ML23346A029

Opposition to Petition for Rehearing EN Banc by Petitioners Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners

ML23346A029
Person / Time
Site:	HI-STORE
Issue date:	12/11/2023
From:	Kanner A, Tennis A Fasken Land & Minerals, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, 5th Circuit
References
21-60743, 245
Download: ML23346A029 (1)

Text

United States Court of Appeals For the Fifth Circuit No. 21-60743 STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS; TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; FASKEN LAND AND MINERALS, LIMITED; and PERMIAN BASIN LAND AND ROYALTY OWNERS, Petitioners,

v.

NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents.

OPPOSITION TO PETITION FOR REHEARING EN BANC BY PETITIONERS FASKEN LAND AND MINERALS, LTD. and PERMIAN BASIN LAND AND ROYALTY OWNERS ALLAN KANNER Attorney ANNEMIEKE M. TENNIS Attorney Kanner & Whiteley, L.L.C.

701 Camp Street New Orleans, LA. 70130 a.kanner@kanner-law.com a.tennis@kanner-law.com (504) 524-5777 Case: 21-60743 Document: 245 Page: 1 Date Filed: 12/11/2023

i CERTIFICATE OF INTERESTERED PERSONS No. 21-60743 State of Texas

v.

Nuclear Regulatory Commission The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1.

Petitioners

a.

State of Texas

b.

Greg Abbott, Governor of Texas

c.

Texas Commission on Environmental Quality

d.

Fasken Land and Minerals, Ltd.

e.

Permian Basin Land and Royalty Owners

2.

Counsel for Petitioners

a.

Michael Abrams, Office of Attorney General, State of Texas

b.

Ryan Baasch, Office of Attorney General, State of Texas

c.

Henry Carl Myers, Office of Attorney General, State of Texas

d.

Lanora Christine Pettit, Office of Attorney General, State of Texas Case: 21-60743 Document: 245 Page: 2 Date Filed: 12/11/2023

ii

e.

Allan Kanner, Kanner & Whiteley, L.L.C.

f.

Annemieke M. Tennis, Kanner & Whiteley, L.L.C.

g.

Monica Renee Perales, Fasken Land & Minerals

3.

Respondents

a.

United States Nuclear Regulatory Commission

b.

United States of America

4.

Counsel for Respondents

a.

Andrew P. Averbach, U.S. Nuclear Regulatory Commission

b.

Marian L. Zobler, U.S. Nuclear Regulatory Commission (retired)

c.

Brooke P. Clark, U.S. Nuclear Regulatory Commission

d.

Todd Kim, U.S. Department of Justice

e.

Jennifer Scheller Neumann, U.S. Department of Justice

f.

Justin Heminger, U.S. Department of Justice

5.

Respondent-Intervenor

a.

Interim Storage Partners, LLC

b.

Orano CIS, LLC

c.

Orano USA, LLC

d.

Orano SA, owned by government of France, Mitsubishi, and Japan Nuclear Fuel

e.

Waste Control Specialists, LLC Case: 21-60743 Document: 245 Page: 3 Date Filed: 12/11/2023

iii

f.

Fermi Holdings, Inc.

g.

J.F. Lehman & Co.

h.

Nuclear Energy Institute, Inc.

6.

Counsel for Respondent-Intervenor

a.

Brad Fagg, Morgan, Lewis & Bockius LLP

b.

Ryan K. Lighty, Morgan, Lewis & Bockius LLP

c.

Tim P. Matthews, Morgan, Lewis & Bockius LLP

d.

Paul D. Clement, Clement & Murphy, PLLC

e.

Mariel A. Brookins, Clement & Murphy, PLLC

f.

Andrew C. Lawrence, Clement & Murphy, PLLC

/s/ Allan Kanner Allan Kanner Counsel for Petitioners Fasken Land & Minerals, Ltd. and Permian Basin Land & Royalty Owners Case: 21-60743 Document: 245 Page: 4 Date Filed: 12/11/2023

iv TABLE OF CONTENTS CERTIFICATE OF INTERESTERED PERSONS................................................... i TABLE OF CONTENTS......................................................................................... iv TABLE OF AUTHORITIES..................................................................................... v STATEMENT OF THE CASE.................................................................................. 1 FACTUAL AND PROCEDURAL BACKGROUND.............................................. 3 ARGUMENT............................................................................................................. 4 I.

