[00:00:00] Speaker 02:
Case number 21-1162, Ohio Nuclear Free Network and Beyond Nuclear Petitioners versus U.S.

[00:00:08] Speaker 02:
Nuclear Regulatory Commission and United States of America.

[00:00:12] Speaker 02:
Mr. Lodge for the petitioners, Mr. Michael for the respondents, Mr. Fanharding for here.

[00:00:18] Speaker 07:
Good morning, Council.

[00:00:19] Speaker 07:
Mr. Lodge, please proceed when you're ready.

[00:00:25] Speaker 04:
I'm here representing the Ohio Nuclear Free Network and the Beyond Nuclear Organization here in Tacoma Park.

[00:00:36] Speaker 04:
The legal issue here today is whether or not the National Environmental Policy Act provides or affords a claim or cause of action or means of objection

[00:00:49] Speaker 04:
to a nuclear regulatory commission licensing proceeding that is not bounded by the Atomic Energy Act.

[00:00:59] Speaker 04:
It's our contention that NEPA, because of its commenting process, because of the fact that there are clear indicators that public involvement is essential that NEPA affords an independent means of challenging the license

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request, the license amendment request in this particular case.

[00:01:22] Speaker 04:
We're here to confirm the public's role in some very consequential decisions that are being made, confronted with the specter of climate chaos, as well as the renewed, the renaissance, apparently, of consideration of nuclear power as a means of generating electricity, as well as a means of creating international commerce

[00:01:47] Speaker 04:
There's a very obscure but very important decision that was made by the NRC to grant a license to Centris Corporation, a firm that is engaging or about to engage in the centrifuge development of a new type of nuclear reactor fuel.

[00:02:07] Speaker 04:
Therein is the difference.

[00:02:10] Speaker 04:
It's called high assay, low enriched uranium, HALU for short.

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I will try not to inundate

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work with acronyms, but HALU is to be enriched to just shy of 20% content of uranium-235.

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Uranium-235 is in some context a weapon material, nuclear weapons material.

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The license actually allows Centris Corporation to exceed that 20%, roughly 20% threshold and actually enrich as high as 25%.

[00:02:47] Speaker 07:
This material can be very attractive for trafficking, sabotage, theft, ultimately for the making or becoming... Before you get too far down the road on the Barrett's question about NEPA, there's a threshold question about whether we have jurisdiction over your petition because under the Hobbs Act, you need to be a party aggrieved.

[00:03:14] Speaker 07:
And there's this question about whether your party agreed, given that under the regulations, to actually have participated in the underlying administrative proceedings, something else had to happen besides the email that you sent.

[00:03:27] Speaker 07:
So can you speak to that question?

[00:03:29] Speaker 04:
Well, first of all, we provided 105 organizations, cross-section of United States Environmentalism and anti-weapons organizations, signed

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a five-page single-space comment letter that we provided in March 2021.

[00:03:47] Speaker 04:
The Hobbs Act is pretty clear, according to Preston, much of which is from the D.C.

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Circuit, that the Hobbs Act doesn't defer to an agency's determination of who is a party, but requires the courts to make that decision.

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The Rayblatt decision, a 1997 D.C.

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Circuit decision at page 24 of our brief,

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we discuss that the court discusses that if agencies were left to their own devices, they could simply deny the public or anyone who wants to seek judicial review by simply saying they're not parties, defining them as non-parties because they only submitted comments underneath that and didn't.

[00:04:35] Speaker 03:
But there are certain procedures prescribed by the agency for intervening, right?

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there is a procedure for intervening.

[00:04:43] Speaker 03:
And it's permissible for them to adopt those procedures, right?

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I mean, I've looked all over and there's nothing that's impermissible about what they've done.

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This is not an APA.

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This is not a free-floating APA action with your cause of action under NEPA.

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And I just looked at your complaint again.

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You are admittedly under the Hobbs Act.

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So you have to follow the procedures that are associated with a Hobbs Act challenge, which it seems to me includes complying with the agency's procedural obligations, which includes if you want to intervene in certain things you do, and if you don't do them, you're not in.

[00:05:28] Speaker 04:
Well, Your Honor, we believe that NEPA, under the Limerick Ecology decision, first circuit decision from 1989, actually NEPA is

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held to be a separate statute, which is not bounded by the Atomic Energy Act.

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But in direct response to your question as to the AEA setting forth a procedure, what the nuclear regulatory mission has done is they've created an adversary proceeding as to whether it is even allowable for one to raise a NEPA type of criticism of a plan.

[00:06:07] Speaker 04:
The standards of the NRC has very proudly stated that their standards for granting intervention are strict by design.

