State of N.M. ex rel. Balderas v. United States Nuclear Regulatory Comm'n

• Decision Date: 10 February 2023
• Docket Number: 21-9593
• Parties: THE STATE OF NEW MEXICO EX REL. HECTOR H. BALDERAS, Attorney General; THE NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents. INTERIM STORAGE PARTNERS, LLC, Intervenor - Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

THE STATE OF NEW MEXICO EX REL. HECTOR H. BALDERAS, Attorney General; THE NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents.

INTERIM STORAGE PARTNERS, LLC, Intervenor - Respondent.

No. 21-9593

United States Court of Appeals, Tenth Circuit

February 10, 2023

Submitted on the briefs^[*]:

Petition for Review from the Nuclear Regulatory Commission (NRC-1: 72-1050)

P. Cholla Khoury, William G. Grantham, and Zachary E. Ogaz Assistant Attorneys General, Office of the Attorney General for the State of New Mexico, Albuquerque, New Mexico (Bruce C. Baizel, New Mexico Environment Department, Office of General Counsel, Santa Fe, New Mexico with them on the briefs), on behalf of the Petitioners.

Todd Kim, Assistant Attorney General, and Justin D. Heminger, Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Marian L. Zobler, General Counsel, and Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory Commission, Office of the General Counsel, Rockville, Maryland, with them on the briefs), on behalf of the Respondents.

Brad Fagg, Timothy P. Matthews, and Ryan K. Lighty, Morgan, Lewis & Bockius LLP, Washington, D.C., on behalf of the Intervenor-Respondent.

Before BACHARACH, PHILLIPS, and EID, Circuit Judges.

BACHARACH, Circuit Judge.

This petition involves an agency's regulation of private storage of nuclear fuel. The agency, the Nuclear Regulatory Commission, granted a license to Interim Storage Partners to store spent nuclear fuel near the New Mexico border. New Mexico challenges the grant of this license, invoking the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

The Commission moves to dismiss for lack of jurisdiction. Objecting to the motion, New Mexico invokes jurisdiction under the combination of the Hobbs Act, 28 U.S.C. §§ 2342(4), 2344, and the Atomic Energy Act, 42 U.S.C. §§ 2011-2296b-7. But these statutes can combine to trigger jurisdiction only when the petitioner was an aggrieved party in the licensing proceeding.

This limitation applies here because New Mexico didn't participate in the licensing proceeding or qualify as an aggrieved party. To the contrary, New Mexico just commented to the Commission about its draft environmental impact statement. Commenting on the environmental impact statement didn't create status as an aggrieved party, so jurisdiction isn't triggered under the combination of the Hobbs Act and Atomic Energy Act.

New Mexico not only invokes the Hobbs Act and Atomic Energy Act, but also alleges that the Commission violated the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270, and acted ultra vires. These allegations don't trigger our jurisdiction. The Nuclear Waste Policy Act governs the establishment of a federal repository for permanent storage-not temporary storage by private parties like Interim Storage. And even when an agency acts ultra vires, we lack jurisdiction when the petitioner had other available remedies. New Mexico had other available remedies by seeking intervention in the Commission's proceedings. So we grant the Commission's motion to dismiss the petition for lack of jurisdiction.

1. The Nuclear Regulatory Commission granted a temporary license to Interim Storage.

The Nuclear Regulatory Commission bears the authority to license the private use of facilities to store spent nuclear fuel. Pac. Gas &Elec. Co. v. State Energy Res. Conservation &Dev. Comm'n, 461 U.S. 190, 206207 (1983); Skull Valley Band Of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004). Based on this authority, the Commission conducted proceedings to address Interim Storage's application for a license. See Interim Storage Partner's Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed.Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed.Reg. 44,680 (Aug. 31, 2018) (public notice of Interim Storage's application for a license).

To facilitate public participation, the Commission issued a notice stating that any interested entity could request a hearing. Id. at 44,071 ("[A]ny persons . . . whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene."). This notice stated what the entity would need to include and explained that permission to intervene would create status as a party. Id. Despite this notice, New Mexico didn't request a hearing or petition to intervene in the licensing proceeding.

The licensing proceeding closed over a year after the Commission had issued the notice. See In the Matter of Interim Storage Partners LLC, LBP-19-11, Docket No. 72-1050-ISFSI, Mem. &Order at 14 (Dec. 13, 2019) (statement by the Atomic Safety and Licensing Board that the Interim Storage proceeding had terminated). After the proceeding closed, the Nuclear Regulatory Commission prepared a draft environmental impact statement, as required by federal regulations and the National Environmental Policy Act. See R. vol. 3, at 83; 42 U.S.C. § 4332(C); 10 C.F.R. § 51.20(a), (b)(9).