NOTHING IN THE PANELS OPINION WARRANTS EN BANC REVIEW.......................................................................................................... 4 A. The Panel Correctly Determined That the NRC Lacks Statutory Authority to Issue the License.................................................................... 5 B. The Opinion does not Create a Circuit Split.............................................. 6 C. The Panel Correctly Determined That the NWPA Does Not Permit the License...................................................................................... 8 II. THE PANEL OPINION IS CONSISTENT WITH WEST VIRGINIA AND OTHER MAJOR QUESTION DOCTRINE PRECEDENT...............10 III. APPLICATION OF THE FIFTH CIRCUITS ULTRA VIRES EXCEPTION DOES NOT WARRANT EN BANC REVIEW.....................13 CONCLUSION........................................................................................................17 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT..................19 Case: 21-60743 Document: 245 Page: 5 Date Filed: 12/11/2023

v TABLE OF AUTHORITIES Cases ACLU v. FCC, 774 F.2d 24 (1st Cir. 1985)...................................................................................14 Aids Assn for Lutherans v. U.S. Postal Serv.,

321 F.3d 1166 (D.C. Cir. 2003)............................................................................13 Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)............................................................. 2, 6, 7, 9, 10 Clark & Reid Co. v. U.S.,

804 F.2d 3 (1st Cir. 1986).....................................................................................14 Gage v. AEC, 479 F.2d 1214 (D.C. Cir. 1973)............................................................................15 In the Matter of Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility),

90 NRC 31 (Aug. 23, 2019)..................................................................................15 King v. Burwell, 576 U.S. 473 (2015)..............................................................................................12 Leedom v. Kyne, 358 U.S. 184 (1958)..............................................................................................13 Massachusetts v. NRC, 878 F.2d 1516 (1st Cir. 1989)...............................................................................14 Natl Assn of State Util. Consumer Advocs. v. FCC, 457 F.3d 1238 (11th Cir. 2006)............................................................................14 NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016)..............................................................................14 Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190 (1983)................................................................................................ 6 Reytblatt v. NRC, 105 F.3d 715 (D.C. Cir. 1997)..............................................................................14 Case: 21-60743 Document: 245 Page: 6 Date Filed: 12/11/2023

vi Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004)..................................................................... 2, 6, 7 W. Pac. R. Corp. v. W. Pac. R. Co.,

345 U.S. 247 (1953)................................................................................................ 4 Water Transp. Assn v. ICC, 819 F.2d 1189 (D.C. Cir. 1987)............................................................................15 West Virginia v. EPA, 142 S. Ct. 2587 (2022)............................................................................... 2, 11, 12 Statutes 42 U.S.C. § 2011........................................................................................................ 1 42 U.S.C. § 2013........................................................................................................ 5 42 U.S.C. § 10101...................................................................................................... 1 42 U.S.C. § 10131(a)(7)...........................................................................................12 42 U.S.C. § 10162...................................................................................................... 8 42 U.S.C. § 10222(a)(5)............................................................................................. 8 42 U.S.C. §§ 10161-10169........................................................................................ 7 Rules Fed. R. App. P. 35................................................................................................4, 17 Regulations 10 C.F.R. § 72.3......................................................................................................... 8 Other Authorities Blue Ribbon Commission Report (Jan. 2012).........................................................10 Cong. Rsch. Serv., Civilian Nuclear Waste Disposal, (Sept. 17, 2021)..................12 NRC, NUREG-1714, Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele Co............................... 7 Nuclear Energy Insider, US Waste Storage Development Hinges on Political Push, (Nov. 2015)...........................................................................................................10 Case: 21-60743 Document: 245 Page: 7 Date Filed: 12/11/2023

1 STATEMENT OF THE CASE Neither Respondents nor Intervenor have met the stringent requirements for en banc review. The panels unanimous opinion does not conflict with Supreme Court or Fifth Circuit precedent. Respondents and Intervenor fail to identify a single new authority or exceptional issue, and instead merely rehash arguments that were rejected by the panel. Moreover, their arguments against finding a major question are contravened by their position that the nations nuclear waste management policies constitute exceptional issues.

