NEPA AT THE LIMITS OF RISK ASSESSMENT: WHETHER TO DISCUSS A POTENTIAL TERRORIST ATTACK ON A NUCLEAR POWER PLANT UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT

This Note explores the question of whether to address the environmental impacts of a potential terrorist attack on a nuclear power plant under the National Environmental Policy Act (NEPA). The Nuclear Regulatory Commission (NRC) and the U.S. Court of Appeals for the Third Circuit assert that the risk of terrorism is unquantifiable and too remote to warrant consideration under NEPA. In contrast, the U.S. Court of Appeals for the Ninth Circuit concludes that the risk is foreseeable enough that it cannot be disregarded as a matter of law and that a qualitative discussion of a range of potential impacts is possible. This Note argues that discussion of this risk under NEPA is consistent with the statute, which calls for discussion of both indirect impacts and potentially catastrophic impacts even if they are low probability or uncertain. This Note also argues that some scholarship on risk assessment and risk management, particularly one recent theory of catastrophic risk management, supports regulation of highly uncertain, potentially catastrophic risks, such as terrorism, and discussion of this risk under NEPA is an important step toward ensuring the public that the NRC is seriously addressing it.