Nevada v. O'Leary

No. 94-70148 (57 F.3d 1078) (9th Cir. June 6, 1995)

The court holds that the Nuclear Waste Policy Act (NWPA) does not authorize judicial review of the U.S. Department of Energy's (DOE's) decision to terminate a study of calcite-silica deposits at Yucca Mountain. The presence of the deposits allegedly indicate that the site is unsuitable for use as a high-level nuclear waste repository. Relying on Nevada v. Watkins, 20 ELR 21360 (9th Cir. 1990), the court first holds that judicial review of the decision to terminate the calcite-silica study is not available under NWPA § 119(a)(1)(B), which provides for judicial review of the Secretary of Energy's failure to make a decision or to take an action that the NWPA requires. Although NWPA § 113(c) requires the Secretary to carry out site characterization activities, § 113(c) does not require the DOE to conduct any specific site characterization activities. Moreover, by defining certain activities as "preliminary," Congress intended to preclude them from judicial review. The court holds that the decision to terminate the investigation is a "preliminary decisionmaking activity" because it is part of the site characterization process. The decision, thus, is precluded from judicial review until there is a final decision to recommend Yucca Mountain as the site for the repository. The court holds that Nevada's contention that § 119(a)(1)(B) provides jurisdiction because the DOE's study was scientifically flawed is in conflict with the statutory scheme, which is designed to preclude judicial review of site characterization activities. The court finds that subsection (B) is intended to provide jurisdiction over DOE's conduct only if there is a total failure to take a specific action required by the statute. Finally, the court holds that Nevada's claim that the decision to terminate the study is a failure to carryout appropriate site characterization activities does not give rise to a claim that the DOE "failed to act" within the meaning of the NWPA.

[Related cases include 16 ELR 20165, 17 ELR 21188, 19 ELR 20944, 20 ELR 21360, 21 ELR 20349, and 23 ELR 20833.]

Counsel not available at this printing.

Before Cummings,^* Schroeder, and Rymer, JJ.:

[25 ELR 21449]

Memorandum^**

The State of Nevada ("Nevada") challenges the decision of the Secretary of the United States Department of Energy ("the Secretary") to terminate the study of the origin of calcite-silica deposits in certain locations at Yucca Mountain, Nevada. Nevada contends the calcite-silica deposits indicate that the Yucca Mountain site is unsuitable for use as a repository of high-level nuclear waste. Nevada thus alleges that the Secretary's decision to terminate the investigation of the deposits is a failure to carry out appropriate site characterization activities as required by section 113 of the Nuclear Waste Policy Act ("the NWPA"), 42 U.S.C. § 10133.

Nevada seeks to invoke our original jurisdiction pursuant to 42 U.S.C. § 10139(a)(1)(B). Subsection (B) of 42 U.S.C. § 10139(a)(1) provides that the United States Courts of Appeal shall have jurisdiction over an action "alleging the failure of the Secretary, the President, or the Commission to make any decision, or take any action, required under this part." The NWPA, however, does not require the Secretary to take any particular action with respect to site characterization activities. It provides only that: "the Secretary shall carry out, in accordance with the provisions of this section, appropriate site characterization activities at the Yucca Mountain site." 42 U.S.C. § 10133(a). In Nevada v. Watkins, 914 F.2d 1545, 1561-63 [20 ELR 21360] (9th Cir. 1990), cert. denied, 111 S. Ct. 1105 (1991) ("Watkins I"), we recognized that 42 U.S.C. § 10133(c) committed the Secretary's discretion site characterization activities and concluded that the Secretary did not have a duty to determine at the earliest possible date whether a disqualifying condition existed. Thus, we held that because the Secretary was not required to promulgate the regulations in question, judicial review of the decision not to do so was not available under 42 U.S.C. § 10139(a). Id. at 1563. Therefore, because 42 U.S.C. § 10133(c) does not require the Secretary to conduct any specific site characterization activities, judicial review of her decision to terminate the study of the calcite-silica deposits is not available under 42 U.S.C. § 10139(a)(1)(B). See id.

Furthermore, in Nevada v. Watkins, 939 F.2d 710, 715-16 (9th Cir. 1991) ("Watkins II"), we interpreted the parallel provision of the NWPA for recommending potential repository sites, 42 U.S.C. § 10132(d), and concluded that by defining certain activities as "preliminary," Congress intended to preclude them from judicial review. In reaching this conclusion, we noted "that reading §§ 10132(d) and 10133(d) to preclude direct review of the site selection process is consistent with the Congressional purpose and the legislative scheme as a whole." Id. at 716. Thus, because the investigation of the calcite-silica deposits is part of the site characterization process, the decision to terminate the investigation is a "preliminary decisionmaking activity" and, therefore, precluded from judicial review until there is a final decision to recommend Yucca Mountain as the site for the repository. See id. at 715-16 & n.14; see also Watkins I, 914 F.2d at 1563 (recognizing that site characterization activities conducted under 42 U.S.C. § 10133(c) are considered preliminary decisionmaking activities).

Nevada contends that 42 U.S.C. § 10139(a)(1)(B) provides jurisdiction on the theory that the Secretary's study was scientifically flawed. This contention is in conflict with the statutory scheme, designed to preclude judicial review of site characterization activities. Subsection (B) is intended to provide jurisdiction over the Secretary's conduct only if there is a total failure to take a specific action required by the statute. We said as much in Watkins II where we observed that

an action under subsection (B) would be appropriate had the Secretary failed to issue the guidelines. Since, however, the Secretary did promulgate the guidelines, subsection (B) does not provide a basis for review. The fact that petitioners allege deficiencies in the guidelines does not signify that the Secretary failed to act within the meaning of subsection (B).

Watkins II, 939 F.2d at 714 n.11.

For the same reasons, Nevada's claim that the decision to terminate the investigation of the calcite-silica deposits is a failure to carry out appropriate site characterization activities does not give rise to a claim that the Secretary "failed to act" within the meaning of subsection (B). See id.

The petition for review is DENIED.¹

* Honorable Walter J. Cummings, United States Circuit Judge for the Seventh Circuit, sitting by designation.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.

1. Because of our disposition we deny the Secretary's motion to dismiss and Nevada's motion for the appointment of a special master.