The panel correctly determined that the Nuclear Regulatory Commission (NRC) lacks statutory authority to issue the sui generis consolidated interim storage facility (CISF) Materials License No. NMS-2515 to Interim Storage Partners, LLC (License). The opinion textually analyzed the Atomic Energy Act of 1954 (AEA), 42 U.S.C. § 2011, et seq., and concluded that NRCs disparate authority to regulate spent nuclear fuel (SNF) constituents could not justify issuance of the License for consolidated storage of SNF at a facility hundreds of miles from the generating reactor. Further, the panel found that issuing such a license contradicted Congressional policy expressed in the Nuclear Waste Policy Act (NWPA), 42 U.S.C. § 10101, et seq.

There is no inter-circuit conflict created by the panels opinion meriting en banc review. The sister circuit opinions relied on by Respondents and Intervenor Case: 21-60743 Document: 245 Page: 8 Date Filed: 12/11/2023

2 conducted no statutory analysis of the NRCs authority under the AEA, nor did they directly address the legal issues presented here. Moreover, the purely-private facility at issue in those opinions is materially and factually distinguishable from the would-be hybrid public/private CISF in this case.

While the sister circuit opinions pre-date any definitive Supreme Court guidance on the major question doctrine, the panels opinion correctly followed West Virginia v. EPA, 142 S. Ct. 2587 (2022). The authority asserted by the NRC in licensing CISFs implicates the major question doctrine because it is an attempt to re-write the nations nuclear waste management policies, which has enormous political and economic consequences. Even the cited sister circuit opinions recognize there is no explicit delegation of authority for the NRC to regulate the storage of SNF. Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004) ([T]he AEA does not specifically refer to the storage or disposal of spent nuclear fuel...

.); Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004) (adopting Bullcreek without any meaningful analysis). Given the lack of any clear delegation of such a broad and impactful authority, the NRCs assumption of such authority violates the doctrine.

Finally, consistent with Fifth Circuit binding precedent and the underlying principles favoring judicial review of agency actions exceeding the agencys statutorily delegated authority, the panel applied this Courts ultra vires exception Case: 21-60743 Document: 245 Page: 9 Date Filed: 12/11/2023

3 to find jurisdiction. As Respondents concede, this aspect of the panel decision merely reinforc[es] an existing circuit split and does not raise any precedential-setting or exceptional issues warranting en banc review.

FACTUAL AND PROCEDURAL BACKGROUND The panels opinion provides the relevant facts surrounding the five-year administrative proceeding leading to the NRCs issuance of the License, Op. 6-7,1 which included a revision of the application from anticipating that the United States Department of Energy (DOE) would take title to the SNF to a hybrid scenario allowing either the DOE or private entities to take title of the SNF, after multiple parties, including Fasken, challenged the legality of the initial application.2 Five months after it rejected every attempt to intervene and terminated the adjudicatory proceeding, the NRC published its draft Environmental Impact Statement (EIS) and notice soliciting public comments. Fasken participated throughout, presenting five contentions and two motions to reopen the recordall of which were denied by the NRCas well as participating in public meetings and submitting comments. The NRC issued the License, leading Fasken 1 Citations to Op. refer to the panels slip opinion attached to the Petitions for Rehearing.

2 The NRC ultimately concluded in its Scoping Summary Report that any challenges to the title holder issue, raised by Fasken and many others, were outside the scope of its review.

Case: 21-60743 Document: 245 Page: 10 Date Filed: 12/11/2023

4 to petition this Court for judicial review, which was granted, and the panel properly vacated the License.

ARGUMENT I.

NOTHING IN THE PANELS OPINION WARRANTS EN BANC REVIEW.

