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Nevada v. Herrington

Citation: 17 ELR 21188
No. No. 86-7311, 827 F.2d 1394/26 ERC 1545/(9th Cir., 09/17/1987)

The court holds that the Nuclear Waste Policy Act's (NWPA's) Nuclear Waste Fund is not available to reimburse states for expenses incurred in litigating against the United States. Plaintiff states filed suit challenging the Department of Energy's (DOE's) guidelines for selection of waste repository sites under the NWPA, and now seek reimbursement. The court holds that judicial review of the DOE's actions is not required by NWPA § 10136 or § 10137, and the Nuclear Waste Fund therefore may not be applied to defray the states' costs in seeking judicial review. Although the general principle that a party bears its own litigation expenses unless Congress provides otherwise is not applicable here because of the unique nature of the NWPA's special fund for providing financial support for state activities, the NWPA does not mandate funding for judicial review. NWPA § 10136's authorization of "review" of the DOE Secretary's activities refers to a state's independent evaluation of siting activities, and not to judicial review. NWPA § 10137(c)(11), which provides that procedures must be available for a state to object to the DOE's actions "through negotiation, arbitration, or other appropriate mechanisms," does not authorize funding for judicial review.

[A related opinion is published at 16 ELR 20165.]

Counsel for Petitioner
Malachy R. Murphy
Duryea, Houchins, Murphy & Davenport
711 Capitol Way, Olympia WA 98501
(206) 754-6001

Counsel for Respondent
Martin W. Matzen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4426

Before Wiggins and Thompson, JJ.