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Public Serv. Co. of Colo. v. Batt

ELR Citation: 26 ELR 20071
Nos. No. 95-35608, 67 F.3d 234/(9th Cir., 09/28/1995)

The court holds that it lacks jurisdiction to review a district court's May 1995 order reopening proceedings involving the transportation, handling, and storage of spent nuclear fuel at the Idaho National Engineering Laboratory. In June 1993, the district court enjoined these activities and ordered the U.S. Department of Energy (DOE) to complete an environmental impact statement (EIS) addressing their effects. In December 1993, the district court entered an order that stated that the injunction against further shipments of spent nuclear fuel to the Laboratory would remain in "full force and effect" until DOE issued "a record of decision based upon the EIS required by" the June 1993 order. DOE issued its final EIS in April 1995. The May 1995 order allows Idaho to contest the EIS' compliance with the June 1993 order. The court holds that the December 1993 amending order did not change the durational terms of the June 1993 order. Because the June 1993 order, as amended in December 1993, may be dissolved only on compliance with its requirements, it remains in effect of its own force until challenges to the EIS are resolved. The May 1995 order did not modify or extend the June 1993 order and, consequently, is not appealable under 28 U.S.C. §1292(a)(1).

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

Counsel for Defendants
Jeff J. Ventrella
Elam & Burke
Key Financial Ctr., 702 W. Idaho St., Boise ID 83701
(208) 343-5454

Before Wright, Alarcon, and Canby, JJ.