Skull Valley Band of Goshute Indians v. Nielson

• Citation: 376 F.3d 1223
• Decision Date: 04 August 2004
• Docket Number: No. 02-4149.,02-4149.
• Parties: The SKULL VALLEY BAND OF GOSHUTE INDIANS and Private Fuel Storage, L.L.C., Plaintiffs-Counterdefendants-Appellees, v. Dianne R. NIELSON, in her official capacity as Executive Director of the Utah Department of Environmental Quality; Thomas Warne, in his official capacity as Executive Director of the Utah Department of Transportation; Glen Edward Brown, in his official capacity as Commissioner of the Utah Department of Transportation; Stephen M. Bodily, in his official capacity as Commissioner of the Utah Department of Transportation; Hal Mendenhall Clyde, in his official capacity as Commissioner of the Utah Department of Transportation; Dan R. Eastman, in his official capacity as Commissioner of the Utah Department of Transportation; Sheri L. Griffith, in his official capacity as Commissioner of the Utah Department of Transportation; James Grey Larkin, in his official capacity as Commissioner of the Utah Department of Transportation; Ted D. Lewis, in his official capacity as Commissioner of the Utah Department of Transportation, Defendants-Appellants, and Michael O. Leavitt, in his official capacity as Governor of the State of Utah; Mark L. Shurtleff, in his official capacity as Attorney General of the State of Utah, Defendants-Counterclaimants-Appellants, United States of America, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

376 F.3d 1223

The SKULL VALLEY BAND OF GOSHUTE INDIANS and Private Fuel Storage, L.L.C., Plaintiffs-Counterdefendants-Appellees, v. Dianne R. NIELSON, in her official capacity as Executive Director of the Utah Department of Environmental Quality; Thomas Warne, in his official capacity as Executive Director of the Utah Department of Transportation; Glen Edward Brown, in his official capacity as Commissioner of the Utah Department of Transportation; Stephen M. Bodily, in his official capacity as Commissioner of the Utah Department of Transportation; Hal Mendenhall Clyde, in his official capacity as Commissioner of the Utah Department of Transportation; Dan R. Eastman, in his official capacity as Commissioner of the Utah Department of Transportation; Sheri L. Griffith, in his official capacity as Commissioner of the Utah Department of Transportation; James Grey Larkin, in his official capacity as Commissioner of the Utah Department of Transportation; Ted D. Lewis, in his official capacity as Commissioner of the Utah Department of Transportation, Defendants-Appellants, and Michael O. Leavitt, in his official capacity as Governor of the State of Utah; Mark L. Shurtleff, in his official capacity as Attorney General of the State of Utah, Defendants-Counterclaimants-Appellants, United States of America, Amicus Curiae.

No. 02-4149.

United States Court of Appeals, Tenth Circuit.

August 4, 2004.

Appeal from the United States District Court for the District of Utah, Tena Campbell, J.

COPYRIGHT MATERIAL OMITTED

Tim Vollmann, Albuquerque, NM (James A. Holtkamp, of LeBoeuf, Lamb, Greene & Mac Rae, Salt Lake City, UT, with him on the briefs), for the Plaintiff-Counterdefendant-Appellee Skull Valley Band of Goshute Indians.

Val R. Antczak (J. Michael Bailey and H. Douglas Owens, Parsons, Behle & Latimer, Salt Lake City, UT, and Jay E. Silberg, Shaw Pittman, LLP, Washington, D.C., with him on the briefs), Parsons, Behle, and Latimer, Salt Lake City, UT, for the Plaintiff-Counterdefendant-Appellee Private Fuel Storage.

Thomas R. Lee, Howard, Phillips, and Andersen, Salt Lake City, UT (Monte N. Stewart, Special Assistant Attorney General, Helen A. Frohlich, Assistant Attorney General, and Mark L. Shurtleff, Attorney General, Office of the Attorney General, Salt Lake City, UT, with him on the briefs), for the Defendants-Appellants Nielson, Warne, Brown, Bodily, Clyde, Eastman, Griffith, Larkin, and Lewis; and the Defendants-Counterclaimants-Appellants Leavitt and Shurtleff.

Maureen E. Rudolph, Attorney, (Thomas L. Sansonetti, Assistant Attorney General with her on the brief) United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the United States of America, Amicus Curiae.

Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges.

HENRY, Circuit Judge.

The Governor and Attorney General of Utah, along with Utah environmental and transportation officials, appeal the district court's ruling that the state's statutes regulating the storage and transportation of spent nuclear fuel are preempted by federal law. See Skull Valley Band of Goshute Indians v. Leavitt, 215 F.Supp.2d 1232 (D.Utah 2002). The Utah officials argue that the district court should not have reached the merits of this dispute because (1) the plaintiffs who challenge the statutes — a consortium of utility companies (Private Fuel Storage, Inc.) and an Indian tribe (the Skull Valley Band of Goshute Indians) — lack standing to bring this lawsuit and (2) the case is not ripe for review. Alternatively, the Utah officials argue that the majority of the challenged statutes are not preempted.

