ML032380021

Motion for Leave to File Memorandum in Opposition to Respondent'S Motion to Dismiss, Dated 07/30/03

ML032380021
Person / Time
Site:	Indian Point
Issue date:	07/30/2003
From:	Snook R State of CT, Office of the Attorney General
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, 2nd Circuit
References
03-4313
Download: ML032380021 (7)

Text

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse at Foley Square 40 Centre Street, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Caption fuse short titlel Docket Number(s): 03-4313 Riverkeeper, Inc.

Motlou for: Leave to File opposition to Motion v.

To Dismiss Set forth below precise, complete statement of relief sought: Samuel J. Collins, Director, Office Amicus Curiae is seeking permission to of Nuclear Reactor Regulation, et al.

file bripf in anroxitinn to Rpondgnt-'i Motion to Dismiss.

AVCorney eneral MOVING PARTY: Richard Blumenthal OPPOSING PARTY: .

- Plaintiff 0 Defendant X Amicus Curiae o Appellant/Petitioner 3 Appellee/Respondent MOVING ATTORNEY: RrFor qngY*, OPPOSING ATTORNEY [Name]:

Jname of attorney, with firm, address, phone number and c-mail] [name of attorney, with firm, address, phone number and e-mail]

Robert Snook, Assistant Attorney General Office of the Attorney General 55 rim .Rtr>ppt RArifnr -P (n1A(

860 808-5020 KPDDjI=gUAgency appealed from: Nuclear Regulatory Commission Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL:

Has consent of opposing counsel: Has request for reliefbeen made below? D Yes No A. been sought? a Yes No B. been obtained? D Yes K No Has this relief been previously sought in this Court? 0 Yes No Is oral argument requested? 1 Yes JR No (requests for oral argument will not necessarily be granted) Requested return date and explanation of emergency:

Has argument date of appeal been set? 3 Yes No If yes, enter date Sign 7ik~ttu Date: 7/30/2003 Has service been effected? 0 Yes No

[Attach proof of service)

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT:

ROSEANN B. MacKECHNIE, Clerk of Court Date: By:

Form T-1080 (Revised 10/31/02).

's UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT RIVERKEEPER, INC. NO. 03-4313 V.

SAMUEL J. COLLINS, DIRECTOR, OFFICE OF NUCLEAR REACTOR REGULATION, ET AL., July 30,2003 MOTION FOR LEAVE TO FILE MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS Pursuant to Federal Rule of Appellate Procedure 27(a), amicus curiae, Richard Blumenthal, Attorney General of the State of Connecticut, files this motion seeking leave to file a memorandum in opposition to the Respondent's motion to dismiss in the above-captioned matter.

Background

The amicus curiae brings this motion in his capacity as the chief legal officer representing the legal interests of the State of Connecticut and its residents. The underlying appeal involves a challenge to the emergency planning and response procedures at the Indian Point Energy Center, a nuclear power station in Buchanan, New York. Pursuant to federal law and regulation, these emergency planning procedures affect both an immediate 10-mile radius planning zone around the facility and a further separate 50-mile radius ingestion pathway zone. The 50-mile radius zone includes substantial portions of the State of Connecticut, including its

largest city, Bridgeport, and its most populous county, Fairfield. Furthermore, the movement of evacuees from the more limited 10-mile zone would also directly impact the transportation network in and around southwestern Connecticut.

Therefore, because the Indian Point emergency plans affect significant portions of the State of Connecticut, including Fairfield County, the Attorney General, individually, and in his capacity as chief legal officer of the state, has filed a brief as amicus curiae in order to inform the Court of the position of the State in this matter.

On June 3, 2003, counsel for the Respondent, United States Nuclear Regulatory Commission ("NRC"), filed a motion to dismiss the underlying appeal for lack ofjurisdiction. On June 16, 2003, the Petitioner, Riverkeeper, Inc., filed a memorandum in opposition.

The Attorney Generals' Memorandum Will be of Assistance to the Court The amicus curiae seeks leave to file a memorandum in opposition to the motion to dismiss in order to support the jurisdiction of the Court in this matter.

Specifically, the NRC has claimed that, pursuant to the tenns of 10 C.F.R. Section 2.206, the actions requested below by Riverkeeper are committed to the discretion of the agency and, as such, any review thereof is beyond the jurisdiction of this Court. In support of there argument, NRC relies on the case of Hecker v. Chaney, 470 U.S. 821 (1985).

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The Respondent's claim fails for several reasons, as detailed in the memorandum in opposition. On the one hand, Chaney itself makes clear that even wholly discretionary administrative acts are reviewable if, as here, the claim is that the agency abdicated its statutory responsibilities. Beyond this, however, the NRC's assertion that its decision is discretionary is based solely on the code of federal regulations, not on a grant of statutory authority. Chaney is clear that only when Congress has committed enforcement authority solely to the discretion of the agency by statute can the federal judiciary be divested of jurisdiction. Obviously, any rule that permits agencies to remove their decision-making process beyond the power of the federal courts by merely adopting a regulation would have far-reaching and extremely negative effect on the ability of the public to seek independent scrutiny of the actions of government officials.

The amicus, as attorney general, is often obligated to both appear before, and on occasion defend, the actions of administrative agencies. As such the amicus brings a unique viewpoint to this very important question ofjurisdiction.

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Conclusion For the foregoing reasons, the Attorney General seeks leave to file the attached memorandum in opposition to Respondent's motion to dismiss.

RICHARD BLUMENTHAL AT7ORNEY GE RAL BY:

1obert . Snook Assistant Attorney General Federal Bar No. ctl0897 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Tel: (860) 808-5020 Fax: (860) 808-5347 Robert.Snookgpo.state.ct.us 4

Certificate of Service Pursuant to Rule 25(d)(2) of the Federal Rules of Appellate Procedure, I hereby certify that on this 30 day of July, 2003, the original and 9 copies of the foregoing were filed in accordance with Rule 25(a)(2)(B(ii) to Roseann B.

MacKechnie, Clerk, Second Circuit Court of Appeals, 40 Foley Square, New York, New York 10007.

I further certify that seven copies of the foregoing were delivered to the following counsel of record:

Karl Coplan Pace Environmental Litigation Clinic, Inc.

78 N. Broadway White Plains, NY 10603 Tel: (914) 422-4143 William A. Isaacson Boies, Schiller & Flexner 5301 Wisconsin Avenue, Suite 800 Washington, DC 20015 Tel: (202) 237-2727 John Fulton, Esq.

Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601 Jay E. Silberg Matia F. Travieso-Diaz Paul A. Gaukler Shaw Pittman, LLP 2300 N Street, NW Washington, DC 20037 Tel: (202) 663-8000 5

J. Michael McGarry, III, Esq.

Katheryn M. Sutton, Esq.

Brooke D. Poole, Esq.

L. Michael Rafky, Esq.

Winston & Strawn 1400 L Street, NW Washington, DC 20005-3502 Tel: (202) 371-5700 Sara E. Brock, Esq.

Catherine L. Marco, Esq.

Office of the General Counsel Mail Stop 15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 John Ashcroft United States Attorney General United States Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Tel: (202) 353-1555 Robert D. Snook Assistant Attorney General 6