ENERGYSOLUTIONS LLC. v. State of Utah, 09-4122

Decision Date09 November 2010
Docket Number09-4123,09-4124.,No. 09-4122,09-4122
Citation625 F.3d 1261
PartiesENERGYSOLUTIONS, LLC, Plaintiff-Appellee, v. State of UTAH, Defendant-Appellant, Rocky Mountain Low-Level Radioactive Waste Compact, Defendant-Intervenor. EnergySolutions, LLC, Plaintiff-Appellee, v. Rocky Mountain Low-Level Radioactive Waste Compact, Defendant-Appellant. EnergySolutions, LLC, Plaintiff-Appellee, v. Northwest Interstate Compact on Low-Level Radioactive Waste Management, and Michael Garner, solely in his official capacity as the Executive Director of the Northwest Interstate Compact on Low-Level Radioactive Waste Management, Defendants-Appellants, Rocky Mountain Low-Level Radioactive Waste Compact, Defendant-Intervenor. State of New Mexico, and Midwest Interstate Low-Level Radioactive Waste Management Commission, and Atlantic Interstate Low-Level Radioactive Waste Compact, Central Interstate Low-Level Radioactive Waste Compact, Central Midwest Low-Level Radioactive Waste Compact, Southeast Interstate Low-Level Radioactive Waste Compact, Texas Low-Level Radioactive Waste Disposal Compact, and Council of State Governments, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

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Denise Chancellor, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney General, and Fred G. Nelson, Assistant Attorney General, with her on the briefs), Office of the Utah Attorney General, Salt Lake City, UT, for Defendant-Appellant State of Utah.

Barbara J.B. Green, Sullivan Green Seavy, LLC, Boulder, CO (James S. Lowrie, Lewis M. Francis, and Ryan M. Harris, Jones Waldo Holbrook & McDonough PC, Salt Lake City, UT, and Richard L. Masters, Masters, Mullins & Arrington, Louisville, KY, with her on the briefs), for Intervenor-Defendant-Appellant Rocky Mountain Low-Level Radioactive Waste Compact.

Kristen K. Mitchell, Assistant Attorney General (Robert M. McKenna, Attorney General, and Alice M. Blado, Assistant Attorney General, with her on the briefs), Office of the Washington Attorney General, Olympia, WA, for Defendants-Appellants Northwest Interstate Compact on Low-Level Radioactive Waste Management and Michael Garner, solely as its Executive Director.

Michael S. Lee, Howrey LLP (Jared C. Fields, Howrey LLP, and Robert S. Clark and Timothy B. Smith, Parr Brown Gee & Loveless with him on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Gary K. King, Attorney General, and David K. Thomson, Deputy Attorney General, Santa Fe, NM, on brief for Amicus Curiae State of New Mexico in support of Appellants.

Richard Ihrig, Ann Kennedy, and Patrick Compton, Lindquist & Vennum PLLP, Minneapolis, MN, on brief for Amicus Curiae Midwest Interstate Low-Level Radioactive Waste Management Commission in support of Appellants.

Henry W. Jones, Jr., and Lori P. Jones, Jordan Price Wall Gray Jones & Carlton, PLLC, Raleigh, NC, and Robert C. Wilson, Jackson, Sjoberg, McCarthy & Wilson, L.L.P., Austin, TX, on brief for Amicus Curiae Atlantic Interstate Low-Level Radioactive Waste Compact, Central Interstate Low-Level Radioactive Waste Compact, Central Midwest Low-Level Radioactive Waste Compact, Southeast Interstate Low-Level Radioactive Waste Compact, Texas Low-Level Radioactive Waste Disposal Compact, and Council of State Governments in support of Appellants.

Before TACHA, ALARCÓN * , and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

The issue in this case is whether the Northwest Interstate Compact on Low-Level Radioactive Waste allows its member states to exclude low-level radioactive waste from disposal at a Utah site.

EnergySolutions is the owner and operator of a facility for the disposal of low-level radioactive waste located in Clive, Utah. Utah is a member state of the Northwest Compact, and required EnergySolutions to obtain permission pursuant to the Compact for the importation and disposal of low-level waste from a decommissioned reactor in Italy. The member states, including Utah, voted to deny this approval, based on exclusionary authority it claimed through the federal statute approving the terms of the Compact. EnergySolutions contends the Clive Facility should not be subject to the authority of the Northwest Compact. It claims the Compact has limited authority only over regional disposal facilities, which does not include the Clive Facility.

