ELR Citation: ELR 20772
No(s). 85-1042 (D.C. Cir. Jul 3, 1985)

The court refuses to enjoin the granting of a low-power license for the Shoreham, New York, nuclear plant, because the petitioners failed to demonstrate that the potential denial of a full-power license following the failure to adopt an emergency evacuation plan requires supplementation of the plant's environmental impact statement (EIS), and that they will suffer irreparable harm pending a stay. The court proceeds to consider the four elements of the standard of granting a stay. It first holds that the petitioners failed to make out a substantial case on the merits. The petitioners argue that the Nuclear Regulatory Commission (NRC) should supplement the 1977 EIS because under current law an emergency evacuation plan must be approved before a full-power license may be issued; both the state and Suffolk County have refused to participate in the preparation of a plan, and the EIS failed to consider the possibility that the plant would never operate at full power. But remote and highly improbable consequences are an insufficient basis for supplementation, and the court finds that it is virtually impossible to predict whether the state and county will continue to oppose the evacuation plan. Furthermore, the NRC has both repeatedly considered the petitioner's claim and determined that the possibility of an indefinite delay in full-power operation would not necessitate denial of a low-power license. The NRC has adequately supported its decision.

The court then holds that while low-power testing is an irreversible change, the likelihood that it will harm workers or the public is too remote to meet the irreparable harm standard. The court holds that the presumption in favor of injunctive relief for National Environmental Policy Act violations is inapplicable because such a violation has not been clearly established, all environmental consequences have been considered, and the NRC has stated that the potential for denial of a full-power license would not change its decision to grant a low-power license.

Considering the harm-to-others standard, the court rejects the utility-intervenor's arguments that it will be harmed by delay, because the benefits of testing and training and the potential loss of personnel are unquantifiable and assume that full-power operation will ensue, and the costs of both experts and neutron calibration sources are self-imposed. Finally, the court rejects the claims that a stay is in the public interest, because the petitioners merely rehearse their rejected irreparable harm arguments and neither the state and county nor the NRC can be said to conclusively represent the public interest.

Counsel for Petitioners
Herbert H. Brown
Kirkpatrick & Lockhart
1900 M St. NW, Washington DC 20036
(202) 452-7000

Robert Abrams
2 World Trade Center, Rm 46-14, New York NY 10047
(212) 488-7497

Counsel for Respondents
Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20036
(202) 633-2762

William H. Briggs Jr.
General Counsel
Nuclear Regulatory Commission, Washington DC 20005
(202) 634-1465

Before Wald and Edwards, JJ.