ML21313A175
| ML21313A175 | |
| Person / Time | |
|---|---|
| Issue date: | 11/04/2021 |
| From: | Andrew Averbach, Heminger J, Kim T NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | State of TX, Commission on Environmental Quality, State of TX, Governor, US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 00516080725, 21-60743 | |
| Download: ML21313A175 (1) | |
Text
Case: 21-60743 Document: 00516080725 Page: 1 Date Filed: 11/04/2021
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
STATE OF TEXAS; GREG ABBOTT, )
GOVERNOR OF TEXAS; and )
TEXAS COMMISSION ON )
ENVIRONMENTAL QUALITY, )
Petitioners, )
)
- v. ) No. 21-60743
)
NUCLEAR REGULATORY )
COMMISSION and )
UNITED STATES OF AMERICA, )
Respondents. )
MOTION TO STAY BRIEFING PENDING DISPOSITION OF RESPONDENTS MOTION TO DISMISS FOR LACK OF JURISDICTION
The U.S. Nuclear Regulatory Commission (NRC) and the United States of
America (together, Respondents) jointly move to stay briefing in this matter
pending resolution of their motion to dismiss for lack of jurisdiction, which they
have filed today (Motion to Dismiss). Counsel for Respondents have contacted
all parties to this action concerning this motion. Respondent-Intervenor Interim
Storage Partners LLC (ISP) supports this motion but will not be filing a
response; Petitioners oppose this motion and will file a response.
On September 13, 2021, the NRC issued a license granting Intervenor ISP
authorization to operate a consolidated interim storage facility to store spent
nuclear fuel. Petitioners filed this Petition for Review on September 23, 2021. On
Case: 21-60743 Document: 00516080725 Page: 2 Date Filed: 11/04/2021
November 3, 2021, the NRC filed the certified list of the contents of the
administrative record. Later that same day, the Court issued a briefing notice
setting a December 13, 2021, deadline for Petitioners to file their opening brief.
On November 4, 2021 (earlier today), Respondents filed the Motion to Dismiss.
The Motion contends that Petitioners are not parties who have been aggrieved
by the NRCs issuance of the license, as required by the Atomic Energy Act and
Hobbs Act, and this Court therefore lacks jurisdiction over the Petition for Review.
See Motion to Dismiss at 11-20.
This Court must assure itself of its subject matter jurisdiction before
addressing the merits of the Petition for Review. Steel Co. v. Citizens for a Better
Envt, 523 U.S. 83, 94 (1998) (Without jurisdiction the court cannot proceed at all
in any cause. Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the fact and
dismissing the cause. (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L. Ed.
264 (1868)); United States v. Texas Tech Univ., 171 F.3d 279, 287 (5th Cir. 1999).
Here, the Motion to Dismiss raises a serious jurisdictional defect in the Petition for
Review. The jurisdictional question is purely legal in nature and does not require
resolution of any factual disputes. Under these circumstances, the interests of
judicial economy and the conservation of governmental resources of both the State
2
Case: 21-60743 Document: 00516080725 Page: 3 Date Filed: 11/04/2021
and Federal Governments would be best served by allowing the Court to first consider the jurisdictional issue before proceeding to merits briefing and argument.
Petitioners will not be prejudiced by the Courts deferral of briefing while it
considers the jurisdictional issue raised by the Motion to Dismiss. Although the
NRC has issued a license to ISP to possess spent nuclear fuel, neither construction
nor operation of the proposed facility is imminent. There is thus no risk during this
period that Texas could be injured by the proposed facility.
In sum, the interests of judicial economy, conservation of State and Federal
Government resources, and the lack of prejudice resulting from a deferral of merits
briefing all militate in favor of a stay of briefing pending the Courts resolution of
the Motion to Dismiss.
CONCLUSION
For the foregoing reasons, Respondents request that the Court stay briefing
of this Petition for Review pending resolution of Respondents Motion to Dismiss
for lack of subject matter jurisdiction.
3
Case: 21-60743 Document: 00516080725 Page: 4 Date Filed: 11/04/2021
Respectfully submitted,
/s/ Justin D. Heminger /s/ Andrew P. Averbach TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor JUSTIN D. HEMINGER Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Environment and Natural Resources 11555 Rockville Pike Division Rockville, MD 20852 U.S. Department of Justice andrew.averbach@nrc.gov Post Office Box 7415 (301) 415-1956 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442
November 4, 2021
4
Case: 21-60743 Document: 00516080725 Page: 5 Date Filed: 11/04/2021
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)
I certify that this filing complies with the requirements of Fed. R. App. P.
27(d)(1)(E) because it has been prepared in 14-point Times New Roman, a
proportionally spaced font.
I further certify that this filing complies with the type-volume limitation of
Fed. R. App. P. 27(d)(2)(A) because it contains 523 words, excluding the parts of
the of the filing exempted under Fed. R. App. P. 32(f), according to the count of
Microsoft Word.
/s/ Andrew P. Averbach Andrew P. Averbach
Counsel for Respondent U.S. Nuclear Regulatory Commission