State of Nev. v. Watkins
| Citation | 914 F.2d 1545 |
| Decision Date | 19 September 1990 |
| Docket Number | 90-70004,Nos. 86-7308,s. 86-7308 |
| Parties | , 15 Fla. L. Week. D2228, 20 Envtl. L. Rep. 21,360 STATE OF NEVADA, Richard H. Bryan, Governor of Nevada, Paul Laxalt, United States Senator, Chic Hecht, United States Senator, Barbara Vucanovich, United States Representative in Congress, Harry Reid, United States Representative in Congress, Petitioners, v. James D. WATKINS, Secretary of the United States Department of Energy, * Respondent. STATE OF NEVADA, Petitioner, v. U.S. DEPARTMENT OF ENERGY, James D. Watkins, Secretary of the United States Department of Energy, Respondents, Arizona Public Service Company, Baltimore Gas & Electric Company, Carolina Power & Light Company, Consolidated Edison Company of New York, Inc., Detroit Edison Company, Duke Power Company, Duquesne Light Company, Florida Power & Light Company, Gulf States Utilities Company, Iowa Electric Light & Power Company, Madison Gas and Electric Company, New York Power Authority, Northeast Utilities, Northern States Power Company, Pennsylvania Power & Light Company, Public Service Electric & Gas Company, Union Electric Company, Virginia Power, Wisconsin Electric Power Company, Wisconsin Power and Light Company, and Wisconsin Public Service Corporation, Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Richard B. Stewart, Asst. Atty. Gen., Peter R. Steenland, Jr., and John A. Bryson, Dept. of Justice, Washington, D.C., for respondent.
Brian McKay, Atty. Gen., Harry W. Swainston, Deputy Atty. Gen., Carson City, Nev., for petitioners.
Jay E. Silberg and Mindy A. Buren, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for intervenors.
Petition to Review a Decision of the Secretary of the United States Department of Energy.
Before WALLACE, ALARCON and WIGGINS, Circuit Judges.
The State of Nevada, Richard Bryan, Paul Laxalt, Chic Hecht, Barbara Vucanovich, and Harry Reid (Nevada) challenge the Secretary of Energy's decision to continue investigation of Yucca Mountain, Nevada as a potential site for the location of a national high-level radioactive waste repository, pursuant to the Nuclear Waste Policy Act of 1982 (NWPA), Pub.L. No. 97-425, 96 Stat. 2211 (1983) (). The NWPA establishes a comprehensive process for determining the suitability of Yucca Mountain as a repository site. Nevada asserts that the Secretary's decision to continue site investigation is contrary to law because Congress' selection of Yucca Mountain was not constitutional. Nevada also contends that it effected a valid legislative veto of the selection of Yucca Mountain and that this action is not preempted by federal law. Nevada finally contends that the Secretary must promulgate regulations that govern the timing of site disqualification decisions. We disagree and affirm.
Until 1954, the use, control, and ownership of all nuclear technology were subject to a federal monopoly. English v. General Elec. Co., --- U.S. ----, 110 S.Ct. 2270, 2276, 110 L.Ed.2d 65 (1990). The Atomic Energy Act of 1954, 68 Stat. 919 (1954) (), "stemmed from Congress' belief that the national interest would be served if the Government encouraged the private sector to develop atomic energy for peaceful purposes under a program of federal regulation and licensing." English v. General Elec. Co., 110 S.Ct. at 2276. The Act provided for private construction, ownership, and operation of commercial nuclear reactors under the supervision of the Atomic Energy Commission (AEC). Id.
Although the AEC, and its successor agency, the Nuclear Regulatory Commission (NRC), were largely successful in promoting the construction of commercial nuclear reactors, these agencies were not successful in resolving the need for safe disposal of the by-products of the generation of nuclear energy. H.R.Rep. No. 491, 97th Cong., 2d Sess. 28, reprinted in 1982 U.S.Code Cong. & Admin.News 3792, 3794-95. To address this pressing national problem, Congress enacted the NWPA. 42 U.S.C. Sec. 10131 (1982 & Supp. V 1987).
As originally enacted, the NWPA required the Secretary to issue general guidelines to serve as the primary criteria for the nomination of five sites that were suitable for "site characterization," or study as repository sites. Id. Sec. 10132(a) (1982). As defined by the NWPA,
The term "site characterization" means--
(A) siting research activities with respect to a test and evaluation facility at a candidate site; and
(B) activities, whether in the laboratory or in the field, undertaken to establish the geologic condition and the ranges of the parameters of a candidate site relevant to the location of a repository, including borings, surface excavations, excavations of exploratory shafts, limited subsurface lateral excavations and borings, and in situ testing needed to evaluate the suitability of a candidate site for the location of a repository, but not including preliminary borings and geophysical testing needed to assess whether site characterization should be undertaken.
