Nebraska Public Power Dist. v. U.S.
| Decision Date | 12 January 2010 |
| Docket Number | No. 2007-5083.,2007-5083. |
| Citation | 590 F.3d 1357 |
| Parties | NEBRASKA PUBLIC POWER DISTRICT, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Alan J. Lo Re, Assistant Director, and Andrew P. Averbach and Christopher J. Carney, Trial Attorneys. Of counsel was Jane K. Taylor, Attorney, United States Department of Energy, of Washington, DC.
Brad Fagg, Morgan, Lewis & Bockius LLP, of Washington, DC, for amici curiae
Arizona Public Service Company, et al. With him on the brief were M. Stanford Blanton, Balch & Bingham LLP, of Birmingham, AL, for Southern Nuclear Operating Company, et al.; David A. Churchill, Jenner & Block LLP, of Washington, DC, for Consolidated Edison of New York, Inc.; Richard James Conway, Dickstein Shapiro LLP, of Washington, DC, for Boston Edison Company; Norman M. Hirsch, Jenner & Block, LLP, of Chicago, IL, for Energy Northwest; Richard W. Oehler, Perkins Coie LLP, of Seattle, WA, for Wisconsin Electric Power Company; and Jerry Stouck and Robert Shapiro, Greenberg Traurig, LLP, of Washington, DC, for Yankee Atomic Energy Company, et al.
James Bradford Ramsay, National Association of Regulatory Utility Commissioners, of Washington, DC, for amicus curiae The National Association of Regulatory Utility Commissioners.
Before MICHEL, Chief Judge, and NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON, in which Chief Judge MICHEL and Circuit Judges NEWMAN, MAYER, LOURIE, RADER, SCHALL, LINN, DYK, PROST, and MOORE join. Concurring opinion filed by Circuit Judge DYK, in which Circuit Judge LINN joins. Dissenting opinion filed by Circuit Judge GAJARSA.
This case requires us to address a difficult question involving the allocation of jurisdiction between regional circuit courts and the Court of Federal Claims. The dispute in this case centers on the interaction between a provision of the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. §§ 10101-10270, and a government contract with a utility company that operates a nuclear power facility.
The NWPA authorizes the United States Department of Energy ("DOE") to enter into contracts with nuclear power producers to dispose of the high-level radioactive waste and spent nuclear fuel produced by nuclear power plants. The statute requires the contracts to provide that in return for the payment of fees by the nuclear power producers, DOE would begin disposing of the spent nuclear fuel and high-level radioactive waste no later than January 31, 1998. 42 U.S.C. § 10222(a)(5)(B).
DOE did not begin accepting nuclear waste in 1998. Several years later, Nebraska Public Power District ("NPPD"), which had entered a nuclear waste disposal contract with DOE, filed a breach of contract action in the Court of Federal Claims. A central issue in the breach of contract action was whether prior decisions of the United States Court of Appeals for the District of Columbia Circuit interpreting DOE's obligations under the NWPA were binding on the parties in the action before the Court of Federal Claims. The Court of Federal Claims held that the D.C. Circuit's rulings were void because the D.C. Circuit lacked jurisdiction in the prior statutory review proceedings. Neb. Pub. Power Dist. v. United States, 73 Fed. Cl. 650 (2006). That issue is now before us on interlocutory review. We hold that the D.C. Circuit had jurisdiction to review DOE's compliance with the NWPA, and that the mandamus order issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order of the Court of Federal Claims and remand to that court for further proceedings.
Spent nuclear fuel and high-level radioactive waste are by-products of the operation of nuclear power plants. Because those substances remain dangerously radioactive for many years, disposing of them requires a safe, secure, and permanent disposal facility. In 1983, Congress sought to fashion a comprehensive solution to the challenge of nuclear waste disposal by enacting the NWPA, which authorized DOE to construct a suitable permanent storage facility for the nuclear material and made further provision for the construction of interim storage facilities.
