Entergy Arkansas, Inc. v. Nebraska
| Citation | 226 F.Supp.2d 1047 |
| Decision Date | 30 September 2002 |
| Docket Number | No. 4:98CV3411.,4:98CV3411. |
| Court | U.S. District Court — District of Nebraska |
| Parties | ENTERGY ARKANSAS, INC., an Arkansas corporation; Entergy Gulf States, Inc., a Texas corporation; Entergy Louisiana, Inc., a Louisiana corporation; Wolf Creek Nuclear Operating Corporation, a Delaware corporation, ["Entergy & Wolf Creek"] Plaintiffs, Central Interstate Low-Level Radio-active Waste Commission, ["Commission"] Realigned Plaintiff, US Ecology, Inc., a California corporation, ["USE"] Intervenor-Plaintiff, v. State of NEBRASKA; Nebraska Department of Environmental Quality; Nebraska Department of Health and Human Services Regulation & Licensure. ["Nebraska"] Defendants. |
Stephen M. Bruckner, Joseph E. Jones, Fraser, Stryker Law Firm, Omaha, NE, for Omaha Public Power Dist.
Rene M. Devlin, Laurence H. Levine, Latham, Watkins Law Firm, Chicago, IL, Steven G. Seglin, Rocky C. Weber, Crosby, Guenzel Law Firm, Lincoln, NE, for US Ecology, Inc.
Lisa Goldblatt, Michael R. McCarthy, Collier, John L. Wittenborn, Shannon Law Firm, Washington, DC, Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, William B. Reynolds, Howrey, Simon Law Firm, D.C., Washington, DC, for State of Nebraska
John P. Heil, Patrick J. Ickes, Thomas E. Johnson, Baird, Holm Law Firm, Omaha, NE, for Entergy Arkansas, Entergy Gulf States, Entergy Louisiana, Wolf Creek Nuclear Operating.
Patricia A. Knapp, Univ. of Neb. College of Law, Lincoln, NE, for Boyd County Monitoring Committee.
Annette M. Kovar, Neb. Dept. of Environmental Quality, Lincoln, NE, Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, John L. Wittenborn, Collier, Shannon Law Firm, Washington, DC, for Dept. of Environmental Quality.
Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, Alan E. Peterson, Shawn D. Renner, Cline, Williams Law Firm, Lincoln, NE, for Central Interstate Low-Level Radioactive Waste Com'n.
Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, William B. Reynolds, Howrey, Simon Law Firm, Washington, DC, John L. Wittenborn, Collier, Shannon Law Firm, Washington, DC, for Cheryl Rogers, David P. Schor, Jay Ringenberg, Randolph Wood.
Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, John L. Wittenborn, Collier, Shannon Law Firm, Washington, DC, for Dept. of Health, Nebraska.
Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, for Governor.
Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, John L. Wittenborn, Collier, Shannon Law Firm, Washington, DC, for Director of Neb. Dept. of Health and Human Services, Regulation and Licensure.
After a two-month trial, I find and conclude that Nebraska violated its federal obligation to the United States and the States of Arkansas, Kansas, Louisiana, and Oklahoma. To be specific, Nebraska failed to act in good faith as required by an interstate compact when it considered, delayed, and then denied a license to build a low-level radioactive waste disposal facility that was to be used by the citizens of those five states.
In so deciding, I do not determine whether the license should have been granted. As I have said before, Nebraska was vested with a great deal of discretion under the law. Entergy Ark., Inc. v. Nebraska, 161 F.Supp.2d 1001, 1005 (D.Neb. 2001) (). I have no right to second guess Nebraska on the merits of the license application, and I have not done so. That said, the process was infected with bad faith. While it is impossible to sort out what should or would have happened absent this improper behavior, I state with the utmost conviction that a direct and substantial cause of the license denial was Nebraska's bad faith.
As a remedy, I will order Nebraska to pay and disgorge, with interest, roughly $151 million that was expended during the attempt to license the facility in Nebraska. Except for a declaratory judgment that Nebraska acted in bad faith, I will not award other equitable relief (such as a court-supervised licensing) because Nebraska has now made meaningful active equitable relief unworkable and unwise. Any attempt to impose equitable relief beyond a declaratory judgment would make a bad situation far worse.
