ML17095B017
| ML17095B017 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 04/05/2017 |
| From: | Ginsberg E, Mullins C, Rund J, Silberg J, Walsh T Ameren Missouri, Energy Northwest, Kansas City Power & Light Co, Kansas Electric Power Cooperative, Kansas Gas & Electric Co, Nuclear Energy Institute, Pillsbury, Winthrop, Shaw, Pittman, LLP, Tennessee Valley Authority, Union Electric Co, Westar Energy, Wolf Creek |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 00513940710, 17-60191 | |
| Download: ML17095B017 (23) | |
Text
4848-8271-5718.v3 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT In Re: State of Texas
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Docket No. 17-60191
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MOTION OF THE NUCLEAR ENERGY INSTITUTE AND NUCLEAR UTILITIES FOR LEAVE TO INTERVENE IN SUPPORT OF RESPONDENTS Ellen C. Ginsberg, Esq.
Jonathan M. Rund, Esq.
Nuclear Energy Institute 1201 F. St., NW Washington, DC 20004 202-739-8000 April 5, 2017 Jay E. Silberg, Esq.
Timothy J. V. Walsh, Esq.
Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 202-663-8063 jay.silberg@pillsburylaw.com Counsel for:
Nuclear Energy Institute; Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy; Kansas City Power & Light Company; Kansas Electric Power Cooperative, Inc.;
Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren Missouri; and Tennessee Valley Authority Case: 17-60191 Document: 00513940710 Page: 1 Date Filed: 04/05/2017
4848-8271-5718.v3 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT In Re: State of Texas
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Docket No. 17-60191
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CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities, as described in the fourth sentence of Fifth Circuit Rule 28.2.1, have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.
Petitioner Counsel State of Texas Ken Paxton Jeffrey C. Mateer Brantley D. Starr Michael C. Toth David Austin R. Nimocks Andrew D. Leonie David J. Hacker Joel Stonedale Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548 (MC 009)
Austin, Texas 78711-2548 Robert J. Cynkar McSweeney, Cynkar &
Kachouroff, PPLC 10506 Milkweed Drive Great Falls, Virginia 22066 Case: 17-60191 Document: 00513940710 Page: 2 Date Filed: 04/05/2017
2 4848-8271-5718.v3 Respondents Counsel 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; and 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 & Steven T. Mnuchin, in his official capacity as United States Secretary of the Treasury.
David S. Gualtieri U.S. Department of Justice Washington, DC 20530 Stephen Skubel Jane Taylor U.S. Department of Energy Washington, DC 20585 Andrew Averbach Charles Mullins U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas Kearns Monica J. Molnar U.S. Department of Treasury Washington, DC 20220 Case: 17-60191 Document: 00513940710 Page: 3 Date Filed: 04/05/2017
3 4848-8271-5718.v3 Movants Counsel Nuclear Energy Institute Energy Northwest Kansas Gas and Electric Company d/b/a Westar Energy Kansas City Power & Light Company Kansas Electric Power Cooperative, Inc.
Wolf Creek Nuclear Operating Corporation Union Electric Company d/b/a Ameren Missouri Tennessee Valley Authority Jay E. Silberg Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 Other Interested Persons Counsel All other U.S. utilities or corporations or other entities that own/operate or previously owned/operated nuclear electric generating stations.
Unknown Respectfully Submitted, s/Jay E. Silberg Jay E. Silberg Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 202-663-8063 jay.silberg@pillsburylaw.com Counsel for:
Nuclear Energy Institute; Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy; Kansas City Power & Light Company; Kansas Electric Power Cooperative, Inc.;
Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren Missouri; and Tennessee Valley Authority Case: 17-60191 Document: 00513940710 Page: 4 Date Filed: 04/05/2017
4848-8271-5718.v3 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT In Re: State of Texas
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Docket No. 17-60191
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MOTION OF THE NUCLEAR ENERGY INSTITUTE AND NUCLEAR UTILITIES FOR LEAVE TO INTERVENE IN SUPPORT OF RESPONDENTS I.
