Nevada v. Department of Energy, 04-1082.

• Decision Date: 08 March 2005
• Docket Number: No. 04-1319.,No. 04-1082.,04-1082.,04-1319.
• Citation: 400 F.3d 9
• Parties: State of NEVADA, Petitioner v. DEPARTMENT OF ENERGY and Samuel Bodman, Secretary, United States Department of Energy, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

400 F.3d 9

State of NEVADA, Petitioner v. DEPARTMENT OF ENERGY and Samuel Bodman, Secretary, United States Department of Energy, Respondents

No. 04-1082.

No. 04-1319.

United States Court of Appeals, District of Columbia Circuit.

Argued January 10, 2005.

Decided March 8, 2005.

On Petition for Review of an Order of the Department of Energy.

Robert J. Cynkar argued the cause for petitioner. With him on the briefs were Joseph R. Egan, Martin G. Malsch, Brian Sandoval, Attorney General, Attorney General's Office of the State of Nevada, and Marta A. Adams, Senior Deputy Attorney General.

Ronald M. Spritzer, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Greer S. Goldman and John A. Bryson, Attorneys, and Marc Johnston, Counsel, U.S. Department of Energy.

Michael A. Bauser and Robert W. Bishop were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of respondents.

Before: RANDOLPH and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

TATEL, Circuit Judge.

Concerned about the construction of a nuclear waste repository at Yucca Mountain, Nevada, the State of Nevada asked the Department of Energy for a fiscal year 2004 grant to fund its participation in an upcoming Nuclear Regulatory Commission proceeding that will determine whether the project receives a license. Nevada argues that it is entitled to a grant pursuant to section 116 of the Nuclear Waste Policy Act, which provides that the Secretary of Energy "shall make grants to the State of Nevada" from the Nuclear Waste Fund — a special repository-related fund. Rejecting Nevada's request, the Energy Department concluded that contrary to the state's argument, section 116 creates no continuing appropriation for Nevada, and that Congress's enactment of a separate $1 million FY04 appropriation expressly for Nevada bars any additional grant from the Waste Fund. We agree.

I.

In 1983, responding to growing quantities of radioactive waste and their potentially deadly health risks, Congress enacted the Nuclear Waste Policy Act ("NWPA"), which directed the federal government to begin the process of developing a nuclear waste repository. Pub.L. No. 97-425, 96 Stat. 2201 (1983) (codified as amended at 42 U.S.C. §§ 10101-10270). Among other things, the NWPA directed the Secretary of Energy to find an appropriate site for the nation's repository, 42 U.S.C. §§ 10132-10133, and, following approval of the site by the President, to apply to the Nuclear Regulatory Commission for a license to begin construction, id. §§ 10134-10135. We describe the NWPA and subsequent repository-related developments in Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1258-61 (D.C.Cir.2004) ("NEI").

To finance the repository's development, NWPA section 302 established the Nuclear Waste Fund ("the Waste Fund"), a "separate fund" in the Treasury, 42 U.S.C. § 10222(c), "composed of payments made by the generators and owners of [nuclear] waste," id. § 10131(b)(4). Generators of nuclear waste contribute to the fund according to the amount of electricity they produce. Id. § 10222(a). Under section 302, "[t]he Secretary [of Energy] may make expenditures from the Waste Fund ... only for purposes of radioactive waste disposal activities." Id. § 10222(d). Using language central to the issue before us, section 302 also makes the Secretary's authority to spend Waste Fund money "subject to appropriations." Id. § 10222(e)(2).

Congress believed that "[s]tate ... participation" in the repository program "is essential." Id. § 10131(a)(6). Accordingly, Congress created mechanisms by which affected states could monitor repository development activities and participate in major repository-related decisions. See generally id. §§ 10131-10137. Through NWPA section 116, Congress also established a program of financial assistance for states that choose to take part in the repository development process. See NWPA § 116(c).

Pursuant to the NWPA, see 42 U.S.C. § 10132(b)(1)(A), the Department of Energy ("DOE") examined several potential repository sites in several states. See NEI, 373 F.3d at 1259. In 1987, however, through an amendment to the NWPA, Congress directed the Secretary to consider building a repository only at Yucca Mountain. See Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100-203 § 5011, 101 Stat. 1330 at 227-31 (1987) (codified at 42 U.S.C. § 10172). At the same time, Congress revised NWPA section 116, narrowing it to mandate grants only to "the State of Nevada and any affected unit of local government." Id. § 5032, 101 Stat. 1330 at 241-43 (codified at 42 U.S.C. § 10136(c)). Revised section 116 now provides that "[t]he Secretary shall make grants to the State of Nevada ... for purposes of enabling" it to, among other things, "review activities taken under this part with respect to the Yucca Mountain site for purposes of determining any potential economic, social, public health and safety, and environmental impacts of a repository" and "make comments and recommendations" to the Secretary of Energy "regarding any activities taken under this part with respect to such site." 42 U.S.C. § 10136(c)(1)(B). Such "[f]inancial assistance," section 116 specifies, "shall be made out of amounts held in the Waste Fund." Id. § 10136(c)(5).

