Butte Cnty. v. United States

• Decision Date: 04 March 2022
• Docket Number: 2021-1779
• Parties: BUTTE COUNTY, IDAHO, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

BUTTE COUNTY, IDAHO, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee

No. 2021-1779

United States Court of Appeals, Federal Circuit

March 4, 2022

This disposition is nonprecedential.

Appeal from the United States Court of Federal Claims in No 1:19-cv-00800-EMR, Judge Eleni M. Roumel.

Alan Irving Saltman, Chevy Chase, MD, argued for plaintiff-appellant. Also represented by Steve L. Stephens I, Arco, ID.

Daniel B. Volk, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Brian M. Boynton Lisa Lefante Donahue, Martin F. Hockey, Jr.

Before Newman, Dyk, and Taranto, Circuit Judges.

Opinion dissenting in part and concurring in part filed by Circuit Judge Newman.

OPINION

TARANTO, CIRCUIT JUDGE.

In 1984, the United States Department of Energy (DOE) contracted with the operator of the failed Three Mile Island nuclear reactor to take possession of the damaged nuclear core material. Between 1986 and 1990, DOE moved the material to a DOE facility located mostly within Butte County, Idaho. In 2019, Butte County sued the United States in the Court of Federal Claims (Claims Court), asserting a violation of Part B of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. §§ 10151-57 (effective Jan. 7, 1983), as a basis for monetary damages under the Tucker Act, 28 U.S.C. § 1491(a)(1). Specifically, Butte County alleged that DOE was storing the material pursuant to NWPA provisions governing interim storage capacity for spent nuclear fuel and that Butte County was entitled to "impact assistance payments" under 42 U.S.C. § 10156(e)(1).

The United States moved to dismiss, and the Claims Court granted the motion on two grounds. Butte County, Idaho v. United States, 151 Fed.Cl. 808, 812 (2021). First, the Claims Court held that it lacked jurisdiction under the Tucker Act because Butte County's claim was untimely under 28 U.S.C. § 2501. Id. at 815-18. Second, it held that Butte County failed to state a claim for payments under 42 U.S.C. § 10156(e). Id. at 818-20.

Butte County appeals. We affirm the judgment dismissing the case for lack of jurisdiction, though not on the timeliness ground. Even if the suit were timely, jurisdiction under the Tucker Act would require that the "impact assistance payments" provision of the NWPA be money-mandating for Butte County's claim of violation. We conclude that the provision is not money-mandating for Butte County, a conclusion that defeats Tucker Act jurisdiction. We decide no other issue.

I

A

In 1982, Congress enacted the NWPA, 42 U.S.C. §§ 10101-270, to address the accumulation of nuclear waste at civilian nuclear power plants. Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1337 (Fed. Cir. 2000). In Part B of the NWPA, 42 U.S.C. §§ 10151-57, Congress addressed "interim storage of spent nuclear fuel" from civilian nuclear power reactors § 10151(a), and declared a federal responsibility to provide up to a specified amount of such interim storage for "civilian nuclear power reactors that cannot reasonably provide adequate storage capacity at the sites of such reactors when needed to assure the continued, orderly operation of such reactors," § 10151(a)(3). In particular, Congress "authorized [the Secretary of Energy] to enter into contracts with persons who generate or own spent nuclear fuel resulting from civilian nuclear activities for the storage of such spent nuclear fuel in any storage capacity provided under this part." § 10156(a)(1). And it directed the Secretary to "provide . . . not more than 1, 900 metric tons of capacity for the storage of spent nuclear fuel from civilian nuclear power reactors," "when needed, as determined on the basis of the storage needs specified in contracts entered into under section 10156(a)." § 10155(a)(1), (5).

The statute made contracts for interim storage under § 10156(a) the foundation for storage under the Part B of the NWPA. A number of provisions address those contracts and their consequences.

First, the Secretary had authority to enter into § 10156(a) contracts only between January 7, 1983, and January 1, 1990. § 10156(a)(1). There has been no such authority for three decades now.

