ML23044A002

2-10-23 Texas V NRC - Rule 28(j) Letter (Case No. 21-60743)

ML23044A002
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	02/10/2023
From:	Andrew Averbach NRC/OGC
To:	Cayce L US Federal Judiciary, Court of Appeals, 5th Circuit
References
21-60743, 186-1
Download: ML23044A002 (1)

Text

Case: 21-60743 Document: 186-1 Page: 1 Date Filed: 02/10/2023 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 February 10, 2023 BY ELECTRONIC FILING Lyle W. Cayce Clerk of Court United States Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, Louisiana 70130 Re: State of Texas v. NRC, No. 21-60743Oral argument held August 29, 2022

Dear Mr. Cayce:

Federal Respondents notify the Court of the enclosed, published decision by the Tenth Circuit in Balderas v. Nuclear Regulatory Commission, No. 21-9593. A unanimous panel (Bacharach, Phillips, Eid) dismissed for lack of Hobbs Act jurisdiction the State of New Mexicos petition for review of the same license issued by the Nuclear Regulatory Commission (NRC) that Petitioners challenge here.

Balderas is identical to this case in all material respects. Like Texas here, New Mexico did not participate in the adjudicatory proceedings concerning issuance of the license. Yet New Mexico asserted before the court, among other arguments, that Congress did not grant the NRC the authority to license a private interim storage facility to collect and store the countrys nuclear waste. New Mexico Br.,

2022 WL 792280 at *21.

Like Petitioners here, New Mexico argued that the Hobbs Acts requirement that petitioners participate in proceedings before the agency is satisfied by submitting comments on an environmental impact statement. Opinion 8-9. And New Mexico

Case: 21-60743 Document: 186-1 Page: 2 Date Filed: 02/10/2023 L. Cayce asserted that judicial review remained available, even absent proper participation in the proceedings, because the NRC exceeded its statutory authority. Id. at 21.

The Tenth Circuit rejected New Mexicos jurisdictional arguments, relying on the same principles Federal Respondents set forth in this case. See Motions to Dismiss; Federal Respondents Brief 30-36. Specifically, the court ruled that New Mexico doesnt qualify as an aggrieved party under the Hobbs Act because, having failed to raise a contention in the agency adjudication, it bypassed the chance to participate as a party in the licensing proceeding. Opinion 9 (citing Ohio Nuclear-Free Network v. NRC, 53 F.4th 236, 240 (D.C. Cir. 2022), also cited in Federal Respondents November 15, 2022 letter to this Court). And the court not only rejected as unpersuasive an ultra vires exception purportedly derived from American Trucking Associations, Inc. v. ICC, 673 F.2d 82 (5th Cir. 1982)

(per curiam), but also explained that the exception was inapplicable because New Mexico, like Petitioners here, could have participated in the adjudication before the agency. Opinion 21-23.

These Petitions should be dismissed for exactly the reasons stated by the Tenth Circuit.

Respectfully,

/s/ Andrew P. Averbach Solicitor Counsel of Record for U.S. Nuclear Regulatory Commission Encl.

Case: 21-60743 Document: 186-2 Page: 1 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS February 10, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court THE STATE OF NEW MEXICO EX REL. HECTOR H. BALDERAS, Attorney General; THE NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioners,

v. No. 21-9593 UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents.

INTERIM STORAGE PARTNERS, LLC, Intervenor - Respondent.

Petition for Review from the Nuclear Regulatory Commission (NRC-1: 72-1050)

Submitted on the briefs *:

P. Cholla Khoury, William G. Grantham, and Zachary E. Ogaz, Assistant Attorneys General, Office of the Attorney General for the State of New Mexico, Albuquerque, New Mexico (Bruce C. Baizel, New Mexico We have determined that oral argument would not be helpful, so we forgo oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Case: 21-60743 Document: 186-2 Page: 2 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 2 Environment Department, Office of General Counsel, Santa Fe, New Mexico, with them on the briefs), on behalf of the Petitioners.

Todd Kim, Assistant Attorney General, and Justin D. Heminger, Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Marian L. Zobler, General Counsel, and Andrew P.

Averbach, Solicitor, U.S. Nuclear Regulatory Commission, Office of the General Counsel, Rockville, Maryland, with them on the briefs), on behalf of the Respondents.

