The Second Circuit Upholds Public Process in Nuclear Plant Safety

The Second Circuit Upholds Public Process in Nuclear Plant Safety

Nuclear power has been a controversial topic that has both fascinated and scared us at the same time. While nuclear energy is a significant source of power in this country and it is more efficient and “clean” than fossil fuels,[1] it also poses substantial drawbacks.  In addition to issues surrounding nuclear waste,[2] the potentially devastating effects of a major release of radiation into the air and water are frightening. Radiation has been known to cause cancer, genetic mutations, psychological problems, and death.[3]  It can also harm the ozone layer, and contaminate land and water.[4]

Currently, there are 104 nuclear reactors in the United States.[5]  Most are concentrated in the eastern part of the country, and many are located close to largely populated areas.[6]  The Indian Point Nuclear Power Plant, for example, is situated along the Hudson River 25 miles north of New York City.[7]  This means that a three-unit reactor is 40 miles from Times Square and 20 miles from the Bronx.[8]  It also means that about 20 million people live within a 50-mile radius of the plant.[9]  Indian Point has been described by some as the “worst and most dangerously operated plant in the U.S.”[10]  As a result of its location and track record it has been at the center of public discourse.

Indian Point came under recent scrutiny when a lawsuit was brought challenging the Nuclear Regulatory Commission’s (NRC) practice of issuing exemptions to its own fire safety regulations at Indian Point in secrecy and without opportunity for public participation.[11]  The lawsuit was brought by a coalition that included the Sierra Club-Atlantic Chapter, Westchester’s Citizens Awareness Network, and Richard Brodsky, New York State Assemblyman.  The Second Circuit recently issued an opinion holding that the NRC must permit public participation in making decisions about exemptions or explain why allowing public input would be “inappropriate or impracticable.”[12]  The Court found that because public scrutiny is an “essential” element of NRC’s regulations, its regulations must provide “environmental information . . . to public officials and citizens before decisions are made and before actions are taken,” and make diligent efforts to involve and solicit information from the general public to the “extent practicable.”[13]

The Second Circuit remanded the case to the District Court to give the NRC an opportunity to provide an explanation as to why public participation was “inappropriate or impracticable.”[14]  The Court’s ruling is important because it increases transparency in important decision-making processes, and it helps hold the NRC accountable for the application of public safety requirements.  Robert F. Kennedy, environmental activist, stated that the decision “will both protect and involve the public in key NRC health and safety decisions. Our primary concern has always been public health and safety, nowhere more important than with an Indian Point reactor with the worst health and safety record in the nation and located 28 miles from New York City.”[15]


— Ilanit Sisso, Associate 





[1] Bernard L. Cohen, Risks of Nuclear Power, The Physics Department at Idaho State University

[2] Nick Touran, What is nuclear waste? What is Nuclear,  Nuclear waste, sometimes called spent fuel, is the material that nuclear fuel becomes after it is used in a reactor.  It is extremely radioactive, and there is much debate and controversy on the proper way of disposing it.

[3] Id.

[4] Id.

[5] Steve Hargreaves, Half of U.S. Nuclear Reactors Over 30 Years Old, CNN Money (Mar. 15, 2011),

[6] Id.

[7] Id.

[8] Robert F. Worth, Residents Near Indian Point Question Evacuation Plans, N.Y. Times, Nov. 24 2001, at D1.

[9] Id.

[10] Richard Brodsky, Indian Point, The NRC, and 2012, Huffington Post (Jan. 6, 2012),

[11] Federal Appeals Court Reverses Brodsky v. NRC Decision, New York Citizen One (Jan. 8, 2012),

[12] Brodsky v. U.S. Nuclear Regulatory Comm’n, 2013 U.S. App. LEXIS 397 (2d Cir. N.Y. Jan. 7, 2013)

[13] Id.

[14] Id.

[15] Demos, Victory in Brodsky v. NRC; Plaintiffs, Brodsky, RFK Jr., and Activists Hail Decision (Jan. 8, 2013),

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