ML23256A369
| ML23256A369 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 08/25/2023 |
| From: | Andrew Averbach, Heminger J, Kim T NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 23-60377 | |
| Download: ML23256A369 (1) | |
Text
Case: 23-60377 Document: 42 Page: 1 Date Filed: 08/25/2023 No. 23-60377 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT FASKEN LAND AND MINERALS, LTD., and PERMIAN BASIN LAND AND ROYATY OWNERS, Petitioners, v.
NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.
On Petition for Review of Action by the Nuclear Regulatory Commission FEDERAL RESPONDENTS REPLY TO RESPONSES TO MOTION TO DISMISS OR TRANSFER THE PETITION FOR REVIEW 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
Case: 23-60377 Document: 42 Page: 2 Date Filed: 08/25/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 2 I. This Court has limited unsuccessful intervenors like Fasken to challenging the agencys decision not to permit intervention.................... 2 II. Fasken provides no basis for expansion or application of the ultra vires exception here. .......................................................................... 5 III. Fasken fails to recognize the interests of justice as a basis for transfer .................................................................. 9 CONCLUSION ........................................................................................................11 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)
CERTIFICATE OF SERVICE
Case: 23-60377 Document: 42 Page: 3 Date Filed: 08/25/2023 TABLE OF AUTHORITIES Cases Alaska v. FERC, 980 F.2d 761 (D.C. Cir. 1992)......................................................................... 3 Am. Airlines v. Herman, 176 F.3d 283 (5th Cir. 1999) ........................................................................... 5 Am. Trucking Assns v. ICC, 673 F.2d 82 (5th Cir. 1982) .........................................................2, 3, 4, 7, 8, 9 Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023) ...............................................................2, 3, 8 BASF Wyandotte Corp. v. Costle, 582 F.2d 108 (1st Cir. 1978)............................................................................ 9 Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023) .............................. 3 Dresser v. MEBA Med. & Benefits Plan, 628 F.3d 705 (5th Cir. 2010) ........................................................................... 4 Ecology Action v. Atomic Energy Commn, 492 F.2d 998 (2nd Cir. 1974) .......................................................................... 3 Fleming v. U.S. Dept. of Agriculture, 987 F.3d 1093 (D.C. Cir. 2021)....................................................................... 8 Matson Navigation Co. v. Dept of Transp.,
No. 21-1137, 2023 WL 5209552, - F.4th - (D.C. Cir. Aug. 15, 2023) ......2, 4 Pub. Serv. Commn for State of N.Y. v. Fed. Power Commn, 472 F.2d 1270 (D.C. Cir. 1972)....................................................................... 9 State v. Rettig, 987 F.2d 518 (5th Cir. 2021) ........................................................................... 7 ii
Case: 23-60377 Document: 42 Page: 4 Date Filed: 08/25/2023 Statutes 5 U.S.C. § 704 ............................................................................................................ 4 28 U.S.C. § 2112 ........................................................................................................ 9 28 U.S.C. § 2344 ................................................................................................1, 4, 6 iii
Case: 23-60377 Document: 42 Page: 5 Date Filed: 08/25/2023 INTRODUCTION By its plain text, the Hobbs Act affords judicial review only to a party aggrieved. 28 U.S.C. § 2344. Applying this jurisdictional requirement, this Court has held that a person seeking review under this provision must first seek admission as a party in the agency adjudicatory process and, if the agency has denied its request, judicial review is limited to the propriety of the denial decision.
Petitioners Fasken Land and Minerals, Limited, and Permian Basin Land and Royalty Owners (together, Fasken) fail to acknowledge this rule and its jurisdictional consequences for their Petition. The Nuclear Regulatory Commission (NRC) denied Faskens request to become a party to the Holtec licensing proceedings, so under the Hobbs Act, Faskens exclusive avenue for judicial relief is to challenge that denial. And Fasken is following this avenue in the D.C. Circuit. Faskens scattershot approach conflicts with the Hobbs Acts text and precedent from each circuit to have addressed this issue.
Nor does Fasken provide any authority suggesting that the exceedingly narrow exception to this jurisdictional rule should be applied to agencies other than the Interstate Commerce Commission (ICC). In fact, Fasken does not dispute that the exception is premised on a mistake of law. And Fasken could have raised before the agency the same ultra vires arguments that it intends to raise here, so the exception does not apply even if it did cover the NRC.
Case: 23-60377 Document: 42 Page: 6 Date Filed: 08/25/2023 The Court should dismiss the Petition for Review. Alternatively, the Court should in the interests of justice transfer the Petition to the D.C. Circuit, which is considering Faskens earlier-filed, jurisdictionally-proper petition.