En banc review is an extraordinary procedure that is not favored and is warranted only when a panel decision conflicts with a decision of the Supreme Court or this Court, or involves questions of exceptional importance. Fed. R.

App. P. 35(a) and (b). The issues raised by Respondents and Intervenor are:

• whether the AEA grants the NRC authority to license a CISF for the storage of SNF away from a reactor;

• whether the Supreme Courts major question doctrine should apply to this case; and

• whether this Courts ultra vires exception should apply to allow judicial review of agency actions in exceedance of their authority.

These issues do not involve questions of exceptional importance supporting en banc review. The arguments for exceptional importance largely rest on alleged inter-circuit conflicts but, as discussed infra, the cited inter-circuit conflicts are not conflicts at all. Moreover, the Fifth Circuits Internal Operating Procedures do not identify inter-circuit conflicts as meriting en banc review. This Court wields an incredible amount of discretion in determining what merits straining limited judicial resources for en banc review. W. Pac. R. Corp. v. W. Pac. R. Co., 345 U.S.

Case: 21-60743 Document: 245 Page: 11 Date Filed: 12/11/2023

5 247, 259 (1953) ([E]ach Court of Appeals is vested with a wide latitude of discretion to decide for itself just how that power shall be exercised.). That discretion should not be exercised here.

A.

The Panel Correctly Determined That the NRC Lacks Statutory Authority to Issue the License.

As the panel correctly held, there is nothing in the text of the AEA or its historical context supporting the NRCs authority to issue the License. See Op. 18-

25. The panels thorough analysis of the enumerated authorizations in the AEA (provisions authorizing NRC to license possession of SNF constituents for specified uses and those authorizing licensing of production and utilization facilities) demonstrated the comparative absence of authority to license storage (a non-use) of SNF at a private away-from-reactor CISF. Op. 18-20. Respondents reference to catch-all authority to issue licenses for such other uses as the Commission determines to be appropriate to carry out the purposes of [the AEA]

is equally unavailing given that the only statutory purpose proffered by Respondents is maximizing the generation of electricity from nuclear material (Resp. Pet. 14), a far cry from nuclear waste management, which is not among the AEAs enumerated purposes. See 42 U.S.C. § 2013. Rather, that is the purpose of the NWPA which, as discussed infra, does not authorize the NRC to issue licenses for the type of CISF at issue here.

Case: 21-60743 Document: 245 Page: 12 Date Filed: 12/11/2023

6 B. The Opinion does not Create a Circuit Split.

Respondents and Intervenor erroneously argue that the panel opinion created a circuit split that invalidates a core and vital statutory authority the Commission has exercised for many decades. Resp. Pet. 12; see Intervenor Pet. 16. As the panel aptly noted, neither of the unpersuasive sister circuit opinions directly addressed the legal issue presented here nor undertook any textual analysis of the NRCs authority under the AEA. Op. 20-22. The issue on appeal in Bullcreek was whether § 10155(h) of the [NWPA] repealed or superseded the authority of the

[NRC] under the [AEA]. 359 F.3d at 537. Rather, the Bullcreek court assumed NRC authority to license for private away-from-reactor storage, recognizing that the AEA does not specifically refer to the storage or disposal of [SNF]. Id. at 538. As the panel found, [Bullcreek] doesnt actually address what authority the Commission had under the [AEA]. Op. 21. And the Skull Valley court merely adopted Bullcreeks conclusion, expressly choosing not to revisit the issues surrounding the [NRC]s authority to license away-from-reactor storage facilities.

Skull Valley, 376 F.3d at 1232.

Furthermore, in assuming an implicit authority under the AEA, the sister circuit opinions themselves rely on inapposite cases regarding different issues that were irrelevant to the question before the panel. Op. 21; see Bullcreek, 359 F.3d at 538 (citing, e.g., Pac. Gas & Elec. Co. v. State Energy Res. Conservation &

Case: 21-60743 Document: 245 Page: 13 Date Filed: 12/11/2023

7 Dev. Commn, 461 U.S. 190, 207 (1983)). But Pacific Gas and the other cases cited in Bullcreek focused on preemption and the role of states in the nuclear policy scheme; the NRCs AEA authority to license storage and disposal of SNF was not at issue. Nor was it directly at issue in Bullcreek, as discussed above.