Introduction The Nuclear Energy Institute, Inc. (NEI), on behalf of itself and its members, and the Nuclear Utilities listed below who own or operate nuclear power plants1 respectfully move this Court for leave to intervene in the above-captioned proceeding in accordance with Fed. R. App. P. 15(d) and 27, and Fifth Circuit Rules 15.5 and 27.2 NEIs and the Nuclear Utilities intervention would be limited to the Texas prayers for relief seeking restitution from and disgorgement of the Nuclear Waste Fund.3 1 The entities are Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy; Kansas City Power & Light Company; Kansas Electric Power Cooperative, Inc.; Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren Missouri; and Tennessee Valley Authority (collectively, the Nuclear Utilities).
2 In accordance with Fifth Circuit Rule 27.4, NEI has contacted all other parties in an attempt to determine whether an opposition to this motion will be filed. The Respondents do not oppose the motion. The State of Texas has said that it will file an opposition to this motion.
3 Petition at 27. To the extent that Texas opposition to this Motion claims that intervention on these issues is not ripe at this time, Movants significant interests in this lawsuit will endure so long as the prayers for restitution and disgorgement persist in the Petition.
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2 4848-8271-5718.v3 NEI, a trade association organized under Section 501(c)(6) of the Internal Revenue Code, is responsible for establishing unified industry policy affecting the nuclear energy industry, including matters governed by the Nuclear Waste Policy Act (NWPA or the Act). NEIs members include all entities licensed to generate electricity from civilian nuclear power reactors in the United States. As a result, NEIs members have paid fees into the Nuclear Waste Fund in accordance with NWPA Section 302(a)4 and the Standard Contract for the Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste, commonly referred to as the Standard Contract.5 Each of the Nuclear Utilities has paid fees into the Nuclear Waste Fund and is a member of NEI:
- Energy Northwest owns and operates the Columbia Generating Station, a single reactor unit located near Richland, Washington.
- Kansas Gas and Electric Company (d/b/a Westar Energy), Kansas City Power & Light Company, and Kansas Electric Power Cooperative, Inc. are each partial owners of the Wolf Creek Generating Station, a single reactor unit located in Coffey County, 4 42 U.S.C. § 10222(a).
5 The Standard Contract was adopted by rulemaking and is codified in U.S. Department of Energy (Department or DOE) regulations. See 10 C.F.R. Part 961.
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3 4848-8271-5718.v3 Kansas. Wolf Creek Nuclear Operating Company is owned by the three Kansas entities, operates the Station, and, as agent for its owners, has paid fees into the Nuclear Waste Fund.
- Union Electric Company (d/b/a/ Ameren Missouri) owns and operates the Callaway Energy Center, a single reactor unit located near Fulton, Missouri.
- Tennessee Valley Authority owns and operates (1) the Browns Ferry Nuclear Plant, a three reactor plant located near Athens, Alabama; (2) the Sequoyah Nuclear Plant, a two reactor plant located near Soddy-Daisy, Tennessee; and (3) the Watts Bar Nuclear Plant, a two reactor plant located near Spring City, Tennessee.
The Original Petition of the State of Texas seeks to raise issues concerning Respondents compliance with certain aspects of the Act. NEI and the Nuclear Utilities share Texas desire for restart of the federal used fuel management program. Two relief requests raised in the Petition, however, would harm, not help, efforts to reestablish a durable used fuel management program. In particular, Texas Petition includes prayers calling for restitution from and disgorgement of Case: 17-60191 Document: 00513940710 Page: 7 Date Filed: 04/05/2017
4 4848-8271-5718.v3 the Nuclear Waste Fund.6 NEI and the Nuclear Utilities seek to intervene with respect to these two prayers.
On behalf of its members, NEI has participated directly as a party in Nuclear Waste Fund litigation.7 NEIs members have similarly been parties in litigation involving the Nuclear Waste Fund.8 NEI has also participated directly as a party on behalf of its members in litigation involving other aspects of the nuclear waste program.9 NEI and the Nuclear Utilities meet the standard for intervention as of right and the standard for permissive intervention based on their interests in the subject matter of the Petition, and the impact that Prayers for Relief No. 21 (an order providing Petitioner with restitution from the Nuclear Waste Fund) and No. 22 (an order disgorging the Nuclear Waste Fund) would have on NEI, NEIs 6 Petition at 27.