Brad Fagg, Timothy P. Matthews, and Ryan K. Lighty, Morgan, Lewis &

Bockius LLP, Washington, D.C., on behalf of the Intervenor-Respondent.

Before BACHARACH, PHILLIPS, and EID, Circuit Judges.

BACHARACH, Circuit Judge.

This petition involves an agencys regulation of private storage of nuclear fuel. The agency, the Nuclear Regulatory Commission, granted a license to Interim Storage Partners to store spent nuclear fuel near the New Mexico border. New Mexico challenges the grant of this license, invoking the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

The Commission moves to dismiss for lack of jurisdiction. Objecting to the motion, New Mexico invokes jurisdiction under the combination of the Hobbs Act, 28 U.S.C. §§ 2342(4), 2344, and the Atomic Energy Act, 42 U.S.C. §§ 2011-2296b-7. But these statutes can combine to trigger jurisdiction only when the petitioner was an aggrieved party in the licensing proceeding.

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Case: 21-60743 Document: 186-2 Page: 3 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 3 This limitation applies here because New Mexico didnt participate in the licensing proceeding or qualify as an aggrieved party. To the contrary, New Mexico just commented to the Commission about its draft environmental impact statement. Commenting on the environmental impact statement didnt create status as an aggrieved party, so jurisdiction isnt triggered under the combination of the Hobbs Act and Atomic Energy Act.

New Mexico not only invokes the Hobbs Act and Atomic Energy Act, but also alleges that the Commission violated the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270, and acted ultra vires. These allegations dont trigger our jurisdiction. The Nuclear Waste Policy Act governs the establishment of a federal repository for permanent storagenot temporary storage by private parties like Interim Storage. And even when an agency acts ultra vires, we lack jurisdiction when the petitioner had other available remedies. New Mexico had other available remedies by seeking intervention in the Commissions proceedings. So we grant the Commissions motion to dismiss the petition for lack of jurisdiction.

1. The Nuclear Regulatory Commission granted a temporary license to Interim Storage.

The Nuclear Regulatory Commission bears the authority to license the private use of facilities to store spent nuclear fuel. Pac. Gas & Elec.

Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190, 206-207 (1983); Skull Valley Band Of Goshute Indians v. Nielson, 376 F.3d 3

Case: 21-60743 Document: 186-2 Page: 4 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 4 1223, 1232 (10th Cir. 2004). Based on this authority, the Commission conducted proceedings to address Interim Storages application for a license. See Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) (public notice of Interim Storages application for a license).

To facilitate public participation, the Commission issued a notice stating that any interested entity could request a hearing. Id. at 44,071

([A]ny persons . . . whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene.). This notice stated what the entity would need to include and explained that permission to intervene would create status as a party. Id. Despite this notice, New Mexico didnt request a hearing or petition to intervene in the licensing proceeding.

The licensing proceeding closed over a year after the Commission had issued the notice. See In the Matter of Interim Storage Partners LLC, LBP-19-11, Docket No. 72-1050-ISFSI, Mem. & Order at 14 (Dec. 13, 2019) (statement by the Atomic Safety and Licensing Board that the Interim Storage proceeding had terminated). After the proceeding closed, the Nuclear Regulatory Commission prepared a draft environmental impact statement, as required by federal regulations and the National 4

Case: 21-60743 Document: 186-2 Page: 5 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 5 Environmental Policy Act. See R. vol. 3, at 83; 42 U.S.C. § 4332(C); 10 C.F.R. § 51.20(a), (b)(9).

With preparation of this draft, the Commission notified the public and invited comments. Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 27,447-03 (May 8, 2020). New Mexico commented, criticizing the draft. R. vol. 4, at 931-41, 947-52 (comments by Michelle Lujan Grisham, Governor of New Mexico, the New Mexico Environment Department, and the New Mexico Energy, Minerals and Natural Resources Department). The Commission responded to New Mexico in the final version of the environmental impact statement. See, e.g., R. vol. 3, at 734, 737, 739-40 (designating Michelle Lujan Grisham as commenter 81 and officials from the New Mexico agencies as commenters 60-22, 152, and 155); R. vol. 3, at 561-62, 564, 565, 583-85, 593, 596, 599-600, 602-05, 606-07, 635-37, 638-39, 645-47, 648-49, 651-52, 652-53, 653-56, 662-63, 667-68, 669-72, 673-77, 703, 705-06, 706-08, 709-10, 713-15, 728 (responding to commenters 60-22, 81, 152, and 155).

