State of Tex. v. U.S. Dept. of Energy, 84-4826
| Decision Date | 20 February 1985 |
| Docket Number | No. 84-4826,84-4826 |
| Citation | 754 F.2d 550 |
| Parties | , 1 Fed.R.Serv.3d 1247, 15 Envtl. L. Rep. 20,300 STATE OF TEXAS, et al., Petitioners, v. UNITED STATES DEPARTMENT OF ENERGY and Donald Paul Hodel, Secretary, United States Department of Energy, Respondents, Arizona Nuclear Power Project, Baltimore Gas & Electric Company, Boston Edison Company, Carolina Power & Light Company, the Cleveland Electric Illuminating Company, Commonwealth Edison Company, Consolidated Edison Co. of New York, Inc., Duke Power Company, Florida Power & Light Company, Georgia Power Company, Gulf States Utilities Company, Kansas City Power & Light Company, Kansas Electric Power Cooperative, Inc., Kansas Gas & Electric Company, Middle South Services, Inc., New York Power Authority, Niagara Mohawk Power Corporation, Northeast Utilities, Omaha Public Power District, Pacific Gas & Electric Company, Pennsylvania Power & Light Company, Philadelphia Electric Company, Public Service Company of Colorado, Rochester Gas & Electric Corporation, Sacramento Municipal Utility District, Southern California Edison Company, Toledo Edison Company, Union Electric Company, Virginia Electric & Power Company, Wisconsin Electric Power Company, Wisconsin Public Service Corporation, Movants for Leave to Intervene. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Renea Hicks, Asst. Atty. Gen., Austin, Tex., for petitioners.
Hector & Associates, Alice G. Hector, Hollis A. Whitson, Albuquerque, N.M., for Devin, et al.
Office of General Counsel, Dept. of Energy, Washington, D.C., for respondents.
Newman & Holtzinger, Washington, D.C., for amicus curiae Arizona Nuclear Power.
John A. Bryson, Martin W. Matzen, Attys., Dept. of Justice, Appellate Sec. Land & Natural Resources Div., Washington, D.C., for U.S. Dept. of Energy.
On Petition for Review of an Order of the United States Department of Energy.
Thirty-one utilities have moved to intervene in an action filed by Texas in this court for review of the Department of Energy's designation of several sites in West Texas as potential long-term nuclear waste depositories. Because they have no defined role in the statutory scheme at issue other than providing funding for the Nuclear Waste Policy Act, because they have no legally protectable interest that might be affected by the outcome of this proceeding, and because the DOE adequately represents the utilities' interests, the motion to intervene is DENIED.
The Nuclear Waste Policy Act of 1982, 42 U.S.C. Sec. 10101 et seq., is a comprehensive statute providing for the establishment by the Department of Energy of a geologic depository for the disposal of high-level radioactive waste. On December 19, 1984 Texas challenged in this court the validity of certain actions taken by the Secretary under the NWPA in connection with its designation of two sites in Texas as potential depository locations.
Although the Secretary administers the NWPA program for locating and establishing disposal facilities, the program is funded through required contributions to the Nuclear Waste Fund by utilities who generate electricity through the use of commercial nuclear power plants. See 42 U.S.C. Sec. 10222. All thirty-one utilities seeking to intervene contribute to the Nuclear Waste Fund under the NWPA, and, assertedly, monies are being paid into the Fund at the rate of $1 million per day. The utilities' alleged interest in the action is to ensure that the NWPA program for establishing disposal sites is not delayed by successful litigation against the Secretary by parties such as Texas. Any delay, the utilities argue, will increase the demands on the Fund to which the utilities contribute.
Rule 15(d) of the Federal Rules of Appellate Procedure governs interventions in administrative appeals such as this one. That rule provides no standard for resolving intervention questions, but the Court has identified two considerations: first, the statutory design of the act and second, the policies underlying intervention in the trial courts pursuant to Fed.R.Civ.P. 24. International Union, United Automobile, Aerospace and Agricultural Implement Workers v. Scofield, 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965).
-1-
Texas argues that, save for funding obligations, the utilities are effectively excluded from the program to establish depositories under the NWPA. That program, according to Texas, provides roles for the states and the DOE in the site selection process but omits any role for utilities. Hence, Texas argues, the scheme of the NWPA counsels against permitting intervention by the utilities in this appeal because their only asserted interest is to protect the Fund from greater demands as a result of potential delays in the establishment of disposal sites because of this litigation. Such an interest, the state suggests, is analogous to a Frothingham-type argument that taxpayers have standing to challenge government programs. The utilities respond that there is nothing in the NWPA to imply that their interests should be excluded in NWPA review proceedings, and further, that because financing the NWPA is a significant statutory responsibility, the utilities cannot be said to be excluded from its scheme.
I am persuaded by the argument of Texas. In Scofield the Supreme Court found that the scheme for review of NLRB proceedings justified permitting intervention in the appellate process. The intervenor was a union who had been successful in an NLRB proceeding its employees had brought against it. The employees sought review in the Seventh Circuit and the General Counsel of the NLRB defended the Board's decision. The Seventh Circuit denied the Union the right to intervene in the appeal. The Supreme Court reversed concluding that the NLRB statutory scheme warranted intervention. The Court noted, for example, that considerations of judicial economy favored intervention, because if the reviewing court returned the case to the Board, the likely result would be entry of judgment against the Union following further proceedings, which decision would then be appealed to the circuit court by the Union. Moreover, the Union, as a participant in the proceedings below, was intimately involved with the issues before the...
To continue reading
Request your trial
-
Getty Oil Co. v. Department of Energy
...affected by the outcome of the case alone is insufficient" to warrant intervention under Rule 24(a)(2). State of Texas v. Dep't of Energy, 754 F.2d 550, 552 (5th Cir.1985), quoting New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d at 466. The Supreme Court's refusal in ......
-
In re Toyota Hybrid Brake Litig.
...nor "speculative," Bear Ranch, LLC v. HeartBrand Beef, Inc., 286 F.R.D. 313, 316 (S.D. Tex. 2012) (citing Texas v. Dep't of Energy, 754 F.2d 550, 550-52 (5th Cir. 1985)); see, e.g., Int'l Tank Terminals, 579 F.2d at 968 (holding that "the possibility that future arbitration might occur in w......
-
Hartford Ins. Co. v. Birdsong
...protect its interest; and (4) the applicant's interest must be inadequately represented by existing parties. Texas v. United States Dep't of Energy, 754 F.2d 550, 552 (5th Cir.1985); Commodity Futures Trading Comm'n v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir.198......
-
State ex rel. Ball v. Cummings
...entity which is a party to the action, intervention should be denied. For support, the defendants cite State of Texas v. United States Dept. of Energy, 754 F.2d 550, 553 (5th Cir.1985) in which the court held that "where, as here, the existing representative in the suit is the government, t......