In re Aiken Cnty.

• Decision Date: 13 August 2013
• Docket Number: No. 11–1271.,11–1271.
• Citation: 725 F.3d 255
• Parties: In re AIKEN COUNTY, et al., Petitioners. State of Nevada, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

725 F.3d 255

In re AIKEN COUNTY, et al., Petitioners. State of Nevada, Intervenor.

No. 11–1271.

United States Court of Appeals, District of Columbia Circuit.

Argued May 2, 2012.

Ordered Held in Abeyance Aug. 3, 2012.

Decided Aug. 13, 2013.

On Petition for Writ of Mandamus.

Andrew A. Fitz, Senior Counsel, Office of the Attorney General for the State of Washington, argued the cause for petitioners. With him on the briefs were Robert M. McKenna, Attorney General, Todd R. Bowers, Senior Counsel, Thomas R. Gottshall, S. Ross Shealy, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, William Henry Davidson II, Kenneth Paul Woodington, James Bradford Ramsay, Robin J. Lunt, Barry M. Hartman, Christopher R. Nestor, and Robert M. Andersen.

Jerry Stouck and Anne W. Cottingham were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of petitioners.

Charles E. Mullins, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondent. With him on the brief were Stephen G. Burns, General Counsel, John F. Cordes Jr., Solicitor, and Jeremy M. Suttenberg, Attorney.

Martin G. Malsch argued the cause for intervenor State of Nevada. With him on the briefs were Charles J. Fitzpatrick and John W. Lawrence.

Before: GARLAND, Chief Judge, KAVANAUGH, Circuit Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Senior Circuit Judge RANDOLPH joins except as to Part III.

Concurring opinion filed by Senior Circuit Judge RANDOLPH.

Dissenting opinion filed by Chief Judge GARLAND.

KAVANAUGH, Circuit Judge:

This case raises significant questions about the scope of the Executive's authority to disregard federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress. Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process. We therefore grant the petition for a writ of mandamus.

I

This case involves the Nuclear Waste Policy Act, which was passed by Congress and then signed by President Reagan in 1983. That law provides that the Nuclear Regulatory Commission “shall consider” the Department of Energy's license application to store nuclear waste at Yucca Mountain and “shall issue a final decision approving or disapproving” the application within three years of its submission. 42 U.S.C. § 10134(d). The statute allows the Commission to extend the deadline by an additional year if it issues a written report explaining the reason for the delay and providing the estimated time for completion. Id. § 10134(d), (e)(2).

In June 2008, the Department of Energy submitted its license application to the Nuclear Regulatory Commission. As recently as Fiscal Year 2011, Congress appropriated funds to the Commission so that the Commission could conduct the statutorily mandated licensing process. Importantly, the Commission has at least $11.1 million in appropriated funds to continue consideration of the license application.

But the statutory deadline for the Commission to complete the licensing process and approve or disapprove the Department of Energy's application has long since passed. Yet the Commission still has not issued the decision required by statute. Indeed, by its own admission, the Commission has no current intention of complying with the law. Rather, the Commission has simply shut down its review and consideration of the Department of Energy's license application.

Petitioners include the States of South Carolina and Washington, as well as entities and individuals in those States. Nuclear waste is currently stored in those States in the absence of a long-term storage site such as Yucca Mountain.

Since 2010, petitioners have sought a writ of mandamus requiring the Commission to comply with the law and to resume processing the Department of Energy's pending license application for Yucca Mountain. Mandamus is an extraordinary remedy that takes account of equitable considerations. The writ may be granted “to correct transparent violations of a clear duty to act.” In re American Rivers and Idaho Rivers United, 372 F.3d 413, 418 (D.C.Cir.2004) (internal quotation marks omitted); see also Arizona v. Inter Tribal Council of Arizona, Inc., ––– U.S. ––––, 133 S.Ct. 2247, 2260 n. 10, 186 L.Ed.2d 239 (2013) (noting that if the federal Election Assistance Commission did not act on a state's statutorily permitted request, “Arizona would be free to seek a writ of mandamus to ‘compel agency action unlawfully withheld or unreasonably delayed’ ”) (quoting 5 U.S.C. § 706(1)).

In 2011, a prior panel of this Court indicated that, if the Commission failed to act on the Department of Energy's license application within the deadlines specified by the Nuclear Waste Policy Act, mandamus likely would be appropriate. See In re Aiken County, 645 F.3d 428, 436 (D.C.Cir.2011). In 2012, after a new mandamus petition had been filed, this panel issued an order holding the case in abeyance and directing that the parties file status updates regarding Fiscal Year 2013 appropriations. At that time, we did not issue the writ of mandamus. Instead, in light of the Commission's strenuous claims that Congress did not want the licensing process to continue and the equitable considerations appropriately taken into account in mandamus cases, we allowed time for Congress to clarify this issue if it wished to do so. But a majority of the Court also made clear that, given the current statutory language and the funds available to the Commission, the Commission was violating federal law by declining to further process the license application. And the Court's majority further indicated that the mandamus petition eventually would have to be granted if the Commission did not act or Congress did not enact new legislation either terminating the Commission's licensing process or otherwise making clear that the Commission may not expend funds on the licensing process. SeeOrder, In re Aiken County, No. 11–1271, 2012 WL 3140360 (D.C.Cir. Aug. 3, 2012).

Since we issued that order more than a year ago on August 3, 2012, the Commission has not acted, and Congress has not altered the legal landscape. As things stand, therefore, the Commission is simply flouting the law. In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory Commission.

II

Our analysis begins with settled, bedrock principles of constitutional law. Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional objection to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.

Those basic constitutional principles apply to the President and subordinate executive agencies. And they apply at least as much to independent agencies such as the Nuclear Regulatory Commission. Cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 525–26, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (opinion of Scalia, J., for four Justices) (independent agency should be subject to same scrutiny as executive agencies); id. at 547, 129 S.Ct. 1800 (opinion of Breyer, J., for four Justices) (independent agency's “comparative freedom from ballot-box control makes it all the more important that courts review its decisionmaking to assure compliance with applicable provisions of the law”).

In this case, however, the Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process. Several justifications have been suggested in support of the Commission's actions in this case. None is persuasive.

First, the Commission claims that Congress has not yet appropriated the full amount of funding necessary for the Commission to complete the licensing proceeding. But Congress often appropriates money on a step-by-step basis, especially for long-term projects. Federal agencies may not ignore statutory mandates simply because Congress has not yet appropriated all of the money necessary to complete a project. See City of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C.Cir.1977) (when statutory mandate is not fully funded, “the agency administering the statute is required to effectuate the original statutory scheme as much as possible, within the limits of the added constraint”). For present purposes, the key point is this: The Commission is under a legal obligation to continue the licensing process, and it has at least $11.1 million in appropriated funds—a significant amount of money—to do so. See Commission Third Status Report, at 2 (Apr. 5, 2013).

Second, and relatedly, the...