Finally, the panels opinion involved materially distinguishable facts from the private fuel storage facility at issue in the sister circuit opinions. Unlike the purely-private facility in Bullcreek and Skull Valley,3 the License authorizes a hybrid public/private scheme where DOE would take title and transport SNF to a privately-operated facility, contrary to the NWPA. Respondents rely on Bullcreek in arguing that the NRCs authority under the AEA and NWPA was a legislative compromise permitting public and private storage programs to exist in parallel (Resp. Pet. 17), but neither Bullcreek nor Skull Valley considered a hybrid public/private facility like this one or the NRCs attempted end-run around the NWPA, as the panel did here.4 Rather than create a conflict, the unanimous panel 3 The facility in Bullcreek and Skull Valley was initially developed as a DOE-operated Monitored Retrievable Storage (MRS) facility pursuant to NWPA. See 42 U.S.C. §§ 10161-10169; NRC, NUREG-1714 at 1-7. After the deadline for federal interim storage passed, it became a purely private venture and was never constructed.

4 Respondents criticize the panel for being unable to cite to AEA or NWPA provisions that restrict the NRCs authority to regulate storage of SNF. Resp. Pet.

17. But the sister circuit opinions they rely on also fail to cite any AEA or NWPA provisions granting NRC the authority to license away-from-reactor storage of SNF. There is none. See Bullcreek, 359 F.3d at 538 (assuming an implicit authority); Skull Valley, 376 F.3d at 1232 (adopting Bullcreek).

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8 opinion starkly contrasts with the sister circuit opinions which fail to provide any textual analysis and address different questions of law and fact.

C.

The Panel Correctly Determined That the NWPA Does Not Permit the License.

The panel correctly determined that issuance of the License contradicts Congressional policy expressed in the [NWPA]. Op. 18. It is undisputed that the NWPA prohibits DOE from taking title to commercial SNF, and that such a radical upheaval of the nations current nuclear waste management policies would require a re-writing of the NWPA. E.g., 42 U.S.C. § 10222(a)(5)(A) (prohibiting DOE from taking title to commercial SNF until commencement of operation of a

[permanent] repository).

Respondents point to NRCs 10 C.F.R. Part 72 regulations and discussion in Bullcreek to argue that the panel compounded its interpretative errors under the AEA with its NWPA analysis. Resp. Pet. 16. But the Part 72 regulations are completely silent as to the NRCs authority to license a hybrid public/private away-from-reactor CISF. In fact, CISFs are not even mentioned in the Part 72 regulations. Cf. 42 U.S.C. § 10162 (authorizing DOE alone to construct and operate a Monitored Retrievable Storage (MRS) facility for SNF); 10 C.F.R. § 72.3 (defining Independent Spent Fuel Storage Installations (ISFSI)). However, the facility at issue here is neither an ISFSI nor an MRS, but rather something altogether differenta hybrid public/private CISF, a term that is not even Case: 21-60743 Document: 245 Page: 15 Date Filed: 12/11/2023

9 defined in the Part 72 regulations, much less authorized. As written, the NWPA and Part 72 regulations authorize specific and extremely limited options for off-site storage of commercial SNF (one of which is now time-barred). They allow nothing else.

Further, the panel concluded that the NWPA does not permit the NRC to issue the License (Op. 25), not that it forbids the NRC from issuing the License, as Respondents argue. Resp. Pet. 17. Respondents misconstrue the panels findings to argue that the opinion directly conflicts with Bullcreek. Resp. Pet. 17. Actually, the panel opinion supports Bullcreek: [Section 10155(h) of the NWPA] ensured that DOE would not take over a private facility to fulfill DOEs obligations under the NWPA. Bullcreek, 359 F.3d at 539. Yet that is precisely what the NRC authorized by allowing a condition for DOE to contract with the privately licensed facility based on speculation that the NWPA may later change. See Fasken Br. 25 (NRC acknowledging that conditions of the License would allow ISP to take advantage of future changes in the law).