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They certainly work well in keeping out many public intervention.

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And the fact that there is a procedure does not foreclose legally or in common sense terms a comment, submission, and subsequent litigation if need be

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based upon the National Environmental Policy Act.

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In fact, the only way that one can participate under NEPA, according to NEPA, is by commenting, if you're a member of the public.

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We believe that the demand involved a request for a publicized environmental assessment.

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This was not an EA FONSI, environmental assessment with a finding of no significant impact.

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was the NRC's conclusion after a completely non-public proceeding.

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It was initiated by a very obscure announcement some time before the EA FONSI was published.

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But the point is, is there was no circulation consultation with other federal agencies, and there was no posting of the environmental assessment for public comment as a precursor

[00:07:30] Speaker 04:
to ultimately making the decision they did.

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They found no significant impact and issued the license a week and a half later.

[00:07:38] Speaker 07:
Is there a reason that you couldn't have participated via the written request route that's set on the regulations?

[00:07:45] Speaker 07:
I know you have the argument that the agency doesn't get to define it.

[00:07:49] Speaker 07:
I get that.

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Of course, it's true that at the end of the day, the court has to decide whether you're a party agreed.

[00:07:55] Speaker 07:
But I'm just wanting to know as a practical matter, is there a reason that that route was unavailable?

[00:07:59] Speaker 04:
Other than the fact that we believe that it is largely an unattainable aspiration, the AEA process.

[00:08:08] Speaker 04:
No, sir.

[00:08:09] Speaker 04:
Correct.

[00:08:10] Speaker 04:
I mean, yes.

[00:08:11] Speaker 03:
It's unattainable.

[00:08:12] Speaker 03:
Why?

[00:08:12] Speaker 03:
I'm really not following your argument.

[00:08:14] Speaker 03:
There's an intervention requirement, right?

[00:08:21] Speaker 03:
And you can petition to intervene.

[00:08:23] Speaker 03:
No, sir.

[00:08:25] Speaker 04:
The NEPA process is a separate type of procedure.

[00:08:28] Speaker 03:
No, no, no, I understand NEPA can stand alone sometimes, but the problem is you have, this is a Hobzack case.

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And you admittedly, you use the Hobzack to challenge the relicense.

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That's what's really going on here.

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NEPA is among the objections that you want to bring to challenge the relicense.

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But this is a Hobzack case.

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And so when I looked at the case law, there are certain requirements you have to follow, including the requirements that the agency has set forth for participating.

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And if you don't, then you haven't.

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And if they refuse to allow you in, it seems to me that's objectionable, and you could bring that question to court.

[00:09:11] Speaker 03:
That's not what you've done.

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In other words, if your argument is that we were not allowed, we were impermissibly denied the right to intervene to challenge this license,

[00:09:23] Speaker 03:
That's fine.

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You can raise that and then you get an answer.

[00:09:26] Speaker 03:
That's not what's going on here.

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You're saying we don't have to intervene.

[00:09:31] Speaker 03:
And because NEPA in some situations is a standalone cause of action, 1331 is the way you use the APA.

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That's not what's happening here.

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This is a Hobbs Act case.

[00:09:43] Speaker 04:
And yes, but we believe that through the Hobbs Act we participated and according to DC Circuit precedent.

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that participation should be recognized, making us a party.

[00:09:54] Speaker 04:
Thank you.

[00:09:57] Speaker 07:
Thank you, counsel.

[00:10:03] Speaker 07:
Mr. Michael.

[00:10:21] Speaker 00:
Good morning.

[00:10:22] Speaker 00:
I'm going to raise it.

[00:10:27] Speaker 05:
Good morning.

[00:10:27] Speaker 05:
May it please the court.

[00:10:29] Speaker 05:
This is a case about the NRC's decision to authorize a discrete, time-limited uranium enrichment project at the same location where the NRC previously authorized a significantly larger enrichment facility after preparing an 1,100-page environmental impact statement.

[00:10:46] Speaker 05:
Now, the petitioners have brought this Hobbs Act petition for review because they believe that this project is significant enough to warrant another environmental impact statement.

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But they voluntarily bypassed their opportunity to raise that argument before the NRC using the appropriate and available agency forum, which would be intervention in the underlying proceeding, an opportunity to which they are entitled by statute to pursue, and becoming a party in accordance with the agency's longstanding rules

[00:11:17] Speaker 05:
That is the path that the petitioners were obligated to take if they wanted to preserve the possibility for this court's review and to properly exhaust their claims before the agency.

