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Nevada v. Department of Energy

ELR Citation: 28 ELR 20474
Nos. 96-70774, 133 F.3d 1201/(9th Cir., 01/13/1998) DOE denial of funding upheld

The court holds that the U.S. Department of Energy (DOE) fulfilled its statutory obligations under the Nuclear Waste Policy Act (NWPA) to ensure that Nevada had sufficient funds enabling it to perform essential nuclear waste dump oversight activities at Yucca Mountain, Nevada. The court first holds that DOE did not violate its obligation under the NWPA to fund Nevada's oversight activities. DOE's decision is not in conflict with either the statutory language of the NWPA or the interpretive case law of the court. The statute does not indicate that DOE is required to provide Nevada with annual grants or with a specified amount of money; nor does it suggest that DOE is obligated to accede to the terms of Nevada's requests for financial assistance. Because the funds available to Nevada in fiscal year (FY) 1996 exceeded the funds available to the state in previous years, the court finds that the state was adequately equipped to perform the requisite oversight activities. In addition, Nevada is not entitled to earmark the $6 million originally appropriated in FY 1990 for purposes identified in the state's FY 1990 grant application. The money was not released for the particular purposes described in the state's FY 1990 grant application; it was specifically released for general oversight activities.

The court next holds that DOE's rationale for denying Nevada funds is permissible and is not inconsistent with its earlier statements responding to Nevada's FY 1996 grant application. DOE never made any statements that are inconsistent with its current rationale as articulated in a letter from the acting director of the Office of Civilian Radioactive Waste Management. In addition, nothing in the record supports the claim that DOE's real reason for disposing of Nevada's request for FY 1996 funds was a desire to satisfy individual members of Congress. DOE stated that it agreed with Congress without offering a basis for its decision; it did not change its position.

The court also holds that DOE's failure to provide funding to Nevada was not an unlawful imposition of an unfunded federal mandate in violation of the Unfunded Mandates Reform Act of 1995. The Unfunded Mandates Reform Act concerns mandates that impose an enforceable duty on a state. The NWPA, however, imposes no enforceable duty on Nevada. Rather, the statute offers Nevada the opportunity to request financial assistance enabling it to conduct oversight activities. Even if this statutory invitation to participate in repository siting decisions is construed as an enforceable duty, Nevada had ample funds at the beginning of FY 1996 to conduct essential oversight activities.

The court further holds that DOE's failure to provide a grant to Nevada for FY 1996 did not cause Nevada's governmental processes to be unconstitutionally commandeered into federal service. Nevada has not been directly compelled to enact or enforce a regulatory program. Rather, the NWPA provides Nevada with the opportunity to participate in repository siting decisions. The NWPA itself, however, is implemented entirely by federal governmental agencies. Because Nevada had $6.8 million of federal funds available to it at the beginning of FY 1996, there is no conceivable reason why it was required to absorb any of the costs associated with oversight of DOE's Yucca Mountain site characterization activities.

[Decisions related to this litigation are published at 20 ELR 21360 and 23 ELR 20833. Briefs and pleadings related to this litigation are digested at ELR BRIEFS & PLEADS. 66213.]

Counsel for Petitioner
Harry W. Swainston, Deputy Attorney General
Attorney General's Office
Capitol Complex
100 N. Carson St., Carson City NV 89701
(702) 687-4170

Counsel for Respondent
Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Aldisert* and Tashima, JJ.