Id. Sec. 10101(21) (1982 & Supp. V 1987). Congress provided that a detailed environmental assessment should accompany the nomination of each site. Id. Sec. 10132(b)(1)(E) (1982). From these five sites, the Secretary was to recommend Pursuant to this statutory scheme, the Secretary issued general guidelines for the recommendation of repository sites. 49 Fed.Reg. 47714-70 (Dec. 6, 1984) (codified at 10 C.F.R. Sec. 960.5 (1989)). On December 14, 1984, the Secretary issued draft environmental assessments for nine potentially acceptable sites in six states--Louisiana, Mississippi, Nevada, Texas, Utah, and Washington. 49 Fed.Reg. 49540-41 (Dec. 20, 1984). On May 27, 1986, the Secretary nominated five sites for site characterization, one each in Mississippi, Texas, Utah, Nevada, and Washington. 51 Fed.Reg. 19783-84 (June 2, 1986).
three to the President for site characterization. Id. Sec. 10132(b)(1)(B) (1982). The Secretary was authorized to conduct site characterization activities, pursuant to detailed public site characterization plans, at each site approved by the President. Id. Sec. 10133(a) (1982). Upon the completion of site characterization at each site, the Secretary was required to recommend a single site to the President for development as a national high-level nuclear waste repository. Id. Sec. 10134(a)(1) (1982). If the President approved the recommendation, he was required to transmit it to Congress. Id. Sec. 10134(a) (1982). At this point, the State within which the recommended site was located could submit a notice of disapproval to Congress. Id. Sec. 10136 (1982 & Supp. V 1987). Congress then had ninety days during its first period of continuous session in which to override the State's notice of disapproval by passage of a joint resolution. Id. Sec. 10135(c) (1982 & Supp. V 1987).
On May 28, 1986, Nevada filed case No. 86-7308, in which it sought review by this court of the Secretary's decision to nominate Yucca Mountain, Nevada, for site characterization. Nevada contended that the Secretary was required to establish jurisdiction over Yucca Mountain by State consent or cession, pursuant to the Federal Enclave Clause, U.S. Const. art. I, Sec. 8, cl. 17, and the applicable NRC regulation, 10 C.F.R. Sec. 60.121. Nevada sought declaratory and injunctive relief requiring the Secretary to obtain the Nevada legislature's consent before pursuing site characterization at Yucca Mountain.
On December 22, 1987, Congress amended the NWPA by certain provisions of the Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100-202, 101 Stat. 1329 (1987), and Pub.L. No. 100-203, 101 Stat. 1330 (1987) (the 1987 NWPA amendments). The 1987 NWPA amendments designated Yucca Mountain as the sole site to be characterized for possible development as a repository site. 42 U.S.C. Sec. 10172 (Supp. V 1987). This legislation was drafted by the Conference Committee. The House version of the budget bill had no provisions amending the NWPA. H.R.Conf.Rep. No. 495, 100th Cong., 1st Sess. 775-76, reprinted in 1987 U.S.Code Cong. & Admin.News 2313-1, 2313-1245, 2313-1521 to -22. The procedures for site characterization established in sections 10133 and 10134 were made applicable only to Yucca Mountain. 42 U.S.C. Secs. 10133-10134 (Supp. V 1987). The State of Nevada's right to submit a notice of disapproval to Congress, id. Sec. 10136 (1982 & Supp. V 1987), subject to congressional override, was unchanged. Id. Sec. 10135 (1982 & Supp. V 1987).
In December 1988, the Secretary issued his final site characterization plan. This plan sets forth the proposed site characterization activities at Yucca Mountain. Pursuant to Nevada law, the Secretary submitted applications for various environmental permits to the appropriate Nevada state agencies. See 42 U.S.C. Sec. 7418(a) (1982) (); 42 U.S.C. Secs. 300f to 300j-10 ().
During the pendency of those applications, the Nevada legislature passed two joint resolutions. Assembly Joint Resolution 4, passed on January 17, 1989, expresses the legislature's "adamant opposition to the placement of a high-level nuclear waste repository in the State of Nevada." Assembly Joint Resolution 6, passed on January 23, 1989, provides that the federal government shall not establish a repository On June 22, 1989, the Nevada legislature passed Assembly Bill 222, which was signed into law by the Governor of the State of Nevada on July 6, 1989. Nev.Rev.Stat. Sec. 459.910 (1989). This statute states that "[i]t is unlawful for any person or governmental entity to store high-level radioactive waste in Nevada." Id.
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