[00:11:27] Speaker 05:
That is the required path that Congress forged for them when it wrote the Atomic Energy Act and the Hobbs Act the way that it did.

[00:11:33] Speaker 05:
That's what the statutes say.

[00:11:34] Speaker 05:
Limiting this court's jurisdiction to final orders of agency proceedings and only parties aggrieved by those final orders may bring a Hobbs Act challenge.

[00:11:47] Speaker 05:
That's what this court has repeatedly said in Hobbs Act cases, like ACA International, Water Transport Association, Simmons versus ICC all cited in our brief, where this court has made clear that where intervention is a prerequisite to participation, that that is the path you must take in order to bring the case under the Hobbs Act.

[00:12:07] Speaker 05:
And that's what the NRC's regulations say.

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They're unambiguous on this point.

[00:12:10] Speaker 05:
How does one become a party to an NRC licensing proceeding?

[00:12:13] Speaker 05:
You submit a written request for hearing that demonstrates you have standing, then includes at least one admissible contention.

[00:12:20] Speaker 05:
Now, I'm happy to address any questions the court may have on the merits of this case.

[00:12:23] Speaker 05:
What I'd like to do this morning is to focus on this jurisdictional question because I'd like to elaborate for the court why this is such an important issue for the NRC.

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Because by asking the court to dismiss this petition for review, what we are really doing is asking this court to preserve the integrity of the NRC's administrative process and the hearing procedures and preserve the necessity for would-be parties and petitioners to follow those rules.

[00:12:48] Speaker 05:
Our concern here is bigger than this one case.

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If the petitioners here are permitted to seek judicial review under these circumstances, then it would call into serious question what purpose, if any, the agency's hearing procedures would continue to serve.

[00:13:01] Speaker 05:
But they can be bypassed, ultimately, without consequence.

[00:13:05] Speaker 05:
I think there are a number of energy litigants who have played by these rules in the past who would be surprised to learn that all along there was a side door to judicial review that did not involve going through 10 CFR Part 2.

[00:13:16] Speaker 05:
Because that's what this case really is.

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And I think the reply brief exemplifies this.

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This is an attempt to bypass around 10 CFR Part 2.

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the petitioners here do not like those procedures and they think that they're too strict and that's I can address that in just a moment.

[00:13:33] Speaker 05:
But Congress tasked the NRC with the statutory obligation to make hearings available when it engages in licensing decisions and the contention of miscibility standards in section 2.319 which petitioners here object to that is a deliberate policy decision by the commission about how best to fulfill this statutory mandate to make hearings available.

[00:13:53] Speaker 07:
Can you go to the question of whether they're too strict?

[00:13:56] Speaker 07:
Because I take it that an agency does not have limitless authority to define the extent to which a party that's in fact an entity, I'll only use the word party, an entity or organization or individual who's in fact affected by regulatory action wants to bring a grievance before the agency.

[00:14:18] Speaker 07:
The agency can't say, well, you can do that, but you have to do it on leap day, you know, February 28th, February 29th.

[00:14:26] Speaker 07:
Got the count wrong, February 29th, right?

[00:14:29] Speaker 07:
Because then there's no opportunity at that point.

[00:14:31] Speaker 07:
So there's some constraints on what an agency can do.

[00:14:34] Speaker 05:
Absolutely, Your Honor.

[00:14:34] Speaker 05:
And to be clear, to respond to this point that my friends on the other side made, it is not our position that whatever the intercede puts in the tenancy of our part two, however we define party, that is binding on this court

[00:14:46] Speaker 05:
That is that is not what we're saying.

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This court has repeatedly over the years recognized the validity of the agency's hearing procedures.

[00:14:56] Speaker 05:
This goes back to at least as early as the 1990 Union of Concerned Scientists decision, which is cited in a brief.

[00:15:03] Speaker 05:
But there was a facial challenge to these very regulations.

[00:15:06] Speaker 05:
Facial challenge that they were not consistent with the ADA.

[00:15:08] Speaker 05:
They were not consistent with NEPA because of the requirement to bring NEPA contentions through the NRC's process as well.

[00:15:16] Speaker 05:
The court upheld it there.

[00:15:17] Speaker 05:
This court has upheld, or at least tacitly implied, the validity of these regulations throughout the years when it has heard Hobbs Act petitions, challenges to NRC final orders, where the NRC has enforced these standards.

[00:15:33] Speaker 05:
And the court has upheld those challenges as reasonable.

[00:15:35] Speaker 05:
So it is not limitless, Your Honor, if the agency

[00:15:38] Speaker 05:
use this discretion somehow or find party in a way that was arbitrary and capricious, of course, this court would have the opportunity to step in.