Finally, Intervenors and amicis complaints that the panels opinion upsets settled expectations in the nuclear industry (Intervenor Pet. iv; NEI Amicus Br. 1; Holtec Amicus Br. 5-6, 11-13) ignore the fact that the License would have equally disruptive effects on the oil and gas business in the Permian basin, a top global oil producer. Op. 6. The argument is also belied by public concessions from the Case: 21-60743 Document: 245 Page: 16 Date Filed: 12/11/2023

10 NRC, the nuclear industry, and stakeholders alike that changes to the NWPA would be necessary for the development of consolidated away-from-reactor interim storage for SNF. See, e.g., Blue Ribbon Commission Report (Jan. 2012) at vii, available at:

https://www.energy.gov/ne/articles/blue-ribbon-commission-americas-nuclear-future-report-secretary-energy (recognizing large-scale transport and consolidated storage of SNF requires legislative action to amend the NWPA)

(last visited Dec. 11, 2023); Nuclear Energy Insider, US Waste Storage Development Hinges on Political Push, (Nov. 2015) (Holtec representative commenting CISFs should be either completely decoupled from Yucca Mountain or used as a transition.).

The panels discussion of the NWPA properly supports its conclusion that the AEA does not authorize the NRC to issue the License, and it creates no conflict or exceptionally important question justifying en banc rehearing.

II.

THE PANEL OPINION IS CONSISTENT WITH WEST VIRGINIA AND OTHER MAJOR QUESTION DOCTRINE PRECEDENT.

Rather than constituting a conflict with the Supreme Courts major question doctrine precedent, as suggested by Respondents and Intervenor (Resp. Pet. 18; Intervenor Pet. 14-18), the panels determination that nuclear waste management is a major question is consistent with West Virginia, particularly given that sister circuits have confirmed that the NRC lacks clear Congressional authorization to issue licenses for private away-from-reactor storage of SNF. Bullcreek, 359 F.3d at Case: 21-60743 Document: 245 Page: 17 Date Filed: 12/11/2023

11 538. Indeed, it is uncertain whether Bullcreek and Skull Valley would be similarly decided today in light of West Virginia.

In West Virginia, the Court explained that the major question doctrine is implicated when the history and the breadth of the authority that the agency has asserted, and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such authority.

142 S. Ct. at 2608 (cleaned up). Disagreeing with the panels application of the doctrine, Intervenor suggests a conflict, arguing that five prerequisites for the doctrine are not present here.5 Intervenor Pet. 14-18.

Intervenor argues that the doctrine does not apply due to the lack of any newness in the NRCs License. Intervenor Pet. 14-15. As explained above, the NRCs licensing of the sui generis hybrid private/public CISF is unprecedented.

Intervenor is also wrong about the lack of an ancillary nature or obscure[ity] of the law NRC invokes. Intervenor Pet. 16. While the Part 72 regulations have existed for decades, the NRC has never used its authority to license an CISF involving DOE or created a hybrid ISFSI/MRS.

5 West Virginia does not contain prerequisites, much less those identified by Intervenor. The doctrine is flexible and evolving, and other than the history and the breadth and the economic and political significance of the authority asserted, the Supreme Court has not identified specific factors or indicia to consider.

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12 The panels opinion is also consistent with West Virginia because NRCs asserted authority has enormous political significance. See West Virginia, 142 S.

Ct. at 2608. The NWPA itself states that the question of where to store the nations nuclear waste is a major subject[] of public concern. 42 U.S.C. § 10131(a)(7)

(emphasis added). And as noted, Intervenor admits that hybrid private/public CISFs would require amendment of the NWPA. Contrary to Intervenors assertions (Intervenor Pet. 16-17), Congress has considered but declined to enact the authority NRC attempts to assert. Since 2015, Congress has considered nearly 30 measures addressing storage/disposal of commercial nuclear waste, one of which would have even authorized DOE to enter into contracts with private storage facilities. See Cong. Rsch. Serv., Civilian Nuclear Waste Disposal at 19-27, 37 (Sept. 17, 2021). Congress declination to enact that authority implicates the major questions doctrine. See West Virginia, 142 S. Ct. at 2621 n.4 (Gorsuch, J.,

concurring) (elaborating upon the relevance of failed enactments in the major questions analysis).

