ELR Citation: ELR 21233
No(s). 93-5613 (3d Cir. Jul 19, 1994)

The court holds that neither the U.S. Nuclear Regulatory Commission's (NRC's) or the U.S. Coast Guard's actions concerning the shipping of partially irradiated reactor fuel by barge through New Jersey coastal waters triggered environmental impact assessment requirements for those agencies under the National Environmental Policy Act (NEPA), and that the Coast Guard did not violate the Coastal Zone Management Act (CZMA) by not requiring the fuel shipper to submit a consistency certification. The court first holds that NRC has not avoided its NEPA obligations by refusing to issue final orders or by fragmenting its decisionmaking so as to avoid designating the project a major federal action requiring NEPA impact assessment. NRC made a final decision to license transportation of the irradiated fuel after analyzing the impact of the transportation in an appropriate environmental assessment. The court next holds that the Hobbs Act precludes the court from exercising jurisdiction over New Jersey's NEPA claims against NRC because the action was first raised in district court. The state was challenging NRC's method of evaluation, the evaluation's conclusion, and NRC's final decision, and the Hobbs Act mandates initial court of appeals review of all final orders in licensing proceedings. The court also holds that New Jersey cannot maintain its claim that its appeal is a petition for review of NRC's final orders. The petition was not filed within 60 days after the order's entry, and the notice of appeal was substantively deficient as a petition for review because it challenged the district court's ruling.

The court holds that the Hobbs Act does not bar district court NEPA review of the Coast Guard's activities as it does NRC activities, because the Act does not so limit jurisdiction of challenges to Coast Guard maritime safety activities. Turning to the merits of the NEPA claim against the Coast Guard, the court holds that the Coast Guard had no obligation to perform an environmental assessment under NEPA because the challenged granting of conditional approval of the operations plan that described the shipments was not a major federal action that obligated it to analyze their environmental impact under NEPA. Where a nonfederal party voluntarily informs a federal agency of its intended activities to ensure compliance with law and regulation and to facilitate the agency's monitoring of the activities for safety purposes, the agency's review of the plan does not constitute a major federal action. First, the shipper was not required to submit an operations plan for the fuel shipment. Second, a Coast Guard circular that advises shippers to consult with the Coast Guard regarding emergency response plans is intended to be a voluntary industry standard. Moreover, federal approval of a private-party project, where that approval is not required for the project to go forward, does not constitute major federal action.

The court holds that the Coast Guard did not violate the CZMA by not requiring the fuel shipper to submit a certification of consistency with the state coastal management program. The Coast Guard's approval of the response plan did not trigger CZMA consistency review requirements. Moreover, the approval does not fall within a category of license listed in New Jersey's coastal zone management program as requiring consistency review, and no required federal license or permit, which would require consistency review, was applied for or granted. The court dismisses the state's claims that the shipper and receiver of the fuel violated the CZMA by receiving federal licenses without submitting consistency certifications, because the CZMA does not create a right-of-action against private parties. The court found that New Jersey is not an especial beneficiary of the Act. The incidental benefits the CZMA confers on the state do not translate into an enforceable state right against the shipper and receiver. Further, Congress did not intend to grant the state's enforcement authority under the CZMA against private parties. Finally, the court upholds the district court's denial of the state's claim for injunctive relief because the state must fail on the merits of the case.

Counsel for Appellees
Thomas A. Kowalczyk, Ass't Attorney General
Attorney General's Office
R.J. Hughes Justice Complex, Trenton NJ 08625
(609) 292-4919

Barry M. Hartman
Kirkpatrick & Lockhart
1800 M St NW, Washington DC 20036
(202) 778-9000

Counsel for Appellants
Katherine W. Hazard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Richard P. Bonnefield
Long Island Power Authority
200 Garden City Plaza, Ste. 201, Garden City NY 11530
(516) 742-2200

Before Becker and Pollak,^* JJ.