ML24080A046

Beyond Nuclear V. NRC (DC Cir 20-1187) - Rule 28(j) Letter

ML24080A046
Person / Time
Issue date:	03/19/2024
From:	Andrew Averbach NRC/OGC
To:	Langer M US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
USCA #20-1187, Document #2045771
Download: ML24080A046 (1)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 March 19, 2024 BY ELECTRONIC FILING Mark Langer, Clerk of Court United States Court of Appeals for the District of Columbia Circuit 333 Constitution Ave., NW Washington, DC 20001 Re: Beyond Nuclear v. NRC, No. 20-1187 (consolidated),

oral argument held March 5, 2024 panel: Judges Rao, Walker, Garcia

Dear Mr. Langer:

Pursuant to Fed. R. App. P. 28(j), Federal Respondents notify the Court of the Fifth Circuits denial, by a 9-7 vote, of two petitions for rehearing en banc filed in Texas v. Nuclear Regulatory Commission, No. 21-60743 (5th Cir.). In Texas v. NRC, 78 F.4th 827 (5th Cir. 2023), the Fifth Circuit vacated the license issued to Interim Storage Partners for away-from-reactor storage of spent nuclear fuel. A copy of the Fifth Circuits order denying the en banc petitions is attached.

Federal Respondents are evaluating whether to petition for a writ of certiorari to the Fifth Circuit. Meanwhile, as we explained in our brief and at oral argument, this Court should reject Environmental Petitioners reliance on Texas for three independent reasons. Br. 50-61.

First, Environmental Petitioners forfeited their statutory authority argument by failing to raise the issue before the Commission. Second, this Court is bound by Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004),

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M. Langer in which it held that the Atomic Energy Act grants the NRC authority to grant licenses to private parties to temporarily store spent nuclear fuel away from a reactor site, and that the Nuclear Waste Policy Act did not eliminate that pre-existing authority. Third, as Bullcreek correctly held, the Atomic Energy Acts plain text grants NRC authority to license temporary storage of spent nuclear fuel, both at, and away from, reactor sites. See 42 U.S.C. §§ 2073, 2093, 2111.

Respectfully,

/s/ Andrew P. Averbach Solicitor Counsel of Record for U.S.

Nuclear Regulatory Commission Attachment USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 2 of 2 (Page 2 of Total)

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; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of America, Respondents.

Appeal from the Nuclear Regulatory Commission Agency No. 72-1050 ON PETITION FOR REHEARING EN BANC Before Jones, Ho, and Wilson, Circuit Judges.

Per Curiam:

The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. 35, 36 and 5th Cir. R. 35),

the petition for rehearing en banc is DENIED.

United States Court of Appeals Fifth Circuit FILED March 14, 2024 Lyle W. Cayce Clerk Case: 21-60743 Document: 251-1 Page: 1 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 1 of 19 (Page 3 of Total)

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In the en banc poll, seven judges voted in favor of rehearing en banc (Stewart, Southwick, Graves, Higginson, Willett, Douglas, and Ramirez),

and nine voted against rehearing en banc (Richman, Jones, Smith, Elrod, Haynes, Ho, Duncan, Engelhardt, and Wilson).

Judge Oldham is recused and did not participate in the poll.

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No. 21-60743, State of Texas v. Nuclear Regulatory Commn Edith H. Jones, Circuit Judge, joined by Smith, Elrod, Ho, Engelhardt, and Wilson, Circuit Judges, concurring in the denial of rehearing en banc:

The panel previously identified two bases of authority to review the NRCs proposed action to redirect the storage of nuclear energy waste away from Yucca Mountain, in conflict with federal law: these petitioners are parties aggrieved, and the NRC has acted ultra vires. The dissent challenges both grounds of jurisdiction. We continue to adhere to our position that the judiciary has not only the authority but the duty to review the NRCs actions, which may threaten significant environmental damage in the Permian Basin, one of the largest fossil fuel deposits in the world.

1. Party Aggrieved Who has the ability to secure judicial review of this particular licensing decision? Theres no question of Article III standing for the petitioners.