Finally, West Virginia noted that the economic significance of an agency action may implicate the doctrine. Id. at 2608. Courts have generally considered an agency action to be of economic significance if it requires billions of dollars in spending. King v. Burwell, 576 U.S. 473, 485 (2015). Intervenors application estimates operating costs over the License term to exceed $1 billion, even Case: 21-60743 Document: 245 Page: 19 Date Filed: 12/11/2023

13 excluding construction costs (approximately $170 million). And this says nothing of licenses for future facilities. DOE annually collects approximately $750 million dollars for long-term disposal of civilian nuclear waste, and the governments planned permanent repository (Yucca Mountain) would have cost $97 billion dollars.

The panel opinion properly applied West Virginia. En banc review is not appropriate with respect to the panels major question doctrine discussion.

III.

APPLICATION OF THE FIFTH CIRCUITS ULTRA VIRES EXCEPTION DOES NOT WARRANT EN BANC REVIEW.

A circuit split existed on this Courts narrow ultra vires exception well before this case and, although Respondents suggest this Circuit is an outlier on this issue, the Supreme Court and sister circuits also permit equitable jurisdiction and review for agency actions that exceeds statutory authority or are unconstitutional.

E.g., Leedom v. Kyne, 358 U.S. 184, 190 (1958); Aids Assn for Lutherans v. U.S.

Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003) (noting for ultra vires actions, courts are normally available to reestablish the limits... [of] authority).

Furthermore, although the panel found it unnecessary to decide the proper interpretation of the Hobbs Acts party aggrieved requirement, its inclination to reject requirements not in the plain text of the statute (particularly requirements that would allow the agency to limit judicial review of its actions by denying party status) would not have been an outlier either. Op. 16. While Respondents cite Case: 21-60743 Document: 245 Page: 20 Date Filed: 12/11/2023

14 authorities from the D.C. and Tenth Circuits, e.g., NRDC v. NRC, 823 F.3d 641, 643 (D.C. Cir. 2016) (requiring successful intervention to achieve party aggrieved status), other circuits do not follow that precedent. E.g., Massachusetts

v. NRC, 878 F.2d 1516, 1520 (1st Cir. 1989) (noting that requiring successful intervention for party aggrieved status is circular... [t]he NRC cannot now claim that by refusing to grant the Commonwealths requests to become a party, the NRCs decisions are beyond review); Clark & Reid Co. v. U.S., 804 F.2d 3, 6 (1st Cir. 1986) (Courts do not equate the regulatory definition of a party in an

[agency] proceeding with the participatory party status required for judicial review under the Hobbs Act.). Additionally, several circuits have also indicated that submission of comments is sufficient participation. Natl Assn of State Util.

Consumer Advocs. v. FCC, 457 F.3d 1238, 1250 (11th Cir. 2006) (Because the State Utility Regulators participated in the proceedings by submitting comments..

. [they] have independently established their status as party aggrieved.); ACLU

v. FCC, 774 F.2d 24, 25 (1st Cir. 1985) (finding certain organization not to be party aggrieved because it failed to file comments or petition for reconsideration); see Reytblatt v. NRC, 105 F.3d 715, 720 (D.C. Cir. 1997)

(Petitioners clearly meet [party status under the Hobbs Act] because each participated in the Commission's informal rulemaking by filing comments on the proposed rule.).

