Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n

• Decision Date: 15 June 1978
• Docket Number: Nos. 77-1996,78-1069,s. 77-1996
• Citation: 578 F.2d 1341
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., the Central Clearing House, Sally Rodgers, and Sandy Simons, Plaintiffs-Appellees, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Marcus A. Rowden, Victor Gilinsky, Richard T. Kennedy, New Mexico Environmental Improvement Agency, and Thomas E. Baca, Defendants, United Nuclear Corporation, Intervenor, and Kerr-McGee Nuclear Corporation and the American Mining Congress, Petitioners-to-Intervene Appellants, The Anaconda Company, Gulf Oil Corporation and Phillips Petroleum Company, Petitioners-to-Intervene.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1341

578 F.2d 1341

12 ERC 1306

NATURAL RESOURCES DEFENSE COUNCIL, INC., the Central Clearing House, Sally Rodgers, and Sandy Simons Plaintiffs-Appellees, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Marcus A Rowden, Victor Gilinsky, Richard T. Kennedy, New Mexico Environmental Improvement Agency and Thomas E. Baca, Defendants United Nuclear Corporation, Intervenor, and Kerr-McGee Nuclear Corporation and the American Mining Congress, Petitioners-to-Intervene Appellants, The Anaconda Company, Gulf Oil Corporation and Phillips Petroleum Company, Petitioners-to-Intervene.

Nos. 77-1996, 78-1069.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 12, 1978.

Decided June 15, 1978.

Neil M. Soltman, of O'Melveny & Myers, Los Angeles, Cal. (Philip F. Westbrook, Owen C. Olpin and Brian C. Lysaght, of O'Melveny & Myers, Los Angeles, Cal., and of counsel, Alfred Forsyth, Santa Fe, N. M., on the brief), for plaintiffs-appellee.

Peter J. Nickles, of Covington & Burling, Washington, D. C. (John Michael Clear and Gregg H. Levy, of Covington & Burling, and Bruce D. Black, of Campbell, Bingaman & Black, P.A., Santa Fe, N. M., on the brief), for appellant Kerr-McGee Nuclear Corp.

R. Brooke Jackson, of Holland & Hart, Denver, Colo. (Frank H. Morison, of Holland & Hart, Denver, Colo., Paul J. Kelly, Jr., of Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, N. M., and of counsel, James R. Walpole, American Mining Congress, Washington, D. C., on the brief), for appellant the American Mining Congress.

Before DOYLE and LOGAN, Circuit Judges, and STANLEY, Senior District Judge. ^*

WILLIAM E. DOYLE, Circuit Judge.

The American Mining Congress and Kerr-McGee Nuclear Corporation seek review of the order of the United States District Court for the District of New Mexico denying their motions to intervene was a matter of right or on a permissive basis, pursuant to Rule 24(a)(2) and (b), Fed.R.Civil Proc.

The underlying action in which the movants requested intervention was instituted by the Natural Resources Defense Council, Inc., and others. In the action, declaratory and injunctive relief is directed to the United States Nuclear Regulatory Commission (NRC) and the New Mexico Environmental Improvement Agency (NMEIA), prohibiting those agencies from issuing licenses for the operation of uranium mills in New Mexico without first preparing environmental impact statements. Kerr-McGee and United Nuclear are potential recipients of the licenses.

Congress, in the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, has authorized the NRC to issue such licenses. NMEIA is involved because under § 274(b) of the Act, 42 U.S.C. § 2021(b) (1970), the NRC is authorized to enter into agreements with the states allowing the states to issue licenses. Such agreements have been made with about 25 states including New Mexico. Thus, the action below in effect seeks to prevent the use of § 274(b) of the Act so as to avoid the requirement of an impact statement for which provision is made in the National Environmental Policy Act.

42 U.S.C. § 4332(2)(C) (1970) requires that a detailed environmental impact statement must be prepared by all federal agencies "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." The complaint cites this requirement and alleges that an environmental impact statement would ordinarily be required here as a prerequisite to the issuance of licenses for the operation of uranium mills were it not for the arrangement which gives jurisdiction to the state. It further alleges that such statements are now prepared by the NRC in states that have not entered into agreements with the NRC, but that the NRC does not prepare such statements where there is an agreement with a state such as New Mexico. Plaintiff contends that the granting of licenses by state agencies predicated on delegation of authority from the NRC causes the NRC to consider the aspect of "major federal action" to be thereby eliminated. The New Mexico agency, NMEIA, which grants the license, does not prepare environmental impact statements since it is not a federal agency and is not required either by its agreement with NRC or by state law to prepare such a statement.