Also, theres no question that Fasken (shorthand for petitioning mineral operators and landowners neighboring the proposed storage site) is aggrieved. Nor that the state of Texas, which submitted comments and later passed a law prohibiting such storage, is aggrieved. The argument is made that under Section 2344 of the Hobbs Act, parties aggrieved who may seek judicial review means only those whom the agency permitted to intervene in the licensing proceeding. But here, Faskens multiple attempts formally to intervene were repeatedly rebuffed by the agency. See Texas v.

NRC 78 F.4th 827, 834. If this argument is accepted, in other words, the NRC controls the courthouse door through its authority to determine who may be parties to licensing proceedings. And the state of Texas, which didnt formally attempt to intervene but made its position plainly known to NRC, has no access to judicial review at all.

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The question of our jurisdiction is therefore bound up with fundamental principles governing review of agency decisions. Specifically, the courts default in our duty to say what the law is (i.e., Marbury v Madison, 1 Cranch 137 (1803)) if we enable the agency to be the unilateral decider of the statutory term party aggrieved. Massachusetts v. NRC, 878 F.2d 1516, 1520 (1st Cir. 1989). Our duty is reinforced by the oft-stated strong presumption that a statute should be read in a way that accords with the basic[] principle that agency actions are subject to judicial review.

Guerrero-Lasparilla v. Barr, 140 S. Ct. 1062, 1069 (2020); Bowen v. Mich.

Acad. Of Family Physicians, 476 U.S. 667, 670, 106 S. Ct. 2133, 2135 (1986)

(noting the strong presumption that Congress intends judicial review of administrative action); Kirby Corp. v. Pena, 109 F.3d 258, 261 (5th Cir. 1997)

(There is a strong presumption that Congress intends there to be judicial review of administrative agency action,... and the government bears a heavy burden when arguing that Congress meant to prohibit all judicial review) (citations omitted)); Dart v. United States, 848 F.2d 217, 221 (D.C.

Cir. 1988) (If the wording of a preclusion clause is less than absolute,...

[j]udicial review is favored when an agency is charged with acting beyond its authority.). A holding that courts cannot decide who are aggrieved parties according to the statutory language is not only contrary to these principles but also seems particularly unlikely in a legal world where deference to agency interpretations of law, e.g., in Auer and Chevron, is under increasing scrutiny.

The contrary position of judicial abdication rests on a provision of the Atomic Energy Act that allegedly constitutes the only process by which the [NRC] could make a party: [T]he Commission shall grant a hearing upon the request of any person who may be affected by the proceeding, and shall admit any such person as a party to such proceeding. 42 U.S.C.

§ 2239(a)(1)(A) (emphasis added). Given the breadth of NRCs statutory Case: 21-60743 Document: 251-1 Page: 4 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 4 of 19 (Page 6 of Total)

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charge to allow affected persons to be made parties, it seems paradoxical to resort to the Hobbs Act to disable Fasken and Texas from judicial review by agency fiat. More specifically, with respect to the NRCs proffered interpretation, there are two responses. First, the D.C. Circuit has interpreted the term parties aggrieved more broadly than simply those who were joined as formal parties by the agency to administrative proceedings. Second, to the extent a couple of courts have rigidly used the term parties to mean only those formally admitted in agency proceedings, those decisions are either distinguishable or wrong.

With a couple of exceptions noted below, the term party aggrieved for judicial review purposes has been interpreted flexibly by the D.C. Circuit itself. Beginning with Simmons v. ICC, 716 F.2d 40, 42 (D.C. Cir. 1983),

then-judge Scalia laid the groundwork for interpreting that phrase as he held that party aggrieved means more than person aggrieved for purposes of Administrative Procedure Act judicial review.1 5 U.S.C. § 702 (A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. (emphasis added)). We dont dispute that terminological distinction. But shortly afterward, the D.C. Circuit held that party aggrieved under the Hobbs Act must be interpreted flexibly in light of the nature of the administrative proceeding. Water Transp. Assn v. ICC, 819 F.2d 1189, 1192 (D.C. Cir. 1987); see also ACA Intl v. Fed.