The Nuclear Regulatory Commission ultimately granted a temporary license to Interim Storage to construct and operate a facility to store spent nuclear fuel. Interim Storage Partners, LLC; WCS Consolidated Interim Storage Facility; Issuance of Materials License and Record of Decision, 86 Fed. Reg. 51,926-02 (Sept. 17, 2021); id. at 51,927 (The license authorizes [Interim Storage] to store . . . spent nuclear fuel for a license 5

Case: 21-60743 Document: 186-2 Page: 6 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 6 period of 40 years.). New Mexico petitions for us to review the grant of this license, and the Commission challenges our jurisdiction over New Mexicos petition.

2. We lack jurisdiction under the Hobbs Act because New Mexico wasnt a party aggrieved by the Commissions final order.

The Hobbs Act creates federal appellate jurisdiction over the Nuclear Regulatory Commissions final orders as defined in 42 U.S.C. § 2239. 1 28 U.S.C. § 2342(4). In turn, § 2239 authorizes review of final orders that grant, suspend, revoke, or amend a license. 42 U.S.C. § 2239(a)(1)(A),

(b)(1).

This jurisdiction can be invoked only by aggrieved parties. See 28 U.S.C. § 2344 (stating that [a]ny party aggrieved by the final order may

. . . file a petition to review the order in the court of appeals wherein venue lies). So we consider whether New Mexico qualifies as an aggrieved party.

A. We must assess New Mexicos status as a party based on its participation in the administrative proceedings.

Status as an aggrieved party would exist only if we regard New Mexico as a party to the administrative proceeding. See ACA Intl v. Fed.

1 The Hobbs Act refers to final orders of the Atomic Energy Commission. 28 U.S.C. § 2342(4). Congress later abolished the Atomic Energy Commission and transferred licensing and regulatory functions to the newly created Nuclear Regulatory Commission. 42 U.S.C. § 5814(a),

§ 5841(f).

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Case: 21-60743 Document: 186-2 Page: 7 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 7 Commcns Commn, 885 F.3d 687, 711 (D.C. Cir. 2018) ([T]he phrase party aggrieved requires that petitioners have been parties to the underlying agency proceedings, not simply parties to the present suit who are aggrieved in a constitutional (Article III) sense.). To assess status as a party, we evaluate the level of participation required in the administrative proceeding. Water Transp. Assn v. I.C.C., 819 F.2d 1189, 1192 (D.C. Cir.

1987). We evaluate that participation based on the practices of the agency and the formality of the proceeding. See id.

In making this evaluation, were not bound by the Commissions description of the entity as a party. See id.; Clark & Reid Co. v. United States, 804 F.2d 3, 6 (1st Cir. 1986). We instead consider whether New Mexico had participated appropriately under the available administrative procedures. See Gage v. U.S. Atomic Energy Commn, 479 F.2d 1214, 1217 (D.C. Cir. 1973) (concluding that the court lacked jurisdiction to review an Atomic Energy Commission order because the petitioner had refrained from participating in the appropriate and available administrative procedure). For example, if the Commission had required intervention and New Mexico didnt seek leave to intervene, we would lack jurisdiction under the Hobbs Act. Water Transp. Assn, 819 F.2d at 1192.

B. New Mexico did not participate in the licensing proceeding.

We consider whether New Mexico needed to seek leave to intervene in the Commissions licensing proceeding. In this inquiry, we are guided 7

Case: 21-60743 Document: 186-2 Page: 8 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 8 by the Atomic Energy Act and its regulations. See Ohio Nuclear-free Network v. U.S. Nuclear Regul. Commn, 53 F.4th 236, 239-40 (D.C. Cir.

2022). Under the Act, anyone interested in a licensing proceeding can request a hearing. 42 U.S.C. § 2239(a)(1)(A). The Commission must grant interested entities a hearing upon request and admit the entity as a party to the proceeding.

Id.