The relief sought by the plaintiffs' complaint is, First, that NRC's involvement in the licensing procedure in New Mexico is, notwithstanding the delegation to the state sufficient to constitute major federal action, whereby the impact statement requirement is not eliminated. Second, that if an impact statement is not required in connection with the granting of licenses, the New Mexico program is in conflict with § 274(d)(2) of the Atomic Energy Act of 1954, 42 U.S.C. § 2021(d)(2) (1970).

The motion of United Nuclear Corporation to intervene is not opposed by the parties and was granted. On May 3, 1977, the date that the complaint herein was filed, NMEIA granted a license to United Nuclear to operate a uranium mill at Church Rock, New Mexico. The complaint seeks to enjoin the issuance of the license thus granted.

It was after that that Kerr-McGee Nuclear Corporation, Anaconda Company, Gulf Oil Corporation, Phillips Petroleum Company, and the American Mining Congress filed motions to intervene. These motions, insofar as they sought intervention as of right, were denied on the ground that the interests of the parties or movants would be adequately represented by United Nuclear. Permissive intervention was also denied. Kerr-McGee and the American Mining Congress both appeal denial of both intervention as of right and permissive intervention.

Our issue is a limited one. We merely construe and weigh Rule 24(a) of the Fed.R.Civ.P. (intervention as of right) and decide in light of the facts and considerations presented whether the denial of intervention was correct. The Rule provides as follows:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

We do not have a subsection (1) situation involving a statutory conferring of right to intervene. Accordingly, we must consider the standards set forth in subsection (2), which are:

1. Whether the applicant claims an interest relating to the property or transaction which is the subject of the action.

2. Whether the claimants are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest.

3. Whether their interest is not adequately represented by existing parties.

The district court's order denying intervention by the several corporations focused on whether the interest of the party seeking to intervene was adequately represented by a fellow member of the industry. Our relatively recent decision in National Farm Lines v. ICC, 564 F.2d 381 (10th Cir. 1977), was held not determinative because the movants for intervention would be represented by a fellow member of the industry rather than by the United States Government, whose interests were different in National Farm Lines. The court decided that the interests of the movants were adequately protected by United Nuclear, which possessed the necessary experience and knowledge in a complex area of business, whereby the representative's capability was competent to meet the demands. The court thought that to allow the intervention would engender delay and produce unwieldy procedure; and that the movants' requirements were met by allowing the filing of amicus curiae briefs.

Our conclusion is that the interests of movants in the subject matter is sufficient to satisfy the requirements of Rule 24 and that the threat of loss of their interest and inability to participate is of such magnitude as to impair their ability to advance their interest.

I.

The position adopted by the trial court that Kerr-McGee was adequately represented dispensed with the need for the court to consider the question whether Kerr-McGee had an interest in the litigation before the court. Plaintiffs-appellees maintain that the appellants do not have the requisite interest because they are not directly involved; that the controversy centers on the effort of Natural Resources Defense Council, Inc. to prevent the issuance of a license to United Nuclear unless and until an environmental impact statement is issued. The question then is whether the contention made is a correct concept of interest. Strictly to require that the movant in intervention have a Direct interest in the outcome of the lawsuit strikes us as being too narrow a construction of Rule 24(a)(2). Kerr-McGee argues that the meaning of interest is one which, if they do not prevail in the intervention, threatens them with a disposition of the action which may, as a practical matter, impair or impede their efforts to protect the interest. Thus, we are asked to interpret interest in relationship to the second criterion in Rule 24(a)(2), impairment or impeding ability to protect the interest.

The Supreme Court has said that the interest must be a significantly protectable interest. See Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). The Supreme Court held that a taxpayer did not have a right to intervene in a judicial enforcement proceeding seeking issuance of an Internal Revenue summons ordering production of business records of his employer. The narrowness of the Summons proceeding was noted, and it was said that an objection of the taxpayer could be raised at the proper time in a subsequent trial.

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