasoned that “it must be recognized that even a slight increase in adverse

conditions that form an existing environmental milieu may sometimes threaten harm that is

significant. One more factory polluting air and water in an area zoned for industrial use may

represent the straw that breaks the back of the environmental camel. Hence the absolute, as well

as comparative, effects of a major federal action must be considered.”xlv

In short, the court

Discussion of “Major Federal Actions” Under NEPA 7

added that “before a preliminary or threshold determination of significance is made the

responsible agency must give notice to the public of the proposed major federal action and an

opportunity to submit relevant facts which might bear upon the agency's threshold decision.”xlvi

These so-called “threshold determinations” are difficult to establish and courts have ruled in

contradictory manners (as indicated by the dissent in Kleindienst). Some agencies, including the


have resolved this challenge by simply making “the distinction [of significance] a

programmatic one; that is, all actions under certain programs require environmental impact

statements, and all actions under other programs do not.” (Emphasis in the original).xlviii

d. Other Thoughts

As stated earlier, some agencies, including the NRC have resolved the “major” versus

“significant” debate by deeming all actions of certain nature subject to preparation of an

environmental impact statement. By doing this, the agency no longer needs to quibble over

whether proposed action A needs an EIS and then later defend why proposed action A was

deemed EIS-worthy when a similar proposed action B was not; or split hairs over why proposed

action A was “significant” when proposed action B was not even though both were major

Federal actions.

In 10 CFR 51.20(b), the Commission has stated that “[t]he following types of actions

require an environmental impact statement or a supplement to an environmental impact


(1) Issuance of a limited work authorization or a permit to construct a nuclear power

reactor, testing facility, or fuel reprocessing plant under part 50 of this chapter, or

issuance of an early site permit under part 52 of this chapter.

(2) Issuance or renewal of a full power or design capacity license to operate a nuclear

power reactor, testing facility, or fuel reprocessing plant under part 50 of this chapter, or

a combined license under part 52 of this chapter.

(3) Issuance of a permit to construct or a design capacity license to operate or renewal of

a design capacity license to operate an isotopic enrichment plant pursuant to part 50 of

this chapter.

(4) Conversion of a provisional operating license for a nuclear power reactor, testing

facility or fuel reprocessing plant to a full term or design capacity license pursuant to part

Discussion of “Major Federal Actions” Under NEPA 8

50 of this chapter if a final environmental impact statement covering full term or design

capacity operation has not been previously prepared.”

These actions require an environmental impact statement because, in its discretion, the

Commission believes that they are both major actions and significantly affect the quality of the

human environment. This process, presumably, conserves resources by ensuring a predictable

and stable process for both the agency and the applicant. When all parties know that an EIS will

be required for certain actions – like licensing a nuclear power plant – those parties can plan

accordingly. An additional benefit to the NRC is that, by deeming all nuclear power plant

applications EIS-worthy, whether under 10 CFR Part 50 or 10 CFR Part 52, the agency can

require applicants to submit an “environmental report” as a part of the application. CEQ

regulations permit such practices so long as the agency conducts an independent evaluation of

the information submitted.xlix

The Commission defines an “environmental report” as “a

document submitted to the Commission by an applicant for a permit, license, or other form of

permission, or an amendment to or renewal of a permit, license or other form of permission, or

by a petitioner for rulemaking, in order to aid the Commission in complying with section 102(2)

of NEPA.”l All nuclear power plant applicants are required to submit an environmental report as

part of their applications.li

V. Why licensing actions are considered Major Federal Actions

Many Federal agencies actually build things. The Department of Defense builds military

bases and ships and airplanes; the National Park Service builds infrastructure for the Nation’s

parks; the Federal Aviation Administration builds control towers; the Bureau of Reclamation

builds dams. Other Federal agencies, like the NRC, build nothing. They license others to build

things. Yet, these agencies that are merely licensing and not actually building are still subject to

the EIS requirements of NEPA because those licensing actions may be considered major Federal

actions significantly affecting the quality of the human environment. But wait – it’s a piece of

paper – a license. Is the NRC, for example, really undertaking a major Federal action by issuing

a license? CEQ thinks so – and the courts have validated their position.