The regulations specify how entities are to request a hearing. For example, an interested entity must file a written request and specify the contentions for the hearing. 10 C.F.R. § 2.309(a). The agency will grant the request if the entity has proposed a contention thats within the scope of the proceedings and material to the findings that the Commission must make, see 10 C.F.R. § 2.309(f) (stating the requirements for a contention to be admissible), and has standing, see 10 C.F.R. § 2.309(d) (stating the requirements for standing).

And if an interested party unsuccessfully requests a hearing, the party can appeal to the Commission. See 10 C.F.R. § 2.311(c) (An order denying a petition to intervene, and/or request for hearing . . . is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.).

New Mexico didnt seek leave to intervene, request a hearing, or submit contentions. New Mexico instead commented on the Commissions 8

Case: 21-60743 Document: 186-2 Page: 9 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 9 draft of the environmental impact statement. By choosing only to comment, New Mexico bypassed the chance to participate as a party in the licensing proceeding. See Gage v. U.S. Atomic Energy Commn, 479 F.2d 1214, 1217 (D.C. Cir. 1973); see also Nat. Res. Def. Council v. U.S. Nuclear Regul.

Commn, 823 F.3d 641, 643 (D.C. Cir. 2016) (To challenge the Commissions grant of a license renewal, . . . a party must have successfully intervened in the proceeding by submitting adequate contentions under 10 C.F.R. § 2.309.). Given the failure to take advantage of that chance, New Mexico doesnt qualify as an aggrieved party under the Hobbs Act. See Ohio Nuclear-free Network v. U.S. Nuclear Regul.

Commn, 53 F.4th 236, 240 (D.C. Cir. 2022) (concluding that the petitioners werent parties aggrieved under the Hobbs Act when they emailed a letter rather than request a hearing or submit contentions related to the license). 2 2

New Mexico points out that it unsuccessfully petitioned to suspend, revoke, and stay the license and sought a hearing in connection with that petition. Resp. to Mot. to Dismiss at 3 n. 1; see 10 C.F.R. § 2.206 (Any person may file a request to institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license.). We dont rule out the possibility of jurisdiction to address the denial of that petition. See Fla. Power &

Light Co. v. Lorion, 470 U.S. 729, 741 (1985) (Congress intended to vest in the courts of appeals initial subject-matter jurisdiction over challenges to Commission denials of § 2.206 petitions.). But New Mexico is challenging issuance of the license itself rather than the refusal to suspend, revoke, or stay the license.

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Case: 21-60743 Document: 186-2 Page: 10 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 10 Granted, some cases regard submission of comments as enough in rulemaking proceedings, where the agency solicits input through comments rather than intervention or submission of contentions. See ACA Intl v.

Fed. Commcns Commn, 885 F.3d 687, 711 (D.C. Cir. 2018) (Just as submitting comments confers party aggrieved status in the context of a rulemaking (assuming an adverse outcome), one who comments on anothers petition for a rulemaking or declaratory ruling has presented its view to the agency so as to qualify as a party. (cleaned up)). New Mexico invokes these cases, arguing that status as a party is the same when an agency conducts rulemaking and adjudicative proceedings. For this argument, New Mexico questions the distinction between rulemaking and adjudication.

New Mexicos argument overlooks the Commissions requirements for appropriate participation. Regardless of whether an agency is enacting a rule or adjudicating a dispute, we consider an entity a party only if it participat[es] in the appropriate and available administrative procedure.

Gage v. U.S. Atomic Energy Commn, 479 F.2d 1214, 1217 (D.C. Cir.

1973). The appropriateness and availability of these procedures differ when agencies enact rules and adjudicate disputes.

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Case: 21-60743 Document: 186-2 Page: 11 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 11 Here we must consider the administrative procedures available under the rules accompanying the Atomic Energy Act. 3 Under these rules, New Mexico needed to raise its claims by submitting contentions and requesting a hearing or petitioning to intervene. See pp. 8-9, above. And for the claims involving the National Environmental Policy Act, New Mexico needed to frame the contentions based on Interim Storages environmental report. See 10 C.F.R. § 2.309(f)(2) (stating that for issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report); Ohio Nuclear-free Network v. U.S. Nuclear Regul. Commn, 53 F.4th 236, 240 (D.C. Cir.