Communications Commn, 885 F.3d 687, 711 (D.C. Cir. 2018); Reyblatt v NRC, 105 F.3d 715, 720 (D.C. Cir. 1997) (submitting comments in a rulemaking proceeding confers party status for Hobbs Act purposes). The 1 Judge Scalia cites this courts decision in American Trucking Associations, Inc. v.

ICC, 673 F.2d 82, 84 (5th Cir. 1982), cert. denied, 103 S. Ct. 1272 (1983), as being in accord with the party requirement. We dont dispute this either.

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court held in Water Transp. that the degree of participation necessary to achieve party status varies according to the formality with which the proceeding was conducted. 819 F.2d at 1192.

Decisions from other courts concur. See Natl Assn Of State Util.

Consumer Advocates v. FCC, 457 F.3d 1238, 1250 (11th Cir. 2006) (holding that entities participated in the proceedings and independently established their status as party aggrieved by submitting comments and notice of ex parte communications), opinion modified on denial of rehg, 468 F.3d 1272 (11th Cir. 2006); Clark & Reid Co., Inc. v. United States, 804 F.2d 3, 6 (1st Cir. 1986) ([W]e do not equate the regulatory definition of a party in an ICC proceeding with the participatory party status required for judicial review under the Hobbs Act); Am. Civil Liberties Union v. FCC, 774 F.2d 24, 26 (1st Cir. 1985) (observing that entities could have participate[d] in the proceedings or review process as individual parties if they had filed comments with the agency or petitioned for reconsideration of the FCCs final order). Another indicium of the necessity for a practical judicial interpretation of this term arises from the fact that the Hobbs Act covers several quite different agencies and several types of proceedings:

rulemaking, adjudication, and licensing. What makes for party aggrieved should be consistently interpreted and not left to the varying rules of practice of each agency for each type of proceeding.

Simmons itself supports finding that Fasken and Texas are each a party aggrieved. Simmons was a challenge to an ICC ratemaking proceeding, and the court held that Simmons, who had participated by submitting comments in another aspect of the proceeding (the railroad docket) could not be a party aggrieved as to the motor carrier docket aspect in which it had filed nothing. Simmons, 716 F.2d at 42, 45. The courts analysis centered on whether to allow Simmons to challenge the outcome of that part of the proceeding where it hadnt submitted any comments at all.

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That Simmons had standing under the Hobbs Act to challenge the deregulatory rule on the railroad docketby virtue of filing commentswas uncontested. By analogy here, Fasken participated in the proceeding with comments, submissions, attendance at hearings, and factual submissions.

And the state of Texas participated by filing comments that made its position plain. Indeed, NRC acknowledged the states position in its final environmental impact statement. 85 Fed. Reg. 27,447, 27,448 (May 8, 2020). The agency became well aware of the petitioners concerns. Under Water Transp. and its progeny, Fasken and Texas should qualify for party aggrieved status.

Going back to the courts presumption of judicial review of agency action, the presumption may be overcome only on a showing of clear and convincing evidence of a contrary legislative intent. Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 1511 (1967); Traynor v. Turnage, 485 U.S.

535, 542, 108 S. Ct. 1372, 1378 (1988); see also Rhode Is. Dept. of Env. Mgmt. v.

United States, 304 F.3d 31, 41-42 (1st Cir. 2002). As the First Circuit also pointed out, requiring 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. Massachusetts, 878 F.2d at 1520.

We acknowledge that the D.C. Circuit and Tenth Circuit have counterintuitively adopted NRCs circular position.2 This panels position, however, relies on the above citations from the D.C. Circuit and other courts.

2 See, e.g., Ohio Nuclear-Free Network v. NRC, 53 F.4th 236, 239 (D.C. Cir. 2022);

NRDC v NRC, 823 F.3d 641, 643 (D.C. Cir. 2016); State ex rel. Balderas v NRC, 59 F.4th 1112, 1117 (10th Cir. 2023). In Balderas, the court denied review to New Mexico, which had submitted comments only on the environmental impact statement issued after the licensure. That decision is distinguishable at least from Faskens position.