ARGUMENT I. This Court has limited unsuccessful intervenors like Fasken to challenging the agencys decision not to permit intervention.
In American Trucking Associations v. ICC, 673 F.2d 82, 85 (5th Cir. 1982),
this Court set forth the general rule governing the availability of judicial review under the Hobbs Act for those who would intervene but are denied permission to do so. Specifically, the Court explained, persons or entities denied intervenor status have the option to take an immediate appeal from that denial within the agency and, if necessary, to the Court of Appeals. Id. If it is determined that the right to intervene was improperly denied, then a court of appeals may order the Commission to permit intervention and reopen the prior order for reconsideration.
Id.
As we explained in our motion (at 7-8), the American Trucking rule is consistent with the decisions of every other circuit to have considered the issue.
E.g., Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023) (citing Nat. Res. Def.
Council v. NRC, 823 F.3d 641, 643 (D.C. Cir. 2016); Matson Navigation Co. v.
Dept of Transp., No. 21-1137, 2023 WL 5209552, at *3, - F.4th - (D.C. Cir. Aug.
15, 2023) (citing Ohio Nuclear-Free Network v. NRC, 53 F.4th 236, 239 (D.C. Cir.
2
Case: 23-60377 Document: 42 Page: 7 Date Filed: 08/25/2023 2022)); Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL 395030 at *3 (D.C.
Cir. Jan. 25, 2023); Alaska v. FERC, 980 F.2d 761, 763 (D.C. Cir. 1992); Ecology Action v. Atomic Energy Commn, 492 F.2d 998, 1000 (2nd Cir. 1974). And the path that these courts have uniformly endorsed for persons or entities denied intervenor statusa challenge to the denial decisionis the route Fasken is travelling in the D.C. Circuit.
Yet, before this Court, Fasken proceeds as if the rule in American Trucking did not exist. Fasken cites cases holding that a person who files comments in a rulemaking proceeding has satisfied the Hobbs Acts participation requirements.
Response at 5-6 (citing, inter alia, Reytblatt v. NRC, 105 F.3d 715, 720-21 (D.C.
Cir. 1997); NASUCA v. FCC, 457 F.3d 1238, 1250 (11th Cir. 2006); ACA Intl v.
FCC, 885 F.3d 687, 711-12 (D.C. Cir. 2018)). But those cases do not apply because the Holtec proceeding was not a rulemakingit was an adjudication that required a person to formally seek to intervene to participate as a party. Tellingly, Fasken fails to offer a single case in which a court in any circuit has exercised Hobbs Act jurisdiction over a petition for review based solely on a petitioners submission of comments where, as here, the agency has conducted an adjudication.
That is because no such case exists. As the Tenth Circuit explained in Balderas, the degree and nature of participation required to satisfy the Hobbs Acts party aggrieved requirement depend on the procedures for participation, which 3
Case: 23-60377 Document: 42 Page: 8 Date Filed: 08/25/2023 are different in rulemaking and adjudication. 59 F.4th at 1118 (citing Gage v.
Atomic Energy Comm'n, 479 F.2d 1214, 1217 (D.C. Cir. 1973)); see also Matson Navigation, 2023 WL 5209552 at *3. Thus, the rule that this Court recognized in American Trucking does not mean that the agency is impos[ing its] own rules for participating in agency proceedings as the standard for this Courts jurisdiction.
Response at 6. Rather, the rule simply effectuates the Hobbs Acts requirement that only a party aggrieved by an agency order can seek judicial review. Matson Navigation, 2023 WL 5209552 at *3 (concluding, based on Congresss deliberate choice of the term party rather than person, in 28 U.S.C. § 2344, that a petitioner must acquire party status before the agency in order to invoke jurisdiction under the Hobbs Act). Fasken has sought judicial review in the D.C.
Circuit in conformity with the American Trucking rule, and there is no jurisdictional basis to offer it a second bite at the apple.1 1
Fasken also asserts in two footnotes that we failed to address its arguments concerning jurisdiction under the Nuclear Waste Policy Act (NWPA) or the Administrative Procedure Act (APA) and that the motion should therefore be denied. Response at 5 n.3, 14 n.9. As to the NWPA, this is simply incorrect; we demonstrated that this avenue is foreclosed because the licensing action was conducted under the Atomic Energy Act, not the NWPA, which governs fuel storage efforts conducted by the federal government. Motion at 13-15. And Faskens invocation of the APA is plainly unavailing; the APA does not provide an independent grant of jurisdiction where, as here, Congress has enacted a specific scheme for judicial review of agency action that provides an adequate remedy. 5 U.S.C. § 704; see, e.g., Dresser v. MEBA Med. & Benefits Plan, 628 F.3d 705, 711 (5th Cir. 2010).