Discussion of “Major Federal Actions” Under NEPA 9

CEQ regulations appear to have connected the dots between licensing and a major

Federal action thusly: licensing creates effects and are thereby major Federal actions. 40 CFR

§1508.18 states that a “’[m]ajor Federal Action’ includes actions with effects that may be major

and which are potentially subject to Federal control and responsibility.” (Emphasis added). 40

CFR §1508.18(b)(4) further clarifies by stating that “[a]pproval of specific projects, such

construction or management activities located in a defined geographic area. Projects include

actions approved by permit or other regulatory decision as well as Federal and Federally

assisted activities.” (Emphasis added). The NRC has specifically adopted this definition of a

major Federal action.lii

Hence, merely licensing a project may give rise to that project being a

major Federal action even the Federal agency never turns a single shovelful of dirt.

The case law on this concept is extensive starting with the 1971 Calvert Cliffs case. In

that case the D.C. Circuit, throughout its opinion, accepted as a given that issuance of a license

constitutes a major Federal action.liii

Specifically, the Court states that:

The procedure for environmental study and consideration set up by the Appendix

D rules is as follows: Each applicant for an initial construction permit must

submit to the Commission his own "environmental report,” presenting his

assessment of the environmental impact of the planned facility and possible

alternatives which would alter the impact. When construction is completed and

the applicant applies for a license to operate the new facility, he must again

submit an "environmental report" noting any factors which have changed since

the original report. At each stage, the Commission's regulatory staff must take the

applicant's report and prepare its own "detailed statement" of environmental costs,

benefits and alternatives. The statement will then be circulated to other interested

and responsible agencies and made available to the public. After comments are

received from those sources, the staff must prepare a final "detailed

statement" and make a final recommendation on the application for a

construction permit or operating license.liv

(Emphasis added). The Court in this case accepted the Atomic Energy Commission’s rule

requiring a “detailed statement” – read as EIS – before a licensing decision could be made.

Discussion of “Major Federal Actions” Under NEPA 10

Other cases that stand for the proposition that licensing actions alone are sufficient to

constitute a major Federal action include Scientists' Institute for Public Information, Inc. v.

Atomic Energy Commission, 481 F.2d 1079, 1088 (D.C. Cir. 1973), (there is "Federal action"

within the meaning of the statute not only when an agency proposes to build a facility itself, but

also whenever an agency makes a decision which permits action by other parties which will

affect the quality of the environment.); Foundation on Economic Trends v. Heckler, 756 F.2d

143, 153 (D.C. Cir. 1985), ([t]he government has conceded that the approval is a "major action"

and that it does not fall into a categorical exclusion to the EIS requirements.); and Natural

Resources Defense Council, Inc. v. United States E.P.A., 822 F.2d 104, 128 (D.C. Cir. 1987),

(unless the construction itself is pursuant to federal financial assistance, NEPA review may only

be conducted with regard to the issuance of a discharge permit, which constitutes, of course, the

major Federal action.).

VI. Is NRC Waste Confidence Rule a Major Federal Action?

In 1977, the Commission advanced a policy wherein it “would not continue to license

reactors if it did not have reasonable confidence that the wastes can and will in due course be

disposed of safely.” lv

Additionally, in Minnesota v. NRC, the U.S. Circuit Court of Appeals for

the District of Columbia Circuit “directed the Commission to consider ‘whether there is

reasonable assurance that an off-site storage solution [for spent fuel] will be available by … the

expiration of the plants’ operating licenses, and if not, whether there is reasonable assurance that

the fuel can be stored safely at the sites beyond those dates.”lvi

To implement that policy

decision and Court directive, the Commission promulgated 10 CFR 51.23 otherwise known as

the Waste Confidence Rule in 1984.lvii

Generically applicable, the rule intended to resolve the

question of the safety and environmental impacts of high-level waste and spent nuclear fuel by

stating, as a policy matter, that the Commission believed that spent nuclear fuel could be stored

in the facility spent fuel pool or in an onside independent spent fuel storage installation (ISFSI)

for up to thirty years after a plant ceased operations. The rule further stated that Commission