The district court concluded the Northwest Compact does not regulate the disposal of waste at the Clive Facility. We disagree. The terms of the Compact control in this situation, and the member states were within the bounds of their authority when they denied permission regarding this waste.

Exercising our jurisdiction under 28 U.S.C. § 1291, we REVERSE and REMAND.

I. BACKGROUND

Because of the complicated interplay among the statutes relevant to this case, a short review of their legislative history is helpful. We therefore begin with a discussion of the statutory background and a description of the factual history relevant to the dispute.

A. Statutory Background

We live in a world full of low level radioactive waste.” New York v. United States, 505 U.S. 144, 149, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Many important industries and manufacturing processes generate low-level radioactive waste (LLRW), and representative types of this waste include contaminated medical clothing and equipment, tools, and the remains of animals exposed to radiation during laboratory testing. See NRC: Low-Level Waste, http:// www. nrc. gov/ waste/ low- level- waste. html (last visited August 26, 2010). LLRW is the least radioactive type of radioactive waste, see 10 C.F.R. § 61.2, but precautions must still be taken for its safe disposal.

Despite these common origins and the resulting large volumes of waste, by the end of the 1970s, the entire nation had only three functioning disposal sites for LLRW. New York, 505 U.S. at 150, 112 S.Ct. 2408. Two of those sites were forced to close temporarily in 1979, raising the specter of LLRW with no place to go. Id.

At the same time, the scarcity of disposal sites raised the spectre that host states would become the nation's “dumping grounds” for LLRW. Id. at 190, 112 S.Ct. 2408 (White, J., concurring in part and dissenting in part).

Policymakers agreed it was essential to encourage states to build more LLRW disposal facilities, or at the very least, provide incentives for the existing disposal sites to remain open. Hosting a disposal site, for example, would be less onerous if the host state could limit the amount of waste crossing its borders. But, due to the constitutional restrictions on state protectionism, a host state could not prevent waste from entering its disposal site based on the state of its origin, and therefore give preference to waste generated within its own borders. Under the Constitution's so-called dormant Commerce Clause, the “clearest example of [an abuse] is a law that overtly blocks the flow of interstate commerce at a State's borders.” City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978).

Because more disposal sites were required, and few states were willing to risk building a site for waste generated mostly in other states, Congress in 1980 enacted the Low-Level Radioactive Waste Policy Act, Pub.L. No. 96-573, 94 Stat. 3347 (1980) (1980 Act). This legislation gave states the authority under the Constitution's Compact Clause, U.S. Const. art. I, § 10, to enter into interstate agreements, or compacts, to deal with LLRW on a regional basis, and statutorily preempted dormant Commerce Clause concerns. After a transition period, congressionally-approved compacts would have the force of federal law to exclude LLRW generated outside of the compact region, starting in 1986.

Rather than creating a uniform federal law to directly regulate LLRW disposal, the 1980 Act encouraged states to draft their own agreements regarding this waste. These customized compacts could deal with regional concerns and encourage compromises between states that would be mutually beneficial. The 1980 Act thus stated it was “the policy of the Federal Government that each State is responsible for providing for the availability of capacity either within or outside the State for the disposal of low-level radioactive waste generated within its borders.” 1980 Act § 4(a)(1)(A). Beyond this statement, the Act provided no incentives to enter into a compact, nor did it include any penalties for a failure to provide the capacity to handle the waste.

Perhaps unsurprisingly, as the 1986 effective date of the statute approached, the only compacts that had been formed were predicated on the three already existing disposal sites. New York, 505 U.S. at 151, 112 S.Ct. 2408. No new LLRW disposal sites had been opened in the interim, and the nation once again faced the possibility of having nowhere to dispose the waste generated in the 31 states that were not members of a regional compact. Id.

Congress took action again. This time it enacted a more detailed statute, providing penalties for states failing to provide disposal capacity, as well as increased financial benefits for states complying with a series of benchmarks related to creating new LLRW disposal sites. This second legislative attempt is known as the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub.L. No. 99-240, 99 Stat. 1842, Title I (codified at 42 U.S.C. §§ 2021b-2021j) (1985 Act). In addition to the “carrots and sticks” related to the benchmarks, 1 the 1985 Act provided more specific definitions for terms not defined in the 1980 Act. See 42 U.S.C. § 2021b.

At the same time, Congress passed the Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub.L. No. 99-240, 99 Stat. 1842, Title II (codified at 42 U.S.C. § 2021d note) (Consent Act). The Consent Act provided congressional approval for several interstate compacts already ratified by member states, including the Northwest Compact, id. § 221,...

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