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The bottom line for Hobbs Act party aggrieved status is to participate in agency proceedings, which both Fasken and Texas did; federal courts should not be bound to defer to varying agency rules and procedures to interpret this singular statutory languagewhose purpose after all is to facilitate judicial review. NRC admits that the panel correctly noted judicial consensus that the degree of participation necessary to achieve party status varies according to the formality with which the proceeding is conducted. Federal Respondents Pet. for Rehg En Banc at 7. Consequently, according to the nature of the proceedings, the fact and scope of the petitioners participation should be determinative for judicial review, not the NRCs denial of participation to Fasken. NRCs insistence on strict compliance with its intervention rules is rather bold, not only from the standpoint of eliminating judicial review, but also because NRC quotes the statute that the Commission shall admit any such person as a party Id.

And to the point that this decision has created a circuit conflict, we disagree in part. These petitioners satisfy party aggrieved status under the numerous cases that apply a broader standard of participation. There is no circuit conflict with such cases. The conflict here is with the Balderas decisions denial of New Mexicos standing to challenge the ISP license.

Inasmuch as the conflict is about statutory standing to appeal, a finding of standing means that our court will perform its duty of judicial review.

In light of the split of authorities, is party aggrieved status an issue of overarching significance? Not at all. The Hobbs Act jurisdictional provision is rarely debated, as anyone trying to research this term will quickly ascertain. This is likely for a couple of reasons. First, much agency activity covered by the Hobbs Act is conducted in a closed circle of experts, lobbyists and lawyers well familiar with the rules and proclivities of the administrators; therefore, arguments over statutory standing seldom arise. Second, with Case: 21-60743 Document: 251-1 Page: 8 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 8 of 19 (Page 10 of Total)

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participation as the bottom line from a judicial standpoint,3 which is also the baseline of D.C. court opinions (albeit with varying applications of the term), substantive judicial review occurs only where parties have actually participated in the challenged proceedings. Fasken and Texas were no strangers to NRC here. Indeed, the NWPA specifically required consultation with the states before siting of spent nuclear fuel may occur anywhere.4 That provision as well should have garnered Texas party aggrieved status.

For these reasons, the panel decision is comfortably footed on statutory standing under the Hobbs Act.

2. The Ultra Vires Exception to the Party Aggrieved Requirement Even if Texas and Fasken were not parties aggrieved under the Hobbs Act, the panel nevertheless had jurisdiction to hear their appeal. As explained in the opinion, this court has long recognized an exception to the party aggrieved requirement regarding challenges to the lawfulness of the agencys action. Texas and Fasken each argued that the NRCs actions were unauthorized either by the AEA or the NWPA. Texas, 78 F.4th at 839-40.

Accordingly, the panel relied on the rule that a person may appeal an agency action even if not a party to the original agency proceeding... if the agency 3 D.C. court opinions also reasonably foreclose de minimis participation as a basis for Hobbs Act judicial review. See ACA Intl, 885 F.3d at 711; Water Transp. Assn, 819 F.2d at 1192-93.

4 42 U.S.C. § 10155(d)(1)-(2) requires the Department of Energy to exercise very limited interim storage of spent nuclear fuel through a cooperative agreement under which [the] Stateshall have the right to participate in a process of consultation and cooperation)(emphasis added). Needless to say, no such consultation or cooperation occurred here.

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No. 21-60743 10 action is attacked as exceeding [its] power or if the appellant challenges the constitutionality of the statute conferring authority on the agency. Am.

Trucking Associations, Inc. v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982); accord Wales Transp., Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984).