“believe[d] there [was] reasonable assurance that one or more mined geologic repositories for

commercial high-level radioactive waste and spent fuel [would] be available by the year 2007-


The promulgation of this rule eliminated any consideration of post-operation spent

Discussion of “Major Federal Actions” Under NEPA 11

fuel storage from the site-specific licensing decisions and no discussion of it was required in

“any environmental report, environmental impact statement, environmental assessment or other

analysis prepared in connection with the issuance or amendment of an operating license for a

nuclear reactor or in connection with the issuance of an initial license for storage of spent fuel at

an ISFSI, and any amendment thereto.”lix

Finally, the rule specifically states that it does not alter

any environmental review requirements during the term of the operating license or in an ISFSI

license proceeding. There is nothing in the Statement of Consideration for the 1984 rule that

would indicate the Commission considered the rule to constitute a major Federal action under

NEPA, nor was there any direction by the Court in the Minnesota case that such a rulemaking

would constitute a major Federal action under NEPA.lx

Further, by operation of the 1984 Waste

Confidence Rule, consideration of spent fuel storage was not part of the environmental analysis.

This decision was reviewed in 1990 wherein the Commission checked the validity of its

five findings from the 1984 rule. At that time, the Commission revised two of the five findings

in light of new circ*mstances. Most significantly, the Commission changed their prediction of

the availability of a mined geologic repository to “the first quarter of the twenty-first century.”lxi

The change reflected the reality that the mined repository would most likely not be in service by

2009 as predicted in the 1984 rule. In doing so, the Commission believed that “[t]o specify a

year for the expected availability of a repository decades hence would misleadingly imply a

degree of precision now unattainable.” lxii

The Commission also, in this update, extended the

periodic review of the Waste Confidence Decision from every five years to every ten years.

Finally, in 2010, the Commission again revised the Decision and stated that, given the apparent

demise of Yucca Mountain, that a repository would be available “when necessary” instead of

setting a specific time window.lxiii

The Commission’s Waste Confidence Decision raises the question whether a mere

opinion – the prognostication of the Commission as to when a geologic SNF repository would be

built – constitutes a major Federal action under NEPA. Given the lack of “detailed statements”

supporting this prognostication in 1984, 1990, and 2010, it appears that the Commission did not

consider the “Decision” a major Federal action. Moreover, the absence of such a discussion in

1979 in Minnesota seems to have set such a tone. Additionally, this question is exacerbated by

the fact that no licensing actions would proceed solely based on the Waste Confidence Decision.

Discussion of “Major Federal Actions” Under NEPA 12

The Waste Confidence Decision was a consequence of the Court’s direction in Minnesota, not a

pre-determined step in nuclear reactor power plant licensing. The D.C Circuit in New York v.

NRC addressed this issue in 2012.lxiv

VII. Case Study: New York v. NRC

The Commission had stated that they would revisit the Waste Confidence rule

periodically and did so in 2010. The 2010 update modified two of the five findings – the

timeline for rollout of a National geologic repository and the length of time that spent fuel could

be stored onsite after the cessation of plant operations. The Department of Energy had, that same

year, attempted to withdraw its application to license the Yucca Mountain repository.lxv


revising the prognostication of when a geologic repository would be available, it seems that the