[00:15:44] Speaker 05:
But what we're saying is under the Hobbs Act and under this court's many decisions interpreting the Hobbs Act, where the court has said, if intervention is a prerequisite, you must intervene in order to obtain Hobbs Act.

[00:15:56] Speaker 03:
Suppose they wanted to bring a freestanding action under NEPA only, which frequently happens.

[00:16:02] Speaker 03:
as long as you can meet the Lujan standing requirements.

[00:16:06] Speaker 03:
That's the hypothetical in Lujan, a person who is potentially affected by the action in question and does not think the agency followed NEPA can simply file suit to challenge the agency's NEPA determinations.

[00:16:22] Speaker 03:
And they say in answer to your question, let's assume you raised it, you're really challenging the licensing.

[00:16:29] Speaker 03:
They say, no, we're not.

[00:16:30] Speaker 03:
We're challenging the NEPA determination, which is impermissible under the law, and we have standing to do it because we're affected parties, as in Wuhan.

[00:16:40] Speaker 03:
We would be affected by this, and we're challenging.

[00:16:43] Speaker 03:
And they do that.

[00:16:45] Speaker 05:
I think as the petitioners themselves recognize on page one of their brief, this court has exclusive, not this court, the courts of appeals have exclusive jurisdiction to determine the validity of agency orders.

[00:16:56] Speaker 03:
You're not sticking with my hypothetical.

[00:16:59] Speaker 03:
They're not going after the relicensing order.

[00:17:03] Speaker 03:
They're going after the alleged failure of the agency to follow NEPA, which is not an unknown lawsuit.

[00:17:10] Speaker 03:
NEPA is an APA cause of action.

[00:17:14] Speaker 03:
That has nothing to do with the Hobbs Act.

[00:17:16] Speaker 03:
It's an APA cause of action and parties bring it.

[00:17:20] Speaker 03:
There's a question.

[00:17:21] Speaker 03:
Does that mean you go to the district court?

[00:17:23] Speaker 03:
Can we disconnect from Hobbs and can they raise the NEPA claim?

[00:17:27] Speaker 05:
I do not believe that we can bifurcate the AEA aspect.

[00:17:32] Speaker 05:
and the NEPA aspect.

[00:17:34] Speaker 05:
To the extent in your hypothetical, the question is, would they go to the district court and raise a standard NEPA challenge?

[00:17:40] Speaker 03:
And you say you don't think so.

[00:17:41] Speaker 03:
Why?

[00:17:42] Speaker 03:
Is there some case law you found?

[00:17:43] Speaker 05:
It's because the court of appeals under the Hobbs Act has exclusive jurisdictions.

[00:17:48] Speaker 03:
They're saying we're not under that.

[00:17:50] Speaker 03:
Let's assume they make, we're not challenging the licensing.

[00:17:53] Speaker 03:
We understand there was a licensing.

[00:17:55] Speaker 03:
We're challenging the agencies alleged failure to follow NEPA.

[00:17:59] Speaker 05:
that challenge in your hypothetical, your honor, that challenge, if it went to district court, they would still be challenging whether the license was properly issued.

[00:18:08] Speaker 05:
NEPA itself does not provide for its own cause of action.

[00:18:11] Speaker 03:
Yes, it does.

[00:18:12] Speaker 03:
Well, I absolutely does do some research.

[00:18:15] Speaker 03:
That's clear.

[00:18:16] Speaker 03:
I mean, I was curious about this.

[00:18:18] Speaker 03:
It's an odd, it's an odd posture and I spent a lot of time looking it up.

[00:18:22] Speaker 03:
NEPA absolutely is an APA cause of action.

[00:18:26] Speaker 07:
Then the APA has the cause of action, not NEPA.

[00:18:29] Speaker 07:
Right.

[00:18:29] Speaker 07:
Yeah.

[00:18:30] Speaker 05:
Right.

[00:18:31] Speaker 05:
And your honor, that would be an extra hypothetical.

[00:18:33] Speaker 05:
I think if someone brought that challenge in the district court, so we're not challenging the, under the ADA, we're just challenging under NEPA the claim.

[00:18:41] Speaker 05:
And again, we're in hypothetical territory here.

[00:18:43] Speaker 05:
The claim I believe that they would be presented there was,

[00:18:46] Speaker 05:
The NRC, when it issued the license, it acted arbitrary and capriciously because it did not follow NEPA.

[00:18:53] Speaker 03:
That's what I meant to pose.

[00:18:56] Speaker 03:
If I misstated a couple of statutes along the way, I'm sorry.

[00:18:59] Speaker 03:
That's exactly what I'm posing as a hypothetical.