7 See, e.g., National Association of Regulatory Utility Commissioners v U.S. Department of Energy, 736 F.3d 517 (D.C. Cir. 2013); National Association of Regulatory Utility Commissioners v U.S. Department of Energy, 680 F.3d 819 (D.C. Cir. 2012); National Association of Regulatory Utility Commissioners v. U.S. Department of Energy, 405 Fed.
Appx. 507 (D.C. Cir. 2010). Kansas Gas and Electric, Kansas City Power & Light, Kansas Electric Power Cooperative, and Wolf Creek Nuclear Operating Corporation also participated in the Nuclear Waste Fund fee suspension litigation.
8 See, e.g., Alabama Power Co. v U.S. Department of Energy, 307 F.3d 1300 (11th Cir. 2002);
National Association of Regulatory Utility Commission v. U.S. Department of Energy, 851 F.2d 1424 (D.C. Cir. 1988).
9 Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1279 (D.C. Cir. 2004) (challenge to ground water standard for nuclear waste repository) (NEI v. EPA); U.S. Dept of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367, 483 (2009) (granting NEI intervenor status as a party to the NRC adjudication of the Yucca Mountain license application).
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5 4848-8271-5718.v3 members, and the Nuclear Utilities. NEI seeks to intervene on behalf of its members, and the Nuclear Utilities seek to intervene on their own, because granting the restitution and disgorgement remedies sought by Petitioner would deplete the Nuclear Waste Fund, contrary to the plain language and purposes of the Act, causing direct harm to NEI, NEIs members, and the Nuclear Utilities.
NEIs and the Nuclear Utilities proposed intervention opposing two of the remedies sought by Petitioner should in no sense be considered an endorsement of the Federal Governments handling of the used fuel program, aspects of which NEI and the Nuclear Utilities have criticized and challenged for many years.
II.
NEI Has Standing to Represent the Interests of Its Members Federal courts consistently find that associations like NEI have standing to represent the interests of their members in appropriate circumstances. Even in the absence of injury to itself, an association may have standing solely as the representative of its members.10 To establish an organizations right to intervene on behalf of its members, the organization must demonstrate both associational standing and prudential standing. For associational standing, NEI must show that:
(1) its members would otherwise have standing to sue on their own right; (2) the interests it seeks to protect are germane to the organizations purpose; and (3) 10 Warth v. Seldin, 422 U.S. 490, 511 (1975).
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6 4848-8271-5718.v3 neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.11 For prudential standing, NEI must show that its grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.12 NEI meets the standards for associational and prudential standing. If granted, Texas prayers for restitution from the Nuclear Waste Fund and disgorgement of the Fund would necessarily reduce the funds available for the development and construction of a repository - which the Act directs shall be at Yucca Mountain, Nevada13 - and would even further delay the opening of a repository.14 Indeed, the Blue Ribbon Commission on Americas Nuclear Future found that funding for the repository program has been constrained, and that such constraints have caused significant delay.15 As the D.C. Circuit ruled in NEI v.
EPA, [a]s to injury-in-fact, we have no doubt that delaying the opening of the 11 Hunt v. Washington State Apple Advertising Commn, 432 U.S. 333, 343 (1977).
12 Bennett v. Spear, 520 U.S. 154, 162 (1997).
13 NWPA § 160 (42 U.S.C. § 10172) designates Yucca Mountain, Nevada as the sole site to be characterized for a repository. This designation was confirmed in 2002 when, in accordance with the procedures set forth in NWPA §§ 115 and 116 (42 U.S.C. §§ 10135-36), Congress enacted the Yucca Mountain Development Act (P. L. No. 107-200, 116 Stat. 735), which was a joint resolution of repository siting approval, and which overrode the State of Nevadas disapproval of the site.
14 NWPA § 302(a)(5)(B) (42 U.S.C. § 10222(a)(5)(B)) required the Department to begin disposal of the spent nuclear fuel generated by NEIs members by January 31, 1998.
15 See Report to the Secretary of Energy prepared by the Blue Ribbon Commission on Americas Nuclear Future (included in the Texas Appendix at Exhibit 9) at pp. xi, 23 (Bates Nos. 000033, 000067).
