In Re: Aiken County (Yucca Mountain Repository)

Jul 1: In the U.S. Court of Appeals, D.C. Dircuit, Case Nos. 10-1050, 10-1052, 10-1069 & 10-1082. On Petitions for Declaratory and Injunctive Relief, Petitions for Extraordinary Relief, and Petitions for Review. As the Appeals Court explained, three state and local governmental units, along with individual citizens, petitioned the court for review of and other relief from two "determinations" made by the Department of Energy (DOE") and the other respondents: (1) the DOE's attempt to withdraw the application it submitted to the Nuclear Regulatory Commission (NRC or the Commission) for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and (2) the DOE's apparent decision to abandon development of the Yucca Mountain nuclear waste repository. The Appeals Court ruled unanimously, with two concurring opinions, "Because we believe that Petitioners' two claims are, respectively, not ripe for judicial determination and not justiciable by this court, we dismiss the petitions for lack of jurisdiction."

 

    In explaining the petitioners and their claim, the Appeals Court said, "The present petitioners argue that recent actions taken by the DOE—which at the very least demonstrate the DOE's desire to abandon development of the Yucca Mountain nuclear waste repository -- violate the Nuclear Waste Policy Act (NWPA), the National Environmental Policy Act, and the Administrative Procedure Act (APA). Three of the petitioners -- Aiken County in South Carolina, the State of South Carolina, and the State of Washington -- are state or local governments of localities that are home to sites that temporarily store spent nuclear fuel and high-level radioactive waste pending the opening of a federal nuclear waste repository. The remaining petitioners are three private citizens who live and work near one of those sites. Put succinctly, Petitioners believe that if the federal government abandons the Yucca Mountain nuclear repository, the only congressionally-approved site for permanently disposing of the nation's spent nuclear waste will be lost and the federal government will fail to comply with its statutory responsibility to provide for the permanent disposal of all of the nation's high-level radioactive waste."

 

    The Appeals Court finds that, "First, the Commission has not yet decided whether it will review the Licensing Board's denial of the DOE motion to withdraw. If the Commission declines to review the denial, the DOE will have failed in its attempt to withdraw the Yucca Mountain application and Petitioners' first claim will be moot. The same outcome will occur if the Commission chooses to review and then upholds the Licensing Board's denial of the DOE motion. The only way in which Petitioner's first claim will not become moot is if the Commission chooses to review and then reverses the Licensing Board's denial. . ."

 

    Petitioners' second claim challenges DOE actions which are simply not reviewable by this court. Petitioners characterize the

agency action challenged in their second claim as the 'determination made on or about January 29, 2010, by Respondents President Obama, Secretary Chu and DOE to unilaterally and irrevocably terminate the Yucca Mountain repository process mandated by the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270.' Agency actions are reviewable by courts of appeal under the terms of 5 U.S.C. § 704. That section delineates reviewable actions as '[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . .' Petitioners have failed to identify any agency action coming within that delineation. Otherwise put, petitioners have set forth no discrete action mandated by the NWPA that the DOE has failed to perform or performed inadequately. . ."

 

    Finally, the Appeals Court concludes, "The NWPA set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE has submitted a construction license application for the Yucca Mountain repository and the Commission maintains a statutory duty to review that application. Despite the respondents' pronouncements and apparent intentions, unless and until Petitioners are able to demonstrate that one of the respondents has either violated a clear duty to act or otherwise affirmatively violated the law, Petitioners' challenges to the ongoing administrative process are premature. For the reasons set forth above, we conclude that we lack jurisdiction over Petitioners' claims. The petitions are dismissed."

 

    Among the two concurring opinions, Justice Kavanaugh wrote a lengthy opinion saying, "This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project. At the President's direction, the Department of Energy decided to withdraw the Yucca Mountain license application and terminate the Yucca Mountain nuclear storage project. A board within the Nuclear Regulatory Commission preliminarily rejected the decision of the Department of Energy (and thus of the President) to withdraw the Yucca Mountain license application. But the full Nuclear Regulatory Commission has yet to decide whether it will approve or reject the decision of the Department of Energy. Because the Commission has not yet acted on the Department of Energy's request, the Court's opinion today properly holds this case unripe under the existing legal framework. . ."

 

    He concludes, "This case is a dramatic illustration of the continuing significance and implications of Humphrey's Executor. As a result of Humphrey's Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission."

