Quivira Min. Co. v. U.S. E.P.A.

Citation728 F.2d 477
Decision Date02 March 1984
Docket NumberNo. 81-1630,81-1630
Parties, 14 Envtl. L. Rep. 20,447 QUIVIRA MINING COMPANY, (formerly Kerr-McGee Nuclear Corporation), Gulf Oil Corporation and Union Carbide Corporation, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Peter J. Nickles, Covington & Burling, Washington, D.C. (Charles H. Montange, Kenneth E. Carroll, Covington & Burling, Washington, D.C., and G. Stanley Crout, C. Mott Woolley, Bigbee, Stephenson, Carpenter, Crout & Olmsted, Santa Fe, N.M., with him on the brief), for plaintiffs-appellants.

John L. Wittenborn, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Donald W. Stever, Nancy B. Firestone, Rosanne Mayer, Attys., Dept. of Justice, Washington, D.C., and Christopher C. Herman, Atty., E.P.A., Washington, D.C., with him on the brief), for defendants-appellees.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Plaintiffs-Appellants, Quivira Mining Company, Kerr-McGee Nuclear Corporation and other energy related companies, brought an action in the United States District Court for the District of New Mexico in which they challenged an Environmental Protection Agency (E.P.A.) regulation establishing standards for permissible doses of radiation released from uranium fuel cycle operations. 40 C.F.R. Part 190.10(a) (1980). The companies maintained that E.P.A. lacked the authority to promulgate the regulation. They charged that the regulation was improper and exceeded any statutory authority that E.P.A. might have. A declaratory judgment was sought that the statute was invalid and plaintiffs further sought an injunction against its enforcement. However the district court dismissed the action for want of jurisdiction based on the ground that the Atomic Energy Act, 42 U.S.C. Sec. 2239(b) (1976), referred all appeals of such proceedings directly to the court of appeals under the Hobbs Act, 28 U.S.C. Sec. 2342 (1976).

An analysis of the statutory history will be of some help. The Atomic Energy Act, 42 U.S.C. Sec. 2011, et seq. (1976 & Supp. V 1981) provided that the Atomic Energy Commission (A.E.C.) had broad authority to regulate and license the nuclear industry. The Act authorized the review in the court of appeals of certain final regulatory and licensing orders. In 1970 President Nixon transferred regulatory authority over environmental standards regarding radioactive materials from the A.E.C. to the E.P.A. under Reorganization Plan Number 3 of 1970, 3 C.F.R. Sec. 1072 (1970), reprinted in 5 U.S.C.A.App. II, at 114 (West Supp.1983), and in 84 Stat. 2086 (1970). No mention was made in the Reorganization Plan of judicial review mechanisms. After this Congress enacted the Energy Reorganization Act of 1974, 42 U.S.C. Sec. 5801, et seq. (1976 & Supp. V 1981). This abolished the A.E.C. and transferred its remaining functions to the Nuclear Regulatory Commission and (N.R.C.) the Energy Research and Development Administration (E.R.D.A.). The E.R.D.A. was recently abolished and Congress vested its functions in the Department of Energy. 42 U.S.C. Sec. 7111 et seq. (Supp. V 1981).

The question which is presented is whether the exclusive review provisions for A.E.C. rulemaking, pursuant to 42 U.S.C. Sec. 2239(b), were affected by the reallocation of this function to the E.P.A. under the Reorganization Plan. If we conclude that the provisions were not affected, then the district court was correct in dismissing the action for lack of subject matter jurisdiction.

The companies, of course, argue that the reallocation of functions as a part of the Reorganization Plan was invalid and that, even assuming its validity, the Plan failed to continue the exclusive review of rulemaking under the Atomic Energy Act. They argue that the fact that the Reorganization Plan failed to mention exclusive court of appeals review of the transferred functions evinces an intent to allow ordinary review of E.P.A. actions through the district courts. They emphasize the fact that the court of appeals are courts of limited jurisdiction and that statutes mandating exclusive review by the court of appeals must specifically so provide. They point out that Congress passed a subsequent provision for exclusive court of appeals review of N.R.C. orders in the Energy Reorganization Act, 42 U.S.C. Sec. 5871(g). The companies maintain that had Congress thought the Atomic Energy Act provisions would survive reallocation of functions, it would not have specifically mandated court of appeals review of N.R.C. orders. They raise the same argument regarding Congress's specific review provisions for E.P.A. regulations under a 1978 amendment to the Atomic Energy Act, 42 U.S.C. Sec. 2022(c)(2) (Supp. V 1981). The companies also recite recent case law which purports to hold that, in the absence of specific language regarding review of E.R.D.A. orders under the Energy Reorganization Act, such orders are properly reviewed in the district court. Last, the energy companies argue that even if the exclusive review provisions apply to E.P.A. regulations, the district court may retain jurisdiction to hear cases alleging ultra vires E.P.A. activity.

