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Northern States Power Co. v. Department of Energy

Citation: 28 ELR 20231
No. 97-1064, 128 F.3d 754/(D.C. Cir., 11/14/1997)

The court denies several utilities' and states' broad request for a writ of mandamus that would require the U.S. Department of Energy (DOE) to begin disposing of spent nuclear fuel (SNF) by the Nuclear Waste Policy Act's (NWPA's) January 31, 1998 deadline. But the court precludes the DOE from excusing its own delay on the grounds that it has not yet prepared a permanent repository or interim storage facility. The court first holds that the utilities and states have established that they have a clear right to relief, and thus have satisfied the first requirement for a writ of mandamus. The utilities' and states' full compliance with the NWPA's requirements, taken in conjunction with the DOE's refusal to perform its reciprocal duties, compels the conclusion that the petitioners have established a clear right to relief in this case. The court also holds that the second requirement for a writ of mandamus is satisfied because the DOE's duty to act could hardly be more clear. The contractual obligations created consistently with the statutory contemplation leave no room for the DOE to argue that it does not have a clear duty to take the SNF from the owners and generators by the deadline imposed by Congress. But the court next declines to issue the broad writ of mandamus because the utilities are presented with another potentially adequate remedy. The standard contract between the DOE and the utilities provides a scheme for dealing with delayed performance by outlining how the parties are to proceed if one party is unable to fulfill its obligations in a timely manner. The court further holds that the utilities must pursue the remedies provided in the standard contract in the event that the DOE does not perform its duty to dispose of the SNF by the January 31, 1998 deadline. The utilities have not convinced the court that the contractual scheme is inadequate to deal with the DOE's anticipated delay in accepting the SNF. However, the court next holds that a writ of mandamus is required to compel the DOE to comply with the court's prior mandate that the NWPA imposes an obligation on the DOE without qualification or condition. As a result, the court orders the DOE to proceed with contractual remedies in a manner consistent with the NWPA's command that it undertake an unconditional obligation to begin disposal of the SNF by January 31, 1998, and it precludes the DOE from concluding that its delay is unavoidable on the ground that it has not yet prepared a permanent repository or that it has no authority to provide storage in the interim.

[Briefs & Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66535. A decision related to this litigation is published at 26 ELR 21406.]

Counsel for Petitioners
Don L. Keskey, Ass't Attorney General
Attorney General's Office
Public Service Division
6545 Mercantile Way, Ste. 15, Lansing MI 48911
(517) 334-7650

Counsel for Respondents
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams and Ginsburg, JJ.