2022) (concluding that a person seeking to intervene in a licensing proceeding under the Atomic Energy Act must request a hearing or otherwise intervene in the proceeding as required by the [Act] and its regulations, which includes persons who object to the agencys discharge of its [National Environmental Policy Act] duties); see also Nat. Res. Def.

Council v. U.S. Nuclear Regul. Commn, 823 F.3d 641, 652 (D.C. Cir.

3 Though New Mexico invoked the National Environmental Policy Act, this invocation couldnt trigger jurisdiction because the statute doesnt create an independent cause of action. See Diné Citizens Against Ruining Our Environment v. Haaland, ___ F.4th ___, No. 21-2116, slip op. at 14 (10th Cir. Feb. 1, 2023) (stating that the [National Environmental Policy Act] does not create a cause of action); Ohio Nuclear-free Network v. U.S.

Nuclear Regul. Commn, 53 4th 236, 240 (D.C. Cir. 2022) (stating that assertion of objections under the National Energy Policy Act doesnt create jurisdiction over challenges to an amended license).

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Case: 21-60743 Document: 186-2 Page: 12 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 12 2016) (stating that the National Environmental Policy Act does not, by its own terms or its intent, alter the Commissions hearing procedures (quoting Beyond Nuclear v. U.S. Nuclear Regul. Commn, 704 F.3d at 12, 18 (1st Cir. 2013))). 4 Given the failure to submit contentions, request a hearing, or petition to intervene, New Mexico did not participate appropriately based on the Commissions practices and the formality of the proceeding.

C. New Mexico could have raised its environmental objections by submitting contentions about Interim Storages environmental report.

New Mexico observes that the adjudicatory proceeding had closed before the Commission issued the draft environmental impact statement.

Based on this observation as to the timing, New Mexico insists that public comments provided the only chance to address the Commissions draft. But New Mexico overlooks the relationship between Interim Storages environmental report and the Commissions environmental impact statement.

In applying for a license, Interim Storage had to submit an environmental report, addressing all of the considerations required under 4

The Nuclear Regulatory Commission argues not only that we lack jurisdiction but also that New Mexico had failed to exhaust available administrative remedies. We need not address the exhaustion issue because jurisdiction doesnt exist.

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Case: 21-60743 Document: 186-2 Page: 13 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 13 the National Environmental Policy Act. 42 U.S.C. § 4332(C); 10 C.F.R.

§ 51.45(b). The Commission then had to prepare an environmental impact statement to evaluate and document the environmental impacts. See 10 C.F.R. § 51.20(b)(9) (requiring the preparation of an environmental impact statement before the agency can issue a license to store spent nuclear fuel);

see also Ohio Nuclear-free Network v. U.S. Nuclear Regul. Commn, 53 F.4th 236, 237 (D.C. Cir. 2022) ([The National Environmental Policy Act]

requires all federal agencies to document the environmental impacts of certain proposed federal actions.). So if New Mexico had environmental concerns, it could have asserted contentions and requested a hearing when Interim Storage submitted its environmental report. 10 C.F.R.

§ 2.309(f)(2); see p. 11, above.

In fact, many of New Mexicos criticisms of the environmental impact statement appear equally applicable to the environmental report. 5 For example, New Mexico makes three criticisms of the environmental impact statement based on its 5

Interim Storages environmental report doesnt appear in the record.

But the report is subject to judicial notice because its publicly available on the Commissions website. See Winzler v. Toyota Motor Sales U.S.A.,

Inc., 681 F.3d 1208, 1212-13 (10th Cir. 2012) (taking judicial notice of the existence of documents filed with [an agency] and now available on the agencys public website). Were considering the environmental report only for its contentsnot to prove the truth of those contents. See Tal v.

Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006) (concluding that the court can take judicial notice of public documents to show their contents but not to prove the truth of matters stated).

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Case: 21-60743 Document: 186-2 Page: 14 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 14 assumptions about the eventual availability of a federal repository and cost of transportation to a permanent repository, failure to consider the possibility of terrorism or New Mexicos cost to use the Texas-New Mexico rail line, and failure to consult New Mexico.

All of these criticisms involve matters that had appeared in Interim Storages environmental report.

