Tennessee v. Herrington

No. 3-85-0959 (M.D. Tenn. February 5, 1986)

ELR Digest

The court holds that the Secretary of the Department of Energy (DOE) violated § 117(b) of the Nuclear Waste Policy Act (NWPA) by failing to consult and cooperate with Tennessee officialsin conducting siting studies for a temporary nuclear waste disposal and storage facility in the state. The NWPA, besides providing for the development of permanent geologic repositories, also addresses temporary storage and disposal. One temporary scheme designated as a potential back-up to the permanent repositories is Monitored Retrievable Storage (MRS). The NWPA requires the Secretary to submit a proposal to Congress for the construction of one or more MRS facilities. The Secretary prepared a draft proposal identifying three Tennessee sites as the best candidates and notified the state that DOE would submit the proposal to Congress February 6, 1986. Frustrated by the Secretary's failure to furnish it with essential MRS studies, Tennessee filed suit in August 1985 seeking a declaratory judgment that the Secretary had violated the consultation and cooperation requirements of NWPA § 117(b) in conducting siting study and an injunction preventing the Secretary from relying on the study in making his MRS proposal to Congress.

Initially, the court rules that it has jurisdiction, relying on its earlier decision holding that the district court has exclusive jurisdiction over this action, 16 ELR 20378. Although the court certified the jurisdictional issue for interlocutory appeal to the Sixth Circuit, the court of appeals has not yet acted. The court concludes that it must act quickly on the merits before the Secretary submits his MRS recommendations to Congress. The court next holds that Tennessee's challenge to this siting process is ripe for review. The court applies a four-step analysis followed in the Fifth Circuit. First, the issue of whether the Secretary violated the consultation and cooperation requirements of the Act is a purely legal one. Second, the Secretary's final draft proposal constitutes "final agency action" under the Administrative Procedure Act. Although the proposal was still in draft form at the time the pleadings were filed, it is the present situation that governs ripeness questions. If Tennessee's claims are not heard now, it will never have the opportunity to correct the defects in the siting study on which the proposal is based. Third, the hardship to Tennessee of denying review outweighs the hardship to the Secretary if review is granted. Tennessee faces immediate harm if the Secretary is allowed to use an allegedly deficient study to convince Congress that an MRS facility should be built in the state, while the Secretary can only benefit from an early resolution of the issue. Finally, judicial review would not interfere with the administrative process. Since the Secretary has already missed the deadline for presenting his MRS proposal to Congress, a further short delay to determine if he has complied with the NWPA would only help the MRS process.

Turning to an analysis of the NWPA's provisions for state participation, the court holds that the Secretary must comply with § 117's consultation and cooperation requirements before Congress authorizes MRS construction. NWPA § 141(h) states that any "authorized" MRS facility is subject to § 117's requirements. Since it is not clear whether the term "authorized" refers to congressional authorization, the court looks to the purpose of the NWPA. The Act's legislative history reveals that Congress intended to give the states the same meaningful role in the MRS siting process that it provided in the siting process for permanent repositories. Thus, the court concludes that any MRS facility "generally contemplated for study and development and presentation to Congress" is authorized" under § 141(h) and issues a declaratory judgment that the provisions of § 141(h) take effect before congressional authorization. While the parties essentially agree that the requirements of § 117(b) govern the state procedures for state participation, the court also issues a declaratory judgment that any study of an area as a possible MRS site requires consultation and cooperation with the state under § 117(b). The court next issues a declaratory judgment that the Secretary violated § 117(b) by failing to cooperate with the state in preparing the siting study. The court concludes that injunctive relief is not necessary, however, absent evidence that the Secretary will not abide by the declaratory judgments.

Two days later, on February 7, 1986, the court was presented with such evidence. therefore, the court permanently enjoined the Secretary from making any proposal to Congress or filing any documents with Congress that rely on the siting studies prepared prior to consultation with Tennessee in violation of § 117(b).

The full text of the opinion is available from ELR (15 pp. $3.50, ELR Order No. C-1348).

Counsel are listed at 16 ELR 20378.

Wiseman, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]