[00:19:01] Speaker 05:
And if that is the challenge, then I believe we would argue is that that should be brought in the courts of appeals because at the end of the day, that is a challenge to the validity of the agency's

[00:19:12] Speaker 05:
decision to issue the license and under the Hobbs Act, the jurisdiction to determine the validity of agency orders.

[00:19:18] Speaker 03:
So you're saying they can't get out from under the Hobbs Act.

[00:19:22] Speaker 03:
I'm saying that in order... In other words, I mean, you could make the argument of the APA, they have an alternative remedy and therefore they can't use the APA in the Hobbs Act context.

[00:19:31] Speaker 03:
That's a possible argument.

[00:19:32] Speaker 03:
I'm just trying to understand how you're setting this up in your mind, because there are many, many NEPA cases that simply arise

[00:19:42] Speaker 03:
under the APA.

[00:19:44] Speaker 03:
And yes, the claim is it's arbitrary and recommissible, but inconsistent with what the law requires because it didn't follow the commands.

[00:19:52] Speaker 03:
And that was the hypothetical in Lujan, which was a standing case.

[00:19:56] Speaker 03:
The courts have always understood that's possible to raise that NEPA challenge under an APA cause of action.

[00:20:04] Speaker 03:
And I apologize if I'm repeating myself in trying to- You're saying they can't disconnect from Hobbs in this context.

[00:20:11] Speaker 03:
That's your argument.

[00:20:12] Speaker 05:
That is our argument.

[00:20:13] Speaker 05:
The court has exclusive jurisdiction to determine the validity of agency final orders in licensing proceedings.

[00:20:22] Speaker 05:
The court has no further questions.

[00:20:23] Speaker 01:
I have a question about

[00:20:26] Speaker 01:
The letter you all submitted about the extension going just another two months.

[00:20:31] Speaker 01:
We don't have a smoothness problem.

[00:20:33] Speaker 01:
Nobody's mentioned it, but this enhanced 235 goes to 2037.

[00:20:39] Speaker 01:
Is that right or?

[00:20:42] Speaker 05:
I'm sorry.

[00:20:43] Speaker 05:
Could you repeat?

[00:20:44] Speaker 05:
Were those years that you're on?

[00:20:45] Speaker 01:
Well, the contract, as I understand it, goes through 2037.

[00:20:48] Speaker 01:
This demonstration program ends in two months.

[00:20:54] Speaker 05:
I don't.

[00:20:56] Speaker 05:
I don't believe it, and perhaps my- Okay, I'll- But just to answer your question about mootness, and we submitted the 28-J letter to a minimum alert the court that when it saw May 31st as the expiration date in the record, that it had been extended.

[00:21:10] Speaker 05:
This is on paper.

[00:21:12] Speaker 05:
This is certainly a continuing dispute because the license authorizing activity is valid through November.

[00:21:22] Speaker 05:
What will happen beyond the end of November is unclear, and if there are any

[00:21:27] Speaker 05:
Again, does it become moot at the end of November?

[00:21:30] Speaker 05:
It depends on a number of factors that are unknown at this point, Your Honor.

[00:21:35] Speaker 05:
The contract expires in November.

[00:21:38] Speaker 05:
The agency's licensing, the authority to engage in the project under the NRC's license expires in November.

[00:21:44] Speaker 05:
If the interveners here, if the contract is extended, if they come in and submit a request to the NRC to extend their authorization to go beyond November,

[00:21:55] Speaker 05:
They may be asking to extend the exact same project.

[00:21:57] Speaker 05:
They may be asking to say the Department of Energy wants us to do something bigger, smaller.

[00:22:01] Speaker 01:
What goes on until 2037?

[00:22:03] Speaker 01:
The contract under the 10% uranium-235?

[00:22:10] Speaker 05:
I believe what Your Honor is referring to is they have a license to construct

[00:22:15] Speaker 05:
and operate a large-scale commercial facility, enriching only up to at maximum 10%.

[00:22:21] Speaker 05:
They haven't built it, but that license, the authority of them to do that goes through 2037.

[00:22:27] Speaker 05:
This case is just about this discrete, initially three-year, now three-and-a-half-year project where they say, well, we would like to enrich up to 20%.

[00:22:36] Speaker 05:
The license says 25, but they're not permitted to extract anything above 20, but this is a discrete,

[00:22:41] Speaker 05:
three-year project that is a three-year authorization and currently that expires at the end of this November, their authority to enrich above 10%.

[00:22:49] Speaker 05:
But that is unclear at this point beyond November, whether or not the project will expire, whether it will continue in the exact same form, whether they will request authority.