Commission “was no doubt influenced by the recent shelving of the Yucca Mountain


when it changed the language of the Waste Confidence Decision repository

availability from the first quarter of the twenty-first century to that of “when necessary.” This

change of position, as well as the revised finding that spent nuclear fuel could be stored onsite

for up to sixty years after cessation of plant operations, caused a lawsuit to break out challenging

the 2010 revision. The State of New York and the Prairie Island Indian Community were the

Petitioners and a number of other parties participated as intervenors.lxvii

There were a number of issues argued in New York v. NRC but this paper is limited to

only one of the bases for vacating the rule – the fact that the Court considered the Waste

Confidence Rule a major Federal action under NEPA.lxviii

In short, the U.S. Circuit Court of Appeals for the District of Columbia Circuit vacated

the Commission’s 2010 Waste Confidence Decision update and the Temporary Storage Rule and

remanded it to the Commission “for further proceedings consistent with this opinion.”lxix

VIII. Discussion of the Ruling

The first issue the Court took up was whether the Waste Confidence Decision constituted

a major Federal action under NEPA. Notwithstanding the three decades of Commission

precedent wherein waste confidence decisions were not considered major Federal actions, the

Court ruled that this one was. The opinion states that “[the Court has] long held that NEPA

Discussion of “Major Federal Actions” Under NEPA 13

requires that ‘environmental issues be considered at every important stage in the decision making

process concerning a particular action.’”lxx

The Court stated that, because the “WCD makes

generic findings that have a preclusive effects in all future licensing decisions – it is a pre-

determined ‘stage’ of each licensing decision[,]”lxxi

and thus a major Federal action.

The Court continued by citing CEQ regulation 40 CFR 1508.18, discussed earlier in this

paper, that defines a major Federal action as one having “indirect effects, which are caused by

the action and are later in time or farther removed in distance, but are still reasonably

foreseeable.” Again, the Commission has adopted the CEQ definition of a major Federal action

from 40 CFR 1508.18. The Court states that “[i]t is not only reasonably foreseeable but

eminently clear that the WCD will be used to enable licensing decisions based on its


Additionally, the Court quotes Andrus v. Sierra Club that states, “CEQ’s NEPA

interpretations are entitled to substantial deference.”lxxiii

Finally, the Court states that, given the

language of the Commission’s rules at 10 C.F.R 51.23(b), the WCD “renders uncontestable

general conclusions about the environmental effects of general plant licensure that will apply in

every licensing decision.”lxxiv

The Court reasoned that, since these general conclusions cannot be

contested during licensing, the WCD is a “pre-determined ‘stage’ of each licensing decision” and

thus a major Federal action requiring an environmental impact statement, or an environmental

assessment with an attendant finding of no significant impact.

The Court’s rationale for deeming the Waste Confidence Decision a major Federal

action are based on the fact that the “general conclusions [from the Waste Confidence Decision]

about the environmental effects of general plant licensure” are not contestable in the subsequent

licensing decision. Presumably, that rationale is because the Commission does not allow

challenges to its regulations in licensing proceedings.lxxv

However, there are several ways, under

Commission practice, in which those conclusions are contestable – through public comment

during initial rulemaking,lxxvi

by administrative litigation during license hearings when “new and

significant” information emerges,lxxvii

and by petitions for rulemaking.lxxviii

The NRC’s rulemaking processes allow for public comment, usually for 75 to 90 days,

during which comments are accepted for consideration.lxxix

The NRC staff reviews and analyzes

these comments and, when persuaded, revises the rule to reflect the substance of the comment.

Discussion of “Major Federal Actions” Under NEPA 14

Secondly, during licensing proceedings – those same proceedings where the Waste Confidence

Decision is operative – putative intervenors may “make their case” to the Atomic Safety and

Licensing Board or to the Commission as appropriate. If the petitioners are able to meet the

admissibility standards of 10 CFR 2.309(f), they may be admitted as parties to the licensing

proceeding wherein they may have an opportunity to challenge WCD conclusions on the basis of

emergent “new and significant” informationlxxx

if they are able to show “special circ*mstances”

under 10 CFR § 2.335(b).lxxxi

Finally, anyone can petition the Commission at any time to engage

in rulemaking under 10 CFR § 2.802.lxxxii

This mechanism could be used to challenge or revise

the language or conclusions of the Waste Confidence rule with persuasive justification.