Texas and Fasken challenged the lawfulness of the NRCs actions and the legality of the NRCs conduct. But this courts exception to the party-aggrieved requirement is criticized as a relic of ages past that perished in the early 1980s. Of course, the Supreme Court has not overruled our ultra vires exception, and this court has recognized its existence in at least two more recent cases. See Baros v. Tex. Mexican Ry. Co., 400 F.3d 228, 238 n.24 (5th Cir. 2005) (noting other courts disagreement); Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 922 (5th Cir. 1993).5 Three reasons are posited to overrule ultra vires jurisdiction to review the statutory or constitutional basis for agency actions. First, it is contended that our court decisions crafted the rule based on cases that predate Congresss bringing the ICC within the ambit of the Hobbs Act. That is just wrong. Wales and American Trucking both postdate Hobbs Act review of ICC actions and cite the Hobbs Act. There is no ground to attribute our courts decisions to judicial mistakes, and consequently, Wales and American Trucking can be reconciled as to both holdings.

Second, this courts ultra vires exception was not made out of whole cloth. A similar rule is acknowledged by the Supreme Court, this court, and 5 To be sure, other courts have rejected applying ultra vires review in cases involving the Hobbs Act. See Balderas, 59 F.4th at 1123-24; Natl Assn Of State Util.

Consumer Advocates, 457 F.3d at 1249; Erie-Niagara Rail Steering Comm. v. Surface Transp.

Bd., 167 F.3d 111, 112-13 (2d Cir. 1999); Matter of Chicago, Milwaukee, St. Paul & Pacific R.

Co., 799 F.2d 317, 334-35 (7th Cir. 1986).

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No. 21-60743 11 our sister circuits in various contexts. See, e.g., Leedom v. Kyne, 358 U.S. 184, 190, 79 S. Ct. 180, 185 (1958) (This Court cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.);6 Kirby Corp., 109 F.3d at 269 (acknowledging judicial review is proper under the rule set forth in Kyne, despite there being a statutory provision prohibiting such review, because the agencys challenged action is so contrary to the terms of the relevant statute that it necessitates judicial review independent of the review provisions of the relevant statute); see also, e.g., Long Term Care Partners, LLC v. United States, 516 F.3d 225, 233 (4th Cir. 2008) (recognizing there is a nonstatutory exception to the [APA] § 704 finality requirement in cases in which agencies act outside the scope of their delegated powers and contrary to clear and mandatory statutory prohibitions); Rhode Island Dept of Envtl. Mgmt., 304 F.3d at 42 ([E]ven after the passage of the APA, some residuum of power remains with the district court to review agency action that is ultra vires.); Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1330-31 (D.C. Cir. 1996) (The procurement power must be exercised consistently with the structure and purposes of the statute that delegates that power.... It does not follow, then, that the Presidents broad authority under the Procurement Act precludes judicial review of executive action for conformity with that statutelet alone review to determine whether that action violates another statute. (citation and quotations omitted)). Courts apply this exception for good reason. Indeed, [w]ere such unauthorized

[agency] actions to go unchecked, chaos would plainly result. Dart, 6 The parties did not cite Leedom, and I agree that the Supreme Court clarified its application in Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 112 S. Ct.

459 (1991). Nonetheless, Leedom represents the principle that the Article III courts are not totally closed to plaintiffs who claim agency action has violated the agencys statutory mandate or the Constitution.

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No. 21-60743 12 848 F.2d at 224. Thus, [w]hen an executive acts ultra vires, courts are normally available to reestablish the limits on his authority. Id.

Third, two additional misconceptions should be dispelled. The first is that the ultra vires exception means no more than that an agency got it wrong per APA standards. See Matter of Chicago, Milwaukee, St. Paul &

Pacific R. Co., 799 F.2d 317, 334-35 (7th Cir. 1986). That is plainly not what Wales and American Trucking stand for. Instead, and as the above cases demonstrate, the term literally refers to being outside the agencys power, i.e., in defiance of the limits placed by Congress in the agencys governing statute or the Constitution. None of the cases cited above have misunderstood this term or misapplied the rule to challenges involving less than an absence of statutory or constitutional authority. The got it wrong criticism is misleading hyperbole. Second, we need not speculate about any limits on who can challenge agency action as ultra vires, because in this case there is no doubt whatsoever about the petitioners Article III standing. Nor is there doubt that NRCs rejection of party aggrieved status, if that were to be decided, has denied them any other avenue of redress.