[00:22:59] Speaker 01:
Well, why doesn't that raise a mootness question then is what the petitioners are upset about is the enhanced uranium 235.

[00:23:10] Speaker 01:
And that stops in two months.

[00:23:13] Speaker 05:
Currently, it's status quo.

[00:23:16] Speaker 05:
If nothing else changed, the license amendment, the authorization would expire at the end of this month.

[00:23:20] Speaker 05:
But we recognize there is at least still the possibility that it could be extended again.

[00:23:25] Speaker 05:
If it were to be extended again, we would have

[00:23:28] Speaker 05:
Would there necessarily be a request to the NRC to further extend it?

[00:23:32] Speaker 05:
And depending on what that request looks like, we're requesting to extend the status quo another year or what have it.

[00:23:36] Speaker 05:
We're extending to do something larger.

[00:23:38] Speaker 05:
It will depend.

[00:23:39] Speaker 01:
Would these petitioners then have to satisfy the aggrieved parties requirement if you do extend it or before you extend it actually?

[00:23:51] Speaker 05:
Again, I think it depends on if there is an extension request

[00:23:55] Speaker 05:
What does it look like?

[00:23:56] Speaker 05:
Are they just asking to extend the status quo for another short period of time?

[00:24:00] Speaker 05:
And in which case, you know, I don't know how mootness plays into there.

[00:24:03] Speaker 05:
We have this capable repetition, get evading review, mootness exception.

[00:24:07] Speaker 05:
If they're coming in and saying, you know, forget the three-year HALU project, we want to do something

[00:24:13] Speaker 05:
bigger over a longer period of time.

[00:24:15] Speaker 05:
Here's our new license application.

[00:24:17] Speaker 05:
If that's something that is going to require a new NRC review, then they would, in my view, need to come in again.

[00:24:24] Speaker 01:
So can you say whether whatever is coming after November will require a new application?

[00:24:30] Speaker 05:
It will require a new application to go beyond 26.

[00:24:34] Speaker 05:
And whether that requires new environmental review, it will depend on what they're asking of, which at this point is unknown.

[00:24:41] Speaker 03:
who would seek intervention at that time.

[00:24:45] Speaker 07:
Certainly.

[00:24:47] Speaker 07:
And then for mootness purposes, even if we do get to a circumstance in which it might be moot, we still have the alternative route of the Hobbs Act because we have a choice as to if we thought that there wasn't jurisdiction under the Hobbs Act because challengers are not a party aggrieved, we wouldn't have to do mootness first.

[00:25:07] Speaker 07:
Correct.

[00:25:08] Speaker 07:
we have a choice about what you're out to go.

[00:25:10] Speaker 07:
If that's the conclusion, you could dismiss on jurisdiction across today, your honor.

[00:25:14] Speaker 07:
They're not parties grieved as of the time they found.

[00:25:17] Speaker 07:
So we could also do dismiss on Hobbs Act ground even after we're hypothetically to become moot.

[00:25:22] Speaker 07:
If there's still a Hobbs Act problem, there's no requirement.

[00:25:26] Speaker 07:
If it had, if it were to become moot, there's no requirement that then we dismiss it on mootness grounds as opposed to on

[00:25:33] Speaker 07:
nonpartisan status grounds.

[00:25:35] Speaker 05:
I don't know that there's a requirement, Your Honor.

[00:25:38] Speaker 05:
We would take dismissal either way.

[00:25:40] Speaker 05:
I assume you would, but okay.

[00:25:43] Speaker 05:
There are no further questions.

[00:25:46] Speaker 07:
Thank you.

[00:25:46] Speaker 07:
Thank you, Council.

[00:25:49] Speaker 07:
Mr. Fag.

[00:25:54] Speaker 06:
I'll use my brief time, I guess, to do two things.

[00:25:56] Speaker 06:
One,

[00:25:56] Speaker 06:
address as best I can the questions about current status.

[00:26:00] Speaker 06:
And then secondly, talk about some of the questions that was raised and alternatives and on the current status.

[00:26:07] Speaker 06:
And again, with apologies for the sort of uncertainty here, but often when you deal with the Department of Energy, it's one step forward, two steps back.

[00:26:13] Speaker 06:
Essentially what government council said is correct.

[00:26:16] Speaker 06:
You know, it was extended from May to November.

[00:26:19] Speaker 06:
It may well be extended again.

[00:26:21] Speaker 06:
You know, and that's

[00:26:23] Speaker 06:
But in terms of the amounts.

[00:26:25] Speaker 01:
What's being extended?