Certainly, these three mechanisms to address alleged deficiencies with the Waste Confidence

Decision are not easy nor are they straightforward. However, they are no more burdensome than

the contemporaneous challenge during licensing that, the DC Circuit implies would be necessary

for the Waste Confidence Decision to cease to be a “pre-determined stage” of licensing.

Reliance on these three administrative processes for challenge to alleged WCD defects would

have preserved the Commission’s decades-long precedent that WCD, standing alone, is not a

major Federal action. In any event, the Commission did not appeal the 2012 New York v. NRC

decision and, therefore, development of an EIS to support a replacement rule to the vacated 2010

WCD update is now underway. As of this writing, the NRC staff has issued a draft WCD EIS.

IX. Conclusion

The concept of a major Federal action under NEPA is not as straightforward or intuitive

as it may appear by simply reading NEPA. When one delves into the elements of the term, one

quickly realizes that the terms “major” and “significant” muddy the definitional waters greatly.

As seen by the discussion above and by the references list below, there have literally been entire

books written on this seemingly simple term. Add to that all the case law that has arisen over the

past four decades and one sees that ascertaining whether a specific action qualifies as a major

Federal action is many times a subjective inquiry dependent on broad interpretation and

differences of opinion.

With regard to NRC licensing actions, NEPA itself, the Courts, and regulations

promulgated by CEQ and the Commission, have by decree, removed the guesswork from the

inquiry. There is no “integration by parts” for the NRC NEPA practitioner to determine whether

Discussion of “Major Federal Actions” Under NEPA 15

one has a major Federal action at hand. Once merely needs to look at NEPA Section 102(2)(C),

Minnesota v NRC, New York v. NRC (2009), New York v. NRC (2012), 40 CFR 1508.18 (CEQ),

and 10 CFR 51.20(b) (NRC). Perhaps calculating reactor power densities would be easier.

X. References


a. Andrus v. Sierra Club, 442 U.S. 347

b. Calvert Cliffs’ Coordinating Commission Inc. v. United States Atomic Energy

Commission, 449 F.2d 1109

c. Hanly v. Mitchell, 460 F.2d 640

d. Hanly v. Kleindeinst, 471 F.2d 823

e. Kleppe v. Sierra Club, 427 U.S. 390

f. Minnesota v. NRC, 602 F.2d 412

g. New York v. NRC, 589 F.3d 551

h. New York v. NRC, 681 F.3d 471

i. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council,

435 U.S. 519

Books and Articles

a. Anderson, Frederick R., NEPA in the Courts; A Legal Analysis of the National

Environmental Policy Act, Johns Hopkins University Press (1973).

b. Anderson, Frederick R., Glicksman, Robert L. Glicksman, Daniel R. Mandelker,

and Dan Tarlock, Environmental Protection Law and Policy, 3rd Edition, Aspen Law &

Business, (1999).

c. Baker, Martin S., Joseph S. Kaming, and Richard E. Morrison; Environmental

Impact Statements: A Guide to Preparation and Review; Practicing Law Institute, New York

City (1977).

d. Bonine and McGarity, The Law of Environmental Protection, Cases – Legislation

– Policies, 2d Edition (1992).

