Wisconsin Elec. Power Co. v. Department of Energy

• Decision Date: 06 December 1985
• Docket Number: Nos. 83-2066,84-5671,s. 83-2066
• Parties: , 250 U.S.App.D.C. 128, 54 USLW 2331, 16 Envtl. L. Rep. 20,173 WISCONSIN ELECTRIC POWER COMPANY, et al., Petitioners, v. DEPARTMENT OF ENERGY and United States of America, Respondents. WISCONSIN ELECTRIC POWER COMPANY, et al., Appellants, v. Donald P. HODEL, Secretary, Department of Energy.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

778 F.2d 1

23 ERC 1657, 250 U.S.App.D.C. 128, 54

USLW 2331,

16 Envtl. L. Rep. 20,173

WISCONSIN ELECTRIC POWER COMPANY, et al., Petitioners, v. DEPARTMENT OF ENERGY and United States of America, Respondents.

WISCONSIN ELECTRIC POWER COMPANY, et al., Appellants, v. Donald P. HODEL, Secretary, Department of Energy.

Nos. 83-2066, 84-5671.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 27, 1985.

Decided Dec. 6, 1985.

Jay E. Silberg, Washington, D.C., for petitioners/appellants.

William G. Cole, Atty. Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Robert S. Greenspan, Atty., Dept. of Justice, Washington, D.C., were on brief for respondents/appellees. Dennis G. Linder, Thomas Millet, and Bruce G. Forrest, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondents/appellees.

Before ROBINSON, Chief Judge, and BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge.

In 1982, Congress adopted a comprehensive statutory response to problems spawned by nuclear wastes generated by nuclear power plants in the production of electricity. These consolidated cases raise a single issue of statutory interpretation under that statute, the Nuclear Waste Policy Act of 1982, 42 U.S.C. Secs. 10101 et seq. (1982). That statute, among other things, establishes a system of fees to be levied on utilities which generate nuclear power in order to finance the establishment and operation of a fund to pay for the transportation, storage and disposal of spent nuclear fuel and high-level radioactive wastes. 42 U.S.C. Sec. 10222 (1982).

The specific question before us is whether a statutorily prescribed fee levied on nuclear generation of electricity applies to all nuclear-generated electricity (gross generation) or, instead, only to that nuclear-generated electricity which is sold by utilities, thus excluding electricity that the generating plant itself consumes (net generation). Pursuant to informal rulemaking, the Department of Energy imposed a fee at the statutorily prescribed level (1.0 mil per kilowatt hour) on all nuclear-generated electricity, as opposed to that nuclear-generated electricity which was sold by the utilities. On this distinction between gross generation, embraced by DOE, and net generation, championed by various electric utilities, turns a sizeable sum, estimated by the DOE to be approximately $16 to $20 million for the year 1984 alone. ¹ Based upon our analysis of the statute and the legislative history, we conclude that the pertinent statutory provision imposes the fees only on net generation of electricity. Accordingly, we grant the utilities' petition for review.

I

At the outset, we address briefly a threshold jurisdictional question in the wake of a controlling, recent decision by this court. Due to uncertainty over the proper forum for seeking review of DOE's rule, the utilities filed both a petition for review in this court and a complaint, based on federal question jurisdiction, 28 U.S.C. Sec. 1331 (1982), in the United States District Court for the District of Columbia. The proceedings in the Court of Appeals were stayed by order of this court dated December 27, 1983, pending the outcome of the federal district court action. On July 18, 1984, the District Court dismissed the complaint for lack of jurisdiction; in a careful memorandum opinion, the trial court concluded that the exclusive avenue for judicial review law in the Court of Appeals. Memorandum Opinion at 5-6. ²

After the briefing cycle in this case had been completed but prior to oral argument, this court handed down its decision in General Electric Uranium Management Corp. v. United States Department of Energy ("GEUMCO"), 764 F.2d 896 (D.C.Cir.1985). In that case, industry petitioners challenged a separate but related provision of the Nuclear Waste Policy Act, codified at 42 U.S.C. Sec. 10222(a)(3), which imposes a one-time fee on electric utilities. ³ The court held that "the court of appeals has original and exclusive jurisdiction to review DOE's one-time fee rule and that the District Court lacked subject matter jurisdiction to consider the instant case." 764 F.2d at 904. That decision, as the parties before us fully agree, is controlling as to the present challenge as well, because the instant case involves an attack on the DOE's ongoing fee imposed under 42 U.S.C. Sec. 10222(a)(2), a companion subsection of the same provision of the Nuclear Waste Policy Act. Thus, we hold, based on GEUMCO, that the district court correctly concluded that it lacked jurisdiction. Moreover, because the utilities' petition for review was consolidated with the appeal from the district court's decision, we reach the merits of the utilities' petition, to which we now turn.