 

    In response to the court's decision, Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL), who have been holding hearings investigating the Yucca Mountain issue, released a statement, "The court's decision underscores the urgency for the NRC to complete action on the Yucca repository licensing application. With Commissioner Ostendorff set for another term, the NRC must now come together and finalize its vote on the Atomic Safety Licensing Board's ruling that DOE cannot withdraw Yucca's application. The Obama administration has already chosen to squander $15 billion; decades of scientific research and bipartisan collaboration hang in the balance, and taxpayers remain on the hook for billions of dollars more in future liability claims. Chairman Jaczko's politically motivated efforts to manipulate and steamroll this process, brought to light by the NRC Inspector General and career scientists, will no longer be tolerated. It's time for the NRC to get back to work and complete its job."

 

    Senate Majority Leader Harry Reid did not issue a release, but indicated in a Twitter posting, "Great day for Nevada. Court decision marks imp. win in battle 2 put Yucca Mtn. project 2 rest."

 

    Access the complete opinion and concurrences (click here). Access the statement from Reps. Upton and Shimkus (click here). Access Sen. Reid's Twitter posting (click here) [*Haz/Nuclear, #CADC]

Natural Resources Defense Council (NRDC) v. U.S. EPA

Jul 1: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1056. On Petition for Review of a Final Action of the Environmental Protection Agency. In this important case the Appeals Court addresses the highly controversial issue of regulatory "guidance" versus officially promulgated rules. The Appeals Court indicates, "Yet again we face a challenge to the Environmental Protection Agency's regulation of ozone under the Clean Air Act. At issue this time is an EPA "guidance document" addressing obligations of regions still in nonattainment of a now-revoked ozone air quality standard."

 

    The Appeals Court indicates, "Petitioner argues that the Guidance amounts to a legislative rule issued in violation of the Administrative Procedure Act's notice and comment requirement and that its substantive content is contrary to law. Firing nearly all the arrows in its jurisdictional quiver, EPA argues that petitioner lacks standing, that the Guidance does not qualify as final agency action, and that petitioner's claims are unripe for judicial review. As we explain in this opinion, all three arrows miss their target. On the merits, we conclude that the Guidance qualifies as a legislative rule that EPA was required to issue through notice and comment rulemaking and that one of its features -- the so-called attainment alternative -- violates the Clean Air Act's plain language. We therefore grant the petition for review and vacate the Guidance. . .

 

    "Now before us is EPA's latest attempt to reconcile the 8-hour standard with Subpart 2. This time its effort relates only to the application of section 185 fees to the eight regions in severe or extreme nonattainment of the 1-hour standard: Baltimore, Baton Rouge, Houston, New York City, Sacramento, the San Joaquin Valley, the South Coast Air Basin (CA), and the Southeast Desert (CA). Because attainment deadlines for the eight regions have now expired, all are in the process of developing section 185 implementation plans. Faced with the prospect of hefty fees, industry groups complained to EPA that because they already had in place the best available emission control technology, they could reduce emissions and thus avoid fees only by cutting production."

 

    EPA issued a "Guidance" document aimed at Regional Air Division Directors -- the agency officials directly responsible for implementation plan approval --  Memorandum from Stephen D. Page, Director, Office of Air Quality Planning & Standards to Regional Air Division Directors 3 (Jan. 5, 2010) (Fee Program Guidance). In other words, EPA believes 1-hour nonattainment areas have flexibility to choose between the statutorily mandated program and an equivalent -- i.e., the program alternative.

In addition to that alternative, the Guidance explains, regions attaining either the 1-hour or the 8-hour standard can avoid section 185 fees through an "attainment alternative."

 

    NRDC argues that EPA violated the Administrative Procedure Act by issuing the Guidance without notice and comment and that both the program and attainment alternatives violate the Clean Air Act. In response, EPA argues that NRDC lacks standing, that the Guidance fails to qualify as final agency action, and that NRDC's challenges are unripe for review. On the merits, EPA contends that the Guidance is either a policy statement or an interpretive rule and, in either case, is exempt from the notice and comment requirement. It also defends both alternatives as permissible exercises of statutory gapfilling. Numerous industry groups, including the American Chemistry Council and the South Coast Air Quality Management District have intervened in support of EPA.

