Entergy Arkansas, Inc. v. Nebraska, No. 02-3747.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Murphy
• Citation: 358 F.3d 528
• 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; Plaintiffs-Appellees, Central Interstate Low-Level Radioactive Waste Commission; Plaintiff-Appellee. U.S. Ecology, Inc., a California corporation; Intervenor Plaintiff-Appellee, v. State of NEBRASKA; Nebraska Department of Environmental Quality; Nebraska Department of Health and Human Services Regulation & Licensure; The Governor, of the State of Nebraska; The Director, of the Nebraska Department of Environmental Quality; The Director, of the Nebraska Department of Health and Human Services Regulation and Licensure, Defendants-Appellants.
• Decision Date: 18 February 2004
• Docket Number: No. 02-3747.

358 F.3d 528 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; Plaintiffs-Appellees,
Central Interstate Low-Level Radioactive Waste Commission; Plaintiff-Appellee.
U.S. Ecology, Inc., a California corporation; Intervenor Plaintiff-Appellee,
v.
State of NEBRASKA; Nebraska Department of Environmental Quality; Nebraska Department of Health and Human Services Regulation & Licensure; The Governor, of the State of Nebraska; The Director, of the Nebraska Department of Environmental Quality; The Director, of the Nebraska Department of Health and Human Services Regulation and Licensure, Defendants-Appellants. No. 02-3747. United States Court of Appeals, Eighth Circuit. Submitted: June 12, 2003. Filed: February 18, 2004.

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William Bradford Reynolds, argued, Special Assistant Attorney General, of Washington, D.C. (John L. Wittenborn, Thomas W. Mitchell, and Mark L. Austrian of Washington, DC and Patrick O'Brien of Lincoln, NE, on the brief), for appellant.

Alan E. Peterson, argued, Lincoln, NE (Shawn D. Renner, Lincoln, NE, on the brief), for appellee.

Before BOWMAN, MURPHY, and BYE, Circuit Judges.

MURPHY, Circuit Judge.

The State of Nebraska and two of its departments (Nebraska)¹ appeal from a final judgment involving the attempt to develop a radioactive waste disposal facility under the Central Interstate Low-Level Radioactive Waste Compact (the Compact). The Compact was created and entered into by five member states and was also enacted into law by Congress. The Compact members agreed to build a disposal facility in one of the member states, and they also agreed to create a commission

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to carry out their program, the Central Interstate Low-Level Radioactive Waste Commission (the Commission). Nebraska was selected as the site for the facility, and the Commission is a plaintiff in this case.

This action was originally brought against Nebraska and the Commission by utility companies from the five Compact states: Entergy Arkansas, Entergy Gulf States, Entergy Louisiana, Wolf Creek Nuclear Operating Corporation, and the Omaha Public Power District. The Commission brought crossclaims against U.S. Ecology, Inc. and Nebraska, and the district court² granted its motion to realign itself as a plaintiff. After years of litigation and a number of appeals to this court, the case was tried to the district court for two months. The court later issued extensive findings and conclusions and ruled in favor of the Commission. It found that Nebraska had not carried out its obligations under the Compact in good faith and that the Commission was entitled to recover over $97 million for funds and work expended in the thwarted attempt to construct the radioactive waste disposal facility.

Nebraska argues on appeal that the district court erred in denying it a jury trial, in its findings of bad faith, in awarding monetary relief and interest, and in several other points, some of which were decided against it on earlier appeals. See Entergy, Arkansas, Inc. v. Nebraska, 241 F.3d 979, 987-88 (8th Cir.2001) [Entergy II] (affirming district court holding that waiver of sovereign immunity extended to suit for monetary relief); Entergy Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.2000) [Entergy I] (Nebraska waived its sovereign immunity by entering into the Compact). After carefully studying the voluminous record, we affirm.

I. A.

We have already addressed the Compact and related issues in a series of earlier appeals in this case, and those decisions provide additional background to that which follows.³ In 1980 Congress enacted the Low-Level Radioactive Waste Policy Act, Pub.L. No. 96-573, 94 Stat. 3347 (1980), in order to "promote the development of regional low-level radioactive waste disposal facilities" by the various states. Concerned Citizens of Neb. v. United States Nuclear Regulatory Comm'n, 970 F.2d 421, 422 (8th Cir.1992). Pursuant to the Act, Nebraska, Arkansas, Kansas, Louisiana, and Oklahoma entered

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into the Compact to establish and operate one or more facilities to process low level radioactive waste (LLRW) generated in the member states. Art. III(a).⁴ Congress consented to the Compact and enacted it as original legislation, as did each of the five states. See Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub.L. No. 99-240, § 222, 99 Stat. 1859, 1863 (1986) (reprinting the Compact); Entergy II, 241 F.3d at 982.

