ML20199M146
| ML20199M146 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 07/16/2020 |
| From: | Andrew Averbach, Curran D, Goldstein M, Lodge T Beyond Nuclear, Don't Waste Michigan, Emory Univ School of Law, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Turner Environmental Law Clinic |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1851983, 20-1187, 20-1225 | |
| Download: ML20199M146 (11) | |
Text
USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 1 of 11 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
BEYOND NUCLEAR, INC., )
)
Petitioner, ) No. 20-1187,
) consolidated with No. 20-1225
- v. )
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION and the )
UNITED STATES OF AMERICA, )
)
Respondents. )
)
PETITIONERS OPPOSITION TO RESPONDENTS MOTION TO HOLD CASE IN ABEYANCE I. INTRODUCTION Petitioners Beyond Nuclear, Inc. (Beyond Nuclear) and Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Nuclear Energy Information Service, Citizens Environmental Coalition, and Nuclear Issues Study Group (collectively, Dont Waste Michigan) hereby jointly respond to Respondents Motion to Hold Case in Abeyance Pending Agency Resolution of Adjudicatory Proceedings (July 6, 2020) (Motion). Petitioners oppose Respondents Motion with respect to the claims presented by Beyond Nuclear in No. 20-1187. Those claims are ripe for review, and therefore they should be heard now. Without taking a position on
USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 2 of 11 ripeness, Petitioners do not oppose holding the claims in No. 20-1225 in abeyance pending resolution by the U.S. Nuclear Regulatory Commission (NRC or Commission) of similar claims by other parties in the administrative proceeding below.
II. BACKGROUND A. Administrative Proceeding Before the NRC These consolidated cases arise from an NRC administrative proceeding to review a license application by Holtec International (Holtec) for an interim storage facility for spent (i.e., used) nuclear reactor fuel. Holtecs license application contemplates federal ownership of the spent reactor fuel to be stored at its facility, in violation of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10222(a)(5)(A) and 10143, which forbids federal ownership of such fuel until a permanent repository is operational.
- 1. Beyond Nuclears motion to dismiss the Holtec licensing proceeding In September 2018, at the outset of the Holtec licensing proceeding, Beyond Nuclear moved the NRC Commissioners to dismiss the proceeding entirely, on the ground that the Administrative Procedure Act (APA), 5 U.S.C. §§ 706(2)(A) and (C), prohibits the NRC from even considering an application that would violate the NWPA if implemented. In an October 29, 2018 order, the Commission denied Beyond Nuclears motion. The Commission declined to rule on the merits, and 2
USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 3 of 11 instead referred Beyond Nuclears claim to the Atomic Safety and Licensing Board (the Licensing Board) for consideration as a contention in the administrative proceeding.
Beyond Nuclear petitioned this Court for review of the NRCs October 2018 order on December 27, 2018 (No. 18-1340). On June 13, 2019, this Court dismissed the case because the NRCs order merely directs petitioner to raise its arguments within ongoing administrative proceedings and is not a final order of the Commission. Order, slip op. at 1. Moreover, this Court reasoned that because the administrative proceedings may resolve the NWPA and APA dispute underlying Beyond Nuclears appeal, the petition is not ripe for judicial review.
Id. at 2.
- 2. Administrative proceeding As directed by the Commission in the October 2018 order, Beyond Nuclear raised a contention before the Licensing Board that Holtecs license application violated the APA and the NWPA by contemplating federal ownership of the spent fuel to be stored at the facility. In the same administrative proceeding before the Licensing Board, Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (collectively, Fasken) and the Sierra Club raised contentions virtually identical to Beyond Nuclears contention, i.e., that Holtecs license application violated the APA and the NWPA. In addition, Fasken and the Sierra 3
USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 4 of 11 Club raised other contentions regarding violations of the Atomic Energy Act, the National Historic Preservation Act, and the National Environmental Policy Act.
Dont Waste Michigan also raised multiple contentions under the APA, the NWPA, the Atomic Energy Act, and the National Environmental Policy Act.
Unlike Beyond Nuclear, Fasken, and the Sierra Club, Dont Waste Michigan did not submit a contention directly asserting that Holtecs application violated the NWPA by contemplating federal ownership of spent fuel.
In CLI-20-04, the Commission conclusively resolved and disposed of the contentions by Beyond Nuclear, the Sierra Club, and Fasken that Holtecs license application violated the APA and NWPA. Slip op. at 4-8. Because Beyond Nuclear had no other contentions pending before the agency, it is undisputed that CLI 04 constituted a final decision against it. CLI-20-04 also conclusively resolved and disposed of all the contentions raised by Dont Waste Michigan, and thus constituted a final decision against it. Because CLI-20-04 remanded certain issues raised by Fasken and the Sierra Club back to the Licensing Board for consideration, however, CLI-20-04 was not a final decision against them.
