On February 6, 2002, the Commission issued Memorandum and Order CLI-02-06. The order directed the parties to address the question certified by the ASLB with respect to NIRS’s terrorism contention. Id., slip op. at 2. In addition, the parties were asked to address the question of: “What is an agency’s responsibility under NEPA to consider intentional malevolent acts such as those directed at the United States on September 11, 2001?” Id.
A. Statutory and Regulatory Framework
1. General requirements of NEPA
NEPA is the “basic charter for protection of the environment.” 40 C.F.R. § 1500.1(1). Its fundamental purpose is to “help public officials make decisions that are based on understanding of environmental consequences, and take decisions that protect, restore and enhance the environment.” Id. NEPA requires federal agencies to examine the environmental consequences of their actions before taking those actions, in order to ensure “that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
The primary method by which NEPA ensures that its mandate is met is the “action-forcing” requirement that a “detailed statement” be prepared before a federal agency takes any major action which may significantly affect the quality of the human environment. Robertson, 490 U.S. at 348; 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.1. This statement, known as an Environmental Impact Statement (“EIS”), must describe, among other things, (1) the “environmental impact” of the proposed action, (2) any