With preparation of this draft, the Commission notified the public and invited comments. Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed.Reg. 27,447-03 (May 8, 2020). New Mexico commented, criticizing the draft. R. vol. 4, at 931-41, 947-52 (comments by Michelle Lujan Grisham, Governor of New Mexico, the New Mexico Environment Department, and the New Mexico Energy, Minerals and Natural Resources Department). The Commission responded to New Mexico in the final version of the environmental impact statement. See, e.g., R. vol. 3, at 734, 737, 739-40 (designating Michelle Lujan Grisham as commenter 81 and officials from the New Mexico agencies as commenters 60-22, 152, and 155); R. vol. 3, at 561-62, 564, 565, 583-85, 593, 596, 599-600, 602-05, 606-07, 635-37, 638-39, 645-47, 648-49, 651-52, 65253, 653-56, 662-63, 667-68, 669-72, 673-77, 703, 705-06, 706-08, 70910, 713-15, 728 (responding to commenters 60-22, 81, 152, and 155).

The Nuclear Regulatory Commission ultimately granted a temporary license to Interim Storage to construct and operate a facility to store spent nuclear fuel. Interim Storage Partners, LLC; WCS Consolidated Interim Storage Facility; Issuance of Materials License and Record of Decision, 86 Fed.Reg. 51,926-02 (Sept. 17, 2021); id. at 51,927 ("The license authorizes [Interim Storage] to store . . . spent nuclear fuel for a license period of 40 years."). New Mexico petitions for us to review the grant of this license, and the Commission challenges our jurisdiction over New Mexico's petition.

2. We lack jurisdiction under the Hobbs Act because New Mexico wasn't a "party aggrieved" by the Commission's final order.

The Hobbs Act creates federal appellate jurisdiction over the Nuclear Regulatory Commission's final orders as defined in 42 U.S.C. § 2239.^[1] 28 U.S.C. § 2342(4). In turn, § 2239 authorizes review of final orders that grant, suspend, revoke, or amend a license. 42 U.S.C. § 2239(a)(1)(A), (b)(1).

This jurisdiction can be invoked only by "aggrieved" parties. See 28 U.S.C. § 2344 (stating that "[a]ny party aggrieved by the final order may . . . file a petition to review the order in the court of appeals wherein venue lies"). So we consider whether New Mexico qualifies as an aggrieved party.

A. We must assess New Mexico's status as a party based on its participation in the administrative proceedings.

Status as an "aggrieved party" would exist only if we regard New Mexico as a party to the administrative proceeding. See ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687, 711 (D.C. Cir. 2018) ("[T]he phrase 'party aggrieved' requires that petitioners have been parties to the underlying agency proceedings, not simply parties to the present suit who are aggrieved in a constitutional (Article III) sense."). To assess status as a party, we evaluate the level of participation required in the administrative proceeding. Water Transp. Ass'n v. I.C.C., 819 F.2d 1189, 1192 (D.C. Cir. 1987). We evaluate that participation based on the practices of the agency and the formality of the proceeding. See id.

In making this evaluation, we're not bound by the Commission's description of the entity as a party. See id.; Clark &Reid Co. v. United States, 804 F.2d 3, 6 (1st Cir. 1986). We instead consider whether New Mexico had participated appropriately under the available administrative procedures. See Gage v. U.S. Atomic Energy Comm'n, 479 F.2d 1214, 1217 (D.C. Cir. 1973) (concluding that the court lacked jurisdiction to review an Atomic Energy Commission order because the petitioner had "refrained from participating in the appropriate and available administrative procedure"). For example, if the Commission had required intervention and New Mexico didn't seek leave to intervene, we would lack jurisdiction under the Hobbs Act. Water Transp. Ass'n, 819 F.2d at 1192.

B. New Mexico did not participate in the licensing proceeding.

We consider whether New Mexico needed to seek leave to intervene in the Commission's licensing proceeding. In this inquiry, we are guided by the Atomic Energy Act and its regulations. See Ohio Nuclear-free Network v. U.S. Nuclear Regul. Comm'n, 53 F.4th 236, 239-40 (D.C. Cir. 2022). Under the Act, anyone interested in a licensing proceeding can request a hearing. 42 U.S.C. § 2239(a)(1)(A). The Commission must

• grant interested entities a hearing upon request and

• admit the entity as a party to the proceeding.

Id.

The regulations specify how entities are to request a hearing. For example, an interested entity must file a written request and specify the contentions for the hearing. 10 C.F.R. § 2.309(a)...