4
Case: 23-60377 Document: 42 Page: 9 Date Filed: 08/25/2023 II. Fasken provides no basis for expansion or application of the ultra vires exception here.
This Court has recognized the existence of an exceedingly narrow exception to the party aggrieved requirement in cases involving orders of the ICC. See Motion at 9-13. We noted that the exception was (1) based on a mistaken understanding of the non-applicability of the Hobbs Act to that agency; (2) is inconsistent with both the text of the Hobbs Act and case law in other circuits; and (3) had not been expanded so as to apply to cases involving other agencies. Id.
Fasken offers no textual defense of the exception. Nor does it contest that the exceptions application in cases involving the ICC is premised upon a mistake.
Instead, it asserts that the Court should recognize the exception based on equitable jurisdiction, Response at 8 (citing Leedom v. Kyne, 358 U.S. 184 (1958)), because without such a remedy, the challenger is left to the absolutely uncontrolled and arbitrary action of a public and administrative officer, id. (quoting Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902)). Yet Fasken fails to recognize that this outlet is available only as a last resort, when a party had, literally, no other means of protecting its rights in court. See, e.g., American Airlines v. Herman, 176 F.3d 283, 293-94 (5th Cir. 1999) (no jurisdiction under Leedom v. Kyne where plaintiff had meaningful and adequate means of vindicating its rights).
5
Case: 23-60377 Document: 42 Page: 10 Date Filed: 08/25/2023 That is plainly not the case here. Fasken and others argued before the NRC (and are now arguing before the D.C. Circuit) that the underlying license issued to Holtec was illegal because it (allegedly) would authorize the storage of fuel to which the Department of Energy might hold title. And, as we noted in our motion (at 11), another putative intervenor argued before the agency that the Atomic Energy Act either did not confer authority for the NRC to issue a license for the away-from-reactor storage of spent fuel, or, alternatively, that the NWPA had revoked that authority. Fasken cannot credibly argue that it had no outlet before the agency (and, by extension, before the courts of appeals on judicial review) to make arguments that allegedly fall within the ultra vires exception when arguments of this nature were, in fact, made before the agency (including by Fasken) in the adjudicatory proceedings involving this very case.
Fasken suggests the Court should carry the motion with the case because it is premature to speculate about arguments it will raise in merits briefing. Response at 8 n.6. This argument is unpersuasive. As an initial matter, Fasken was required to include a statement of the grounds on which relief is sought in its Petition for Review. 28 U.S.C. § 2344(3). In any event, Fasken acknowledges that the issues in the case are substantially similar to those that have been presented to this Court in Texas v. NRC, No. 21-60743 (5th Cir.). See Response at 4, 17. And regardless of what issues Fasken intends to raise, it offers no reason why these 6
Case: 23-60377 Document: 42 Page: 11 Date Filed: 08/25/2023 arguments could not be raised before the agency as part of the adjudicatory process.
Fasken also raises a series of arguments that are not germane to the Hobbs Acts party aggrieved requirement or the applicability of any exception. First, relying on State v. Rettig, 987 F.2d 518, 529 (5th Cir. 2021), it asserts that this Courts allowance for petitioners to raise an as-applied challenge to an agencys statutory or constitutional authority to issue a regulation more than six years after the regulation is promulgated constitutes support for the ultra vires exception.
Response at 9. But this rule concerns the statute of limitations (and the recognition that certain parties might not have an opportunity to challenge a regulation until it is applied in a manner that injures them) and does not bear on the rule articulated in American Trucking or any exceptions thereto.
Similarly, Fasken invokes the major questions doctrine. Response at 10.
But this type of licensing decision is not the type of action that would have such vast economic and political significance that should give the Court reason to hesitate, West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022). Fundamentally, the license is a temporary storage decision. And in any event, Congress has given the NRC clear authority to regulate the storage of spent fuel in the short term. See Motion at 2-3. But without wading into that dispute, there is a much simpler way to resolve Faskens argumentFasken was free to raise arguments about the 7
Case: 23-60377 Document: 42 Page: 12 Date Filed: 08/25/2023 NRCs authority in the agency adjudicatory process, making any limited exception to agency exhaustion requirements for supposed ultra vires actions inapplicable.
See Balderas, 59 F.45th at 1123.2 Finally, Fasken contests the conclusion that it failed to take action to protect itself, as would be required to invoke the ultra vires exception, by asserting that it took affirmative action through its years-long participation in the licensing process. Response at 12 (attempting to distinguish Balderas and American Trucking). Yet it fails to mention that it is pursuing judicial review, in the D.C.