If ever there were a case in which an agency acted ultra vires, it should be this case. And these petitioners should have Hobbs Act standing to contest the NRCs illegal licensing.

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No. 21-60743 13 Stephen A. Higginson, Circuit Judge, joined by Graves, Douglas, and Ramirez, Circuit Judges, dissenting from denial of rehearing en banc:

To hold that the Nuclear Regulatory Commission lacked authority to license private, away-from-reactor storage of spent nuclear fuel without a clear delegation from Congress, the panel disregarded a clear limitation that Congress imposed on our own authority.

Through the Hobbs Act, Congress provided for judicial review of a Nuclear Regulatory Commission final order entered in any proceeding under the Atomic Energy Act for the granting, suspending, revoking, or amending of any license. 42 U.S.C. § 2239(b)(1), (a)(1)(A). But, like challenges to all agency actions governed by the Hobbs Act, Congress limited jurisdiction to where [a]ny party aggrieved by the final order seeks judicial review of the order. 28 U.S.C. § 2344. The panel erred when it ignored this limitation, deepening one circuit split that arose from our courts atextual dicta in a footnote over forty years ago and threatening to create another with new, troubling dicta of its own.

This exercise of jurisdiction has grave consequences for regulated entities settled expectations and careful investments in costly, time-consuming agency proceedings, inviting spoilers to sidestep the avenues for participation that Congress carefully created to prevent this uncertainty. See Amicus Nuclear Energy Institute Br. 4-7. And it does so across a wide range of industriesincluding agriculture, transportation, development, and communicationsbecause the Hobbs Acts exclusive jurisdiction provision governs actions taken by many agencies. See 28 U.S.C. § 2342(1)-(7).

I.

This case concerns a license issued by the Commission to a private company, Interim Storage Partners, for operation of a temporary, away-from-reactor spent nuclear fuel storage facility in Andrews County, Texas. Two Case: 21-60743 Document: 251-1 Page: 13 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 13 of 19 (Page 15 of Total)

No. 21-60743 14 private entitiesPermian Basin Land and Royalty Owners and for-profit oil and gas extraction organization Fasken Land and Minerals (collectively, Fasken)sought to intervene in the licensing proceeding but were denied. Their petitions for review in the D.C. Circuit of the orders denying intervention were either dismissed or denied. Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL 395030, at *1-3 (D.C. Cir. Jan. 25, 2023) (per curiam).

Texas never sought to intervene in the licensing proceeding. Instead, it sent letters to the Commission both during a public comment period on a draft environmental impact statement performed on the license and after Texas passed a law prohibiting storage of spent nuclear fuel.

Fasken and Texas petitioned for review of the license in this court and licensee Interim Storage Partners intervened. Texas argued, as relevant here, that the license should be vacated because the Commission does not have the authority to license private entities for temporary, away-from-reactor storage of spent nuclear fuel. The panel concluded that it had jurisdiction under the Hobbs Act, granted the petitions for review, and vacated the license. Texas

v. NRC, 78 F.4th 827, 837-40, 844 (5th Cir. 2023).

The panel suggested that, while neither Fasken nor Texas were parties in the licensing proceeding that produced the challenged order, it may be that participat[ion]in some wayin the agency proceedings, which Texas did through comments and Fasken did by seeking intervention and filing contentions, was sufficient. Id. at 838. But the panel rested its assertion of jurisdiction on our courts ultra vires exception to the party-aggrieved status requirement. Id. at 839. Under the exception, there are two rare instances where a person may appeal an agency action even if not a party to the original agency proceeding (1) where the agency action is attacked as exceeding [its] power and (2) where the person challenges the constitutionality of the statute conferring authority on the agency. Id.

(quoting Am. Trucking Assns v. ICC, 673 F.2d 82, 85 n.4 (5th Cir. 1982) (per Case: 21-60743 Document: 251-1 Page: 14 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 14 of 19 (Page 16 of Total)

No. 21-60743 15 curiam)). The panel concluded that two of the challenges attacked the Commission as exceeding its power: Texass argument that the Commission lacks the statutory authority to license the facility and Faskens argument that the Commission violated the National Environmental Policy Act and Administrative Procedure Act by allowing a licensing condition that violates the Nuclear Waste Policy Act. Id. at 839-

40.

