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Massachusetts v. United States

ELR Citation: 38 ELR 20078
Nos. Nos. 07-1482, -1483, (1st Cir., 04/08/2008)

The First Circuit denied Massachusetts' petition for review of a Nuclear Regulatory Commission (NRC) order denying its request to participate directly in a re-licensing proceeding of two nuclear energy plants as a "party" before the agency issues its renewal decision. Massachusetts argued that it must be allowed to participate directly in the re-licensing proceedings as a party in order to get its safety-based contentions heard. In the alternative, the commonwealth argued that the NRC must ensure that it resolves a separate rulemaking petition, initiated by the commonwealth and based on the same concerns about spent fuel storage, before the agency issues any renewal licenses. Massachusetts, however, sought the wrong path in seeking to raise safety issues as a party in the licensing proceedings. Instead, the commonwealth should participate in those proceedings as an "interested governmental entity." And because there has been no final agency action on either the rulemaking petition or the license renewal applications, Massachusetts' Administrative Procedure Act and National Environmental Policy Act claims are not ripe for review.