While Congress assigned DOE the task of constructing the permanent storage facility, it provided that the costs of disposal "should be the responsibility of the generators and owners of such waste and spent fuel." 42 U.S.C. § 10131(a)(4). Accordingly, Congress authorized DOE to enter into contracts with nuclear power providers to dispose of their nuclear waste in return for the payment of fees. 42 U.S.C. § 10222(a)(1). With respect to the contents of the contracts, section 302(a)(5) of the statute required the following:
(5) Contracts entered into under this section shall provide that —
(A) following commencement of operation of a repository, the Secretary shall take title to the high-level radioactive waste or spent nuclear fuel involved as expeditiously as practicable upon the request of the generator or owner of such waste or spent fuel; and
(B) in return for the payment of fees established by this section, the Secretary, beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear fuel involved as provided in this subchapter.
42 U.S.C. § 10222(a)(5). The NWPA further provided that the Nuclear Regulatory Commission "shall not issue or renew a license" to any utility using a nuclear power facility unless the utility has entered into a contract under section 302 or is negotiating with the Secretary to enter into such a contract. Id. § 10222(b)(1)(A).
Pursuant to its statutory rulemaking authority, DOE promulgated a regulation in 1983 containing what it termed the "Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste." 48 Fed.Reg. 16,590 (Apr. 18, 1983) (codified at 10 C.F.R. § 961.11). In accordance with section 302(a)(5)(B) of the NWPA, the Standard Contract contained a provision setting January 31, 1998, as the deadline for DOE's acceptance of nuclear waste. 48 Fed.Reg. at 16,600 (codified at 10 C.F.R. § 961.11, Art. II). In response to questions about the remedies that would be available to ensure that DOE would perform its contractual obligations in a timely fashion, and in particular that it would meet the 1998 deadline, DOE stated, 48 Fed.Reg. at 16,598.
Under the mandatory nuclear waste contracts, the utilities began making payments to DOE, and they have continued to do so since that time. At present, the licensed nuclear power utilities make a total of $750 million in payments under the contracts each year. To date, however, DOE has not accepted any nuclear waste from any of the utilities.
By 1994, it had become clear that DOE was not going to have a permanent repository ready to accept nuclear waste by the statutory deadline of January 31, 1998. In recognition of that reality, DOE conducted a notice-and-comment proceeding to address the extent of DOE's obligations under the NWPA. At the outset of that proceeding, DOE announced its "preliminary view" that, although it "may have created an expectation that it would begin accepting such spent nuclear fuel in 1998," it had no statutory or contractual obligation to accept nuclear waste beginning in 1998 if it did not have an operational repository or other facility constructed in accordance with the NWPA by that time. 59 Fed. Reg. 27,007, 27,008 (May 25, 1994).
After inviting and receiving comments on that issue of statutory construction, DOE issued what it termed its "Final Interpretation of Nuclear Waste Acceptance Issues," 60 Fed.Reg. 21,793 (May 3, 1995) ("Final Interpretation"). In the Final Interpretation, DOE acknowledged that it would not be able to begin accepting nuclear waste by the January 31, 1998, deadline and in fact projected that "the earliest possible date for acceptance of waste for disposal at a repository is 2010." Id. at 21,794. The agency took the position, however, that it did not have an unconditional obligation under the statute or the Standard Contract to accept nuclear waste by 1998. DOE explained that it interpreted the NWPA to mean that the statutory deadline did not apply if DOE did not have a facility available to accept nuclear waste by that date. Id. at 21,794-95.
A number of utilities, states, and state agencies filed a petition in the D.C. Circuit for review of the Final Interpretation. Invoking section 119 of the NWPA, 42 U.S.C. § 10139, which provides for court of appeals review of certain claims arising under the Act, the petitioners challenged the portion of the Final Interpretation in which DOE took the position that it did not have an unconditional statutory obligation to begin accepting nuclear waste by January 31, 1998. They argued that DOE's legal position was contrary to the provision in section 302 of the NWPA that in return for the payment of fees, "the Secretary, beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear fuel involved as provided in this subchapter." 42 U.S.C. § 10222(a)(5)(B).
The D.C. Circuit reviewed the Final Interpretation to determine whether it constituted a permissible interpretation of the statute by DOE. After analyzing ...
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