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Natural Resources Defense Council v. Abraham

ELR Citation: 31 ELR 20547
Nos. No. 00-70015, 244 F.3d 742/(9th Cir., 03/28/2001) jurisdiction

The court holds that it lacked original jurisdiction under the Nuclear Waste Policy Act (NWPA) to review an environmental group's petition to set aside a U.S. Department of Energy (DOE) order that provides a process for determining whether certain radioactive waste streams are waste incidental to reprocessing that are not considered high-level waste. NWPA §10139 grants the courts of appeals original and exclusive jurisdiction over an action for review of a final decision arising under subchapter I, part A of the Act, which establishes procedures for the disposal of high-level radioactive waste and spent nuclear fuel in repositories. The court holds that the DOE order at issue here does not arise under the NWPA. The order was promulgated in accordance with the Atomic Energy Act to replace a previous DOE order on radioactive waste management and applies to the management of all high-level, transuranic, or low-level waste for which DOE is responsible. It is not a decision about siting of a repository, establishing federal responsibility for disposal of civilian radioactive waste, defining the relationship between the federal and state governments with respect to disposal of such waste and spent fuel, or establishing a Nuclear Waste Fund under subchapter I, part A of the NWPA. Nor is the order a decision under any other part or subchapter of the NWPA. Therefore, the environmental group's action does not seek review of any decision that arose directly under the part of the NWPA that grants the courts of appeals original jurisdiction. Further, whether the NWPA is implicated whenever high-level waste is disposed is irrelevant to the question of whether the DOE order arose under part A of the NWPA for purposes of the court's original jurisdiction. The court thus transfers the case to a district court.

Counsel for Petitioners
David E. Adelman
Natural Resources Defense Council, Inc.
1200 New York Ave. NW, Ste. 400, Washington DC 20005
(202) 289-6868

Counsel for Respondents
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Rymer, J. Before Thomas and McKeown, JJ.