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Attorney General Lockyer Files Brief Challenging Federal Refusal to Account for Potential Terrorist Attack on Proposed PG&E Nuclear Facility

Friday, March 19, 2004
Contact: (415) 703-5837

(SAN FRANCISCO) – Attorney General Bill Lockyer today filed a friend-of-the court brief in the U.S. Ninth Circuit Court of Appeals opposing the Bush Administration's refusal to consider the environmental effects of a potential terrorist attack on a nuclear storage facility proposed by Pacific Gas & Electric Co.

"The position adopted in this case by the Bush Nuclear Regulatory Commission (NRC) is more than illegal," said Lockyer. "It's ludicrous, contrary to the President's public statements, and hazardous to the health of California's residents and environment. This Administration, and this President, constantly remind us of the terrorist threat. And yet, in this case, they say the danger is so remote they can deny Californians their right to know the environmental effects of a terrorist attack on a nuclear facility."

The case – San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Commission, 03-74628 – involves PG&E's proposal to expand the spent nuclear fuel storage facilities at its Diablo Canyon power plant. Specifically, PG&E wants to build and operate an above-ground Independent Spent Fuel Storage Installation (ISFSI).

On January 23, 2003, the NRC unanimously ruled it did not have to address potential terrorism in its environmental assessment of the facility. In making the decision, the NRC concluded the possibility of a terrorist attack "is speculative and simply too far removed from the natural or expected consequences of agency action" to require a study under the National Environmental Policy Act (NEPA).

Lockyer's brief – filed on behalf of the people of California and joined by Massachusetts, Utah and Washington – challenges that position, using blunt language and the Bush Administration's own statements and actions.

The NRC's position, the brief states, "defies logic, and is inconsistent with statements made and activities undertaken subsequent to September 11, 2001 by the President, the members of the Cabinet and the NRC itself." Some examples:

President Bush, in his State of the Union Address on January 9, 2002, told the American people U.S. intelligence agencies had found "diagrams of nuclear power plants" at Al-Qaeda bases in Afghanistan.

The NRC on January 23, 2002 warned nuclear power plant operators of the potential for terrorists to crash a hijacked jetliner into a facility.

The U.S. Department of Homeland Security said on May 14, 2002, "We know that Al-Qaeda has been gathering information and looking at nuclear facilities and other critical infrastructure as potential targets."

On May 24, 2002, the NRC reported the nation's nuclear power plants had been placed on heightened alert due to information obtained by intelligence agencies.

The FBI on October 24, 2002 issued a "Threat Communication" that warned Al-Qaeda detainees had indicated attacks on the U.S. petroleum industry planned by the group "may be part of more extensive operations against ... energy-related targets, including oil facilities and nuclear power plants."

The brief notes the NRC also contends PG&E's project is exempt from review under NEPA because a terrorist attack on a nuclear facility is a worst-case scenario. "This assertion, again, ignores statements made by senior government officials that serious terrorist attacks on the United States are inevitable, that nuclear power plants are potential targets for attack, and that attacks on American nuclear power plants have already been planned," the brief states.

The Bush Administration, the brief adds, has made clear its belief that "terrorist attacks, like earthquakes, will occur – the only question is whether ‘ground zero' will be a nuclear power plant."

Lockyer's brief asks the court to find that the NRC's decision to not follow NEPA was "arbitrary and capricious." It further asks the court to order the NRC to assess the environmental effects of a terrorist attack on the proposed facility, and to conduct public hearings as part of that process.

"The NRC seems uninterested in hearing what anyone besides its own staff and, presumably, PG&E might have to say regarding the vulnerability of the proposed ISFSI to terrorist attack," said Lockyer. "We filed this brief to vindicate California citizens' right under NEPA to participate in federal agency decisions that may significantly affect our public safety and health, and our environment."

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04-038.pdf212.13 KB
04-038.pdf212.13 KB

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