Public Service Co. of Colorado v. Andrus

• Decision Date: 28 June 1993
• Docket Number: 91-0054-S-HLR.,Civ. No. 91-0035-S-HLR
• Citation: 825 F. Supp. 1483
• Parties: PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff, v. Cecil D. ANDRUS, individually and as Governor of the State of Idaho, Defendant. UNITED STATES of America, Plaintiff, v. Cecil D. ANDRUS, in his official capacity as Governor of the State of Idaho; State of Idaho, Defendants.
• Court: U.S. District Court — District of Idaho

825 F. Supp. 1483

PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff, v. Cecil D. ANDRUS, individually and as Governor of the State of Idaho, Defendant.

UNITED STATES of America, Plaintiff, v. Cecil D. ANDRUS, in his official capacity as Governor of the State of Idaho; State of Idaho, Defendants.

Civ. Nos. 91-0035-S-HLR, 91-0054-S-HLR.

United States District Court, D. Idaho.

June 28, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

P. Craig Storti, Albert P. Barker, Hawley, Troxell, Ennis & Hawley, Boise, ID, David W. Kerber, Salie B. O'Malley, Kelly, Stansfield & O'Donnell, Denver, CO, for plaintiff Public Service Co. of CO.

Pauline H. Milius, David F. Shuey, U.S. Dept. of Justice, Environmental and Natural Resources Div., Gen. Litigation Section, Washington, DC, for plaintiff, counterdefendant U.S.

David R. Lombardi, Jeffrey C. Fereday, Givens Pursley Webb & Huntley, Larry Echohawk, Atty. Gen., State of ID, Clive J. Strong, Allan D. Brock, Deputies Atty. Gen., Office of Atty. Gen., Natural Resources Div., Boise, ID, for defendant Governor Cecil D. Andrus and State of ID.

MEMORANDUM OPINION

RYAN, Senior District Judge.

I. FACTS AND PROCEDURE

The above-entitled action began as a dispute between the plaintiffs, Public Service Company of Colorado and the United States of America, and the defendants, Governor Cecil D. Andrus and the State of Idaho (hereinafter collectively "Idaho"), over shipments of spent nuclear fuel from the Fort St. Vrain Nuclear Generating Station in Colorado to the Idaho National Engineering Laboratory ("INEL") for storage at INEL's Irradiated Fuel Storage Facility.

The United States Department of Energy ("DOE") conducted an environmental assessment ("EA") of the transportation of spent nuclear fuel from the Fort St. Vrain facility to INEL for storage at INEL. The EA was conducted pursuant to the dictates of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq. Based on the EA, DOE determined that the shipment of spent fuel from Fort St. Vrain to INEL for storage would have no significant impact on the quality of the human environment. Thus, DOE concluded that no formal environmental impact statement ("EIS") under NEPA was required for the shipments from Fort St. Vrain.

On April 22, 1991, Idaho filed an Amended Answer and Counterclaim against DOE.¹ The counterclaim filed by Idaho sought declaratory and injunctive relief for alleged violations of NEPA and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, relating to the shipments from Fort St. Vrain. Specifically, Idaho alleged that the EA was seriously flawed, and that DOE's decision to proceed with the Fort St. Vrain shipments based on that EA, without further analysis in a formal EIS, was an abuse of discretion and in contravention of the clear dictates of NEPA.

In a related action,² DOE was directed to reopen the NEPA process on the Fort St. Vrain shipments to consider comments from the Shoshone-Bannock Tribe of Idaho. Consequently, on February 24, 1992, DOE filed a Motion for Stay in the present case. DOE represented to the court in its motion that it intended to consider comments from the Shoshone-Bannock Tribe, as well as comments from Idaho, and then issue a revised EA in early May or June of 1992.³ Therefore, DOE argued that the counterclaim filed by Idaho was moot.

On May 8, 1992, the court denied DOE's Motion for Stay on the grounds that the counterclaim filed by Idaho would be moot only if DOE issued a revised EA which concluded that the proposed shipments from Fort St. Vrain might significantly affect the quality of the environment, and that a formal EIS was necessary. In that order, the court also advised DOE that in its view DOE was required to analyze the Fort St. Vrain shipments in a comprehensive EIS which also analyzed and discussed all past and proposed shipments of nuclear waste to INEL from all other sources, as well as all proposals relating to the processing and storage of nuclear waste at INEL.