For each appropriations cycle beginning with the NWPA's passage and continuing through FY04, Congress appropriated substantial amounts from the Waste Fund "for nuclear waste disposal activities." See, e.g., Consolidated Appropriations Resolution, 2003, Pub.L. No. 108-7, 117 Stat. 11, 148 (2003). In most cycles, Congress either expressly provided that Nevada would receive none of this money or that the state would receive some portion of it through direct payment, instead of through the grants envisioned by section 116. See, e.g., id.; Energy and Water Development Appropriations Act, 2002, Pub.L. No. 107-66, 115 Stat. 486, 503 (2001); Departments of Veterans Affairs and Housing and Urban Development — Appropriations, Pub.L. No. 106-377, 114 Stat. 1441 at A-73 (2000). In those cycles where Congress said nothing about funding for Nevada, see, e.g., Energy and Water Development Appropriations Act, 1996, Pub.L. No. 104-46, 109 Stat. 402, 413 (1995); Energy and Water Development Appropriations Act, 1986, Pub.L. No. 99-141, 99 Stat. 564, 573 (1985); Energy and Water Development Appropriations Act, 1985, Pub.L. No. 98-360, 98 Stat. 403, 414 (1984), DOE made grants to the state from the annual Waste Fund appropriation (except for one year when Nevada had money left over from a prior appropriation). See Nevada v. Dep't of Energy, 133 F.3d 1201, 1205 (9th Cir.1998).

For fiscal year 2004 — the year at issue in this case — Congress appropriated "$190,000,000 ... to be derived from the Nuclear Waste Fund" "[f]or nuclear waste disposal activities to carry out the purposes of Public Law 97-425." Energy and Water Development Appropriations Act, 2004, Pub.L. No. 108-137, 117 Stat. 1827, 1855 (2003) ("2004 Appropriations Act"). While saying nothing one way or the other about whether Nevada should receive any of the $190 million, the very same bill provides that "[o]f the funds made available ... for Defense Environmental Services," funds not derived from the Waste Fund, "$1,000,000 shall be provided to the State of Nevada ... to conduct scientific oversight responsibilities and participate in licensing activities pursuant to the" NWPA. Id. at 1865.

Following passage of the FY04 appropriations legislation, Robert Loux, Executive Director of Nevada's Agency for Nuclear Projects, advised DOE by letter that the state intended to spend $5 million on "licensing preparation" and scientific oversight in FY04, observed that the state had received only $1 million from the DES appropriation, and asserted that DOE was obliged to make up the difference with grants from the Waste Fund. According to Loux, "[t]he provisions of Section 116 and those establishing the Nuclear Waste Fund" create a continuing appropriation for the state. The Secretary therefore "has a legal duty to make grants from the Nuclear Waste Fund to Nevada ... even if Congress has enacted no appropriation for such funding or Nevada's needs exceed the appropriation."

Responding to Loux, Dr. Margaret Chu, Director of DOE's Office of Civilian Radioactive Waste Management, "disagree[d] with [Nevada's] position ... that section 116 of the NWPA, without more, `imposes on DOE an obligation to assist Nevada financially.'" Chu asserted that because NWPA section 302 "specifically makes expenditures of Nuclear Waste Fund funds subject to an appropriation," "[t]he language of the 2004 Appropriations Act ... governs the terms on which Nevada may receive funds." Pointing out that Congress had appropriated $1 million for Nevada, she explained that "[i]t is settled appropriations law that where, as here, there is a specific appropriation for a particular item," an agency cannot supplement it with money from a more general appropriation. Consequently, Chu concluded, "Congress left no doubt that it intended to cover all of Nevada's FY04 funding requirements with the $1 million that it appropriated."

Nevada now seeks review of Dr. Chu's determination.

II.

The parties disagree about the level of deference we owe Dr. Chu's analysis. Asserting that "Congress ... implicitly delegated to [it] the authority to interpret ... the NWPA," DOE urges us to review Chu's conclusion under the deferential standard outlined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Respondent's Br. at 17-18. By contrast, Nevada contends that we owe deference under neither Chevron nor Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Chevron is inapplicable, Nevada insists, because Chu's conclusion "was not the fruit of ... rulemaking or formal adjudication," Petitioner's Br. at 33, and Sk...