Natural Resources Defense Council v. Abraham, 03-35711.

• Decision Date: 05 November 2004
• Docket Number: No. 03-35711.,03-35711.
• Citation: 388 F.3d 701
• Parties: NATURAL RESOURCES DEFENSE COUNCIL; Snake River Alliance; Confederated Tribes & Bands of the Yakama Indian Nation; Shoshone Bannock Tribes, Plaintiffs-Appellees, v. Spencer ABRAHAM, Secretary, Department of Energy; United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.3d 701

NATURAL RESOURCES DEFENSE COUNCIL; Snake River Alliance; Confederated Tribes & Bands of the Yakama Indian Nation; Shoshone Bannock Tribes, Plaintiffs-Appellees, v. Spencer ABRAHAM, Secretary, Department of Energy; United States of America, Defendants-Appellants.

No. 03-35711.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 5, 2004.

Filed November 5, 2004.

Ronald M. Spritzer, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for the defendants-appellants.

Geoffrey H. Fettus, Natural Resources Defense Council, Washington, DC; Raymond C. Givens, Givens Law Firm, Coeur d'Alene, ID; Dan Israel, Shoshone-Bannock Tribes, Boulder, CO, for the plaintiffs-appellees.

David K. Mears, Senior Assistant Attorney General, Olympia, WA, for amici curiae State of Idaho, State of Oregon, State of New Mexico, State of New York, State of South Carolina, State of Washington, and the New York State Energy Research and Development Authority.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-01-00413-BLW.

Before: KOZINSKI, FERNANDEZ, and CLIFTON, Circuit Judges.

FERNANDEZ, Circuit Judge:

The United States Department of Energy (DOE) appeals the district court's grant of summary judgment to the Natural Resources Defense Council, Confederated Tribes and Bands of the Yakama Nation, Snake River Alliance, and Shoshone-Bannock Tribes (collectively NRDC) in their action to obtain a declaration that DOE Order 435.1 is at least partially invalid. As we noted when the dispute was first before us in an attempt to obtain direct appellate review of the Order, "[t]his case involves ... Order 435.1, together with its Manual and Implementation Guide, which provide (among other things) a process for determining whether certain radioactive waste streams are `waste incidental to reprocessing' that are not considered `high-level waste.'" Natural Res. Def. Council, Inc. v. Abraham, 244 F.3d 742, 742 (9th Cir.2001) (NRDC I).

We then determined that we did not have direct appellate jurisdiction, and transferred the petition, together with all issues of standing, ripeness and, of course, the merits, to the district court. Id. at 747-48. The district court determined that the case was ripe and decided the merits against DOE. We do not agree with the ripeness determination and, therefore, vacate the district court's judgment and remand with directions to dismiss.

BACKGROUND

When DOE issued Order 435.1 (the Order) on July 9, 1999, its declared objective was to "ensure that all[DOE] radioactive waste is managed in a manner that is protective of worker and public health and safety, and the environment." Id. ¶ 1. The Radioactive Waste Management Manual (DOE M 435.1-1) and the Implementation Guide for Use with DOE M 435.1-1 complement the Order and are, indeed, integral to its meaning and use. A DOE directive on July 9, 1999, described the effect of the three documents in the following way:

The Order ensures that all [DOE] radioactive waste is managed in a manner that is protective of the worker and public health and safety, and the environment. The Manual further describes the requirements and establishes specific responsibilities for implementing the Order for the management of DOE high-level waste, transuranic waste, low-level waste, and the radioactive component of mixed waste. The Guide aids in understanding what is necessary to attain compliance, facilitates effective and efficient implementation of the requirements, and offers acceptable ways to implement the requirement[s].