First, New Mexico petitions for judicial review based on the Commissions assumption involving a permanent repository and future transportation costs to the repository. For example, New Mexico criticizes the environmental impact statement for assuming the existence of a permanent repository by 2048. Petitioners Opening Br. at 33-35. But this assumption also appeared in Interim Storages environmental report. WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report (Rev. 2), 72-1050, at 1-5 ([T]he earliest estimated time by which a permanent geologic repository could be licensed and operational is 2048.).

New Mexico also argues here that the environmental impact statement mistakenly assumed the cost of transportation even though a permanent repository doesnt yet exist. Petitioners Opening Br. at 36. But Interim Storages environmental report had made the same assumptions despite the absence of a permanent repository. See WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report (Rev. 2), 72-14

Case: 21-60743 Document: 186-2 Page: 15 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 15 1050, at 4-12, 4-16 (assuming shipments from the facility would be to the proposed repository at Yucca Mountain in Nye County, Nevada).

Second, New Mexico criticizes the environmental impact statement for factors that were overlooked. For example, New Mexico argues that the environmental impact statement failed to account for New Mexicos cost to use the Texas-New Mexico rail line. Petitioners Opening Br. at 40-41. But the same was true of Interim Storages environmental report. WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report (Rev. 2), 72-1050, at 3-5, 3-7.

New Mexico also argues that the environmental impact statement omitted an assessment of possible terrorism. Petitioners Opening Br. at 44-46. But Interim Storages environmental report contained the same omission.

Third, New Mexico argues that it should have been able to provide input into the environmental impact statement. Petitioners Opening Br. at

46. But in its environmental report, Interim Storage had omitted the New Mexico environmental agencies in the list of entities to be consulted. See WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report (Rev. 2), 72-1050, at 1-7. 6 6

The only New Mexico entity listed was the New Mexico State Historic Preservation Office. See WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report (Rev. 2), 72-1050, at 1-14.

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Case: 21-60743 Document: 186-2 Page: 16 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 16 As these examples indicate, Interim Storages environmental report shared many of the features that New Mexico criticizes. And New Mexico had access to that environmental report when Interim Storage requested a license. New Mexico thus had a chance to object to many of the features reappearing in the Commissions draft of the environmental impact statement.

With contentions and a request for a hearing or a petition for leave to intervene, New Mexico could later have filed new or amended contentions to challenge the environmental impact statement. See 10 C.F.R.

§ 2.309(f)(2) (stating that participants can file new or amended environmental contentions after the deadline . . . based on a draft or final

[Nuclear Regulatory Commission] environmental impact statement). So New Mexico could have raised its current arguments even though the Commission had closed the administrative record before issuing the draft environmental impact statement.

3. We lack jurisdiction under the Nuclear Waste Policy Act because it does not govern Interim Storages license.

New Mexico also invokes the Nuclear Waste Policy Act, 42 U.S.C.

§§ 10101-10270. This statute addresses plans to develop a federal repository for storing spent nuclear fuel. Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1242 (10th Cir. 2004).

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Case: 21-60743 Document: 186-2 Page: 17 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 17 The Nuclear Waste Policy Act provides federal appellate jurisdiction over challenges to an environmental impact statement prepared with respect to an action under Part A of the statute. See 42 U.S.C.

§ 10139(a)(1)(D) (granting original jurisdiction to the federal courts of appeal to review environmental impact statements prepared with respect to an action under this part, which is Part A). 7 But the Commission did not prepare the environmental impact statement with respect to an action under Part A.

Part A establishe[s] a schedule for siting, construction, and operation of a permanent federal repository. Bullcreek v. Nuclear Regul.

Commn, 359 F.3d 536, 538 (D.C. Cir. 2004); 42 U.S.C. §§ 10131-10145, 10101(18) (defining repository under Part A as any system licensed by the Commission that is intended to be used for, or may be used for, the permanent deep geologic disposal of . . . spent nuclear fuel (emphasis added)); see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1242 (10th Cir. 2004) (stating that Part A establishes a 7

Section 10139(a)(1)(D) also creates jurisdiction for review of any environmental impact statement prepared pursuant to [the National Environmental Policy Act] . . . as required under section 10155(c)(1) of this title. 42 U.S.C. § 10139(a)(1)(D). Section 10155(c)(1) requires an environmental impact statement for certain sites owned by the federal government. 42 U.S.C. § 10155(c)(1). Because Interim Storage is a private entity, § 10155(c)(1) does not apply.

