ML22222A073
| ML22222A073 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 08/05/2022 |
| From: | Fagg B, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1958035, 21-1048, 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231 | |
| Download: ML22222A073 (5) | |
Text
1 ORAL ARGUMENT NOT YET SCHEDULED In the United States Court of Appeals For the District of Columbia Circuit DONT WASTE MICHIGAN, ET AL.,
Petitioners
- v.
U.S. NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, Respondents INTERIM STORAGE PARTNERS, LLC, Intervenor for Respondents No. 21-1048 (Consolidated with Nos.
21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231)
INTERIM STORAGE PARTNERS, LLCS OPPOSITION TO SIERRA CLUBS MOTION FOR SUPPLEMENTAL BRIEFING Intervenor Interim Storage Partners, LLC (ISP) respectfully submits the following opposition to Sierra Clubs Motion for Supplemental Briefing, dated July 29, 2022 (the Motion).
Sierra Club requests the opportunity to submit additional briefs regarding the Supreme Courts decision in West Virginia v. EPA, 2022 WL 2347278 (U.S. June 30, 2022). Another petitioner, Beyond Nuclear, submitted a purported Rule 28(j) letter regarding that case, to which both USCA Case #21-1048 Document #1958035 Filed: 08/05/2022 Page 1 of 5
2 the Federal Respondents and ISP have already responded. Sierra Clubs motion for yet more briefing in these appeals should be denied for a host of reasons.
First, no petitioner in this case has challenged the NRCs authority under the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., to grant the license at issue.1 Sierra Club admits that it did not brief that issue, blaming this Courts length-of-brief restrictions in this appeal. Motion at 3. Those reasonable restrictions, however, neither excuse Sierra Clubs determination to not attempt to make the argument in this case, nor justify Sierra Clubs after-the-fact effort to make brand new arguments after briefing is complete. West Virginia is all aboutindeed it is only aboutwhether Congress in fact meant to confer the power the agency has asserted. West Virginia, 2022 WL 2347278 at *11. Neither Sierra Club nor any other petitioner in this appeal has disputed that with respect to the Atomic Energy Act and the NRC. Further briefing in this case regarding West Virginia is therefore not appropriate.
1 Indeed, this Court has expressly held such authority to exist. See, Bullcreek v. Nuclear Regulatory Commission, 359 F.3d 536, 542 (D.C.
Cir. 2004) (the NRC had authority under the AEA to regulate private away-from-reactor storage facilities.).
USCA Case #21-1048 Document #1958035 Filed: 08/05/2022 Page 2 of 5
3 Second, unlike in this case, one of the petitioners in the pending appeal before the United States Court of Appeals for the Fifth Circuit, namely the State of Texas, did purport to argue that the NRCs issuance of the challenged licensed violates the major questions doctrine. Reply Brief of State Petitioners at 11, State of Texas et al. v. Nuclear Regulatory Commission, No. 21-60743 (5th Cir. May 16, 2022) (Doc. No. 516321267).
Accordingly, supplemental briefing regarding the import of West Virginia made sense in that case. Not so, here.
Third, by its very terms, West Virginia does not reflect a new statement of the law, as Sierra Club alleges. Motion at 3. The majority expressly rejected that characterization of its holding, finding, instead, that its ruling was grounded in a series of significant cases going back many years. West Virginia, 2022 WL 2347278 at *13 (citing Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014)). As noted, prior to the decision in West Virginia, another petitioner in another appeal made a lack-of-authority argument regarding the NRC relying on those earlier cases. Sierra Club did not, and it is too late now.
USCA Case #21-1048 Document #1958035 Filed: 08/05/2022 Page 3 of 5
4 For all of these reasons, ISP respectfully requests that the motion by Sierra Club be denied.
Dated: August 5, 2022 Respectfully submitted, s/ Brad Fagg BRAD FAGG TIMOTHY P. MATTHEWS RYAN K. LIGHTY MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-3000 brad.fagg@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC USCA Case #21-1048 Document #1958035 Filed: 08/05/2022 Page 4 of 5
DB1/ 131897027.2 CERTIFICATE OF COMPLIANCE This response complies with the length limit of FED. R. APP. P.
27(d)(2)(A) and D.C. Cir. R. 27(a)(2) because it contains 487 words. This response also complies with the typeface and type-style requirements of FED. R. APP. P. 27(d)(1)(E), 32(a)(5)(A), 32(a)(6), and D.C. Cir. R. 27(a)(2) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Century Schoolbook font.
Dated: August 5, 2022 s/ Brad Fagg BRAD FAGG MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-3000 brad.fagg@morganlewis.com Counsel for Interim Storage Partners, LLC USCA Case #21-1048 Document #1958035 Filed: 08/05/2022 Page 5 of 5