Second, the Secretary could enter into a § 10156(a) contract only if the [Nuclear Regulatory] Commission deter-mine[d] that-

(A) adequate storage capacity to ensure the continued orderly operation of the civilian nuclear power reactor at which such spent nuclear fuel is generated cannot reasonably be provided by the person owning and operating such reactor at such site, or at the site of any other civilian nuclear power reactor operated by such person, and such capacity cannot be made available in a timely manner through any method described in subparagraph (B); and

(B) such person is diligently pursuing licensed alternatives to the use of Federal storage capacity for the storage of spent nuclear fuel expected to be generated by such person in the future.

§ 10155(b)(1). In turn, the statute ties the content of § 10156(a) contracts to such determinations, stating that such contracts "shall provide that the Federal Government will . . . take title . . . to such amounts of spent nuclear fuel from the civilian nuclear power reactor as the Commission determines cannot be stored onsite" and transport it to a federal facility elsewhere and store it there "pending further processing." § 10156(a)(1). The Commission, for its part, was to "propose, by rule, procedures and criteria" for the required determinations. § 10155(g).^[1]

Third, the Secretary was required to publish an annual nondiscriminatory fee schedule for the provision of the covered storage, § 10156(a)(2)-(3), and any contracts were required to "provide for payment to the Secretary of fees determined in accordance with" that schedule, § 10156(a)(1). In 1983, DOE published its fee schedule for calendar year 1984 (never updated since, as far as we have been informed). Payment Charges for Federal Interim Storage, Calendar Year 1984, 48 Fed.Reg. 54, 391, 54, 391- 92 (Dec. 2, 1983).^[2] Under the schedule, the amount of assessed storage fees would be based on the capacity of the federal interim storage facility used to store the spent nuclear fuel, whose design would be based in turn on "the contractual commitments that then exist for [federal interim storage] services." Id. at 54, 392. DOE would also "bill each individual user for the actual costs [DOE] incurs in the transportation of that user's spent fuel to the [federal interim storage] facilities." Id.

Fourth, the fees collected under contracts were to be placed in an "Interim Storage Fund." 42 U.S.C. § 10156(c). The government could use the "storage capacity provided under this part" to store spent nuclear fuel owned by a federal department, but if it did, the department had to contribute money to the Interim Storage Fund as "if such spent nuclear fuel were generated by any other person." § 10156(b).

Finally, and of central importance here, Congress included § 10156(e), titled "[i]mpact assistance," to address the use of Fund money. The subsection states:

Beginning the first fiscal year which commences after January 7, 1983, the Secretary shall make annual impact assistance payments to a State or appropriate unit of local government, or both, in order to mitigate social or economic impacts occasioned by the establishment and subsequent operation of any interim storage capacity within the jurisdic[]tional boundaries of such government or governments and authorized under this part: Provided, however, That such impact assistance payments shall not exceed (A) ten per centum of the costs incurred in paragraphs (1) and (2), or (B) $15 per kilogram of spent fuel, whichever is less . . . .

§ 10156(e)(1). Such payments were to be "made available solely from the fees determined under" § 10156(a). § 10156(e)(4).

While directing the Secretary to decide which governmental entity (state or local) would receive payments, Congress stated broadly that payments "shall be . . . allocated in a fair and equitable manner with a priority to those States or units of local government suffering the most severe impacts," and it also restricted recipients' use to "planning," "construction and maintenance of public services," "provision of public services related to" the storage, and "compensation for loss of taxable property equivalent to that if the storage had been provided under private ownership." § 10156(e)(2). Congress further stated: "Such payments shall be subject to such terms and conditions as the Secretary determines necessary to ensure that the purposes of this subsection shall be achieved." § 10156(e)(3). Congress "authorized" the Secretary, before establishing storage capacity, "to consult with States and appropriate units of local government" regarding the amount of payments each "would be eligible to receive." § 10156(e)(5). Reflecting the high level of generality of the statutory standards, Congress directed the Secretary to "issue such regulations as may be necessary to carry out the provisions of this subsection." § 10156(e)(3). It is undisputed before us that no such regulations were ever promulgated.

B

In 1979, the "TMI-2" reactor at the nuclear power plant on Three Mile Island in Pennsylvania experienced a partial meltdown. In 1984, the DOE entered into a contract with GPU Nuclear Corporation, the agent of the joint owners of the reactor, to enable "transportation, storage and disposal of the core material of [TMI-2]." J.A. 61. The contract recited that "DOE is authorized to conduct a research and development program to examine the damaged reactor core so as to enhance understanding of degraded core performance" and that...