[00:26:26] Speaker 01:
This demonstration program?

[00:26:28] Speaker 01:
Yes.

[00:26:30] Speaker 06:
And I think Council correctly described it.

[00:26:32] Speaker 06:
There is a sort of existing license for a massive plant, 11,000.

[00:26:40] Speaker 06:
This is 16.

[00:26:42] Speaker 06:
And these are things that spin.

[00:26:44] Speaker 06:
And they just spin a little longer and enrich the uranium.

[00:26:49] Speaker 06:
And so that's what this demonstration project is about.

[00:26:52] Speaker 06:
Currently, like I said, between now, work is going on on the ground now to install these things, and they're measuring that against the license.

[00:26:59] Speaker 06:
So as we stand here today on October 13th, it's not moved.

[00:27:03] Speaker 06:
Things are happening.

[00:27:05] Speaker 06:
What will happen after November 30th, again with apologies, is a little bit up in the air.

[00:27:10] Speaker 06:
Sit here today, because the Department of Energy may or may not issue another RFP.

[00:27:14] Speaker 06:
There may or may not be increases to the amounts

[00:27:17] Speaker 06:
But there's no indication it's going to be massive.

[00:27:20] Speaker 06:
But again, the final point, if it is a significant or material change beyond what has been scoped by the NRC, there's another option.

[00:27:28] Speaker 01:
Well, what I don't understand is if you're not doing something about it now, I mean, do you think you'll finish all this by November 30th?

[00:27:37] Speaker 06:
What's going on now?

[00:27:38] Speaker 06:
And I want to be clear.

[00:27:39] Speaker 06:
My understanding from my client is that they're not enriching the stuff now.

[00:27:43] Speaker 06:
So they're not actually dealing with it.

[00:27:45] Speaker 06:
It's all the preparatory work.

[00:27:47] Speaker 06:
going into putting the equipment in place.

[00:27:50] Speaker 06:
And so the enrichment itself, as I understand it, is not going to happen between now and November 30.

[00:27:57] Speaker 06:
So obviously, I think it's safe to assume there's going to be some sort of time extension, if not.

[00:28:07] Speaker 01:
If you all are building a centrifuge, and I don't understand about this cascading or whatever, I don't think I need to.

[00:28:17] Speaker 01:
that is geared to the enhanced uranium 235.

[00:28:23] Speaker 01:
You're building it, but you don't know whether you're going to be able to use that 235.

[00:28:30] Speaker 06:
They're not doing it.

[00:28:32] Speaker 06:
I mean, with apologies for the uncertainty.

[00:28:35] Speaker 06:
But there's clearly an expectation that they're going to do.

[00:28:38] Speaker 06:
That's why they're doing it.

[00:28:39] Speaker 06:
They're not just doing it because it's completely unknown.

[00:28:42] Speaker 06:
So I think that's another factor that plays into why we don't think

[00:28:46] Speaker 06:
We have an interest in this current amendment to the license and why it's not moved.

[00:28:51] Speaker 06:
But again, I want to be careful because I don't want to misrepresent the court.

[00:28:55] Speaker 06:
I don't want to say for sure that it's going to happen because I don't know what the Department of Energy is.

[00:29:00] Speaker 06:
And they're the ones who own this stuff, and they're the ones who are going to sort of grant the contract.

[00:29:08] Speaker 06:
So that's the best.

[00:29:10] Speaker 06:
And again, with the policies of the court, that's the best I have on current status now.

[00:29:13] Speaker 06:
And we would reiterate the government's material things happen.

[00:29:18] Speaker 06:
I also agree that jurisdictional dismissal is sort of separate and apart.

[00:29:24] Speaker 03:
What do you have to say about the APA cause of action?

[00:29:26] Speaker 06:
And I think the answer to that, Your Honor, is what's the final action?

[00:29:30] Speaker 06:
And I think the government takes a position, and we agree with it, that an environmental impact statement or an EA

[00:29:36] Speaker 06:
is not a final action.

[00:29:37] Speaker 06:
It's not challengeable in and of itself even in Lujan.

[00:29:40] Speaker 06:
It's challengeable through the APA as part of something that's going to become a final agency act.

[00:29:48] Speaker 06:
And that differs across different agencies.

[00:29:50] Speaker 06:
It differs across different review schemes.

[00:29:53] Speaker 06:
Here, that's where the exclusive jurisdiction of the Hobbs Act becomes relevant.

[00:29:58] Speaker 06:
And so that's what I think distinguishes the situation.

