Entergy Arkansas, Inc. v. Nebraska
| Decision Date | 29 August 2001 |
| Docket Number | No. 4:98CV3411.,4:98CV3411. |
| Citation | 161 F.Supp.2d 1001 |
| 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; Omaha Public Power District, a public corporation and political subdivision of the State of Nebraska, Plaintiffs, Central Interstate Low-Level Radioactive Waste Commission, Realigned Plaintiff, US Ecology, Inc., a California corporation, Intervening Plaintiff, v. State of NEBRASKA, et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
John P. Heil, Thomas E. Johnson, Patrick J. Ickes, Baird, Holm Law Firm, Omaha, NE, Stephen M. Bruckner, Joseph E. Jones, Fraser, Stryker Law Firm, Omaha, NE, for plaintiffs.
Alan E. Peterson, Shawn D. Renner, Cline, Williams Law Firm, Lincoln, NE, Patrick T. O'Brien Butler, Galter Law Firm, Lincoln, NE, for realigned plaintiff.
Steven G. Seglin, Rocky C. Weber, Crosby, Guenzel Law Frim, Lincoln, NE, for intervening plaintiff.
Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, William Bradford Reynolds, Howrey, Simon Law Frim, Washington, DC, Annette M. Kovar, Neb. Dept. of Environmental Quality, Lincoln NE, John L. Wittenborn, Collier, Shannon Law Firm, Washington, DC, for defendants.
The Court of Appeals directed me to reconsider whether the Generators and USE possessed "property interests" sufficient to give them a claim for denial of procedural or substantive due process1 under the Fourteenth Amendment. Entergy Arkansas, Inc. v. Nebraska, 241 F.3d 979, 990-92 (8th Cir.2001), petition for cert. filed, 70 U.S.L.W. 3076 (U.S. July 16, 2001) (No. 01-87). This issue was raised in various motions to dismiss filed by the defendants both before and after the remand order of the Court of Appeals.2 In addition, the defendants have again sought to dismiss the Commission's suit. As before, I presume detailed knowledge of this very complex case.
I will deny the motions asserted against the Commission. The arguments advanced by the defendants have been disposed of earlier either by this court or the Court of Appeals. To the extent that the defendants assert a variation of those earlier arguments, they are without merit.
On a related matter, I see no good reason to stay consideration of the motions or this case while the defendants request relief from the Supreme Court regarding the Commission's suit. In this regard, I note that the Court of Appeals did not stay the issuance of the mandate. (Filing 224 (mandate filed May 1, 2001).)
The Generators, USE and "Property Interests"
I will grant the motions to the extent they seek to dismiss the procedural and substantive due process claims of the Generators and USE which are asserted under the Fourteenth Amendment to the Constitution. I find and conclude that the Generators and USE have not alleged the deprivation of a "property interest" within the meaning of the Fourteenth Amendment.3
The Fourteenth Amendment protects us from the government taking our property4 without procedural or substantive due process of law. Compare Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir.2000) () with Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 (8th Cir.1995) (). See also Littlefield v. City of Afton, 785 F.2d 596, 601 (8th Cir.1986) (), overruled on other grounds, Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 n. 2 (8th Cir.1992).
The Generators and USE claim that they have a property interest in the nuclear waste disposal license itself and the money spent in an attempt to obtain the license. Broadly speaking, the issue is whether the defendants denied the Generators and USE procedural and substantive due process when, after accepting tens of millions of dollars from them to process the license application, they (taking the complaint as true) denied the license for crude political purposes.
As directed by the Court of Appeals, I have considered "the procedures and requirements listed in the N.A.C. [Nebraska Administrative Code]" regarding the issuance of nuclear waste disposal licenses, "the requirement that the licensing process costs be paid by USE (and the ultimately the Generators)," the "very large payments already made in reliance on Nebraska's procedures," "the administrative scheme set up by the Compact which was enacted into state law," and "state law" more generally, Entergy Arkansas, 241 F.3d at 991, to determine whether the Generators and USE have a "property interest" in the license and the money spent to obtain one. At the same time, I also recognize that the Court of Appeals has decided that the Compact itself does not allow the Generators or USE to sue the defendants for breach of the Compact's "good faith" obligation. Id. at 990.
Next, I realize that "[p]roperty interests are not created by the Constitution but rather stem from an independent source such as state law." Stauch, 212 F.3d at 429. Most importantly, I recognize that parties asserting a property interest must have something "more than a unilateral expectation of it." Id. That is, they "must possess a legitimate claim of entitlement to it." Id.