Discussion of “Major Federal Actions” Under NEPA 16

e. Fogleman, Valerie M., Guide to the National Environmental Policy Act:

Interpretations, Applications, and Compliance, Quorum Books (1990).

f. Harnett, Hillary H., New York v. U.S. Nuclear Regulatory Commission, Harvard

Environmental Law Review, Volume 37, (2013).

g. Liroff, Richard A., National Policy for the Environment: NEPA and Its Aftermath,

Indiana University Press (1976).

h. Rodgers, W., Environmental Law 763 (1977)

i. Smith, Maxwell C. and Catherine E. Kanatas, Acting with No Regret: A Twenty-

Five Year Retrospective of Marsh v. Oregon Natural Resources Defense Council, Social Science

Research Network (2013).

j. Sullivan, Thomas F.P. (Ed.), Environmental Law Handbook, 14th


Government Institutes, Inc., Rockville, Maryland, (1997)

i 42 USC §4332

ii Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)

iii Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, (1976)

iv 42 U.S.C §4332 The categorical exclusion is included here because, in this author’s opinion, a categorical

exclusion is only arrived after a substantive review of similar actions and a finding by the decision maker that such

are can be generically determined to have no adverse environmental impact. In short, before a category of actions is

deemed a CatX, the decision maker studied that category of actions. v Hanly v. Mitchell, 2 ELR 20216, 20220 (2d Cir.), 460 F.2d 640; and Hanly v. Kleindeinst, 2 ELR 20717, 20723,

471 F.2d 823 (2d Cir.); both as cited in Liroff at 167 vi Clean Air Act Amendments of 1970, 42 U.S.C. §7401 et seq.

Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq.

Resource Conservation and Recovery Act of 1976, 42 U.S.C § 6901 et seq.

Toxic Substances Control Act of 1976, 15 U.S.C. §2605 et seq.

Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C § 9601 et seq. vii

A discussion of enforcement provisions under CERCLA and RCRA can be found at

http://www.epa.gov/region1/enforcement/superfund/. viii

http://www.bloomberg.com/slideshow/2012-09-18/world-s-top-environmental-success-stories.html#slide1 ix

NEPA § 102(2)(C), (42 U.S.C. § 4332) x NEPA § 202 (42 U.S.C §4342)

xi NEPA § 204 (42 U.S.C §4344)

xii 42 USC §5841(a)(1)

xiii 10 CFR §51.2

xiv 10 CFR §51.10(b)(1).

xv See as examples 10 CFR §51.10(b)(2) and 10 CFR Part 51, Appendix A to Subpart A, passim.

xvi 42 USC §4332(C). This characterization of agency action is modified by the term “other” in the text of the

NEPA section. The use of such a modifier implies that the preceding items in the clause – “every recommendation

or report on proposals for legislation” – are also major Federal actions under NEPA. xvii

40 CFR §1508.18 xviii

Id. xix

40 CFR §1508.27

Discussion of “Major Federal Actions” Under NEPA 17 xx

Id. xxi 40 CFR §1508.18 xxii

Id. xxiii

40 CFR §1508.18(b)(1) xxiv

40 CFR §1508.18(b)(2) xxv

40 CFR §1508.18(b)(3) xxvi

40 CFR §1508.18(b)(4) xxvii

10 CFR §51.14(b) xxviii

Special nuclear materials are defined as “(1) plutonium, uranium-233, uranium enriched in the isotope-233 or in

the isotope-235, and any other material which the Commission, pursuant to the provisions of section 51 of the

[Atomic Energy] act, determines to be special nuclear material, but does not include source material; or (2) any

material artificially enriched by any of the foregoing, but does not include source material. (10 CFR §50.2) xxix

10 CFR 51.20(b) xxx

10 CFR 51.20(b)(14) xxxi New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) xxxii

10 CFR §51.23 xxxiii

As of 1973, one author stated that “[t]he phrase, ‘major Federal action significantly affecting the quality of the

human environment,’ has engendered the bulk of litigation under NEPA.” See Anderson (1973) at 57. xxxiv

NEPA §102 (42 U.S.C §4332). xxxv

Id. xxxvi

Only the Environmental Protection Agency has been exempted from the provisions of NEPA, albeit in a limited

way, on the basis that EPA “has statutory responsibility for the protection of the environment.” See Sullivan at 533. xxxvii

