NEPA in the Post-9/11 World

In New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission, the Third Circuit found that the Nuclear Regulatory Commission is not required under the National Environmental Policy Act (NEPA) to examine the environmental impact of possible terrorist attacks on a nuclear power facility before renewing the facility's license. This Note argues that, contrary to the Third Circuit's holding, NEPA requires an Environmental Impact Statement because the relationship between a terrorist attack and the relicensing of a power plant is not too attenuated. This Note will first provide background on nuclear power facilities and terrorism concerns. Next, this Note will provide an overview of NEPA and a circuit split over whether the Nuclear Regulatory Commission must consider the environmental impact of a possible terrorist attack against nuclear facilities. Finally, this Note will argue that NEPA does, in fact, require consideration of the environmental impact of such an attack. Contrary to the Third Circuit's decision, the Nuclear Regulatory Commission maintains some control over the extent of the environmental impact of a terrorist attack and is not cleared of responsibility to consider environmental impacts in its licensing decisions simply because a terrorist attack against a nuclear facility is a third-party criminal act.