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7 4848-8271-5718.v3 Yucca Mountain repository would inflict concrete harm on NEI members [who]
expend substantial sums to operate their own storage facilities.16 With respect to the second factor, pursuing litigation to speed the licensing of a permanent repository is germane to [NEIs] purpose....17 The interests NEI seeks to protect include ensuring the integrity of the Nuclear Waste Fund - which consists of billions of dollars in fees paid by the nuclear industry and accrued interest - so that sufficient funds are available to pay for the disposal of the nations spent nuclear fuel. For the third factor, neither the claims asserted nor the relief requested by Texas requires that NEIs members participate in this lawsuit because the relief sought is injunctive.18 NEI also meets the requirements for prudential standing because its interests fall within the zone of interests protected by the NWPA. The NWPA obligates the Federal Government to provide for the permanent disposal of spent nuclear fuel, and obligates those who benefit from spent nuclear fuel generation (i.e., NEIs members) to pay for its disposal.19 This Court has previously found that nuclear 16 NEI v. EPA, 373 F.3d at 1279.
17 Id.
18 City of Waukesha v. EPA, 320 F.3d 228, 236 (D.C. Cir. 2003) (finding that NEI had standing to represent its members interests), citing Hunt v. Wash. State Apple Adver. Commn, 432 U.S. 333, 344 (1997) (requests for declaratory and injunctive relieve do not require individualized proof and both are thus properly resolved in a group context).
19 NWPA § 111(a)(4) (while the Federal Government has the responsibility to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment, the costs of Case: 17-60191 Document: 00513940710 Page: 11 Date Filed: 04/05/2017
8 4848-8271-5718.v3 electric utilities defined role in the NWPA statutory scheme is providing funding for the Nuclear Waste Policy Act.20 NEIs interests are thus squarely implicated by Texas prayers for restitution and disgorgement.
The Nuclear Utilities have standing as of right for the same reason as NEI:
restitution from or disgorgement of the Nuclear Waste Fund would necessarily reduce the funds available for the development and construction of a repository, resulting in even further delay in the program, which would inflict concrete harm on [those who] expend substantial sums to operate their own storage facilities.21 III.
NEI and the Nuclear Utilities Satisfy the Requirements for Intervention as of Right To intervene as of right under Fed. R. Civ. P. 24(a)(2),22 one must: (1) file a timely motion; (2) claim an interest relating to the subject of the action and show that the outcome of the proceeding may, as a practical matter, impede the ability to protect those interests; and (3) demonstrate that its interests may not be adequately such disposal should be the responsibility of the generators and owners of such waste and spent fuel) (42 U.S.C. § 10131(a)(4)).
20 Texas v. U.S. Dept of Energy, 754 F.2d 550, 551 (5th Cir. 1985). This case implicates not only the nuclear industrys defined role in funding the NWPA program, as described in Texas, but also NEIs interests in the NRCs Yucca Mountain proceeding to which NEI is already a party, see note 9, supra.
21 NEI v. EPA, 373 F.3d at 1279.
22 Because Fed. R. App. P. 15(d) provides no standards for resolving intervention questions, this Court has looked to the policies underlying intervention in the trial courts pursuant to Fed. R.
Civ. P. 24. Texas, 754 F.2d at 551.
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9 4848-8271-5718.v3 represented by the existing parties.23 NEI and the Nuclear Utilities satisfy each of these requirements.
A.
The Motion to Intervene is Timely The Federal Rules of Appellate Procedure and Fifth Circuit rules do not establish a deadline for a motion to intervene in a mandamus proceeding. In a somewhat analogous situation, in the case of a petition for review of an order from an agency proceeding, Fifth Circuit Rule 15.5 provides that a motion to intervene should be filed not later than 14 days prior to the due date of the brief of the party supported by the intervenor. The Court directed that Federal Respondents file their responses to the Texas Petition by April 19, 2017.24 This intervention motion is being filed no later than 14 days prior to the due date of the responses and therefore is timely.
B.
