State of Mich. v. U.S.

Decision Date02 June 1993
Docket NumberNo. 91-2281,91-2281
Citation994 F.2d 1197
Parties, 23 Envtl. L. Rep. 21,003 STATE OF MICHIGAN, Michigan Department of Public Health, Michigan Low Level Radioactive Waste Authority, Michigan Department of Management and Budget, Michigan Natural Resources Commission, Robert A. Bowman, Plaintiffs-Appellants, v. UNITED STATES of America, James D. Watkins, Kenneth M. Carr, United States Nuclear Regulatory Commission, Samuel Skinner, Richard Thornburgh, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

John C. Scherbarth, Asst. Atty. Gen., Environmental Protection Div., (argued and briefed), Charles C. Schettler, Jr., Office of the Atty. Gen., Tort Defense Div., Lansing, MI, for plaintiffs-appellants.

Louise F. Milkman, J. Carol Williams, Jeffrey P. Kehne (argued and briefed), Kenton W. Fulton, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC Janice Kittel Mann, Thomas J. Gezon, Asst. U.S. Attys., Grand Rapids, MI, Anthony P. Hoang, Environmental & Natural Resources Div., Dept. of Justice, Washington, DC, for defendants-appellees.

Before: MILBURN and RYAN, Circuit Judges; and COFFIN, * Senior Circuit Judge.

RYAN, Circuit Judge.

The State of Michigan appeals the portion of the district court's order dismissing two causes of action allegedly arising under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Michigan had sought a writ of mandamus from the district court compelling the Nuclear Regulatory Commission and the Department of Energy to prepare two supplemental Environmental Impact Statements that would consider recent federal enactments requiring states to arrange for the disposal of their own low-level radioactive waste (LLRW). The district court dismissed Michigan's NEPA claims for lack of subject matter jurisdiction and lack of Article III standing. The issues before us are: 1) whether Michigan has standing under NEPA to seek a writ of mandamus compelling the United States to prepare environmental impact statements; and, if so, 2) whether the district court has jurisdiction over Michigan's mandamus action.

Because we conclude that Michigan does not have standing in this suit, we shall affirm the district court's dismissal order.

I.
A.

This case involves three congressional acts: The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq.; the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.; and the 1980 LLRW Policy Act and its 1985 amendments, 42 U.S.C. §§ 2021b et seq. A brief description of each act is necessary for an understanding of this dispute.

1. The Atomic Energy Act and "Part 61" Regulations

The purpose of the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq., is to promote the use and development of atomic energy. This Act provides the basic authority for federal regulation and licensing of nuclear energy and nuclear materials. In December 1982, under the rule-making authority of the Atomic Energy Act, the Nuclear Regulatory Commission promulgated regulations for radioactive waste disposal. 10 C.F.R. Pt. 61. These "Part 61" regulations set forth "the procedures, criteria, and terms and conditions upon which the Commission issues licenses for the disposal of radioactive wastes." Id. The Part 61 regulations resulted from rule-making proceedings, which included the Nuclear Regulatory Commission's preparation of a 1982 Environmental Impact Statement (EIS). This 1982 EIS provided a general evaluation of the environmental effects of the Part 61 regulations.

2. The National Environmental Policy Act and "Part 51" Regulations

NEPA, 42 U.S.C. §§ 4321 et seq., provides for a national policy that encourages "productive and enjoyable harmony between man and his environment." See Pacific Legal Found. v. Andrus, 657 F.2d 829, 837 (6th Cir.1981). NEPA provides that when a federal agency undertakes "major federal action[ ] significantly affecting the quality of the human environment," it must prepare an EIS concerning that action. 42 U.S.C. § 4332(2)(C). Thus, NEPA is a procedural statute that is designed to ensure that federal agencies consider the environmental impact of their actions. The impact statement is evidence that the agency considered environmental concerns.

The Council on Environmental Quality promulgated regulations to establish a framework for federal agency compliance with NEPA. 40 C.F.R. Pt. 1500. These regulations provide that an agency has a mandatory duty to prepare or supplement an EIS when "significant new circumstances" arise that bear on environmental concerns. 40 C.F.R. § 1502.9(c)(1)(ii). The Nuclear Regulatory Commission also established its own regulations, "Part 51" regulations, to ensure self-compliance with NEPA requirements. See 10 C.F.R. Pt. 51. For example, Part 51 regulations require the Nuclear Regulatory Commission to augment its 1982 EIS whenever it issues or renews a Part 61 license to a disposal facility. See 10 C.F.R. §§ 51.20(b)(11), 51.80(a).

