Document 244-4
Filed 04/08/2005
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APPENDIX
Case 1:98-cv-00483-LMB
IN THE DqqITED STATES COURT OF APPEALS FOR TP~ DISTRICT OF COLUMBIA CIRCUIT
Document 244-4
Filed 04/08/2005
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Nos..8~-5234
and
83-2073
GENERAL
ELECTRIC
UP~IUM
MANAGEMENT
CORPORATION,
Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF ENERGY, et al.,
Defendants-Appellees.
ON
PETITION OF THE
FOR R~VIEW OF AN ORDER DEP~TMENT OF ENERGY
ON APPEAL
FROM THE UNITED FOR THE DISTRICT
STATES DISTRICT OF COLUMBIA
COURT
BRIEF
FOR
THE
DEPARTMENT
OF
ENERGY,
et al.
QUESTIONS I. subject decision 302 Whether matter of the the district court over of
PRESENTED erred this in assuming to review original a final to Section 10222. for fuel system fuel, the spent that
jurisdiction Secretary Waste
suit
Energy Act of the
issued of 19821
pursuant a-2
of the 2.
Nuclear the
Policy
U.S.C.
Whether fee April the fee
Department to which level
Energy's disposal for of
regulation of nuclear
"one-time" prior relates the Act, to
applicable 7, to 1983, the
provides of "burnup"
a tiered spent
violates Policy
re_c
of Section I0222(a)(3), average
302(a)(3) that the of 1.0
of the
Nuclear fee
Waste "shall
"one-time" mil per
equivalent
charge
kilowatt-hour."
These
cases
have
not
previously
been
before
the
Court.
Case 1:98-cv-00483-LMB
GEUMCO Hearings. Assessment per that focuses GEUMCO (OTA) on points disagreed formula. of legal OTA,
Document 244-4
segment the DOE's OTA's out that with From
Filed 04/08/2005
from of the Technical of the GEUMCO fee
Page 3 of 16
a different
Senate
Office
criticism statement, in ~e ~
one
mill
kilowatt-hour the retention
deduces
that
formula
indicates
a rejection is to erroneous. the
of DOE's Firstl fee. had on
pu .... ~ ,_~re. ...... ~o:~ ~ like DOE, OTA for was for was was not
This
interpretation comments with
directing
one-time DOE fee
Second, in the metal.
the Past OTA
disagreeing
proposals kilogram "final GEUMCO
made
a flat not
~ollars-perDOE's In sum, to
heavy
addressing ongoing issue fee. with
reconciliation" relies upon
proposal on
the
a debate
a different
respect
a different DOE's
fee. interpretation of the is supported among is those by considerations waste logic: to must as of fair a
apportionment federal
costs It
whose by
become drafted, GEI/MCO's one
responsibility. and If (3) are
supported too an
§§302(a)(2) position. per so. Act
simply wanted
elaborate fees to
support to
Congress hour for
all
"equate would
mill
kilowatt DOE's and is
all
fuel to
assemblies" the literal
it
have
said of the
decision supported
conforms by the with
req~irements
legislative these
history. cannot be set aside
An agency by the courts.
decision
attributes
ARGUMENT ORIGINAL ONE-TIME Section lO!39(a)(1)(A) 119 JURISDICTION OVER APPELL~NT'S CNILLENGE TO THE FEE LIES EXCLUSIVELY IN THE COURTS OF ~_DPEALS of the provides: Nuclear Waste Policy Act, _~ U.S.C.
- 18
Case 1:98-cv-00483-LMB
(i) Except for review in the Supreme Court of the United States, the United States courts of appeals shall have original and exclusive jurisdiction over any civil action-(A) for review of any final decision or action of the Secretary, the President, or Commission under this subtitle~
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Page 4 of 16
Section
lll(b)
states
that
"The
purposes
of
this
subtitle
(4) to establish a Nuclear Waste Fund, composed of paymenhs made by the generators and owners of such waste and spent fuel, that will ensure that the costs of carrying out activities relating to the disposal of such waste and spent fuel will be borne by the persons responsible for generating such waste and spent fuel. Section guidelines "subtitle located. with our 6 302(a)(3) for one-time of the fee, Act, is whi'ch no~ prescribes the "part A" is disagreed or
within
A" wherein On this
Section limited that the
119, basis, courts
"judicial the of
review," Court had for
district appeals rules
contention to
exclusive Waste Fund
jurisdiction fees. We language "[H]owever (J.A. submit of
review
the
Secretary's
the
305-307). that §119 the so district clear may as court erred in holding further that the
was the
to foreclose
inquiry.
clear
words
appear
on 'superficial
6
The text of §119, as it appears in P.L. term "subtitle;" as codified at 42 U.S.C. is employed. - 19 -
97-425, 10139,
uses t_he the term "part"
Case 1:98-cv-00483-LMB
examination,'" Grou~, external results policy Trucking We 426 U.S. of Train I, i0 v.