NEI and the Nuclear Utilities Have Protectable Interests in Opposing Restitution and Disgorgement of the Nuclear Waste Fund Intervention by NEI and the Nuclear Utilities is necessary to protect their interests and the interests of NEIs other members. With respect to two Prayers for Relief sought, Petitioners interest in restitution and disgorgement of the Nuclear 23 Sierra Club v. Espy, 18 F.3d 202, 1204-05 (5th Cir. 1994).
24 Letter from Lyle W. Cayce, Clerk, U.S. Court of Appeals for the Fifth Circuit, to Counsel for Respondents, Case No. 17-60191 (Mar. 20, 2017).
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10 4848-8271-5718.v3 Waste Fund is at odds with the interests of the Nuclear Utilities and other NEI members in preserving the Nuclear Waste Fund so that it can be used for its statutorily-designated purpose: disposing of nuclear utilities spent nuclear fuel and high-level radioactive waste. The Nuclear Utilities and NEIs other nuclear electric utility members include the nuclear power generators that have paid more than $20 billion into the Nuclear Waste Fund. That Fund has accrued over $20 billion in interest25 since the United States began collecting the nuclear waste fee in 1983 in accordance with NWPA § 302(a)26 and the Standard Contracts which all utilities with nuclear power plants were compelled to sign.
Texas prayers for restitution and disgorgement implicate at least three additional interests of the Nuclear Utilities and NEI:
First, Texas prayers could undermine the Governments statutory and contractual obligation to dispose of the utilities spent nuclear fuel and high-level radioactive waste. If the Court ordered restitution or disgorgement, that could be interpreted as a total breach of the Standard Contract. This in turn, could be interpreted to alter the ongoing obligations of the parties - more specifically, it 25 See U.S. Department of Energy Office of Inspector General Audit Report OI-FS-17-04, Department of Energy Nuclear Waste Funds Fiscal Year 2016 Financial Statement Audit (Dec. 2016) at p. 27, available at https://www.energy.gov/sites/prod/files/2016/12/f34/OAI-FS-17-04.pdf. As of September 30, 2016, the U.S. Treasury securities held by the Department related to the Nuclear Waste Fund had a fair value of $46.0 billion. Id. at 5.
26 42 U.S.C. § 10222(a).
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11 4848-8271-5718.v3 could undermine the utilities contractual position. The NWPA required that the Department begin to dispose of the utilities used fuel beginning not later than January 31, 1998.27 Similarly, the Standard Contract provided that the services to be provided by DOE under the contract shall begin not later than January 31, 1998.28 DOE missed these statutory and contractual milestones.29 As the Federal Circuit has stated, [t]he breach involved all the utilities that had signed the contractthe entire nuclear electric industry.30 More than seventy breach of contract lawsuits have been settled or litigated in the U.S. Court of Federal Claims to recover as damages the additional expenses [they] incurred in continuing to store the nuclear waste past the date on which the Department was obligated to remove it.31 Each lawsuit was for a partial breach of contract, rather than total breach, for multiple reasons. First, the Department has never asserted that it had been relieved of its obligation to perform in accordance with the Standard Contract, 27 NWPA § 302(a)(5)(B) (42 U.S.C. § 10222(a)(5)(B)).
28 10 C.F.R. § 961.11, Standard Contract, Art. II.
29 See Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed. Cir. 2000);
Northern States Power Co. v. United States, 224 F.3d 1361 (Fed. Cir. 2000).
30 Maine Yankee, 225 F.3d at 1342.
31 See, e.g., id. According to the DOE Inspector General Audit Report OI-FS-17-04, supra n. 25 at p. 21, settlements and judgments from these lawsuits have resulted in payments to nuclear utilities exceeding $6.1 billion.
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12 4848-8271-5718.v3 instead acknowledging that its performance was delayed.32 Second, the federal courts have emphasized that a partial breach of contract is the appropriate cause of action [i]f the injured party elects to or is required to await the balance of the other partys performance under the contract.33 Indeed, the Federal Circuit has ruled that the Standard Contract, incorporating the NWPAs requirements, required that plaintiffs bring partial breach actions.34 In addition, the federal courts have consistently held that partial breach of contract was the appropriate claim since the NWPA requires that DOE be exclusively responsible for the disposal of used fuel, thereby prohibiting utilities from pursuing alternative disposal remedies.35 Texas prayers for restitution from and disgorgement of the Nuclear Waste Fund, if successful, could be interpreted to create a total breach of the Standard Contract.36 Such relief would be at odds with the requirements of the NWPA and 32 See Indiana Michigan Power Co. v. U.S., 422 F.3d 1369, 1374 (Fed. Cir. 2005) (while the government did indicate that it would not meet the 1998 deadline, its actions did not portend an absolute refusal to perform the contract).
