State of Tenn. v. Herrington, Civ. A. No. 3-85-0959.

• Court: U.S. District Court — Middle District of Tennessee
• Writing for the Court: WISEMAN
• Citation: 622 F. Supp. 923
• Decision Date: 26 November 1985
• Docket Number: Civ. A. No. 3-85-0959.
• Parties: STATE OF TENNESSEE v. John HERRINGTON, Secretary of the United States Department of Energy.

622 F. Supp. 923

STATE OF TENNESSEE
v.
John HERRINGTON, Secretary of the United States Department of Energy.

Civ. A. No. 3-85-0959.

United States District Court, M.D. Tennessee, Nashville Division.

November 26, 1985.

W.J. Michael Cody, Atty. Gen., John Knox Walkup, Chief Deputy Atty. Gen., Frank J. Scanlon, Deputy Atty. Gen., Nashville, Tenn., for plaintiff.

Joe E. Brown, U.S. Atty., James C. Thomason, Asst. U.S. Atty., Nashville, Tenn., Wells D. Burgess, Land and Natural Resources Div., U.S. Dept. of Justice, Washington,

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D.C., Gregory Fess, Dept. of Energy, Gen. Counsel, Washington, D.C., for defendant

MEMORANDUM

WISEMAN, Chief Judge.

This is a case of first impression and involves an issue of pressing national importance—the safe storage of nuclear waste.¹ The case arises out of a dispute between the State of Tennessee and the United States Department of Energy ("DOE") over whether the DOE followed proper statutory procedures in identifying sites in Tennessee as candidates for the temporary storage of nuclear waste in Monitored Retrievable Storage ("MRS") installations.

The State of Tennessee seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202; or, in the alternative, for a writ of mandamus under 28 U.S.C. § 1361 to compel the Secretary of Energy ("Secretary") to comply with certain provisions of the Nuclear Waste Policy Act of 1982 ("NWPA"), 42 U.S.C. §§ 10101-10226 (1982). Recognizing the jurisdictional question raised by this action, the State has filed an identical complaint in the Court of Appeals for the Sixth Circuit, and asked the court of appeals to stay its proceedings until such time as this Court has decided the action.

The Secretary has moved to dismiss the complaint asserting lack of jurisdiction in this Court, insisting that the statutory scheme of the NWPA vests exclusive jurisdiction in the Court of Appeals to review actions of the Secretary in the administration of the NWPA.

The motion to dismiss is denied. For the reasons hereinafter set forth, this Court finds that it has jurisdiction of this case, and that the exclusive jurisdiction vested in the Courts of Appeals by section 119 of the NWPA² does not apply to Part C of Subchapter 1 of the NWPA, section 141.³

I. THE ACT

After years of unsuccessfully attempting to enact comprehensive legislation dealing with the urgent national problem of nuclear waste disposal, Congress passed the Nuclear Waste Policy Act of 1982, Pub.L. No. 97-425, 96 Stat. 2202 (1983). The purpose of the NWPA is "to establish programs for the development of repositories for the safe permanent disposal of high level nuclear waste and spent fuel, and to provide for the safe stabilization and long-term protection of sites for the disposal of low level radioactive waste." H.R.Rep. No. 491(I), 97th Cong., 2d Sess. 26, reprinted in 1982 U.S.Code Cong. & Ad.News 3792. The federal waste management program articulated by the NWPA authorizes processes for both the permanent placement and the temporary storage of nuclear waste produced by civilian facilities.⁴ The focus of this waste management program is on the development of permanent, deep repositories for nuclear waste.⁵ The NWPA establishes

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a timetable for the Secretary to identify states containing "potentially acceptable sites" for a permanent repository and the mechanism for participation of states and Indian tribes in the sitting process.⁶ Ultimately, the process results in the President's recommendation to Congress of one site for development of the first permanent repository.⁷ The state or Indian tribe affected may submit to Congress a notice of disapproval of the President's site recommendation,⁸ and the site shall be disapproved unless Congress overrides the state veto by passing a resolution of repository sitting approval within 90 days.⁹

