ML21313A178
| ML21313A178 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 11/04/2021 |
| From: | Cayce L, Lopez A US Federal Judiciary, Court of Appeals, 5th Circuit |
| To: | Andrew Averbach, Heminger J NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| References | |
| 00516080917, 21-60743 | |
| Download: ML21313A178 (7) | |
Text
United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK LYLE W. CAYCE CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE, Suite 115 NEW ORLEANS, LA 70130 November 04, 2021 Mr. Andrew Paul Averbach U.S. Nuclear Regulatory Commission Office of the General Counsel 11555 Rockville Pike Mail Stop 15 D21 Rockville, MD 20852-2738 Mr. Justin Heminger U.S. Department of Justice Environment & Natural Resources Division-Appellate Section P.O. Box 7415 Ben Franklin Station Washington, DC 20044-7415 No. 21-60743 State of Texas v. NRC Agency No. 72-1050
Dear Mr. Averbach,
Mr. Heminger, Your motion to dismiss is deficient for the following reason(s) and must be corrected within 10 days. You need to correct or add:
A certificate of service is required, see Fed. R. App. P. 25(d).
Once you have prepared your sufficient motion, you must email it to: Allison_Lopez@ca5.uscourts.gov for review. If the motion is in compliance, you will receive a notice of docket activity advising you that the sufficient motion has been filed.
Case: 21-60743 Document: 00516080917 Page: 1 Date Filed: 11/04/2021
Sincerely, LYLE W. CAYCE, Clerk By: _________________________
Allison G. Lopez, Deputy Clerk 504-310-7702 cc: Mr. Michael Abrams Mr. Arnold Bradley Fagg Mr. Henry Carl Myers Case: 21-60743 Document: 00516080917 Page: 2 Date Filed: 11/04/2021
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF TEXAS; GREG ABBOTT,
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GOVERNOR OF TEXAS; and
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TEXAS COMMISSION ON
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ENVIRONMENTAL QUALITY,
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Petitioners,
)
)
- v.
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No. 21-60743
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NUCLEAR REGULATORY
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COMMISSION and
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UNITED STATES OF AMERICA,
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Respondents.
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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: 1 Date Filed: 11/04/2021
2 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 Case: 21-60743 Document: 00516080725 Page: 2 Date Filed: 11/04/2021
3 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.
Case: 21-60743 Document: 00516080725 Page: 3 Date Filed: 11/04/2021
4 Respectfully submitted,
/s/ Justin D. Heminger
/s/ Andrew P. Averbach TODD KIM Assistant Attorney General JUSTIN D. HEMINGER Attorney Environment and Natural Resources Division U.S. Department of Justice Post Office Box 7415 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442 November 4, 2021 ANDREW P. AVERBACH Solicitor Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 andrew.averbach@nrc.gov (301) 415-1956 Case: 21-60743 Document: 00516080725 Page: 4 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 Case: 21-60743 Document: 00516080725 Page: 5 Date Filed: 11/04/2021