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Tennessee v. Herrington

Citation: 17 ELR 20253
No. Nos. 85-3859 et al., 806 F.2d 642/25 ERC 1456/(6th Cir., 11/25/1986) District court decisions rev'd

The court rules that federal courts of appeals have original jurisdiction over actions involving the consultation and cooperation requirements of the Nuclear Waste Policy Act (NWPA or Act), and that the NWPA does not require the Secretary of Energy to consult with a state before he sends Congress his proposal for the location and construction of one or more monitored retrievable storage (MRS) facilities. The court first holds that the Department of Energy's (DOE's) decision to study three candidate MRS sites in Tennessee can only be reviewed in the courts of appeals. The NWPA's provisions specifying the appropriate court for review of DOE's action are ambiguous, but the Act's provisions regarding MRS siting and construction evidence Congress' intent that the development of temporary nuclear waste facilities proceed at least as quickly as for the development of a permanent repository system, for which review is clearly exclusively vested in the courts of appeals. Additional support can be found in other interlocking statutory provisions governing MRS and permanent repositories. A contrary holding would subject MRS development to lengthy litigation in district courts, contrary to Congress' intention. Permitting review in the district courts would also create an inconsistency in the NWPA, since it would permit MRS review in both the district courts and the courts of appeals, while permanent repository development would be reviewable only in the courts of appeals.

The court next holds that the consultation and cooperation requirements in § 117 of the NWPA apply only after congressional approval of the MRS proposal. The key term is determining when an MRS facility has been "authorized" pursuant to § 117. The court rejects the state's argument that "authorized" means a facility being studied by the DOE for presentation to Congress, concluding instead that the word means "authorized by Congress." The word is used elsewhere in § 141, the section dealing with MRS facilities, to mean congressional approval. DOE's interpretation that a state is to be consulted only after Congress has authorized the actual construction of an MRS facility is rational, since it accommodates the competing objectives that a state be a meaningful participant in MRS development and that MRS proposals be developed as quickly as possible.

[The district court opinions appear at 16 ELR 20378 and 20444.]

Counsel for Plaintiff-Appellee
Frank J. Scanlon, Deputy Attorney General
450 James Robertson Pkwy., Nashville TN 37219
(615) 741-6474

Counsel for Defendant-Appellant
Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Before: KENNEDY and WELLFORD, Circuit Judges; and BROWN, Senior Circuit Judge.