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This Paper examines possible explanations for the differing policies of the Nuclear
Regulatory Commission (NRC), which adopted a "Ninth Circuit only" approach, and the
Department of Energy (DOE), which adopted a single nationwide policy, in response
to similar adverse appellate court rulings from the Ninth Circuit imposing the requirement
to consider the possible environmental impacts of terrorist acts under the National
Environmental Policy Act of 1969 (NEPA). The discussion begins with a general overview
of NEPA and the need to examine "reasonably foreseeable" effects of proposed Federal
actions. The Paper then provides a brief overview of Federal courts and the effect
of adverse circuit court rulings on Federal agencies. The examination then turns
to the relevant "proximate cause" case law on intervening criminal and terrorist acts,
reviews the Ninth Circuit rulings imposing the NEPA terrorism requirements, and explains
how the NRC’s rejection of the Ninth Circuit approach led to a circuit split. Finally,
the analysis explores the various legal and pragmatic considerations that likely led
NRC and DOE, despite being similarly situated, to adopt different responses to similar
adverse rulings. The author concludes that, notwithstanding the possibility of a
future Supreme Court decision or Congressional action to clarify the requirements
of NEPA, both approaches are workable and serve the unique interests of the respective
agencies.
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