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Wisconsin Elec. Power Co. v. Department of Energy

ELR Citation: 16 ELR 20173
Nos. Nos. 83-2066, 84-5671, 787 F.2d 1/23 ERC 1657/(D.C. Cir., 12/06/1985)

The court holds that the Department of Energy (DOE) unlawfully imposed its Nuclear Waste Policy Act (NWPA) §302 fee on all nuclear-generated electricity producted by participating utilities instead of only on the nuclear-generated energy actually sold. The court first affirms a district court ruling, in a complaint filed concurrently with this petition for review, in which the district court held that the circuit court had exclusive jurisdiction to review the fee rule. On the merits, the court rules that the phrase "generated by a civilian nuclear power reactor and sold . . ." NWPA §302(a)(2) excludes commercially generated electricity consumed by utilities in the operation of their reactors from the ongoing fee. DOE's reading of its statutory authority effectively strikes out the words "and sold" from the section. Although this reading may make the tax on new energy more consistent with the Act's one-time tax on existing waste, it is inconsistent with Congress' plan language. Setting aside DOE's post hoc rationalizations of the rule, the court holds that DOE's explanation for its interpretation of the statute is insufficient. DOE had explained that unless all nuclear-generated electricity were taxed, future ratepayers would be stuck paying for the disposal of some of today's waste, which was clearly not Congress' intent. However, DOE concedes that it may avoid this result simply by raising the fee on wastes subject to assessment. The court rejects DOE's contention that giving weight to "and sold" makes the word "generated" in the Act pointless. Also, it notes that it need not defer to an agency interpretation of a statute when that interpretation is inconsistent with congressionalintent.

Counsel for Petitioners-Appellants
Jay E. Silberg
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Counsel for Respondents-Appellees
Dennis G. Linder, Thomas Millet, Bruce G. Forrest
Civil Division, Department of Justice, Washington DC 20530
(202) 633-3314

Before: ROBINSON, Chief Judge, BORK and STARR, Circuit Judges.