Document 244-4
Colorado Public it is if
Filed 04/08/2005
Interest to consider to avoid
Page 5 of 16
R4search
(1976),
proper
aids or of
construction which is as
necessary at
absurd the v. ~erican
a result the
"merely a whole. 544
variance" United
with
legislation 310 U.S. court
States
Assn's., argued
534, below
(1940). the exclusive should the be original read to of of rule on
in the
that of
appellate include the Fund
jurisdiction fee decisions
provision under §302 in
§119
because the other
establishment provision court to
is expressly A of the Act. in
included The only
"Purposes" district on
subtitle this basis. D.C. issue
ruled
favor
of the Power 1984
Government Company (slip op. v.
essentially P. Hodel,
this
Wisconsin No. 83-2281,
Electric July 18,
Donald
attached,
at 5-6).
Despite the statute's lack of clarity, defendant's argument is plausible. Section 10222, creating the Nuclear Waste Fund, and providing for the contracts (subsection (a)(1)) and fees (subsection (a)(2)) here is physically included in Subchapter III of Chapter 108 rather than Part A of Subchapter I. However, the very first words of Section I0222(a)(I) In the performance of his functions under this chapter, the Secretary is authorized. . ., etc. [Emphasis by the district court.] This reference to "chapter" should be enough, without more, to meld sections [10139(1) (A) relating to exclusive jurisdiction and section I0222(a)(i), unless doing so would serious violence to the scheme of the Act.
The
Wisconsin to
Electric provide
court original
found
that
the
Act
could
be to review
construed
appellate
jurisdiction
- 20 -
Case 1:98-cv-00483-LMB
the time, fees without such a construction of
Document 244-4
the would statutory be
Filed 04/08/2005
scheme. At supported
Page 6 of 16
the by same
offending
strongly
considerations
judicial submit court
economy. that are the views expressed even by the though the from in the No.
We respectfully Wisconsin Government district 8~-523~ Electric obtained court on the
persuasive decision the
and,
a favorable case, that
on ~he Court court to
merits affirm
in this ground
we ask the
district Secretary's
lacked fee.
jurisdiction A.
so set
aside
the
one-time
Bifurcated Government Of Judicial the
Review Of The Decisions Made By The Would Be Contrary To Sound Principles Administration reading courts and of §i19~ original for and the decisions of
Under
restrictive lies in the
jurisidiction site selection,
of appeals
research in
development,
environmental the fee sqhedules
assessment. for the
But,
bewildering Fund would
distinction, be only excluded. on the
Nuclear which
Waste are
Such
rate
decisions, record, examples
reviewable
administrative Act, are archtypical in the
under of
the
Administrative of cases to
Procedure where that the
the role
types
agency by
is acting a district in
factfinding court. courts general the Such of
comparable are To review against
performed reviewed fee
matters
typically these set
directly off goes
the the
appeals.
split
decisions in §119 Oljato (D.C. of the
from
judicial
scheme such 515
forth
against of
presumption Tribe
bifurcation. 654, of 660 Gov. Cir.
Chapter 1975);
Navaho
v. Train, Company
F.2d
Cir.
Investment S_~fstem, Wisconsin
Trust 1270,
v. Bd. 1276
Federal As the op.
Reserve
551
F.2d
(D.C.
1977). slip
Electric
court
observed
(su~,
at 6),
- 21
Case 1:98-cv-00483-LMB
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Page 7 of 16
all the reasons why any rulemaking by a department or agency should be reviewed directly by a Court of Appeals apply with full force here. The rulemaking record and original fact findings were made by and for the Secretary. There is little or no fact collecting or fact finding role for a trial court. The Secretary's interpretation of the statute (unlike a trial court's) is cushioned by expertise and, in this case, by his (or his staff's) live expe~ience wi~ the proposal, hearing, markup, and enactment of the Act. The Court of Appeals must inevitably review this Court's interpretation of the Act, essentially de novo. A trial court's interpretation would be, at best, modest assistance to the Court of Appeals. e , e [Citation omitted.] The ambiguous issue favor of not of Wisconsin language free from Electric of the doubt" decision Nuclear (id.), in of recognizes Waste but the Policy that Act the leaves tipped appeals because Standing §119 as "the
the
balance of
original sound is
jurisdiction
courts
these
considerations more than
judicial basis this
efficiency. to Court " is construe
alone,
this
sufficient in instant
conferring original unclear court favor 696 1706 of of
original juridiction
jurisdiction over the review
to assume . where in the it is
case;
whether the the 1193,
judicial of
jurisdiction the v. ambigmity
district in
court
appeals, Denberg
is resolved Retirement denied, 106
latter." !197
Railroad cert.