We agree with the district court's resolution of the standing question. Private Fuel Storage (PFS) and the Skull Valley Band have properly asserted that their legally protected interests have been injured by the challenged statutes and that these injuries are likely to be redressed by a favorable decision. Moreover, in light of the D.C. Circuit's recent resolution of the Utah officials' challenge to federal statutes and regulations concerning spent nuclear fuel, see Bullcreek v. Nuclear Regulatory Commission, 359 F.3d 536 (D.C.Cir.2004), we further conclude that the case is now ripe for review.

On the merits, we agree with the district court's ruling that the Utah statutes are preempted by federal law. We therefore affirm the district court's decision.

I. BACKGROUND

This case is one of many arising out the vexing problem of transporting and storing the spent nuclear fuel (SNF) that is generated by nuclear power plants. Because SNF remains radioactive for thousands of years, long-term storage strategies are essential. However, the search for the safest solution has been long and difficult.

In 1982, Congress passed the Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10101-10270. The NWPA requires the United States Department of Energy to construct a permanent storage facility for the disposal of SNF. The NWPA also establishes a federally monitored temporary storage program in the event that a permanent facility is not available by the deadline.

Under NWPA, the United States Department of Energy and various utility companies controlling nuclear reactors entered into agreements to accept SNF no later than January 31, 1998. However, the Department of Energy has estimated that, at the earliest, it will not have a permanent repository to receive SNF until 2010. See Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed.Reg. 21,793, 21,794 (May 3, 1995). Unless Congress, the Department of Energy, and the Nuclear Regulatory Commission (NRC) take heroic steps, even this date is optimistic. See John Karl Gross, Nuclear Native America: Nuclear Waste and Liability on the Skull Valley Goshute Reservation, 7 B.U.J. SCI & TECH. L. 140, 147-48 n.64 (2001) (reporting estimates that a permanent storage facility may not be available until 2015 or perhaps 2025).

PFS is a consortium of utility companies, which formed in order to seek temporary storage options for the SNF storage problem. In May 1997, PFS entered into a lease of Skull Valley Band tribal land located fifty miles from Salt Lake City. PFS sought to build an SNF storage facility there. The Bureau of Indian Affairs of the United States Department of Interior has conditionally approved the lease,¹ and PFS has submitted an application for licensure of the facility with the NRC, which remains pending. Under the federal regulations, the proposed facility is characterized as an "independent spent fuel storage installation," see 10 C.F.R. § 72.3, and must satisfy detailed requirements before it may be constructed. See 10 C.F.R. § 72.1 (noting that "the regulations in this part establish requirements, procedures, and criteria for the issuance of licenses to receive, transfer, and possess" SNF).

The Utah officials intervened in the NRC proceedings, arguing that the NRC lacked the authority to license the proposed facility. The NRC rejected that argument, concluding that "Congress, in enacting the Atomic Energy Act, gave the NRC authority to license privately owned, away-from-reactor facilities and did not repeal that authority when it later enacted the Nuclear Waste Policy Act of 1982." In re Private Fuel Storage, L.L.C., 56 N.R.C. 390, 392 (2002). The Utah officials appealed that ruling, and the D.C. Circuit has recently affirmed the NRC's decision. See Bullcreek, 359 F.3d at 541-43.

In addition to contesting the licensing proceedings before the NRC, the state of Utah passed a series of statutes between 1998 and 2001 that regulate the storage and transportation of SNF. As the district court explained, the statutes are comprised of four general categories: (1) amendments to Utah's Radiation Control Act, which establish state licensing requirements for the storage of SNF, and which revoke statutory and common law grants of limited liability to stockholders in companies engaged in storing SNF; (2) "the County Planning Provisions," Skull Valley, 215 F.Supp.2d at 1248-49, which require county governments to impose regulations and restrictions on SNF storage; (3) "the Road Provisions," id., which vest the Governor and the state legislature with authority to regulate road construction surrounding the proposed SNF storage site on the Skull Valley reservation; and (4) "the Miscellaneous Provisions," id. at 1250, which require drug and alcohol testing of employees of companies engaged in SNF storage and which authorize litigation to determine water rights in areas under consideration for SNF storage. As the district court held that "the Miscellaneous Provisions" did not violate the Commerce Clause, and PFS and the Skull Valley Band do not challenge that ruling on appeal, only the first three categories are at issue here.

A. The Utah Licensing Scheme for SNF Storage Facilities

In Senate Bills 81, 177, and 196, the Utah legislature added Part 3 to Utah's Radiation Control Act. See Utah Code Ann. §§ 19-3-301-317. Part 3 begins with a sweeping prohibition of the transfer, storage, treatment, and disposal of high-level nuclear waste in Utah. It then establishes an alternative licensing scheme for SNF: If the NRC issues a license to an SNF storage facility, if the NRC's authority to issue such a license is upheld by a court of competent jurisdiction, and if a federal government agency transports the waste to a facility in Utah, then the governor, in consultation with county officials and with the concurrence of the state legislature, may approve the storage of SNF in Utah.

Part 3 further provides that SNF storage facilities must be licensed by the state Department of Environmental Quality (DEQ). In order to obtain such a license, the applicant must provide an analysis of groundwater conditions, a security plan, health risk assessments, a quality assurance program, a radiation safety program, and an emergency plan. An applicant must also demonstrate that the facility "will not cause or...