The Compact established the Commission as its governing body and created a framework for it to select an applicant to develop disposal facilities in the member states. Art. V. Each member state is represented on the Commission by one representative and is entitled to a single vote. Art. IV(a), (b). No action of the Commission is binding unless a majority of the member states casts its votes in the affirmative. Id. Each state was to have an opportunity to volunteer to host a regional facility. Art. V(a). If no state volunteered or if no volunteer state's proposal were acceptable, then the Commission would publicly seek proposals from applicants to develop and operate one or more regional facilities as necessary. Art. V(b).

Proposals were to be considered on the basis of the following criteria: (1) the applicant's ability to obtain necessary licenses from applicable governmental authorities; (2) the economic efficiency of the proposed facility; (3) whether the applicant had sufficient financial resources to fund and maintain the facility; (4) the accessibility of the proposed facility to all the party states; and (5) any other criteria the Commission might deem necessary to ensure the health, safety, and welfare of the citizens of the region and party states. Art. V(c). The Compact provided that an applicant selected by the Commission to construct a radioactive waste disposal facility would have to obtain required licenses from the appropriate state licensing agencies (or the United States Nuclear Regulatory Commission in some circumstances). Art. V(e)(2).

The Compact also created specific rights and obligations in each of the member states. A state selected as the site for a disposal facility must "process all applications for permits and licenses required for the development and operation of any regional facility or facilities within a reasonable period from the time that a completed application is submitted." Art. V(e)(2). To the extent authorized by Federal and host State law, the host state must regulate and license any regional facility within its borders and ensure the extended care of such facility. Art. III(b). Each state has "the right to rely on the good faith performance of each other party state," Art. III(f), and the Commission "shall ... [r]equire all party states ... to perform their duties and obligations arising under this compact." Art. IV(m)(8). A party state which is found to have arbitrarily or capriciously denied or delayed the issuance of a license ... or which otherwise fails to live up to its obligations under the Compact may have its membership revoked by a two thirds vote of member states. Art. V(g), VII(e). A state may withdraw from the Compact at any time by enacting a statute announcing its withdrawal, but the withdrawal will not be effective until five years after notice is served on the other member states, unless they unanimously agree to allow immediate withdrawal. Art. VII(d). Withdrawal or revocation does not affect any liability incurred by a party state before its membership effectively expires. Art. VII(d), (e).

Since no state volunteered to host the LLRW disposal facility, the Commission

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invited development proposals from outside applicants. In February 1987, U.S. Ecology, Inc. (USE) submitted a proposal to site, license, develop, construct, and operate a facility, and in December of that year the Commission selected Nebraska to host the first disposal facility. After a number of Nebraska localities requested that the facility be built in their community, the Commission selected Boyd County as the most promising location. The Commission then entered into a formal contract with USE in January 1988 to develop a facility in Boyd County. USE agreed to prepare and file the necessary license applications with the state and federal governments and to construct and maintain the facility if its applications were successful.

Nebraska officials showed hostility to the idea of an LLRW facility in their state almost from the beginning. After the state was chosen over its negative vote to be the first host, Governor Kay Orr stated publicly that Nebraska was not happy to be the site for a disposal facility, but that it would honor its commitments under the Compact. See Entergy II, 241 F.3d at 983. During her campaign for reelection, the waste facility became an issue and Orr was attacked by candidate Ben Nelson "for doing far too little to protect the interests and respond to the concerns" of local residents. Entergy Arkansas, Inc., 226 F.Supp.2d at 1061 (internal quotation marks omitted). Nelson promised that if he were elected governor, "it is not likely that there will be a nuclear dump in ... Nebraska." Id. Nelson won the election and entered into office in January 1991, and the district court found that the new administration soon began to work actively to prevent construction of the LLRW facility.

Although the licensing process had been initiated, it dragged on for over eight years. In 1990 USE submitted its initial license application to the Low-Level Radioactive Waste Program (LLRW Program). This program was operated by the Nebraska Department of Environmental Quality (DEQ) and the Department of Health and Human Services and Licensure...