In addition, the court denied DOE's Motion for Stay, as well as its Motion to Limit Review to the Administrative Record and for Protective Order, filed on January 7, 1992, because in earlier proceedings DOE had made serious misrepresentations to the court. Specifically, DOE had represented that the storage facility at INEL was the only possible facility where the spent nuclear fuel from Fort St. Vrain could be stored. The court later learned (only through the efforts of Idaho to present all of the facts to the court) that Public Service Company had applied to the Nuclear Regulatory Commission ("NRC") in June of 1990, to build an onsite storage facility at Fort St. Vrain. The NRC authorized construction of the facility on February 1, 1991. Construction began immediately, and it was completed in October of 1991. In November of 1991, the NRC issued a license to Public Service Company to operate the storage facility for 20 years.

When the court learned of these developments, it was dismayed by DOE's apparent bad faith in its representations to the court. Consequently, the court was unmoved by DOE's promise of future compliance with NEPA. In addition, the court was wary of DOE's effort to limit review to the administrative record.

On July 29, 1992, Idaho filed a Motion for Summary Judgment on its counterclaim, and on September 17, 1992, DOE filed a cross-motion for summary judgment. DOE moved for summary judgment on the grounds that it had filed a notice of intent to prepare an EIS addressing the Fort St. Vrain shipments.⁴ Thus, DOE again argued that the case was moot. Idaho then filed a Motion for Leave to File an Amended Counterclaim on October 1, 1992. Idaho filed this motion in order to expand the scope of its counterclaim and to broaden its request for injunctive relief. The court granted the motion to amend on December 2, 1992.

In its amended counterclaim, Idaho seeks a declaratory judgment that DOE must analyze, in a comprehensive environmental impact statement, all major federal actions involving the receipt, processing, and storage of spent nuclear fuel at INEL. Idaho also seeks a declaration that DOE must study, develop, and describe all appropriate alternatives to the receipt, processing, and storage of spent nuclear fuel at INEL. Idaho also seeks an injunction against further receipt, processing, and storage of spent nuclear fuel at INEL until such an EIS is completed.

By virtue of the new amended counterclaim, there are now five categories of spent nuclear fuel at issue. The categories are as follows: (1) the spent nuclear fuel from Fort St. Vrain; (2) spent fuel from the nuclear powered ships and submarines of the United States Navy, brought to INEL under the auspices of the Naval Nuclear Propulsion Program; (3) spent fuel generated by research reactors from approximately 33 colleges and universities in the United States; (4) spent fuel from other DOE facilities; and (5) spent fuel from foreign reactors, pursuant to the "Off-site Fuels" program.

Idaho complains that there has never been proper NEPA analysis of the shipment, receipt, processing, and storage of spent nuclear fuel at INEL from any of these sources. Consequently, Idaho wants DOE to do a comprehensive, site-wide EIS addressing all future shipments from all of these sources, as well as DOE's proposals to expand and/or reconfigure storage facilities at the INEL and to develop and implement new technologies for processing spent fuels at INEL.

Both Idaho and DOE have renewed their motions for summary judgment. These motions have been fully briefed and a hearing was held on May 6, 1993. Therefore, these motions are now ripe for decision.

II. ANALYSIS

A. The Summary Judgment Standard

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The United States Supreme Court has made it clear that under Rule 56, summary judgment is required if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to its case and upon which it will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the non-moving party fails to make such a showing on any essential element of its case, "there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2552.⁵

Under Rule 56 it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue is "genuine" when there is "sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial," Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975) (quoting First Nat'l Bank v. Cities Serv. Co., Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)), or when the "evidence is such that a reasonable jury could return a verdict for the non-moving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986). The Ninth Circuit cases are in accord. See, for example, British Motor Car Distrib., Ltd. v. San Francisco Automotive Industr. Welfare Fund, 882 F.2d 371 (9th Cir.1989).

In ruling on summary judgment motions, the court does not resolve conflicting evidence with respect to...