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15 The panel would have been justified in finding jurisdiction regardless of the ultra vires exception, given Faskens extensive participation in the NRCs proceedings.6 Contrary to Respondents attempt to gloss the meaning of party aggrieved, the panels opinion applying the plain text of the Hobbs Act logically (and fairly) determined that Fasken satisfied the participation requirement by seeking to intervene and filing contentions. Op. 14-15; see Gage v. AEC, 479 F.2d 1214, 1219 (D.C. Cir. 1973) (noting that the purpose of the participation requirement is to avoid direct appellate review without a record developed from the agencys initial consideration of petitioners arguments); see also Water Transp. Assn v. ICC, 819 F.2d 1189, 1193 (D.C. Cir. 1987) ([P]arty status has been found when the petitioner has made a full presentation of views to the agency.) (citations omitted).

Faskens participation in the proceeding and presentation of its views cannot be denied. Fasken initially challenged the legality of the ISP (and Holtec) applications which were premised on the DOE taking title and transporting SNF in violation of the NWPA. The NRC unfairly transformed Faskens objection into a contention. See 90 NRC 31, 43 (citing Order of the Secretary at 2-3 (Oct. 29, 6 While unnecessary for its conclusion, the panel also correctly rejected Respondents arguments regarding non-jurisdictional exhaustion requirements under the Hobbs Act and the AEA, and cited caselaw supporting Fasken as a Hobbs Act party aggrieved. Op. 14 n.2.

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16 2018)). In total, Fasken filed five timely contentions alleging NRC violations and challenging the legality of the CISF, which were each denied and dismissed.

Fasken Br. 15. Fasken also twice moved to reopen the record with new material information. Id. The first was based on ISPs delayed disclosure of information requested by the NRC. The second was based on NRCs draft EIS disclosing, for the first time, that rural communities in Texas and New Mexico would be responsible for emergency services and first responder coverage in the event of a radiological incident (versus DOE as in the initial application and as required under the NWPA). Id. at 16-17. However, Fasken was denied each time.

In addition to participating throughout the adjudicatory proceeding, Fasken presented its challenges during NRCs public meetings, and following the termination of the adjudicatory proceeding Fasken timely submitted comments and factual evidence vocalizing omissions and flaws as to the un-or inadequately-analyzed transportation impacts, safety risks, and costs and benefits in the NRCs draft EIS and final EIS. Id. at 18. While the NRC arbitrarily excluded Faskens opposition at every stage, it cannot be said that the agency was denied the opportunity to consider Faskens views or develop the record on these issues.

Moreover, even if the panel had found Fasken to be a party aggrieved, it would not have created a circuit split necessitating en banc review, as the circuit split already existed. If a panel decision simply joins one side of an already Case: 21-60743 Document: 245 Page: 23 Date Filed: 12/11/2023

17 existing conflict, a rehearing en banc may not be as important because it cannot avoid the conflict. Fed. R. App. P. 35 advisory committees note.

Accordingly, the panels application of the ultra vires exception does not warrant en banc review.

CONCLUSION For the reasons set forth herein, Respondents and Intervenors petitions for rehearing en banc should be denied.

Dated: December 11, 2023 Respectfully submitted by:

KANNER & WHITELEY, LLC

/s/ Allan Kanner Allan Kanner, Esq.

Annemieke M. Tennis, Esq.

701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner-law.com a.tennis@kanner-law.com Counsel for Petitioners Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners Case: 21-60743 Document: 245 Page: 24 Date Filed: 12/11/2023

18 CERTIFICATE OF SERVICE I certify that on 11th day of December 2023, I electronically filed the foregoing upon counsel for the parties in this action by filing the document electronically through the CM/ECF system.

/s/ Allan Kanner Allan Kanner Counsel for Petitioners Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners Case: 21-60743 Document: 245 Page: 25 Date Filed: 12/11/2023

19 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT I certify that this document complies with the type-volume limit of because it contains 3805 words, excluding the parts of the document exempted under Fed.

R. App. P. 32(f).

I certify that this document complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) because it has been prepared in 14-point Time New Roman, a proportionally spaced font.

Dated: December 11, 2023

/s/Allan Kanner Allan Kanner Counsel for Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners Case: 21-60743 Document: 245 Page: 26 Date Filed: 12/11/2023