Those seem like laudable goals, but NRDC asserts that when the Order is applied and implemented, DOE will, in fact, construe and use it in a way that redefines high-level radioactive waste as waste incidental to reprocessing and thereby reduces it to handling as mere low-level radioactive waste or transuranic waste. As a result, argues NRDC, DOE will violate the provisions of the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10270 (NWPA). The NWPA decidedly does not purport to control DOE's management of nuclear waste. Indeed, it recognizes DOE's managerial authority. See 42 U.S.C. §§ 10101(3)(E), 10107(a). When it comes to high-level waste, however, NRDC contends that permanent disposal is quite another matter. To place that in context, we will repeat what we said when this matter was previously before us.¹

"`In the NWPA, Congress created a comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants.'" Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272, 1273 (D.C.Cir.1996). Section 10107(a) provides that NWPA does not apply to any atomic energy defense activity or facility. NRDC acknowledges that NWPA does not require defense high-level waste to be disposed in a repository, but points out that it does require the President to evaluate potential methods for disposing of such waste. 42 U.S.C. § 10107(b)(1). Because the President determined on April 30, 1985, that a separate facility was not necessary for defense high-level waste, NRDC notes that DOE only has authority for disposal of defense high-level wastes [pursuant to NWPA].

While this may be true, DOE Order 435.1 addresses management of wastes at DOE facilities. The authority to do so comes from the Atomic Energy Act (AEA), 42 U.S.C. § 2151 et seq.; the Energy Reorganization Act (ERA), Pub.L. No. 98-438, 88 Stat. 1233, codified at 42 U.S.C. § 5801 et seq.; and the Department of Energy Organization Act (DEO), Pub.L. No. 95-91, 91 Stat. 565, codified at 42 U.S.C. § 7101 et seq.

The AEA, enacted in 1954, established a comprehensive regulatory scheme for military and domestic nuclear energy. It authorized the Atomic Energy Commission (AEC)—now DOE and NRC [Nuclear Regulatory Commission]—to establish instructions by rule, regulation, or order, governing possession and use of nuclear material and the operation of facilities used in conducting its activities. When the AEC was abolished in 1974, its functions were transferred to the Energy Research and Development Agency (ERDA), DOE's predecessor agency, and to the NRC. See Energy Reorganization Act of 1974(ERA), Pub.L. No. 93-438 §§ 104, 201, 88 Stat. 1233, 1237-38, 1242-44, codified at 42 U.S.C. § 5814. Under the ERA, NRC was given commercial licensing and related regulatory functions; the ERDA took over the rest of AEC's functions, except that the NRC must license ERDA facilities that are authorized for `subsequent long-term storage of high-level radioactive waste generated by the Administration.' 42 U.S.C. § 5842.... In 1977, Congress abolished ERDA and transferred its functions to DOE. See DEO, § 301(a), Pub.L. No. 95-91, 91 Stat. 565, 577-78 (1977), codified at 42 U.S.C. § 7151(a). This left control over existing government facilities and defense nuclear waste in DOE. See 42 U.S.C. § 7133(a)(8)(A), (B), (C), and (E).

DOE Order 435.1 was promulgated in accordance with the AEA to replace a previous DOE Order on Radioactive Waste Management, DOE O 5820.2A, and applies to the management of all high-level waste, transuranic waste, and low-level waste for which DOE is responsible." NRDC I, 244 F.3d at 744-45 (footnotes omitted).

We are asked to decide what we left open in NRDC I: that NWPA applies to DOE's defense waste disposal decisions, and further that DOE will now use the Order, and its congeners, to bypass the strictures of NWPA and to permanently dispose of high-level waste in a place other than the joint repository that Congress and the President contemplated when they acted. See 42 U.S.C. § 10107(b), (c). But is it too soon to decide that? Is ripeness lacking? We are satisfied that the answer is yes for the reasons we will now explain.

DISCUSSION

Although the district court did decide that this case was ripe, that is an issue that we must decide de novo. See Chang v. United States, 327 F.3d 911, 921 (9th Cir.2003). The district court felt that there was no particular reason to wait until DOE had actually applied the Order and its contemplated processes to some particular situation existing at some particular site and, in so doing, had actually come into conflict with NWPA. We differ with that view.

NRDC seeks to prevent DOE from proceeding to apply the Order, which on its face is designed to manage defense nuclear waste by first determining what kind of waste it will ultimately have on its hands (after reprocessing) and then dealing with that waste accordingly. NRDC, therefore, wants declaratory and injunctive relief against DOE. But "[t]he injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy `ripe' for judicial resolution." Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). And:

Ripeness is a justiciability doctrine designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."

Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 2030, 155 L.Ed.2d 1017 (2003). All of that, in turn, requires a court "to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration." Id. at 808, 123 S.Ct. at 2030.

The abstruse and abstract arguments by the parties show that this case is not presently fit for review. No doubt DOE...