33 Id. (citing Restatement (Second) of Contracts, § 236 cmt. b.).
34 Id. (The NWPA itself, and the Standard Contracts terms drafted pursuant to it, compelled Indiana Michigan to bring an action for partial, not total, breach.).
35 Id., citing NWPA secs. 302(a)(4) and (b)(2) (42 U.S.C. § 10222(a)(4) and (b)(2)); Roedler v.
DOE, 255 F.3d 1347, 1350 (Fed. Cir. 2001).
36 See Hansen Bancorp, Inc. v. United States, 367 F.3d 1297, 1309 (Fed. Cir. 2004) (relief in restitution is available only if the breach gives rise to a claim for damages for total breach and not merely to a claim for damages for partial breach) (quoting Restatement (Second) of Contracts, § 373 cmt. a).
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13 4848-8271-5718.v3 the settlements and damages lawsuits that have resulted in over $6 billion in damages payments to nuclear electric utilities from the Judgment Fund.37 Second, Texas prayers for restitution and disgorgement arguably could undermine utilities Nuclear Regulatory Commission (NRC) operating licenses for their nuclear power reactors. If the prayers are granted and total breach of the Standard Contract is deemed to occur, NWPA sec. 302(b)(1) would be implicated.
That section of the Act prohibits the NRC from issuing or renewing a license to operate a nuclear power reactor absent a disposal contract with the Federal government.38 Third, restitution and disgorgement have the potential to increase the future fees that might have to be collected from the Nuclear Utilities and NEIs other utility members, if fee collection were resumed.39 In Alabama Power, the Eleventh Circuit rejected an agreement between a nuclear power plant owner and DOE as violating the NWPA. The agreement would have granted the owner an offset against future Nuclear Waste Fund payments in exchange for the owners release 37 See DOE Inspector General Audit Report OI-FS-17-04 at p. 21, n. 25, supra.
38 42 U.S.C. § 10222(b)(1).
39 In 2013, as a result of litigation instituted by NEI, the National Association of Regulatory Utility Commissions, and a group of nuclear electric utilities, the D.C. Circuit directed the Department of Energy to submit a proposal to Congress to set the Nuclear Waste Fund fee to zero until such a time as either the Secretary chooses to comply with the Act as it is currently written, or until Congress enacts an alternative waste management plan. National Association of Regulatory Utility Commissioners, 736 F.3d at 521. Since 2014, the fee has been set at zero.
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14 4848-8271-5718.v3 of its breach of contract claim against DOE for failure to meet its disposal obligations. The Court rejected the agreement in part because such agreement would have increased the fees paid by other utilities to cover the costs of disposal.40 In other words, an offset against future payments would mean less money in the Nuclear Waste Fund, as would occur here if Texas were successful in its prayers for restitution or disgorgement. In the future, this would require other utilities to pay greater fees to cover the costs of disposal.
C.
No Existing Party Adequately Represents NEIs and the Nuclear Utilities Interests The Federal Respondents cannot protect NEIs and the Nuclear Utilities interests. The interests of the Respondents frequently diverge from the interests of NEI and its member utilities on the Nuclear Waste Fund and other NWPA issues.41 The Government is, after all, the contractual counterparty to each of the utilities who has signed the Standard Contract. NEI and utilities have been forced to sue the Government regarding the Fund and NWPA obligations.
Moreover, NEI and the Nuclear Utilities cannot predict what Respondents position will be on the issues on which they request to intervene. Indeed, seven years ago, DOE sought to withdraw the Yucca Mountain license application 40 Alabama Power, 307 F.3d at 1314.
41 See, e.g., Alabama Power Co., supra n. 8; Indiana Michigan Power Co., supra n. 32, National Association of Regulatory Utility Commissioners, 736 F.3d 517, supra n. 7.