B. Petitions for Review In No. 20-1187, Beyond Nuclear sought review of the NRCs rulings in the October 2018 order and CLI-20-04 that Holtecs license application could be reviewed and approved, despite containing provisions that contravene the NWPA.
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USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 5 of 11 In No. 20-1225, Dont Waste Michigan, et al., sought review of the NRCs rulings on its contentions asserting violations of the NWPA, the APA, the Atomic Energy Act, and the National Environmental Policy Act.
On its own motion, by order dated June 23, 2020, the court consolidated Beyond Nuclears and Dont Waste Michigans petitions for review.
By motions dated June 30, 2020 and July 2, 2020, respectively, Fasken and the Sierra Club moved to intervene in these consolidated cases, for the sole purpose of briefing the violations of the APA and NWPA charged by Beyond Nuclear. The motions are pending.
III. ARGUMENT While Respondents do not challenge the Courts jurisdiction to hear Petitioners claims, they argue that Petitioners case is not ripe for review on prudential grounds. Motion at 2. But their arguments with respect to Beyond Nuclears claims in No. 20-1187 do not meet the judicial standard for postponing review. Without taking a position on ripeness, however, Petitioners do not oppose holding the claims of Dont Waste Michigan (No. 20-1225) in abeyance pending resolution of Faskens and the Sierra Clubs claims in the administrative proceeding below.
A. Beyond Nuclears Claims in No. 20-1187 Are Ripe for Review In weighing arguments that review of final decisions should be postponed on prudential ripeness grounds, the court must begin with the principle that a federal 5
USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 6 of 11 court's obligation to hear and decide cases within its jurisdiction is virtually unflagging. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014)
(citations omitted) (internal quotation marks omitted); see also Sanchez v. Office of the State Superintendent of Education, 959 F.3d 1121, 1124 (D.C. Cir. 2020)
(observing that Susan B. Anthony List raises questions regarding the continuing vitality of the prudential ripeness doctrine). In order to postpone review, a case must be demonstrably unfit for review. See Susan B. Anthony List, 573 U.S. at 167.
And review may not be delayed if it would pose a hardship to the parties. Id.
Here, Respondents have failed to meet either prong of the test for an exception to the general rule that courts should review final orders.
- 1. Beyond Nuclears APA and NWPA claims are fit for review In assessing fitness for review, a purely legal claim is presumptively reviewable. Sanchez, 959 F.3d at 1124 (quoting Natl Assn of Home Builders, 440 F.3d 459, 464 (D.C. Cir. 2006)). Beyond Nuclears APA and NWPA claims are purely legal, because they are based on undisputed statements in Holtecs application. Thus, they are presumptively fit for review. Sanchez, 959 F.3d at 1124. Delaying review cannot be justified, because these claims will not be clarified by further factual development. Susan B. Anthony List, 573 U.S. at 167 (citation omitted).
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USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 7 of 11 Nevertheless, Respondents argue that Beyond Nuclears purely legal claims are not fit for review because other parties that are still involved in adjudicatory proceedings before the agency raised the same legal argument as Beyond Nuclear.
Motion at 2-3. Respondents overlook the fact that both of these parties, Fasken and the Sierra Club, have moved for leave to intervene in No. 20-1187 on behalf of Beyond Nuclear, and they have waived their right to raise the APA and NWPA issues later on. They have eliminated the specter raised by Respondents that they will seek to litigate the same issue at the conclusion of their own administrative cases.1 Respondents also argue that Beyond Nuclears case is not fit for review because it is entirely conceivable that the license that Holtec seeks will not be issued, either because of the ongoing adjudicatory challenges before the agency or 1
Respondents assert that Faskens and the Sierra Clubs proposed intervention arguably constitutes and end run around the Courts finality requirements because it would prematurely accelerate those parties right to judicial review. Motion at
- 4. But Fasken and the Sierra Club have agreed to be bound by the decision in this case; therefore, it is unclear how basic principles of orderly judicial review would be defeated by allowing them to intervene.
In any event, the Court should be equally concerned by the irregularity of postponing Beyond Nuclears virtually unflagging right to prompt review of a final decision. Susan B. Anthony List, 573 U.S. at 167. And, the interests of judicial efficiency promoted by Respondents (see Motion at 2) will be better served by a review this final decision now. If the purely legal issue is resolved in favor of Beyond Nuclear, it will obviate the need for Dont Waste Michigan, Fasken, or the Sierra Club to litigate any complex factual claims before this Court.
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USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 8 of 11 because of the NRC Staffs technical review of the application. Motion at 5.