Circuit, of the resolution of this years-long participation. And to the extent that Fasken relies on the comments it submitted on the draft Environmental Impact Statement as proof of its affirmative action, its case is materially indistinguishable from Balderas and Ohio Nuclear-Free Network v. NRC, 53 F.4th 236 (D.C. Cir.
2022). In both cases, the courts of appeals held that a petitioners submission of 2
Fasken also characterizes as a fundamental mistake our characterization of its failure satisfy the party aggrieved requirement as jurisdictional. Response at
- 13. Yet its argument, even if correct, provides it no solace. Regardless of whether the party aggrieved requirement is jurisdictional and therefore can be waived by the government, it has been raised at the earliest possible time here. The only consequence here of the jurisdictional/nonjurisdictional designation is whether dismissal is warranted for lack of jurisdiction or for failure to meet a statutory prerequisite to filing suit. See, e.g., Fleming v. U.S. Dept. of Agriculture, 987 F.3d 1093, 1098-99 (D.C. Cir. 2021) (explaining the difference between jurisdictional exhaustion, which a court must enforce regardless of whether it is raised by a party, and non-jurisdictional, mandatory exhaustion, which constitutes an affirmative defense that, once raised by the government, must be enforced).
8
Case: 23-60377 Document: 42 Page: 13 Date Filed: 08/25/2023 comments was insufficient to satisfy the Hobbs Acts participation requirement.
The party participation requirement that the Hobbs Act mandates and that this Court recognized in American Trucking would be nullified if, as Fasken would have it, it could directly challenge the license simply by submitting comments.
III. Fasken fails to recognize the interests of justice as a basis for transfer.
Fasken also contends that transfer to the D.C. Circuit is unwarranted because of the Hobbs Acts venue provision, but that should not be an obstacle to transfer.
Response at 14-15.
First, this Court may resolve the venue issue by recognizing that the first-filed petitions related to the license proceeding were filed in the D.C. Circuit (including by Fasken). See 28 U.S.C. § 2112(a). Fasken contends that Section 2112 does not apply because its Petition is the only one directly challenging the NRCs final order. Response at 14 n.10. But the courts of appeals recognize that Section 2112(a)s reference to the same order should account for multiple orders issued in the same or interrelated proceedings. See, e.g., Pub. Serv. Commn for State of N.Y. v. Fed. Power Commn, 472 F.2d 1270, 1272 (D.C. Cir. 1972) (noting exception to the first-to-file rule to maintain continuity in the total proceeding);
BASF Wyandotte Corp. v. Costle, 582 F.2d 108, 112 (1st Cir. 1978) (adopting a rule under which sequential regulations should be considered the same order under § 2112(a) if they arise from the same or interrelated proceedings).
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Case: 23-60377 Document: 42 Page: 14 Date Filed: 08/25/2023 Second, any authority that the Court might have to exercise equitable jurisdiction (Response 9) should be informed by the interests of justice, which warrant transfer. Fasken (1) was afforded a full and fair opportunity to raise legal challenges to the license; (2) raised the challenges of its choosing, including (as it acknowledges, Response 2-3) challenges to the agencys authority, in the form of contentions; and (3) dissatisfied with the NRCs resolution of those contentions, filed a petition for review challenging the agencys decision in the D.C. Circuit.
There is no reason to permit it to file a second petition for review pertaining to the same license when the arguments it intends to raise here either were raised or could have been raised before the agency. One court should entertain all of Faskens arguments concerning the license, and that court is the one adjudicating the case in the manner that Congress envisioned when it channeled judicial review of the NRCs licensing decisions through its hearing process and appeals of agency adjudicatory decisions.
Finally, Fasken invokes judicial efficiency, noting that merits briefing begins soon in the consolidated D.C. Circuit petitions. Response at 16. But briefing does not conclude until January 2024, so transferring now would allow sufficient time to brief and present this case to the same panel of that court.
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Case: 23-60377 Document: 42 Page: 15 Date Filed: 08/25/2023 CONCLUSION Respondents respectfully request that this Court dismiss the Petition for Review, or in the alternative, transfer it to the United States Court of Appeals for the D.C. Circuit.
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 August 25, 2023 11
Case: 23-60377 Document: 42 Page: 16 Date Filed: 08/25/2023 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 2,581 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: 23-60377 Document: 42 Page: 17 Date Filed: 08/25/2023 CERTIFICATE OF SERVICE I certify that on August 25, 2023, I served a copy of the foregoing FEDERAL RESPONDENTS REPLY TO RESPONSES TO MOTION TO DISMISS OR TRANSFER THE PETITION FOR REVIEW upon counsel for the parties in this action by filing the document electronically through the CM/ECF system.
/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission