(CN) – The Nuclear Regulatory Commission can license nuclear power plants that are not fully protected against terrorist air strikes, the 9th Circuit ruled, rejecting a claim that the Sept. 11 attacks on the World Trade Center should have triggered heightened security.
The court upheld the dismissal of a lawsuit filed by two public advocacy groups and the states of New York and California, which claimed the commission has a duty to ensure nuclear power plants are protected against air strikes.
After terrorists flew planes into the Twin Towers and the Pentagon in 2001, the commission ramped up security measures aimed at protecting nuclear power plants against terrorist attacks. A new rule, finalized in March 2007, covered attacks involving multiple groups approaching from several entry points, individuals willing to kill or be killed, and boats and cyber attacks, but it left out air attacks.
Public Citizen, San Luis Obispo Mothers for Peace and the nation’s two most populated states sued, fearing nuclear power plants were unprepared for a 9/11-type air strike.
But the commission said security forces cannot be expected to engage every threat, a position that the San Francisco-based appeals court found valid.
“Adequate protection” does not mean “absolute protection,” the court wrote. Plant operators are not required to protect against “each and every” attack to meet federal law, the judges explained.
The 9th Circuit acknowledged that the commission had implemented car-bomb protections after attacks on the World Trade Center in 1993, but said the vehicle barriers were not put in place to meet the adequate protection standard, but as a prudent safety measure.
Petitioners argued that the commission cannot require some protective measures while ignoring others, but the appeals court found the commission’s stance on air strikes acceptable. The commission came to its conclusion knowing that “nuclear power plants are better guarded than any other private critical infrastructure” and with insider knowledge that federal agencies were taking action to protect against terrorist attacks after 2001, the ruling states.
In air attacks, Judge Hall explained, airplanes are used as a missile. While private security forces can take out the drivers of bomb-laden vehicles, defending against an air strike requires anti-aircraft devices that are out of the hands of private industry. Here, defense is “best left to government agencies,” the ruling states.
The three-judge panel also rejected the plaintiffs’ environmental claims, saying it was not the commission’s responsibility to consider the environmental impact of a successful terrorist attack.
Judge Thomas partially dissented, saying the commission ignored post-9/11 studies showing that nuclear power plants could not withstand the impact of commercial jet planes, something the commission itself had also determined.
“The distinction the agency draws between the risk of truck bombs and hijacked airliner attacks is inconsistent with our nation’s recent tragic experiences and common sense,” Thomas wrote. The commission did not have a valid reason to leave out air strikes in its security rule, he wrote. Thomas said the commission owes the public an explanation for ignoring air strikes.