ML22347A210
| ML22347A210 | |
| Person / Time | |
|---|---|
| Site: | 07007003, 07007004 |
| Issue date: | 11/28/2022 |
| From: | Kanner A, Tennis A Kanner & Whiteley |
| To: | Cayce L NRC/OGC, US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 21-60743, 00516558381 | |
| Download: ML22347A210 (1) | |
Text
1 KANNER & WHITELEY, L.L.C.
701 Camp Street New Orleans, Louisiana 70130 (504) 524-5777 FAX: (504) 524-5763 November 28, 2022 Via CM/ECF Lyle W. Cayce Clerk of Court United States Court of Appeals Fifth Circuit 600 S. Maestri Place New Orleans, Louisiana 70130 Re:
State of Texas, et al. v. Nuclear Regulatory Commission, et al., No. 21-60743
Dear Mr. Cayce:
Pursuant to FRAP Rule 28(j), Fasken hereby responds to Federal Respondents citation to Ohio Nuclear-Free Network v. Nuclear Regulatory Commission, No. 21-1162 (D.C. Cir. 2022) as supplemental authority and ISPs response to same.
Ohio is not controlling in determining jurisdiction for Faskens Petition for Review under the unprecedented circumstances here and it does not warrant dismissal.
First, several Circuit Courts have recognized the submission of comments as sufficient to establish party aggrieved status under the Hobbs Act. Opp. MTD 6-7. Unlike the informal presentation of views to the NRC in Ohio (Slip Op. at 8) for a finding of no significant environmental impact on an already licensed facility (id. at 5), the NRC here, denied every single contention filed and terminated the ISP adjudicatory proceeding for initial licensing months before issuing its mandated draft EIS and expressly requesting that parties participate in the NEPA proceeding by submitting comments. Fasken complied with the appropriate and available administrative procedure under these circumstances and is a party aggrieved.
Second, Ohio is irrelevant as to Faskens assertion of jurisdiction under the Administrative Procedures Act, 5 U.S.C. §§ 702, 706(2), (APA), for agency action beyond its authority and determining whether NRCs decision to issue a license containing an unlawful condition is arbitrary, capricious and in violation of the law. Fasken Reply Br. at 15; Opp. MTD 7-8. As ISPs response concedes, Ohio focused narrowly on Atomic Energy Act regulations and Hobbs Act jurisdiction.
Case: 21-60743 Document: 00516558381 Page: 1 Date Filed: 11/28/2022
2 Likewise, Ohio is inapposite to asserted jurisdiction under Nuclear Waste Policy Act provisions, 42 U.S.C. §§ 10111, et seq., (NWPA), for review of a tainted EIS and Record of Decision that contemplates currently unlawful private storage of DOE-titled waste.
Judicial review is proper under the Hobbs Act, the APA and the NWPA under these circumstances.
Respectfully submitted, KANNER & WHITELEY, L.L.C.
/s/ Allan Kanner Allan Kanner Annemieke M. Tennis 701 Camp Street New Orleans, LA 70130 a.kanner@kanner-law.com a.tennis@kanner-law.com Phone: (504) 524-5777 Counsel for Fasken Petitioners cc: all counsel via ECF Case: 21-60743 Document: 00516558381 Page: 2 Date Filed: 11/28/2022