Congress also enacted Part C of Subchapter I of the NWPA, which deals with Monitored Retrievable Storage, as a "backup" to the repository program.¹⁰ As its name implies, MRS basically requires the continuous monitoring of the waste stored in such a facility. Such waste may be retrieved at a later time, perhaps decades later, for placement in a permanent repository.¹¹ Congress has made it clear in the NWPA that MRS is not as desirable as the permanent repository system in furthering the national goal of the safe disposal of nuclear waste. Congress has authorized the Secretary to develop plans for MRS as the contingency plan for the long-term storage of nuclear waste in the event that Congress determines at a future date that such facilities are needed as part of the national nuclear waste management system. The legislative history to the NWPA makes it clear that MRS is not an alternative to the permanent repository system but is to be developed in conjunction with the repositories, if at all. H.R.Rep. No. 491(I), 97th Cong., 2d Sess. 44, reprinted in 1982 U.S.Code Cong. & Ad.News 3792, 3810. Section 141(h) of the NWPA¹² incorporates several of the sections and subsections of Part A of Subchapter I which deal with participation of states and Indian tribes in the selection of sites for permanent repositories. Therefore, states and Indian tribes have some of the same rights to participate in the selection of potential MRS sites and the same limited veto power as they have in the selection of sites for permanent repositories.

II. SUMMARY OF ARGUMENTS

The issue of whether original and exclusive jurisdiction is vested in the United States courts of appeals or the district courts to hear a challenge to the procedures followed by the Secretary in selecting potential sites in Tennessee for MRS installations involves a question of statutory construction. The State presents an uncomplicated, literal reading of the language of sections 119¹³ and 141¹⁴ in arguing

622 F. Supp. 926

that this Court has jurisdiction over this case. The State argues that Congress incorporated certain provisions contained within Part A of Subchapter I, relating to state participation, into the MRS subtitle of Part C by specifically citing these provisions in section 141(h), and impliedly rejected the application of all other provisions of Part A to the MRS development process. The State also argues that the clear language of section 119(a), which vests jurisdiction in the court of appeals, demonstrates the clear Congressional intent that the section applies only to certain actions arising "under this part" (referring to Part A of Subchapter I)¹⁵ and to actions arising under provisions outside of Part A of Subchapter I which are specifically enumerated in section 119(a)(1)(D)-(F). The State does not challenge the jurisdiction granted the courts of appeals over actions arising under these sections; however, the state relies on what it believes is the clear language of section 119(a), which does not refer to Part C of Subchapter I, concerning Monitored Retrievable Storage, in vesting original and exclusive jurisdiction in the courts of appeals, to exclude actions arising under Part C from the jurisdictional provision

The Secretary presents a more convoluted analysis of the Act's construction. The Secretary states that the State of Tennessee's complaint alleges that he failed to comply with the provisions providing for state participation in the MRS siting process. The Secretary argues that the State thereby states a cause of action pursuant to section 119(a)(1)(B) which vests jurisdiction over actions alleging the failure of the Secretary to take any action required "under this part" in the courts of appeals.¹⁶ Arguing that the phrase "under this part" should not be read literally, the Secretary claims that since the procedures for state participation which are incorporated in section 141(h), relating to MRS, are located in Part A of Subsection I, therefore, the judicial review section of Part A, section 119, must also apply to actions involving section 141(h). The Secretary also argues that the fact that there is no judicial review provision in Part C of Subchapter I, while there is in Part A, militates in favor of finding exclusive jurisdiction vested in the courts of appeals. Finally, the Secretary argues that the most important reason for finding that Congress vested jurisdiction in the courts of appeals is the public policy behind avoiding lengthy litigation and duplicative review over a national program of urgent concern.

III. ANALYSIS

The Court finds the Secretary's position without merit. The Judicial Code of 1911, ch. 2, § 24, 36 Stat. 1087, 1091-94

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(1911) (current version of 28 U.S.C. §§ 1331-1361), removed all original and exclusive jurisdiction from what are known today as the United States circuit courts of appeals. Although Congress since that time has restored original jurisdiction to the courts of appeals over certain types of cases,¹⁷ the statutes which have done so have been express in their grant of jurisdiction and have been construed strictly. Section 119 of the NWPA expressly vests jurisdiction in the courts of appeals over the actions specifically enumerated in subsection a, thus expressly repealing the Judicial Code of 1911; however, actions arising under the MRS provision, section 141, are not mentioned as being within that section's scope. Therefore, for jurisdiction over actions arising under section 141 to be vested in the courts of appeals pursuant to section 119, an implied repeal of the Judicial Code of 1911 is required. It is a universally recognized principle that repeals of statutes by implication are not favored. See, e.g., United States v. Will, 449 U.S. 200, 221-22, 101 S.Ct. 471, 484, 66 L.Ed.2d 392, 410 (1980); Allen v. McCurry, 449 U.S. 90, 99, 101 S.Ct. 411, 417, 66 L.Ed.2d 308, 316 (1980); Executive Limosine Service, Inc. v. Goldschmidt, 628 F.2d 115, 120 (D.C.Cir. 1980). The intention of the legislature to repeal a statute must be "clear and manifest," see, e.g., Watt v....