42 U.S.C. §2011 et seq. xxxviii

Calvert Cliffs’ Coordinating Commission Inc. v. United States Atomic Energy Commission, 449 F.2d 1109

(D.C. Cir. 1971). xxxix

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978). xl

Sullivan at 533. xli

Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) at 829. xlii

Id., at 830. xliii

Id. xliv

Id., at 830-831. xlv

Id., at 831. xlvi

Id. at 836. xlvii

See 10 CFR 51.20(b) and 49 Fed. Reg. 34,658 xlviii

Baker at 64. xlix

40 CFR §1506.5. l 10 CFR §51.14

li 10 CFR §51.45

lii 10 CFR §51.14(b)

liii Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.

Cir. 1971) liv

Id. at 1116. lv 42 Fed. Reg. 34391 at 34393.

lvi Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979)

lvii 49 Fed. Reg, 34658

lviii 49 Fed. Reg 34694

lix Id.

lx Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), passim

lxi 55 Fed. Reg. 38474

lxii Id. at 38475.

lxiii 75 Fed. Reg. 81032

lxiv New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)

Discussion of “Major Federal Actions” Under NEPA 18 lxv

The legality of DOE’s withdrawal of its Yucca Mountain application became the subject of litigation because,

under the Nuclear Waste Policy Act of 1982, DOE was required to submit, and NRC to evaluate, an application for a

repository at Yucca Mountain. (Pub. L No. 100-203, Title V, §§ 5011-5012 (1987) (amending 42 U.S.C. §§ 10132-

10134), as cited in Harnett, New York v. U.S. Nuclear Regulatory Commission, Harvard Environmental Law

Review, Vol. 37, p. 591, Fn 13. lxvi

Harnett at 593. lxvii

Intervenors included the States of New Jersey, Vermont, and Connecticut; and some environmental advocacy

groups. The Nuclear Energy Institute participated in support of the respondents. lxviii

New York v. NRC at 473 lxix

Id., at 483 lxx

Id. at 476, citing Calvert Cliffs’ Coordinating Comm. Inc. v. Atomic Energy Comm’n, 449 F.2d. 1109, 1118 (D.C.

Cir. 1971) lxxi

Id. lxxii

Id. at 477 lxxiii

442 U.S. 347, 358 (1979) lxxiv

New York v. NRC at 477. 10 C.F.R. 51.23(b) states that “no discussion of any environmental impact of spent

fuel storage in reactor facility storage pools or independent spent fuel storage installations (ISFSI) for the period

following the term of the reactor operating license or amendment, reactor combined license or amendment, or initial

ISFSI license or amendment for which application is made, is required in any environmental report, environmental

impact statement, environmental assessment, or other analysis prepared in connection with the issuance or

amendment of an operating license for a nuclear power reactor under parts 50 and 54 of this chapter, or issuance or

amendment of a combined license for a nuclear power reactor under parts 52 and 54 of this chapter, or the issuance

of an initial license for storage of spent fuel at an ISFSI, or any amendment thereto.” lxxv

10 CFR § 2.335 lxxvi

See Administrative Procedures Act, 5 U.S.C § 553(c) lxxvii

10 CFR § 2.335(b). In this context, “new and significant” information may serve as the “special circ*mstances

with respect to the subject matter of the particular proceeding [] such that the application of the rule or regulation (or

a provision of it) would not serve the purposes for which the rule or regulation was adopted.” lxxviii

10 CFR § 2.802 lxxix

http://www.nrc.gov/about-nrc/regulatory/rulemaking/rulemaking-process.html lxxx

There is an excellent article by two NRC staff attorneys discussing the meaning of “new and significant”

information under NEPA titled “Acting with No Regret: A Twenty-Five Year Retrospective of Marsh v. Oregon

Natural Resources Defense Council.” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354803) lxxxi

Id., footnote lxxvii lxxxii

10 CFR § 2.802 allows “[a]ny interested person [to] petition the Commission to issue, amend or rescind any


Discussion of “Major Federal Actions” Under NEPA - [PDF Document] (2024)


What are federal actions under NEPA? ›

The range of actions covered by NEPA is broad and includes: making decisions on permit applications, adopting federal land management actions, and. constructing highways and other publicly-owned facilities.