Board, S. Ct.
F.2d
(7th
Cir.
1983),
(198~). Both Congress and the Federal Judiciary have recognized the Court of Appeals as the preferred forum for review of administrative action .... Accordingly, ambiguous special review statutes should be construed to allow Courts of Appeals to review all agency actions they are institutionally competent to hear. - 22 -
Case 1:98-cv-00483-LMB
Note, The Forum for Interpreting (1983). 130 See~ Special 4 K.
Document 244-4
Review of Statutes1"
Filed 04/08/2005
Administrative 63 B.U.L. Law Rev.
Page 8 of 16
Action: 765, §23.5, 800
Judicial Review
Davis,
Administrative
Treatise
(1983). B. The Legislative History Of The Nuclear Waste Policy Act Shows That Congress Intends The Courts of Appeals To Exercis~ Exclusive O~iginal Jurisidiction Over The Secretary's Rules Establishing Eees legislative history and almost of its of the Nuclear Waste Policy for Act the
The shows timely
a consistent implementation under waste
unprecedented provisions here), for the
concern as the of
(such the
funding which 42 had
provisions held U.S.C. high submit up the
consideration disposal For
absence 30
program instance, that the meet
over Act
years.
§i0131(a)(3).7 premium
places are and
such required to Congress under to
on timeliness report failure to to
Federal Secretary a project In
agencies of DOE schedule
a written any 42
explaining the are Act.
deadline
U.S.C. to
§i0134(e). any the
addition,
Federal for
authorities the 42
directed
issue "at
authorizations earliest the of Act
needed
repository U.S.C. deadline §1013g(b), UoS.C.
program
practicable set a specific review, for site plan 42
date." 180-day U.S.C.
§10140(a). for
Indeed,
commencement other
judicial dates
and
specific of
selection, scheduling major
§10134,
completion
a mission
7
See Pacific Gas and Electric Co. Resources Conservation & Development (1983). 23
v. State Comm'n,
Energy 103 S.
Ct.
1713
Case 1:98-cv-00483-LMB
milestones, nuclear 42 U.S.C. 42 waste, for U.S.C..
Document 244-4
and the It the §10222. of
Filed 04/08/2005
initial even acceptance required disposal later
Page 9 of 16
of the
§10221,
that fee
rulemaking consideration after
establishment here must of many of the the of be
waste "not
under days Further,
completed 42
than
180
enactment" ~xe~ted
NWPA. DOE's
U.S.C.
§I0222(a)(~). from the
Congress for
actions
requirements under 42 U.S.
preparation 102 See of 42
an environmental National
impact
statement Policy Act,
Section §4332.
Environmental
U.S.C. was
§I0132(e). looking thus for ways it to avoid delay in the to the
Congress repository remove progrmm one and
clearly It
program. layer to of
determined review of of of
was
appropriate areas uniform do so, of
judicial
critical and
promote and
a policy
timely the
national it repository
interpretation re_ql/ired program in
application review of the
Act. 8 To areas first turn
judicial the
crucial in the we
of the instance. to
courts
of appeals
Against legislative Act, The all of
this
historical of the
backdrop, judicial in the
analyze
the
history which
review House review is now
provisions of in
of the
originated for
Representatives. the Court 119 118 of of of the H.R.
present
provision is
judicial in what was
Appeals, Act, had
which its
contained in what
Section Section
genesis
originally
8
See Harrison v. PPG Industries, inc., 446 U.S. 578, 593 (1980); accord, NRDC v. EPA, 673 F.2d 400, 405, n. 15 (D.C. Cir. 198~); see ~iso Currie and Goodman, "Judicial Review of 75 Federal Administration Action: Quest for the Optimum Forum" Colum. L. Rev. I, 16 (1975).