Pursuant to Federal Rule of Civil Procedure 52, I now set forth the findings of fact and conclusions of law that inform my decision. My findings of fact and conclusions of law are set forth below.
The record in this case is massive. Thus, the risk of making this opinion more dense and difficult than it need be is real. I, therefore, resist the urge to describe, debate and then resolve every skirmish and squabble. On the contrary, and despite the truly unfortunate length of this opinion, I strive for relative brevity, and thereby hope for maximum clarity.
After all, shorn of all the trappings, the question is a simple one. Is it more likely than not that Nebraska acted in bad faith?
I assume a certain level of familiarity with this case and its 10-year-plus lineage. For others who desire a more general review, see Thomas O. Kelley, Note, Nebraska's $160 Million Liability?-Entergy Arkansas, Inc. v. Nebraska, 241 F.3d 979 (8th Cir.2001), 80 Neb. L.Rev. 574 (2001).
At its heart, this matter rests upon the Central Interstate Low-Level Radioactive Waste Compact ("Compact"). Put simply, the Commission, a body created by Congress and the Compact to enforce its provisions, sued Nebraska primarily claiming that it violated the Compact's "good faith" provision.
Certain of the big power generators ("Entergy & Wolf Creek") which would have used the disposal site, and U.S. Ecology, Inc. ("USE"), which was to build and operate the site, also sued Nebraska. However, the Court of Appeals for the Eighth Circuit held that these private corporate plaintiffs could not maintain a suit under the Compact against the State of Nebraska. Entergy Ark., Inc. v. Nebraska, 241 F.3d 979 (8th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 203, 151 L.Ed.2d 144 (2001) (). I later decided that they had no property interest under Nebraska law sufficient to give rise to a Constitutional due process claim. Entergy, 161 F.Supp.2d at 1005 (D.Neb.2001) ().
These corporate plaintiffs also have claims against the Commission which derive from the Commission's claims against Nebraska. I do not discuss those claims in this opinion, but rather deal solely with the Commission's claims. Contemporaneous with the issuance of this opinion, I also issue another opinion denying the basic claims of the private corporate plaintiffs against the Commission.
In the Compact, the member states agreed to develop disposal facilities for low-level nuclear waste generated within their borders, and then the Commission selected Nebraska as the host state for such a facility. The Commission alleges that Nebraska has attempted to evade its obligations under the Compact since 1991 by delaying the decision on a license for the proposed facility and by then wrongfully denying a license. The Commission seeks injunctive relief, a declaratory judgment that Nebraska has violated its fiduciary1 and contractual obligations under the Compact, an accounting, compensatory and consequential damages, the removal of Nebraska from further supervision of the licensing process and appointment of a third party to exercise supervision, and attorney fees and costs. The Commission does not assert a claim of personal liability against the State officials.
Under the "Compact Clause" of the Constitution, only Congress has the authority to allow States of the Union to enter into agreements which substantially impact upon federal interests. That is, "No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State, or with a foreign Power ...." U.S. Const. art. I, § 10, cl. 3.
Congress passed the Low-Level Radio-active Waste Policy Act of 1980 (the Act), 42 U.S.C. § 2021b et seq. (amended 1986), "to promote the development of regional low-level radioactive waste disposal facilities." Concerned Citizens of Neb. v. United States Nuclear Regulatory Com'n, 970 F.2d 421, 422 (8th Cir.1992). See 42 U.S.C. § 2021d (). Under the authority of the Act the member states entered into the Compact, which was passed as original legislation by each of the states and by Congress. Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub.L. No. 99-240, tit. II, § 222, 99 Stat. 1859, 1863-71 (1986) ().2 The Central Interstate Low-Level Radioactive Waste Compact is also found in Nebraska law at Appendix § BB, Neb.Rev.Stat. Vol. 2A (Reissue 1989) (a superceded volume).
The Compact established the Commission to enforce its provisions and provided the framework for licensing a facility for the disposal of low-level radioactive waste generated in the five states. See Arts. III & IV. Several provisions...
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