Entergy, Arkansas, Inc. v. Nebraska

Nos. 99-4263; 99-4265 (241 F.3d 979) (8th Cir. March 8, 2001)

ELR Digest

The court affirms in part and reverses in part a district court decision holding that certain beneficiaries to the Central Interstate Low-Level Radioactive Waste Compact (the Compact) had a right to sue Nebraska for acts delaying the construction of the Compact's disposal facility and that the state of Nebraska could not assert Eleventh Amendment and qualified immunity defenses. Five states formed the Compact under the Low-Level Radioactive Waste Policy Act, created a commission as the Compact's governing body, and chose a Nebraska site as the facility's location. After facility licensing was delayed, the commission, radioactive waste generators, and the facility developer sued Nebraska and its employees alleging that the state's intentional delay in the facility's licensing violated the Compact's good-faith provision and the parties' due process rights.

The court first holds that the district court correctly held that Nebraska waived its Eleventh Amendment immunity when it entered the Compact and submitted to suit in federal court by the commission. The court also holds that the commission stated a claim for which relief can be granted because it has a right under the Compact to sue for the relief it seeks. However, the court holds that the district court erred when it held that qualified immunity does not shield Nebraska and its employees from the generators' and the company's suit. The generators and the company seek to enforce the Compact's good-faith provision, but the provision does not provide them with a federal statutory right because the provision only applies to the Compact's party states. The court next holds that in summarily denying the defense of qualified immunity, the district court failed to discuss the application of qualified immunity to the generators' and the company's constitutional due process claims. Therefore, the court remanded the issue of whether Nebraska's actions deprived the generators and the company of a constitutionally protected property interest without substantive due process.

[Prior decisions in this litigation are published at 29 ELR 21277 and 30 ELR 20174 and 20449.]

The full text of this decision is available from ELR (22 pp., ELR Order No. L-340).

Counsel for Plaintiffs
John P. Heil
Baird, Holm Law Firm
1500 Woodmen Tower, Omaha NE 68102
(402) 344-0500

Counsel for Defendant
Linda L. Willard
Attorney General's Office
2115 State Capitol
P.O. Box 98920, Lincoln NE 68509
(402) 471-2682

[31 ELR 20500]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]