3809,
Case 1:98-cv-00483-LMB
97th Cong.~ Ist for Court "original of Appeals of
Sess. and for
Document 244-4
(June 4, exclusive the
1981).
Filed 04/08/2005
That
section in
Page 10 of 16
the United for
provided States
jurisdiction" of Columbia of
District action for
Circuit any final
expedited decision [A]:"
review or action
"any of the
civil
review under
Secretary
this and and
subtitle c~ntract 123 of user judicial
including set A of
the forth the
fee in
collection, what The was then
appropriation Sections that (Part the H.R. then a new 122 DOE
authority Subtitle fees review on was
bill. in id.
requirement subtitle
propose the
contained
the at
same
A) as House 3809
provision, and Waste moved
§123(b).
Later,
Committee for the
Interior
insular Trust
Affairs Fund" in
amended what was to 491, These
to provide 124 119, of
a "Nuclear bill still 2d and
Section Section i,
the Part
review A. H.R.
provisions Rep. No.
all
within at
97-P~rt new by
97th
Cong.,
Sess.
15-16
(Apr.
27~
1982).
Nuclear the Court !19~
Waste of did the
Trust Appeals Nuclear bill, venue 1982); (Aug.
Fund
provisions the Fund
remained of
reviewable the new
under Waste H.R. in
provisions provisions
Section similar
as
of
a second also 97th 97th
nuclear expanded
waste
6598,
a measure H.R. 785,
which 6598, Part bill, i,
provided Cong., Cong.,
for 2d 2d
any
circuit. Rep. No.
Sess. Sess.
(June at
15,
H.R. 20,
16-17
1982). and
A third
H.R.
5016, review
also in the
required United of States any
"original Court civil H.R. of
exclusive" for
expedited the Dls~_ic~ ~ ' ~" any 2d final
Appeals
of
Columbia or
Circuit agency Thus
action 5016,
questioning 97th House Cong., bills
decision 18, of
action. all three
Sess.
(Nov. review
1981). nuclear
predecessor
required
waste
funding
25 -
Case 1:98-cv-00483-LMB
in the Rep. 97th review The Title i!9. Thus, the the courts of appeals, 97th Act, No. S.1662, 282, 2d
Document 244-4
in contrast, Ist Sess.
Filed 04/08/2005
the (Sept. 30, Senate 9, 1981) 1981) no
Page 11 of 16
of S. 327, and No.
version
Cong., Ist
97th
Cong., (Mar.
Sess. 1982)
(Nov.
and
cong.,
Sess.
25,
contained
judicial
provisions House of H.R.
whatsoever. moved and 97th and Fund the the kept Nuclear the 2d the Waste Fund provlsions to
later the Act
iiI See
review Sess.
provisions (Sept. 24, bill,
in Section 1982). H.R. the 3809,
7187, 7187
Cong., in
in H.R. Nuclear
later
compromise separated
Waste
provisions judicial
were review the
from
subtitle l!l(b) purpose" .... " of
contained Part of 42 A,
provisions. language a Nuclear these Nuclear review
Section that Waste Fund Fund
however, part was
retained to
that U.S.C. of
"est~lish' It and was the
§lO131(b). i!l(b)
Waste
provisions of §119 verbatim. in lieu 9
Section were U.S.C. Senate
judicial into bill Cong. law
provisions
which 42
ultimately §10139 bill),
enacted (the see House 128
virtually 3809 S1562! was passed 20,
H.R. Rec.
of the
(Dec.
1982 ).
The final
history
of
the
bill
contains to
no indication reflect any
that
the
reorganization
was
intended
fundamental
9
While the one-time provision of Section 302(a)(3) obtained from Section 603 of S. 1662, the basic structure for establishment and operation of the Waste Fund provisions of Section 302 of the NWPA came from the House version of the Waste Act. S. Rep. No. 282, 97th Cong., Ist Sess. at 26 (Mar. 30, 1981); 128 Cong. Rec. $4157 (Apr. 28, 1982). 128 Cong. Rec. S1565~ (Dec. 20, 1982). 26 -
Case 1:98-cv-00483-LMB
change original the in the judicial legislative bill, any member
Document 244-4
review provisions indeed, a total House
Filed 04/08/2005
contained in the in
Page 12 of 16
the of
proposals, there is
explanation of any
consolidated by the
absence the
expression modified original 99 (Sept. 128 Cong. in
of the
that
consolidated in the Cong. 30, such would was is Rec.
bill
judicial approvee 1982);
review by
provisions the
contained 128
bills 30, Rec.