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Case: 21-60743 Document: 186-2 Page: 18 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 18 schedule for developing a permanent federal repository). But Interim Storages facility and license are neither permanent nor federal.

The license is temporary, as it will expire in 40 years. During this period, Interim Storage can store spent nuclear fuel. R. vol. 4, at 827.

Because the license is temporary, Part A doesnt apply.

New Mexico argues that Interim Storages facility could become a de facto permanent warehouse for storage, pointing to uncertainty over the feasibility of a permanent repository for spent nuclear fuel. We reject this argument.

Though we dont know whether the government will complete a permanent repository, Interim Storages license would remain temporary either way because of the 40-year term. By the end of the 40-year period, Interim Storage would need to seek renewal. If the Nuclear Regulatory Commission were to decline renewal of the license, Interim Storage couldnt continue to use the facility to store spent nuclear fuel. See 10 C.F.R. § 72.54. So the possibility of renewal doesnt make the license permanent.

Even if the license were permanent, however, Part A wouldnt govern because the storage facility is owned and operated by a private entity (Interim Storage). Because the entity is private, the Commission relied on the Atomic Energy Act, which authorizes licensing and regulation of private use of private away-from-reactor spent fuel storage facilities.

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Case: 21-60743 Document: 186-2 Page: 19 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 19 Bullcreek v. Nuclear Regul. Commn, 359 F.3d 536, 542 (D.C. Cir. 2004)

(emphasis added); see R. vol. 4, at 827 (the Interim Storage license stating that it was issued [p]ursuant to the Atomic Energy Act of 1954). So the license does not concern a federal facility.

New Mexico points out that the license refers to the Department of Energy, suggesting that the reference implies that the federal government will use the facility. This suggestion reflects a misunderstanding of the license. The license says that operations cant start until Interim Storage obtains a contract with the U.S. Department of Energy or another title-holder thats responsible for funding operations. R. vol. 4, at 829. This provision allocates responsibility for funding operations, ensuring that whoever owns the nuclear fuel will pay for the storage. (If the Department of Energy owned the nuclear fuel, the Department would pay for the storage; if a private entity owned the fuel, the private entity would pay.)

That provision doesnt authorize the federal government to store its spent nuclear fuel at the facility or make the federal government the licensee or operator of the storage facility.

See Dont Waste Michigan v. U.S. Nuclear Regul. Commn, No. 21-1048, 2023 WL 395030, at *2 (D.C. Cir. Jan. 25, 2023) (per curiam; unpublished)

(interpreting the same language and concluding that it does not make the 19

Case: 21-60743 Document: 186-2 Page: 20 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 20 Department of Energy responsible for the spent nuclear fuel being stored at Interim Storages private facility).

New Mexico also argues that the environmental impact statement, record of decision, and issuance of the license are inextricably linked to actions taken pursuant to [the Nuclear Waste Policy Act] provisions.

Resp. to Mot. to Dismiss at 13. New Mexico points to the Nuclear Regulatory Commissions reliance on a previous determination that a permanent repository would be available by 2048, R. vol. 3, at 134, discussion that the facility is needed for storage capacity before a permanent repository is available, id. at 115, assumption that spent nuclear fuel will be moved to a permanent repository, id. at 172-73, and reference to the Department of Energys analyses, id. at 286.

These references dont show the issuance of an action under the Nuclear Waste Policy Act. See 42 U.S.C. § 10139(a)(1)(D). After all, the Commission didnt prepare the environmental impact statement for a facility that was permanent or operated by the federal government.

The Commission didnt issue the environmental impact statement based on an action under Part A of the Nuclear Waste Policy Act. So this Act doesnt trigger jurisdiction.

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Case: 21-60743 Document: 186-2 Page: 21 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 21

4. We would lack jurisdiction even if the Commission had acted ultra vires.

New Mexico also argues that we have jurisdiction because the Nuclear Regulatory Commission acted ultra vires. We disagree.

District courts can review administrative actions when an agency acts ultra vires if no court could otherwise review the action. See Quivira Mining Co. v. U.S.E.P.A., 728 F.2d 477, 484 (10th Cir. 1984) ([Leedom v.

