State v. United States

Decision Date01 June 2018
Docket NumberNo. 17-60191,17-60191
Parties State of TEXAS, Petitioner v. UNITED STATES of America; United States Department of Energy; James Richard "Rick" Perry, in his Official Capacity as United States Secretary of Energy; United States Nuclear Regulatory Commission ; Kristine L. Svinicki, in her Official Capacity as Chairman of the United States Nuclear Regulatory Commission ; United States Nuclear Regulatory Commission Atomic Safety and Licensing Board; Thomas Moore, Paul Ryerson, and Richard Wardwell, in their Official Capacities as United States Nuclear Regulatory Commission Atomic Safety and Licensing Board Judges; United States Department of the Treasury; and Steven T. Mnuchin, in his Official Capacity as United States Secretary of the Treasury, Respondents
CourtU.S. Court of Appeals — Fifth Circuit

891 F.3d 553

State of TEXAS, Petitioner
v.
UNITED STATES of America; United States Department of Energy; James Richard "Rick" Perry, in his Official Capacity as United States Secretary of Energy; United States Nuclear Regulatory Commission ; Kristine L. Svinicki, in her Official Capacity as Chairman of the United States Nuclear Regulatory Commission ; United States Nuclear Regulatory Commission Atomic Safety and Licensing Board; Thomas Moore, Paul Ryerson, and Richard Wardwell, in their Official Capacities as United States Nuclear Regulatory Commission Atomic Safety and Licensing Board Judges; United States Department of the Treasury; and Steven T. Mnuchin, in his Official Capacity as United States Secretary of the Treasury, Respondents

No. 17-60191

United States Court of Appeals, Fifth Circuit.

June 1, 2018


Robert J. Cynkar, Esq., McSweeney, Cynkar & Kachouroff, P.L.L.C., Great Falls, VA, David J. Hacker, Andrew Drake Leonie, III, Deputy Assistant Attorney General, Office of the Attorney General, Special Litigation Division, Austin, TX, David Austin Robert Nimocks, Associate Deputy Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, Warren Kenneth Paxton, Jr., Attorney General of Texas, Office of Special Litigation, Austin, TX, Joel Stonedale, Texas Public Policy Foundation, Austin, TX, for Petitioner.

David S. Gualtieri, Ellen J. Durkee, Attorney, U.S. Department of Justice, Environment & Natural Resources Division–Appellate Section, Washington, DC, Jefferson B. Sessions, III, U.S. Department of Justice, Washington, DC, for Respondent UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF TREASURY, STEVEN T. MNUCHIN.

David S. Gualtieri, Ellen J. Durkee, Attorney, U.S. Department of Justice, Environment & Natural Resources Division–Appellate Section, Washington, DC, Jefferson B. Sessions, III, U.S. Department of Justice, Washington, DC, Stephen C. Skubel, U.S. Department of Energy, Washington, DC, for Respondent UNITED STATES DEPARTMENT OF ENERGY, JAMES RICHARD PERRY, SECRETARY, U.S. DEPARTMENT OF ENERGY.

Charles Everett Mullins, Esq., Senior Attorney, Andrew Paul Averbach, Esq., Solicitor, U.S. Nuclear Regulatory Commission, Office of the General Counsel, Rockville, MD, Jefferson B. Sessions, III, U.S. Department of Justice, Washington, DC, for Respondent UNITED STATES NUCLEAR REGULATORY COMMISSION, KRISTINE L. SVINICKI, UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD, THOMAS MOORE, PAUL RYERSON, RICHARD WARDWELL.

Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

891 F.3d 555

This is the latest of many disputes arising out of the government’s struggle with nuclear waste disposal under the Nuclear Waste Policy Act of 1982 (the "Waste Act"),1 a congressional effort to "establish a schedule for the siting, construction, and operation of repositories."2 The state of Texas petitions for declaratory and injunctive relief, and the state of Nevada moves to dismiss. We will grant the motion to dismiss.

I.

Under the statutory framework of the Waste Act, new repositories were to provide centralized housing for spent nuclear fuel and high-level radioactive waste ("waste") produced by reactors scattered throughout the states. The Waste Act initially envisioned a system in which the Department of Energy would identify a handful of suitable repository sites from which it would recommend three to the president by January 1, 1985.3 Although the Department of Energy eventually settled on the Yucca Mountain, Nevada, site and two others, Congress amended the Waste Act in 1987 to designate Yucca Mountain the sole candidate for a repository,4 directing the Department of Energy to accept the waste from the states by January 31, 1998.5 Yet by the mid-1990s, the

891 F.3d 556

Department of Energy made clear that it could not meet the 1998 deadline, and it came and went without the federal government accepting any waste.

