information exists but is unavailable, make a statement of the relevance of the information to the evaluation of impacts in the EIS, summarize existing relevant and credible scientific evidence, and provide the agency’s evaluation of the impacts based on generally accepted theoretical approaches or research methods.2
3.Requirement to update and revisit outdated analyses
A federal agency “has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions.” Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023-24, citing 42 U.S.C. § 4332(2)(A), (B); Essex County Preservation Association v. Campbell, 586 F.2d 956, 960-61 (1st Cir. 1976); Society for Animal Rights, Inc. v. Schlesinger, 512 F.2d 915, 917-18 (D.C. Cir. 1975). As the Courts have held, where aspects of a proposed action are addressed by a previously prepared EIS, a new EIS must be issued if there remains “major federal action” to occur, and if there is new information showing that the remaining action will affect the quality of the human environment “in a significant manner or to a significant extent not already considered.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989).
2 While a number of courts have ruled that the CEQ regulations are not binding on the NRC, see, e.g., Limerick Ecology Action v. NRC, 869 F.2d at 743, the Commission itself has recognized that the CEQ regulations are entitled to “substantial deference.” Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 72 (1991). Moreover, the Commission recognized that the only legitimate ground on which the NRC can ignore the CEQ regulations is when they “have a substantive impact on the way the agency performs its regulatory functions.” Id., citing 49 Fed. Reg. 9352 (March 12, 1984). See also Andrus v. Sierra Club, 442 U.S. 347, 357 (1979), which pointed out that Executive Order 11991 orders all federal agencies to comply with the regulations to be adopted by the CEQ after consultation with affected agencies. Executive Order 11991 also states that the only exception to this requirement is that compliance where compliance would be “inconsistent with statutory requirements.” Id., § 2, 3 NRC 124 (1978),