 

    In a concluding statement the Appeals Court said, ". . .as we have said before, "[i]f the Environmental Protection Agency disagrees with the Clean Air Acts' requirements . . . , it should take its concerns to Congress. . . . In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court." Sierra Club, 479 F.3d at 884."

     Access the complete opinion (click here). [*Air, #CADC]

Sierra Club v. Lisa Jackson

Jul 1: the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5280. Appealed from the United States District Court for the District of Columbia. Appellants, nonprofit environmentalist organizations, appeal from a judgment of dismissal entered by the district court in an action against the United States Environmental Protection Agency (EPA) under the citizen suit provision of the Clean Air Act, challenging the Administrator's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The district court held that there was no mandatory duty to act and granted the EPA's motion to dismiss for lack of subject matter jurisdiction. The Appeals Court affirmed the dismissal on different grounds.

 

    The three projects underlying this litigation are the East Kentucky Power Cooperative's J.K. Smith Generating Station coal-fired CFB Boiler Project (Smith), Conoco Phillips and Peabody's Kentucky NewGas Synthetic Natural Gas Production plant (NewGas), and Cash Creek Generation LLC's coal-fired Cash Creek Generating Station (Cash Creek). Because each facility qualifies as a "major emitting facility," see § 7479(1), and because each is proposed to be built in a county designated as an attainment area, all three facilities are required to obtain permits from the State of Kentucky. § 7475(a). The permits are part of the statutory Prevention of Significant Deterioration (PSD) program implementing the requirements of § 7475(a). Kentucky granted PSD permits to each facility prior to September 15, 2010. That fact is significant because until that date, the Kentucky State Implementation Plan failed to meet the requirements of the Clean Air Act's PSD regulations.

 

    The Appeals Court explains that, "When neither the Administrator nor the state took action to prevent the construction of the nonconforming major emitting facilities, appellants, two environmentalist nonprofits (collectively referred to as Sierra Club), brought the present action under 42 U.S.C. § 7604(a)(2), which provides for the filing of citizen suits against the Administrator for her alleged failure to perform any nondiscretionary duty under the Act. Arguing that her duty under § 7477 was discretionary, and therefore beyond the reach of the statute, the Administrator moved for dismissal. Agreeing with the Administrator, the district court ruled that the Administrator's decision not to exercise her statutory duty was discretionary, and thus not subject to judicial review. Sierra Club v. Jackson, 724 F. Supp. 2d 33 (D.D.C. 2010). The district court entered a judgment of dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club brought the present appeal."

 

    The Appeals Court explains its ruling on different grounds and said, "Although we hold that we do not lose jurisdiction over this controversy by reason of mootness, this does not resolve the jurisdictional theory upon which the district court relied in dismissing the case under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club, 724 F. Supp. 2d at 42-43. The district court's ruling was based on the proposition that the Administrator's decision was discretionary and therefore not justiciable. Before this court, Sierra Club, which certainly does not concede that the district court should have dismissed the claim at all, argues that the analysis should have been under Rule 12(b)(6) to determine whether the complaint failed to state a claim upon which relief could be granted rather than under the jurisdictional standards of Rule 12(b)(1). While it does not in the end affect the outcome, we ultimately agree that Rule 12(b)(6) should govern. We hasten to state that we do not fault the district court for basing its dismissal on Rule 12(b)(1) rather than Rule 12(b)(6). The distinction between a claim that is not justiciable because relief cannot be granted upon it and a claim over which the court lacks subject matter jurisdiction is important. But we cannot fault the district court, as this court 'ha[s] not always been consistent in maintaining these distinctions.' Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir.2009) (Ginsburg, J., concurring). Indeed, we have provided authority both that discretionary duty claims fall outside our jurisdiction, and that such claims are nonjusticiable under Rule 12(b)(6). In Association of Irritated Residents v. EPA, we held that agency decisions excluded from judicial review by 5 U.S.C. § 701(a)(2) are outside the court's jurisdiction. 494 F.3d 1027, 1030 (D.C. Cir. 2007) ('In this case, subject matter jurisdiction turns on whether the Agreement constitutes a rulemaking subject to APA review, or an enforcement proceeding initiated at the agency's discretion and not reviewable by this court.'). Two years later, in Oryszak v. Sullivan, we came to a different conclusion."

 

    Access the complete opinion (click here). [*Air, #CADC]