USE and the Generators claim that their "property interest" was created by Nebraska's "substantive standards or criteria that guide an official's discretion." Entergy Arkansas, 241 F.3d at 990-91 (citing Stauch, 212 F.3d at 429). In particular, they assert that (1) Nebraska's regulations require the issuance of a license to USE if certain criteria are satisfied; (2) Nebraska law contemplates that the Generators would finance the USE application; and (3) upon issuance of the license, Nebraska law contemplates the granting of a credit against disposal rates for all or a portion of the monies paid by the Generators to finance the acquisition of the license. Accordingly, USE (as the license applicant) and the Generators (as the financiers and users of the disposal site) had a protected property interest.
The pivotal question is whether Nebraska's discretion to issue the license to USE was substantially limited. If it was, USE, as the applicant, had a property interest in the license. If USE had a property interest in the license, the Generators also had a property interest protected by the Fourteenth Amendment because Nebraska law contemplated that the Generators would finance the entire process and recoup some of the payments when the site became operational after it was licensed.
On the other hand, if USE did not possess a property interest in the license, then the Generators cannot reasonably claim a property interest in the money spent in an attempt to obtain the license. That is, the Generators cannot logically have a "property interest" in money they spent to finance a license application when the underlying right to apply for the license creates no property interest in the party applying for it. Simply put, the Generators' interest can be no more expansive than USE's interest.
Did Nebraska impose significant limits on itself regarding the power to issue or deny a license, thus creating a property interest in the license? The answer to that question is found in N.A.C. tit. 194, Ch. 3, § 009, the regulation relied upon by USE and the Generators. It establishes twelve criteria for issuance of a license and states as follows:
009. Requirements for issuance of a license. A license for the receipt, possession, and disposal of waste shall be issued by the department upon finding that:
009.01 The application is complete;
009.02 The issuance of the license will not constitute an unreasonable risk to the public health and safety and the environment;
009.03 The applicant is qualified by reason of training and experience to carry out the disposal operations requested in a manner that protects health and minimizes danger to life, property and the environment;
009.04 The applicant's proposed disposal site, disposal design, facility operations including equipment, facilities and procedures, disposal site closure and post-closure institutional control shall be consistent with a zero-release objective and shall protect the public health and safety in that they provide reasonable assurance that the general population will be protected from releases of radioactivity as specified in Chapter 4, Section 002;
009.05 The applicant's proposed disposal site, disposal site design, facility operations including equipment, facilities and procedures, disposal site closure and post-closure institutional control will protect the public health and safety in that they will provide reasonable assurance that individual inadvertent intruders are protected in accordance with Chapter 4, Section 003;
009.06 The applicant's proposed facility operations, including equipment, facilities and procedures, will protect the public health and safety in that they will provide reasonable assurance that the Standards for Protection Against Radiation specified in Title 180 are met;
009.07 The applicant's proposed disposal site, disposal site design, facility operations, disposal site closure and post-closure institutional control will protect the public health and safety in that they will provide reasonable assurance that long-term stability of the disposed waste and the disposal site will be achieved and will eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following site closure;
009.08 The applicant's...
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Entergy Arkansas, Inc. v. Nebraska
...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) (holding, in part, that because of the great discretion vested in Nebraska under the regulations, the private p......
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Entergy Arkansas, Inc. v. Nebraska
...dismissed. Their due process claims were remanded for further analysis and then dismissed on remand. See Entergy Arkansas, Inc. v. Nebraska, 161 F.Supp.2d 1001, 1002 (D.Neb.2001). Our decision in Entergy II allowed the Commission's suit against Nebraska to proceed. Before trial the Commissi......
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Entergy Arkansas, Inc. v. Nebraska
...to dismiss private corporations' due process claims). The most recent published opinion of this court is Entergy Arkansas, Inc., v. Nebraska, 161 F.Supp.2d 1001 (D.Neb.2001) (holding that private corporations did not have due process-protected "property interest" in license or money spent t......
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Nebraska's $160 Million Liability?-entergy Arkansas, Inc. v. Nebraska, 241 F.3d 979 (8th Cir. 2001)
...direct claim against Nebraska, as the Generators' claims against Nebraska have been dismissed. See Entergy Ark., Inc. v. Nebraska, 161 F. Supp. 2d 1001 (D. Neb. 2001). However, the Generators remain a party to the suit and have equitable subrogation and cross claims against the Commission. ......