II.

Lest troubling dicta again be elevated to binding precedent without examination, I write first to explain why the panel is wrong to suggest, without so holding, that Texas and Fasken might be part[ies] aggrieved under the plain text of the Hobbs Act. The panel intimates that requiring that a party aggrieved be a party to the underlying proceeding here would impose an extra-textual gloss by requiring a degree of participation not contemplated in the plain text of the statute. Id. at 839. But giving effect to the words that Congress choseand refusing to read in words that it did not choosedoes no such thing.

The Hobbs Acts narrow, exclusive-jurisdiction provision limits review to those petitioners who are a party aggrieved by the final order, 28 U.S.C. § 2344, in contrast with the broader judicial review provision of the Administrative Procedure Act under which a person aggrieved by agency action may petition for review, 5 U.S.C. § 702. I dont disagree that party status, because the Hobbs Act encompasses a variety of agency actions, turns on the nature of the agency proceedings. But in these proceedings the answer is clear. With the Atomic Energy Act, Congress carefully delineated the only process by which the Commission could make a person a party in the licensing proceeding context: [T]he Commission shall grant a hearing upon the request of any person whose interest may be affected by the Case: 21-60743 Document: 251-1 Page: 15 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 15 of 19 (Page 17 of Total)

No. 21-60743 16 proceeding, and shall admit any such person as a party to such proceeding.

42 U.S.C. § 2239(a)(1)(A).1 Where the Commission denies a persons attempt to become a partythat is, where the Commission denies interventionCongress provided for judicial review of that denial under the Hobbs Act. Id. § 2239(b)(1). Pursuant to this congressionally devised process, Fasken sought to become a party to the proceeding and, when the Commission denied intervention, obtained full review of that denial in the D.C. Circuit. Dont Waste Michigan, 2023 WL 395030, at *1-3. Texas never sought to become a party.

Without the answer that Congress supplied, the panel relied on what it guessed Congress intended as the function of the party aggrieved status requirement. NRC, 78 F.4th at 838. This put the panel in the more difficult position of attempting to discern what degree of participation in the agency proceeding was enough. Id. at 838-39. But no such inquiry is required here or even permitted because, in the context of Commission licensing proceedings, Congress has answered the question already.

III.

The panel rested its assertion of jurisdiction, with neither merits endorsement nor analysis, on this courts judge-made, ultra vires exception to Congresss jurisdictional limitation. Id. at 839-40. Because courts have 1 Indeed, Congress relied on the person versus party distinction throughout the Atomic Energy Act. For example, after the conclusion of certain licensing proceedings for the construction of plants, the Commission must publish a notice of intended operation before fuel is loaded into the plant so that any person whose interest may be affected by operation of the plant, may within 60 days request the Commission to hold a hearing on whether the construction complies with the license. Id. § 2239(a)(1)(B)(i). This distinction made by Congress contemplates that a person may not be party to a licensing proceeding for a plants construction but may later challenge whether subsequent construction complies with the license.

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No. 21-60743 17 no authority to create equitable exceptions to jurisdictional requirements, Bowles v. Russell, 551 U.S. 205, 214 (2007), the exception should be eliminated.

This court, in dicta in a footnote over forty years ago, asserted that the Hobbs Acts party aggrieved requirement does not limit review where the agency action is attacked as exceeding [its] power. Am. Trucking Assns, 673 F.2d at 85 n.4 (internal quotation marks and citation omitted).2 That assertion, though made in 1982, relied exclusively on Interstate Commerce Commission cases from 1968 and earlierseven years before Congress brought judicial review of that bodys orders within the ambit of the Hobbs Act. See Pub. L. No.93-584, §§ 3, 4, 88 Stat. 1917 (1975). As the Second Circuit explained, the exception rests upon these pre-1975 cases without any acknowledgment of the intervening change in governing procedure and with no compelling support for the proposition that, despite the plain statutory language to the contrary, such petitions remain valid today. Erie-Niagara Rail Steering Comm. v. Surface. Transp. Bd., 167 F.3d 111, 112 (2d Cir. 1999) (per curiam).