II

The statutory provision before us consists of a single sentence: "For electricity generated by a civilian nuclear power reactor and sold on or after the date 90 days after January 7, 1983, the fee under paragraph (1) shall be equal to 1.0 mil per kilowatt-hour." 42 U.S.C. Sec. 10222(a)(2). Paragraph 1, which immediately precedes the pivotal subsection which is before us for analysis, consists of two sentences. ⁴ It states, in summary, that the Secretary is authorized to enter into contracts with "any person" generating or owning "high-level radioactive waste, or spent nuclear fuel, of domestic origin" for the transportation and disposal of such materials. These contracts must provide for the payment of an ongoing fee as prescribed in paragraph (2) of section 10222(a) and a one-time-only fee as prescribed in paragraph (3) of the same section, i.e., the provision at issue in GEUMCO. The purpose of these two types of fees, as more fully described in our decision in GEUMCO, 764 F.2d at 898-900, is to provide the wherewithal for a DOE-administered "Nuclear Waste Fund." That fund is designed to finance, among other things, the construction and operation of facilities for the storage and disposal of nuclear waste. See 42 U.S.C. Sec. 10222(d) (enumerating the specific uses to which the Nuclear Waste Fund can be dedicated).

The dispute in this case turns on the meaning of the phrase "and sold on or after the date 90 days after January 7, 1983." The utilities maintain that this language by its terms identifies nuclear-generated electricity which is sold; thus, under this reading, the statute excludes from the ongoing fee described in subsection (a)(2) that portion of commercially generated electricity consumed by utilities in the operation of their reactors. DOE argues, in contrast, that this phrase does not in fact require the nuclear-generated electricity to be "sold"; instead, in the agency's view, the entire phrase was intended by Congress merely to establish a temporal benchmark for imposition of the fee. That is to say, by including the two words, "and sold," in the phrase, "and sold on or after the date 90 days after January 7, 1983," Congress meant merely to fix a date certain when the ongoing fee would go into effect.

A

The utilities' reading of the statute comports with the plain language of the measure. In contrast, by the agency's interpretation, the two words "and sold" could just as readily have been left out of the statute in the first instance; indeed, the practical effect of DOE's interpretation is to blue pencil out two words in an already brief one-sentence provision. The statute, as DOE would have us interpret it, would provide as follows: "For electricity generated by a civilian nuclear power reactor on or after [April 7, 1983], the fee under paragraph (1) shall be equal to 1.0 mil per kilowatt-hour."

To be sure, this rather different wording is consistent with the adjacent provision in the statute. The companion fee provision establishing the one-time or subsection (a)(3) fee, 42 U.S.C. Sec. 10222(a)(3) (1982), which was before us for decision in GEUMCO, imposes that fee as to "fuel [which] was used to generate electricity in a civilian nuclear power reactor prior to [April 7, 1983]." Not a word relating to "sale," much less the words "and sold," is to be found in this companion provision. But this different wording demonstrates that Congress well knew how to craft--in the very next sentence of the same statute--a fee regime that said naught whatever about electricity that is or was "sold." ⁵

The Secretary's interpretation would thus have the unhappy result of obliterating express language from the subsection (a)(2) provision, in contravention of long-settled principles of statutory construction. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 337-38, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979); United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961); Community Nutrition Institute v. Young, 757 F.2d 354, 357-58 (D.C.Cir.1985), petition for cert. filed, 54 U.S.L.W. 3311 (U.S. Nov. 4, 1985) (No. 84-665). Where the language Congress chose to employ is clear, the duty of the judiciary is likewise clear. We must follow that language and give it effect. As the Supreme Court has instructed us in terms that could scarcely be plainer, when we have before us language crafted by the Article I branch, "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). That language, moreover, is to be interpreted as plain English; the framers and enactors of language on Capitol Hill presumably meant what one would mean in everyday parlance. Malat v. Riddell, 383 U.S. 569, 571-72, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966). ⁶

B

The Secretary does not directly quarrel with these general principles nor with the fact that DOE itself, in the context of the proposed rulemaking, once read the language...