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15 4848-8271-5718.v3 pending before the NRC;42 while last month, the Government proposed $120 million to resume the Yucca Mountain licensing proceeding (among other things).43 Nor can NEI and the Nuclear Utilities predict at this time how Respondents will defend their position and whether that defense will be inconsistent with NEIs and the Nuclear Utilities position on these and other issues. For these reasons, NEI and the Nuclear Utilities respectfully submit that their intervention is necessary in order to adequately protect their interests and the interests of NEIs members.
IV.
NEI and the Nuclear Utilities Also Satisfy the Standard for Permissive Intervention NEI and the Nuclear Utilities are not only entitled to intervene as of right, but also qualify for permissive intervention. Federal Rule of Civil Procedure 24(b)(1) provides that [o]n timely motion, the court may permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact.44 42 See U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 N.R.C. 609, 617 (2010) (rejecting the Departments March 3, 2010 motion to withdraw the license application with prejudice).
43 Office of Management and Budget, America First: A Budget Blueprint to Make America Great Again (March 2017) at p. 19, available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/2018_blueprint.pd f
44 See also Newby v. Enron Corp., 443 F.3d 416, 421 (5th Cir. 2006).
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16 4848-8271-5718.v3 As demonstrated previously, the intervention motion is timely. Further, as discussed above, NEIs members possess legally protectable interests that will be harmed if the Court were to grant Texas prayers for restitution and disgorgement of the Nuclear Waste Fund. To protect those interests, NEI and the Nuclear Utilities will argue (among other things) that Texas requests for restitution from and disgorgement of the Nuclear Waste Fund are contrary to the NWPA and are otherwise unnecessary because the contractual remedies are being applied through settlements and continued litigation before the U.S. Court of Federal Claims.45 Thus, a common question of law exists in this case and permissive intervention is appropriate.
45 According to the DOE Inspector General Audit Report OI-FS-17-04, supra n. 25, the Department estimates its potential remaining liability to be approximately $24.7 billion, also to be paid out of the Judgment Fund. Audit Report at p. 22. For those cases that have been settled, the utilities submit annual claims to the DOE for those that costs they would not have incurred had the Department met its obligation to begin to dispose of spent nuclear fuel by January 31, 1998.
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17 4848-8271-5718.v3 V.
Conclusion For the forgoing reasons, NEI and the Nuclear Utilities respectfully request that the Court grant this motion for leave to intervene in this proceeding.
Ellen C. Ginsberg, Esq.
Jonathan M. Rund, Esq.
Nuclear Energy Institute 1201 F. St., NW Washington, DC 20004 202-739-8000 April 5, 2017 Respectfully Submitted, s/Jay E. Silberg Jay E. Silberg Timothy J. V. Walsh Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 202-663-8063 jay.silberg@pillsburylaw.com Counsel for:
Nuclear Energy Institute; Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy; Kansas City Power & Light Company; Kansas Electric Power Cooperative, Inc.;
Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren Missouri; and Tennessee Valley Authority Case: 17-60191 Document: 00513940710 Page: 21 Date Filed: 04/05/2017
4848-8271-5718.v3 CERTIFICATE OF SERVICE I hereby certify that on the 5th day of April, 2017 an electronic copy of the foregoing motion was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system, and that service will be accomplished by the appellate CM/ECF system.
s/Jay E. Silberg Jay E. Silberg Counsel for Movants Case: 17-60191 Document: 00513940710 Page: 22 Date Filed: 04/05/2017
4848-8271-5718.v3 CERTIFICATE OF COMPLIANCE
- 1. This Motion complies with the type-volume limitation of Federal Rule of Appellate Procedure 27(d)(2) and Fifth Circuit Rule 27.4 because it contains 4,042 words, except for the items excluded from the word count pursuant to F. R.
App. P. 32(f), as determined by the word-count function of Microsoft Word 2010.
- 2. This Motion complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and Fifth Circuit Rule 32.1 and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 Times New Roman 14-point font text for the main body and 12-point font text for footnotes.
s/Jay E. Silberg Jay E. Silberg Counsel for Movants Case: 17-60191 Document: 00513940710 Page: 23 Date Filed: 04/05/2017