What are the main points of the NEPA Act? ›

The stated purposes of NEPA are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ...

What is considered a major federal action? ›

(A) In general The term “major Federal action” means an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.

What are the 3 categories of NEPA documents? ›

Once the FAA determines that NEPA applies to a proposed action, it needs to decide on the appropriate level of review. The three levels of NEPA review are Categorical Exclusion (CATEX), Environmental Assessment (EA), and Environmental Impact Statement (EIS).

What is the NEPA summary? ›

NEPA is often described as a procedural law that mandates environmental review of many agency actions, including by requiring that agencies consider the environmental impacts of certain federal actions.

Does NEPA only apply to federal actions? ›

NEPA is only applicable to federal actions, including projects and programs entirely or partially financed by federal agencies and that require a federal permit or other regulatory decision.

What is NEPA for dummies? ›

The National Environmental Policy Act became law in 1970. This legislation established a landmark national environmental policy which, among other things, encourages environmental protection and informed decision-making.

What was the greatest impact of the National Environmental Policy Act? ›

NEPA requires Federal agencies to evaluate the environmental effects of their actions. NEPA's most significant outcome was the requirement that all executive Federal agencies prepare environmental assessments (EAs) and environmental impact statements (EISs).

What is the NEPA statement of purpose and need? ›

The Council on Environmental Quality (CEQ) regulations implementing the National Environmental Policy Act (NEPA) require every environmental impact statement (EIS) to “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action” (40 CFR ...

What are the categories of NEPA? ›

There are three main types of NEPA review requiring different levels of documentation and analysis: categorical exclusion, environmental assessment, and environmental impact statement.

What is the timeline of NEPA? ›

The average time to complete the NEPA process across all energy types is 3 years. The average EIS report length is 1,214 pages. Hydroelectric project approval takes the most time at 5.1 years on average. The longest EIS report was 5,794 pages.

What is the NEPA hard look standard? ›

NEPA does require that agencies take a >hard look= at the environmental effects of their planned action, even after a proposal has received initial approval....Application of the rule of reason thus turns on the value of the new information to the still pending decisionmaking process.

What is NEPA documentation? ›

A concise public document that records a Federal agency's decision(s) concerning a proposed action for which the agency has prepared an environmental impact statement (See CEQ and DOE NEPA regulations at 40 CFR 1505.2 and 10 CFR 1021.315, respectively). Special Environmental Analyses (SEAs)

What is the NEPA documentation process? ›

The purpose of documenting the NEPA process provides for complete disclosure to the public; allows others an opportunity to provide input and comment on proposals, alternatives, and environmental impacts; and provides the appropriate information for the decision maker to determine a reasoned choice among alternatives.

What does NEPA not apply to? ›

NEPA does not apply to a state or private action that is not sub- ject to federal control, authorization, or funding. For example, a development project that is authorized entirely by the state and that is not subject to any federal permitting, oversight, or control is not subject to NEPA.

How do federal agencies comply with NEPA? ›

An agency may comply with NEPA by determining that a CE applies to a proposed action and verifying that no extraordinary circ*mstances exist that may cause the proposed action to have a significant effect.

What requires federal agencies to assess potential environmental impacts of major federal actions? ›

NEPA requires Federal agencies to prepare environmental impact statements (EISs) for major Federal actions that significantly affect the quality of the human environment.

What are similar actions in NEPA? ›

Similar actions are those proposed or reasonably foreseeable federal actions that have similarities with your proposed action, such as timing, geography or the type of action. Similar actions may be analyzed in the same NEPA document, however, that's not required.


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