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Northern States Power Co. v. United States

ELR Citation: 31 ELR 20069
Nos. No. 99-5096, 224 F.3d 1361/51 ERC 1102/(Fed. Cir., 08/31/2000)

The court reverses the dismissal of a utility's breach of contract claim against the government for failing to dispose of the utility's spent nuclear waste beginning no later than January 1, 1998, as agreed to in a 1983 contract. The government notified the utility that it would be unable to begin disposal before 2010 because the repository it planned to build to store the waste would not be ready before that time. The lower court held that the utility could not seek damages in court because it had not first filed an administrative claim as required under the contract's dispute clause. The court first holds, however, that the lower court improperly relied on an earlier proceeding in the litigation in which the utility sought and was denied a petition for mandamus ordering the government to meet the contractual deadline. The petition for mandamus was denied because the utility had another potentially adequate remedy, namely, the scheme the standard contract provided for dealing with delayed performance. However, in that decision the court only held that there was an alternative potential remedy available that made mandamus inappropriate; it did not determine the precise scope of that remedy. The statements made by the court in that decision in explaining why it was denying mandamus cannot properly be interpreted as a holding that the utilities were precluded from suing the government for breach of contract by the contract's administrative dispute resolution provision. The court next holds that the unavoidable delays provision in the contract does not bar the utility from bringing suit against the government. The unavoidable delays provision in the contract deals with delays arising after performance of the contract has begun, and does not bar a suit seeking damages for the government's failure to begin performance at all by the statutory and contractual deadline of January 1, 1998.

[Decisions related to this litigation are published at 28 ELR 20231 and 31 ELR 20066.]

Counsel for Plaintiff
Alexander D. Tomaszczuk
Shaw Pittman
1676 International Dr., McLean VA 22102
(703) 790-7900

Counsel for Defendant
Harold D. Lester Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Mayer and Newman, JJ.