As directed, the Department of Energy focused on the Yucca Mountain site, conducting a series of preliminary tasks and assessments before in 2002 formally recommending the building of a repository there.6 Congress approved, with another deadline: the Department of Energy had ninety days to submit an application for construction authorization to the Nuclear Regulatory Commission.7 The Department of Energy did not submit this required application until 2008.8 And when it did so, its submission triggered yet another deadline, requiring the Nuclear Regulatory Commission to complete application review by 2012.9

This deadline, too, would go unmet, as just a couple of years later, the Department of Energy hesitated. In 2010, while the tribunal branch of the Nuclear Regulatory Commission, known as the Atomic Safety and Licensing Board (the "Licensing Board"), was reviewing the Yucca Mountain application, the Department of Energy attempted to withdraw the application, professing renewed doubt about the viability of the Yucca Mountain site. Both the Licensing Board and the Nuclear Regulatory Commission denied the request for withdrawal,10 but then the Licensing Board decided to hold the licensing proceeding in abeyance due to a lack of funding.11

Lawsuits followed. Various state and local government entities challenged the Department of Energy’s attempt to withdraw the Yucca Mountain application, and in 2011, the D.C. Circuit, in its Aiken I decision, dismissed their complaint for lack of ripeness and finality.12 In 2013, in response to the Licensing Board’s decision to pause the licensing proceeding, the D.C. Circuit issued its Aiken II decision and granted a writ of mandamus to roughly the same group of entities, instructing the Nuclear Regulatory Commission to "promptly continue with the legally mandated licensing process."13 The order requires the Nuclear Regulatory Commission to continue to spend its funds in line with the statutory requirement of the Waste Act "unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining."14

891 F.3d 557

At the time of the Aiken II decision, the Nuclear Regulatory Commission had approximately $11 million in its coffers, a sum that it believed to be woefully inadequate to complete the entire licensing process.15 So, in the wake of the decision, the Nuclear Regulatory Commission solicited the opinions of parties to the adjudicatory proceedings on how best to triage its remaining funds.16 The path forward, the Nuclear Regulatory Commission decided, consisted mainly of completing a Safety Evaluation Report, a required step in the licensing process.17 As it has sailed on that tack, the $11 million has withered into less than $700,000 in unobligated funds.

Meanwhile, in 2010, while the Nuclear Regulatory Commission was undertaking the licensing process, then-President Obama established a Blue Ribbon Commission to explore an alternative system of "consent-based siting" for waste storage. The Commission concluded that consent-based siting, not the Yucca Mountain repository, represented the most promising path forward, publishing a strategy document to that effect in 2013 and inviting public comment on the subject in 2015. More recently, in 2017, the Department of Energy published a draft report "lauding the consent-based siting process," and initiated another related public comment period that expired in April 2017. Nothing came of its actions, and the Department of Energy now advises that the Trump Administration "does not intend to take further policy action on the consent-based siting activities in question."

While Texas was not involved, it had its wary eyes on these proceedings, and on March 14, 2017, petitioned this Court for relief, naming various federal entities as defendants, including the Department of Energy, Nuclear Regulatory Commission, Licensing Board, Department of Treasury, and various federal officials associated with these agencies (collectively, the "federal respondents"). Relying on 42 U.S.C. § 10139(a)(1), Texas argues that the federal respondents violated their obligations under the Waste Act in their pursuit of consent-based siting, failure to complete the Yucca Mountain licensing process by 2012, and failure to accept the waste by 1998.

Seeking several different remedies, Texas characterizes "[t]he thrust" of its petition as a request for "equitable relief prohibiting [the Department of Energy] from conducting any other consent-based siting activity and ordering Respondents to finish the Yucca licensure proceedings," supported by ancillary remedies, such as civil contempt and appointment of a special master. After Texas filed its petition, the Nuclear Energy Institute alongside various nuclear utilities companies (collectively, the "NEI") and the state of Nevada intervened, all of which oppose Texas’s petition on jurisdictional and substantive grounds.

891 F.3d 558

After filing its petition, Texas moved for declaratory and injunctive relief; Nevada responded with its own motion to dismiss, which the federal respondents and the NEI supported in substance.

II.

As is plain, Texas flies here on creatively...

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