According to Respondents, Beyond Nuclears claims are based on contingent future events that may not occur as anticipated, or indeed may not occur at all.
Motion at 6 (quoting Devia, 492 F.3d at 425 (quoting Tex. v. United States, 523 U.S. 296, 300 (1998)). But Devias broad application of the prudential reviewability standard has been called into question by the Supreme Courts subsequent ruling in Susan B. Anthony List, 573 U.S. 149, and by this Courts ruling in Sanchez, 959 F.3d 1121.
Equally important, Respondents sidestep the fact that one of Beyond Nuclears key legal claims is not capable of resolution by completion of the administrative proceeding below. Beyond Nuclears petition for review challenges the lawfulness of the NRCs very conduct of the Holtec licensing proceeding under the APA and the NWPA, not just the lawfulness of Holtecs application. The unlawfulness of the NRCs conduct of the Holtec licensing proceeding will not be reddressed or resolved by any future decision the NRC may make to deny Holtecs application on other grounds. And there is no more concrete setting that may develop to legitimate the NRCs illegal conduct. See Motion at 6 (quoting Devia, 492 F.3d at 424).
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USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 9 of 11
- 2. Beyond Nuclear will suffer hardship if review is delayed Respondents contend that Petitioners will endure no legally cognizable hardship if review of Beyond Nuclears case is postponed. Motion at 7 (quoting Devia, 492 F.3d at 427). As the Supreme Court observed in Susan B. Anthony List, however, an obligation to go through costly [Ohio Elections] Commission proceedings constitutes a cognizable hardship for purposes of evaluating prudential ripeness. 573 U.S. at 168. As long as the Holtec licensing proceeding continues, without any review to check its unlawful character, all interested members of the public who are concerned about the safety or environmental impacts of the Holtec project are saddled with the costly responsibility to participate in a legal proceeding whose very lawfulness is in question. The perception that the area of the Holtec facility may become host to an extremely large volume of nuclear waste may also depress local property values, thus affecting Beyond Nuclears members. See Kelley v. Selin, 42 F.3d 1501, 1509-10 (6th Cir. 1995) (finding that spent fuel storage near petitioners has the potential to interrupt enjoyment of their lakefront property and to diminish its value). See also, e.g., Declaration of Jimi Gadzia, par. 12 (June 8, 2020); Declaration of Daniel C. Berry III, par. 12 & 13 (July 1, 2020); Declaration of Elizabeth Berry, par. 12 &
13 (July 1, 2020); Declaration of Gene Harbaugh, par. 6 (June 20, 2020);
Declaration of Nick King, par. 6 (June 18, 2020); and Declaration of Margo Smith, 9
USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 10 of 11 par. 9 & 10 (July 7, 2020), attached to Addendum to Petitioners Docketing Statement for Beyond Nuclear v. NRC, No. 20-1187 consolidated with No. 20-1225 (July 9, 2020).
B. It is Reasonable to Hold Dont Waste Michigans Claims in No.
20-1225 in Abeyance While the NRC clearly has made a final decision against Dont Waste Michigan, and therefore its claims are reviewable, Petitioners agree with Respondents that it would be reasonable to hold those claims in abeyance pending the NRCs resolution of the administrative cases brought by Fasken and the Sierra Club. Dont Waste Michigans claims are fact-specific in nature, as opposed to the purely legal claim brought by Beyond Nuclear, and may thus be more fit to be reviewed at a later date.
IV. CONCLUSION For the foregoing reasons, Respondents Motion should be denied with respect to Beyond Nuclears petition for review in No. 20-1187. Petitioners do not object, however, to holding Dont Waste Michigans claims in No. 20-1125 in abeyance pending the NRCs completion of the Holtec adjudication before the NRC.
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USCA Case #20-1187 Document #1851983 Filed: 07/16/2020 Page 11 of 11 Respectfully submitted,
/s/ Diane Curran DIANE CURRAN Harmon, Curran, Spielberg
& Eisenberg, LLP 1726 M Street NW, Suite 600 Washington, D.C. 20036 Tel: (202) 328-3500 Fax: (202) 328-6918 Email: dcurran@harmoncurran.com Counsel for Beyond Nuclear
/s/ Mindy Goldstein MINDY GOLDSTEIN Turner Environmental Law Clinic Emory University School of Law 1301 Clifton Road Atlanta, GA 30322 Tel: (404) 727-3432 Fax: (404) 727-7853 Email: magolds@emory.edu Counsel for Beyond Nuclear
/s/ Terry J. Lodge TERRY J. LODGE 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Tel: (419) 205-7084 Fax: (419) 932-6625 Email: tjlodge50@yahoo.com Counsel for Dont Waste Michigan July 16, 2020 11