Kyne, 358 U.S. 184, 190 (1958)] stands for the proposition that ultra vires agency action may be reviewed by the district courts, notwithstanding exclusive court of appeals review provisions, when no relief is otherwise available.).

New Mexico argues that we obtained jurisdiction because the Commission acted ultra vires. But even if the Commission had acted ultra vires, New Mexico could have obtained judicial review by participating in the Commissions proceedings through submitting contentions and a request for a hearing or petition for leave to intervene. This opportunity prevents New Mexico from invoking this exception even if the Commission had acted ultra vires. See id. (rejecting a claim that the district court had jurisdiction despite a provision for exclusive appellate review because the plaintiffs had bypassed opportunities to challenge the regulation).

New Mexico urges an exception that would create jurisdiction regardless of the possibility of administrative action. In urging this 21

Case: 21-60743 Document: 186-2 Page: 22 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 22 exception, New Mexico relies on a Fifth Circuit opinionAmerican Trucking Associations, Inc. v. I.C.C., 673 F.2d 82, 85 n.4 (5th Cir. 1982)

(per curiam)which permitted review if the agency action is attacked as exceeding the power of the Commission. Id. at 85 n.4 (quoting Schwartz

v. Alleghany Corp., 282 F. Supp. 161, 163 (S.D.N.Y. 1968)).

Most circuits have declined to follow American Trucking. See Matter of Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 334-35 (7th Cir. 1986) (deciding not to follow American Trucking and concluding that

[t]he statute limits review to petitions filed by parties, and that is that);

Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd., 167 F.3d 111, 112 (2d Cir. 1999) (characterizing American Truckings exceptions as unpersuasive dicta); Natl Assn Of State Util. Consumer Advocs. v.

F.C.C., 457 F.3d 1238, 1249 (11th Cir.), opinion modified on denial of rehg, 468 F.3d 1272 (11th Cir. 2006) (declining to follow American Trucking and stating that a party is aggrieved when it participated in the agency proceeding (quoting Alabama Power Co. v. F.C.C., 311 F.3d 1357, 1366 (11th Cir. 2002))); cf. Baros v. Texas Mexican Ry. Co., 400 F.3d 228, 238 n.24 (5th Cir. 2005) (recognizing that American Trucking has been squarely rejected by some of our sister circuits). We agree with these courts, concluding that non-parties cannot appeal orders that exceed the power of the agency because 22

Case: 21-60743 Document: 186-2 Page: 23 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 23 exceeding the power of the agency may be a synonym for wrong, so that the statute then precludes review only when there is no reason for review anyway and

[the Hobbs Act] is the source of the courts jurisdiction, . . .

[a] court may not decide a case just because that would be a good idea; power must be granted, not assumed.

Matter of Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 335 (7th Cir. 1986).

Nor does American Trucking support New Mexicos reliance on the exception for ultra vires action. There the Fifth Circuit concluded that it is incumbent upon an interested person to act affirmatively to protect himself in administrative proceedings, and . . . (s)uch a person should not be entitled to sit back and wait until all interested persons who do so act have been heard, and then complain that he has not been properly treated.

Am. Trucking Associations, Inc., 673 F.2d at 84 (quoting Nader v. Nuclear Regul. Commn, 513 F.2d 1045, 1054 (D.C. Cir. 1975)) (emphasis added)

(internal quotation marks omitted). Given the need for affirmative action to protect oneself, reliance on American Trucking is misplaced because New Mexico could have participated in the licensing proceeding.

Because American Trucking is neither persuasive nor applicable, jurisdiction wouldnt exist even if the Commission had acted ultra vires.

5. Conclusion We dismiss the petition for lack of jurisdiction. The Hobbs Act and Atomic Energy Act dont trigger jurisdiction because New Mexico didnt 23

Case: 21-60743 Document: 186-2 Page: 24 Date Filed: 02/10/2023 Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 24 take advantage of the chance to participate in the Commissions licensing proceeding. Nor does jurisdiction exist under the Nuclear Waste Policy Act, for the Commission didnt issue the environmental impact statement with respect to an action under Part A of the Act. And even if the Commission had acted ultra vires, wed lack jurisdiction because New Mexico could otherwise have asserted its arguments in the licensing proceeding.

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