3. The 1980 and 1985 LLRW Policy Acts

While the Atomic Energy Act establishes the authority for federal regulation and licensing of nuclear materials and waste, the Policy Acts of 1980 and 1985 create incentives for states to provide for the disposal of LLRW. LLRW is a hazardous by-product of atomic energy research and development. Much of the LLRW generated in Michigan is generated at nuclear power plants licensed and regulated by the Commission.

As of 1991, there were three sites in the United States for the disposal of LLRW--South Carolina, Washington, and Nevada. Because the nation needed additional disposal facilities, Congress enacted the LLRW Policy Act of 1980 to give states direct responsibility for disposing of the LLRW generated within each state. The 1980 Policy Act makes each state responsible for providing for LLRW disposal, either within or outside the state's borders. 42 U.S.C. § 2021d. It also allows states to enter into interstate regional compacts to provide for regional disposal facilities. 42 U.S.C. § 2021d(a)(2). The 1980 Policy Act relied on state cooperation for its implementation; however, the Act's incentives proved inadequate to ensure state compliance. In response, Congress enacted the 1985 LLRW Act. In the 1985 Act, Congress included milestones, incentives, and penalties to ensure that each state complied with the Policy Act's requirements by 1996. For example, the 1985 Policy Act provides that, if a state fails to provide for the disposal of all LLRW generated within its borders by a specific date, it will be required to take title to the LLRW it generates. 42 U.S.C. § 2021e(d)(2)(C). 1 Or, the 1985 Act provides that the three states who presently have disposal sites--South Carolina, Washington, and Nevada--can charge states who fail to comply with the statutory deadlines multiple surcharges for use of the disposal facilities and eventually deny noncomplying states access to the facilities. 42 U.S.C. § 2021e(e)(2).

B. Michigan's Lawsuit

In 1982, in an effort to comply with the 1980 Policy Act, Michigan entered into a Midwest Compact with Iowa, Minnesota, Ohio, Indiana, Missouri, and Wisconsin. In 1987, the compact selected Michigan as the region's disposal facility site. Michigan began to take measures so that it could meet its obligations under the compact. Although the compact met two "milestones" required under the 1985 Policy Act, the compact did not meet the third milestone, which required the compact to submit, by a certain date, a completed application for a Part 61 disposal facility license. Because Michigan was not prepared to submit a license application to the Nuclear Regulatory Commission, each compact member had to certify that it was capable of providing for disposal of the LLRW generated within its borders by 1993. The Department of Energy accepted these certifications.

As compact negotiations continued, Michigan rejected three proposed sites for a disposal facility and continually failed to advance the siting process. Finding that Michigan failed to meet its responsibilities as the designated host state, the other members of the compact voted in April 1991 to revoke Michigan's membership.

By this time, Michigan had filed suit 2 against the United States (the Nuclear Regulatory Commission and the Department of Energy) in the Western District of Michigan. Counts I through V sought declarations that the 1985 Policy Act amendments violated constitutional principles of federalism by imposing impermissible responsibilities on the States. Counts VI and VII set forth Michigan's claims under NEPA, which requires that a federal agency prepare an EIS whenever that agency contemplates taking "major" federal action which may significantly affect the quality of the human environment. See 42 U.S.C. § 4332. Michigan sought mandamus relief to compel the Nuclear Regulatory Commission and the Department of Energy to prepare two separate EISes before January 1, 1992--

1) a supplement to the Nuclear Regulatory Commission's 1982 EIS reevaluating the environmental effects of the Part 61 licensing regulations in light of declining LLRW volumes and in light of the projected increase in disposal facilities resulting from the Policy Act's requirements; and

2) a programmatic EIS considering the potential impact of all proposed LLRW disposal facilities on the disposal of LLRW in light of the declining LLRW volumes.

Michigan claimed that it should be "relieved from its obligations under the 1985 Act pending the outcome of the obligations of the [Commission] to prepare" the EISes. The United States moved to dismiss the NEPA claims for lack of subject matter jurisdiction and failure to state a claim. The district court granted the motion to dismiss, finding that Michigan's constitutional challenges to the Policy Act, Counts I through V, were without merit. Michigan v. United States, 773 F.Supp. 997 (W.D.Mich.1991). With regard to Counts VI and VII, the district court concluded...

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