A recent federal appeals court ruling has put San Luis Obispo County at the center of a growing national debate: How much public involvement is appropriate in designing nuclear power plant projects so that they are safe from terrorist attack?

In June, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that the Nuclear Regulatory Commission erred when it denied requests by local activists to consider the environmental impacts of a terrorist attack on Diablo Canyon nuclear power plant's above-ground facility for storing high-level radioactive waste.

That ruling has sent shock waves across the nation.

Lawyers for public utilities and infrastructure managers are trying to figure out how the groundbreaking decision could affect them.

A recent legal analysis of the ruling by the nuclear industry's trade group Nuclear Energy Institute summed up the impact:

"A wide range of industrial and public projects, including energy facilities, dams, urban infrastructure, transportation facilities and the like could be affected," the analysis concluded. "Many agencies will be ill-equipped to deal with terrorism issues substantively or procedurally."

The ruling may also embolden other nuclear watchdog groups to file similar suits in other states, said Rochelle Becker of the San Luis Obispo-based Alliance for Nuclear Responsibility.

These groups are also referencing the ruling in letters to their lawmakers urging local control of nuclear plants.

"The case has already been cited many times," Becker said. "They realize that this has implications far beyond California and far beyond Diablo Canyon."

On Wednesday, the American Bar Association hosted a teleconference with several of the nation's top legal experts on terrorism and environmental law to discuss the ruling.

Participants repeatedly referred to a growing tension since the Sept. 11 terrorist attacks between the need to keep the public informed about anti-terrorism measures and the danger of revealing too much information.

Mark J. Robinson, an attorney for the federal Energy Regulatory Commission, said the nation's need for power is growing, but the public must have confidence that its energy infrastructure is safe.

"I think those pressures will do nothing but mount, and the public must be brought along," he said. "We cannot cram infrastructure down the public's throat."

Post-9/11 concerns

The Diablo Canyon controversy began shortly after the 2001 terrorist attacks, when Pacific Gas and Electric Co. applied to build a dry cask storage facility for its used — but still highly radioactive — nuclear fuel rods.

Like all commercial nuclear plants in the nation, Diablo Canyon's main storage facility, located in the plant, is filling up, and additional storage must be created for the used fuel rods.

The San Luis Obispo Mothers for Peace and other activists petitioned federal regulators to examine the environmental consequences of a terrorist attack on the facility, including a range of options for minimizing the potential effects.

The NRC rejected the request, saying the possibility of a terrorist attack was too speculative, and there is no way to predict the success of such an attack. The nuclear industry also argued that the Atomic Safety Act, not the National Environmental Policy Act — NEPA — was the appropriate law for protecting nuclear plants.

"NEPA is simply not a threat assessment statute and should not be made so," said Michael Bauser, a Nuclear Energy Institute attorney. "There is the potential of confusing and complicating the (nuclear facility) licensing process."

The federal appeals court disagreed, and has ordered the NRC and PG&E to do the environmental analysis.

They have until Aug. 31 to decide whether they will appeal that ruling.

Meanwhile, Mothers for Peace has filed a legal injunction with the NRC in hopes of stopping the ongoing construction of the dry-cask facility and preventing PG&E from loading any casks until the court's mandate is fulfilled.

The commission has no deadline by which to respond to the action, but is actively considering it, NRC spokesman Dave McIntyre said.

PG&E officials say they will continue to build the dry cask facility unless the NRC tells them to stop. At town-hall-style meetings when the dry cask facility was initially proposed, the community told the utility that was the safest storage option, PG&E spokeswoman Sharon Gavin said.

Diane Curran, the lawyer who successfully argued the Mothers for Peace case, said the group's actions were motivated by a desire to increase public confidence in the security measures at Diablo Canyon.

Since the 2001 attacks, the nuclear industry nationwide has added 3,000 security officers and spent $1.2 billion on security upgrades, Bauser said.

But all of that was done behind closed doors and with little public input, and this approach does not engender public confidence, Curran said.

An environmental review is a good way to get the public involved in the process without revealing details that could help terrorists, she said. Briefing local agencies and groups after they have signed confidentiality agreements is one tool that has been used successfully.

"We wanted to get this out in the public eye," Curran said. "It clearly can be done."

Curran praised steps taken by the Federal Energy Regulatory Commission to involve the public in security enhancements at the nation's 2,500 dams and four liquefied natural gas unloading facilities.

These steps far exceed what the NRC has done at the nation's 103 commercial nuclear reactors, she said.

Federal regulators explained the consequences of a terrorist attack on a dam or liquefied-natural-gas terminal and what is being done to prevent it, Robinson said. They went into great detail in some areas but not others.

For example, they explained how far flames would shoot out of varying sized holes in a punctured natural gas tanker. But they stopped short of saying what kind of weapons would produce those holes of various sizes.

"We do not want to teach terrorists how to attack," he said. "There's a balance and tension between the two."

Reach David Sneed at 781-dsneed@thetribunenews.com