[00:30:01] Speaker 06:
We might have some other sort of agency

[00:30:03] Speaker 06:
that's in a district court saying, we don't think the environmental impact statement was sufficient, but that environmental impact statement, they're not challenging that, they're challenging the permit or the license or the lease or whatever that environmental impact statement went in through the APA in a district court action.

[00:30:22] Speaker 06:
That can't happen here with the NRC and with the House.

[00:30:25] Speaker 03:
And so I think that's why- Because the connection is to a statute that provides

[00:30:31] Speaker 03:
a remedy which would displace any request for a remedy under the APA.

[00:30:35] Speaker 03:
What's your argument?

[00:30:37] Speaker 03:
The APA is not going to be available if there is an alternative remedy available.

[00:30:42] Speaker 03:
I think that's fair.

[00:30:43] Speaker 03:
And you're saying in the Hobbs Act context, that's the end of it, because you've got to go through the Hobbs Act.

[00:30:48] Speaker 06:
And this court, as government counsel said, has reiterated that a number of times going back to the Union of Concerned Scientists at Blue Ridge and all of them.

[00:30:59] Speaker 06:
So I see my time's up.

[00:31:00] Speaker 06:
Happy to answer.

[00:31:02] Speaker 07:
Thank you very much.

[00:31:03] Speaker 07:
Thank you, counsel.

[00:31:05] Speaker 07:
Mr. Lodge, we'll give you two minutes for rebuttal.

[00:31:11] Speaker 04:
Just like to remind the court, the decision from the circuit essentially held that commenting in a rulemaking context confers party status.

[00:31:23] Speaker 04:
Also the gauge decision gauge the Atomic Energy Commission in 1973, the D.C.

[00:31:28] Speaker 04:
Circuit,

[00:31:30] Speaker 04:
stated that the Hobbs Act applies to proceedings where the public can participate only by commenting.

[00:31:37] Speaker 04:
We believe further that the Massachusetts VUS decision, which was a 2008 First Circuit determination that we mentioned in the brief, recognized specifically, explicitly, NEPA commenting as a means of participation as a party and noted, the First Circuit noted that the NRC, quote, has not defined the term

[00:32:00] Speaker 04:
party uniformly in its regulation.

[00:32:04] Speaker 04:
I'd also like to correct something that my colleague from the NRC indicated, and this is one of the reasons for our particular outrage at the way the NRC conducted this permitting, this licensing proceeding.

[00:32:20] Speaker 04:
The scope of the project as defined in the environmental assessment is actually a 13 and a half year contemplated project.

[00:32:28] Speaker 04:
There is the three, three and a half year initial startup period, more or less a demonstration type of effort to see what the feasibility is.

[00:32:38] Speaker 04:
And then I'm sure many technical tests would be confirmed or denied in the course of that kind of centrifuge development of HALU.

[00:32:48] Speaker 04:
However, it is very clearly stated as the scope of the licensing that Centris contemplates an additional 10 years of ramping up incrementally as market demands require to full-scale commercialization.

[00:33:05] Speaker 04:
So this is a 13 and a half year pivot into an entirely new fuel type.

[00:33:11] Speaker 04:
You heard the NRC admit that right now the constraint is 10% enrichment, the constraint

[00:33:18] Speaker 04:
in the new license, I believe, goes much higher than even the 25% that is admitted might be a possible production problem.

[00:33:29] Speaker 04:
Thank you.

[00:33:30] Speaker 01:
Well, let me ask you, Mr. Lodge, have you given any thought to when November 30th rolls around, if, and I'm not clear on what would be needed, but if something further would be needed and another amendment to the license, something like that,

[00:33:47] Speaker 01:
have you given any thought to how you would challenge that?

[00:33:54] Speaker 04:
Well, we're happy to have come all the way to the District of Columbia to learn that piece of information, Your Honor.

[00:34:01] Speaker 01:
We certainly will be looking... Well, let me say, assuming you're not at a grief party now.

[00:34:07] Speaker 04:
Well, we're certainly going to be monitoring things closely, and if the result of this court is adverse to us, we will be pursuing our options

[00:34:17] Speaker 04:
possibly under the AEA as well as NEPA.

[00:34:19] Speaker 04:
But we firmly believe that NEPA is its own separate independent track, well established by this circuit.

[00:34:26] Speaker 03:
Well, you may wanna look without regard to what we're doing at the moment because our opinion may not come out same time that additional proceedings happen here.

[00:34:39] Speaker 07:
Thank you.

[00:34:40] Speaker 07:
Okay.

[00:34:41] Speaker 07:
Thank you, council.

[00:34:42] Speaker 07:
Thank you to all council.

[00:34:42] Speaker 07:
We'll take this case under submission.