No other circuit has adopted our courts exception to the Hobbs Act, and four circuits have rejected it. Balderas v. NRC, 59 F. 4th 1112, 1123-24 (10th Cir. 2023); Natl Assn of State Util. Consumer Advocs. v. FCC, 457 F.3d 2 This was never explained as an outgrowth of the much narrower exception that the Supreme Court recognized in Leedom v. Kyne, 358 U.S. 184, 190 (1958). There, the Supreme Court explained that the inference would be strong that Congress intended the statutory provisions governing... general jurisdiction... to control where there is no other means to protect and enforce a right that Congress has created. Id. (internal quotation marks and citations omitted). But the Court has underscored that this narrow exception does not apply where there is a meaningful and adequate opportunity for judicial review. Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991). Nor does it apply where Congress has spoken clearly and directly to judicial review. Id. at 44.

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No. 21-60743 18 1238, 1249 (11th Cir. 2006) (Pryor, J.), modified on other grounds on denial of rehg, 468 F.3d 1272 (11th Cir. 2006); Erie-Niagara Rail Steering Comm., 167 F.3d at 112-13; In re Chicago, Milwaukee, St. Paul & Pac. R.R., 799 F.2d 317, 334-35 (7th Cir. 1986) (Easterbrook, J.). Indeed, the Tenth Circuit in Balderas rejected the exception when New Mexico invoked it to challenge the same license at issue here. 59 F. 4th at 1123-24. In the Seventh Circuit, Judge Easterbrook explained that our courts atextual exception reads out the party limitation that Congress imposed because 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. In re Chicago, 799 F.2d at 335.

Parsing which merits arguments here fall under our courts ultra vires exception shows its unworkabilityand the risk for judicial aggrandizement when courts can pick and choose when to abide by Congresss limits. The panel concluded that it had jurisdiction over Faskens argument that the Commission violated the National Environmental Policy Act and Administrative Procedure Act by allowing a licensing condition that violates the Nuclear Waste Policy Act because the argument centers on the contention that the Commission acted beyond its statutory authority by issuing a license with a condition expressly prohibited by the Nuclear Waste Policy Act. NRC, 78 F.4th at 840. But this asks judges to speculate about what a petitioners challenges are really about to decide whether Congresss clear jurisdictional limitation on their power to hear cases really applies.

The panel concluded that it had jurisdiction over Texass argument that the Commission lacks the statutory authority to license the facility because that argument attacks the Commission for licensing a facility without the authority to do so under the Atomic Energy Act, and in conflict with the Nuclear Waste Policy Act. Id. at 839-40. The panel, however, determined that it lacked jurisdiction over Texass arguments that the Case: 21-60743 Document: 251-1 Page: 18 Date Filed: 03/14/2024 USCA Case #20-1187 Document #2045771 Filed: 03/19/2024 Page 18 of 19 (Page 20 of Total)

No. 21-60743 19 license issuance violated the Administrative Procedure Act (unlike, inexplicably, Faskens Administrative Procedure Act challenge) and the National Environmental Policy Act by failing to assess the risks of a potential terrorist attack. Id. But why are these latter two not also attack[s] on the agency action as exceeding [its] power? Am.

Trucking Assns, 673 F.2d at 85 n.4. An agency exceeds its power whenever it violates the law. That includes when, for example, its action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. § 706(2)(A). Our exception reads out the difference, discussed above, that Congress created between broader judicial review under the Administrative Procedure Act and narrower judicial review under the Hobbs Act. And [t]he merits of that policy are for the Congress rather than us to determine. Simmons v. Interstate Commerce Commn, 716 F.2d 40, 43 (D.C.

Cir. 1983) (Scalia, J.).

For these reasons, I respectfully dissent from denial of rehearing en banc.

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