The arguments and the authorities referred to by the companies seem persuasive at first. Close inspection of the legislative scheme and the case law, however, supports the trial judge's conclusion that the exclusive review provisions survived and are still in effect. First, we analyze the Atomic Energy Act.

I. A HISTORY OF REVIEW UNDER THE ATOMIC ENERGY ACT.

When Congress enacted the Atomic Energy Act in 1954, it intended to make the court of appeals the exclusive reviewing tribunal of certain A.E.C. orders. Section 2239 of the Act, which deals with hearings and judicial review, defines the steps the A.E.C. had to follow in promulgating these orders and directs that review of final orders must be in accordance with the Hobbs Act.

Section 2239(a) defines the orders which require Hobbs Act review. Subsection (a) includes "any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees." 42 U.S.C. Sec. 2239(a). The challenged regulations, had they been promulgated by the A.E.C., certainly would fit within this definition. The challenged regulation establishes the doses of radiation that nuclear licensees may discharge in the environment, and thus clearly regulates "the activities of licensees." The E.P.A. followed the requisite proceedings for rulemaking. Unquestionably the regulation may affect non-federal licensees as well as federal licensees, but that is irrelevant. Section 2239 of the Atomic Energy Act is not limited to regulations affecting federal licensees exclusively.

The regulation is one enumerated in subsection (a) and subsection (b) by its terms refers the regulation's opponents to judicial review pursuant to the Hobbs Act:

Any final order entered in any proceeding of the kind specified in subsection (a) above shall be subject to judicial review in the manner prescribed in the (Hobbs Act).

42 U.S.C. Sec. 2239(b). The Hobbs Act provides in pertinent part as follows:

The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of--

* * *

* * *

(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of Title 42. 1

28 U.S.C. Sec. 2342 (1976 & Supp. V 1981). Unquestionably the instant regulation would be reviewable pursuant to the Hobbs Act if promulgated by the A.E.C. Accordingly, the only remaining question is whether the subsequent Reorganization Plan altered this carefully prepared statutory scheme.

II. CONSIDERATION OF THE REORGANIZATION PLAN.

Clearly, the President of the United States has only such authority as he or she is granted by the Constitution or by Congressional act. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 865, 96 L.Ed. 1153 (1952). The President's authority to reorganize the functions of the executive agencies derives from the Reorganization Act, 5 U.S.C. 901 et seq. (1982). That Act gives the President broad authority to transfer and modify agency functions when necessary to further enumerated national policies. 5 U.S.C. Sec. 903. The Act contains specific limitations, however, on executive reorganizational authority. Congress specifically stated that a reorganization plan may not "[authorize] an agency to exercise a function which is not expressly authorized by law at the time the plan is transmitted to Congress." 5 U.S.C. Sec. 905(a)(4). Moreover, the Act clearly contemplates the orderly continuity of functions before and after reorganization.

A statute enacted, and a regulation or other action made, prescribed, issued, granted, or performed in respect of or by an agency or function affected by a reorganization under this chapter, before the effective date of the reorganization, has, except to the extent rescinded, modified, superseded, or made inapplicable by or under authority of law or by the abolition of a function, the same effect as if the reorganization had not been made.

5 U.S.C. Sec. 907(a).

A. Was the Reorganization Plan Valid?

The Reorganization Plan was designed to pull "together into one agency a variety of research, monitory, standard-setting and enforcement activities now scattered through several departments and agencies." Message of the President, July 9, 1970, reprinted in 5 U.S.C.A.App. II at 119. The Reorganization Plan gave some of A.E.C.'s regulatory authority over environmental standards to the newly created E.P.A. The plan provided:

There are hereby transferred to the [E.P.A.] Administrator:

(6) The functions of the Atomic Energy Commission under the Atomic Energy Act of 1954, as amended, administered through its Division of Radiation...

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