Co~m~iLtees. Rec. 2, H8580-98 1982).
H8161-
128
Cong. (Dec.
(Nov. Surely
1982); a major not have I0
H8777-$800
change gone
an important mention, only logical
aspect if
of the such
legislation a change drawn
without the to in
indeed, conclusion
intended. that Congress
Thus, intended matters retained "part" The
to be
require the courts
judicial of
review
of Nuclear
Waste since within
Fund
appeals, of
especially Section provision. to or IIi
Congress the same
the as the author
"purpose" Section of the
wording I19 review
Note,
Jurisdiction Court
Review of this Appeals, case when 88
Administrative Harv. wrote, L. Rev.
Action: 980,
District (1975),
Court
984-85
anticipated
[i]n many cases there appears to be no purpose served by the limited language of a special review statute and the language appears most likely to have resulted only from legislative oversight. In such cases, the basic purposes underlying the enactment
I0 ±n contrast, the House deleted the provision re~iring expedited judicial review only after debate and separate vote. 128 Cong. Rec. H8781-83 (Dec. 2, 1982). However, it was clear from the decision and debate that this deletion in no way indicated a lessening of the Congressional desire for speedy resolution of NWPA issues. - 27 -
Case 1:98-cv-00483-LMB
Document 244-4
Filed 04/08/2005
Page 13 of 16
of special review statutes broad reading of the scope procedure. C.
may argue for a of the statutory
if §119 Cannot Be Construed To Provide For Direct Review Of The Fee Rules In The Courts Of Appeals, These Rules Should Not be Subject To Judicial Review By Any Court our Wast~ that monies review, under discussion Policy Congress for the of the it legislative be the history that rules of the the Government to
Erom Nuclear believes provide judicial §llg(a), the Court
Act,
should for Waste the
clear fee
intended Nuclear in
promulgated to
Fund of
to be
subjected under
but the
only
courts
appeals filing in
expedited that the
deadline read in
for
§l!9(b). with the
If
concludes of of
§i19, Nuclear
pari Policy
materia Act,
other permit courts Policy issued not
provisions conferral of Act appeals, makes
Waste
does
not in the
direct then it
judicial is clear for
review that judicial
jurisdiction the Nuclear
Waste fees does
n~o to
provision §302. We
review submit
of the that the it
pursuant
respectfully this
automatically should Fund There Fee are by has
follow, DOE
from
omission, implementing
that the
district
courts Waste
review
decisions under
Nuclear
provisions solid
§302. that to the fees were One review
reasons not to
to conclude be subject
intended of of these the
Congress been is
judicial d!surlcu whereas
review. court
discussed
above: and
direct
fees
duplicative
time-consuming of the
Congress add this which
desired
expeditious the need
establishment fees for have
Program.
We
consideration: mitigates Under the
a self-correcting review.
mechanism
judicial
§302(a)(~),
28 -
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Page 14 of 16
The Secretary shall annually review the amount of the fees established by paragraphs (2) and (3) above to evaluate whether collection of the fee will provide sufficient revenues to offset the costs as defined in subsection (d) herein, in the event the Secretary determines that either sufficient or insufficient revenues are being collected, in order to recover the costs incurred by the Federal Government that are specified in subsection (d), the Secretary shall propose an adjustment to the fee to insure full cost recovery. * * * We or should holders add that the fees waste reviewed to in being are by assessed very the upon the from DOE is the generators the not rate a
of nuclear typically
different courts.
decisions private is not
utility raising a "just
trying capital and
maximize competitive
its
profits; money of
government .nor is it are
markets,
seeking more Since year, shorter review, the fees.
reasonable" taxes, the to
rate
return. than the
These utility
fees
like DOE and
earmarked must is
or "user propriety
fees," of
rates. each
reassess
ongoing
fee in a
directed of time has
make
mid-course
adjustments by
period Congress
than
could the
be accomplished need for
judicial review of
mitigated
judicial
if Congress' in the judicial that
failure review items
to expressly provision, are
include is
the
fee
decisions it is most
§119,
advertent, review
likely Co--are, 2450 1528, __ of
these
excluded Nutrition
from
altogether. 104 S. Ct. No. __ 82-
Block
v. Community
institute, F.2d __ (D.C. v. If
(1984); Aug.
Thompson 7, 1983), No. that
v. Clark, slip op. at 6; 25,
Cir.
Banzhaf 1984).
Smith, our
F.2d
(D.C. the
Cir. --
84-5304, the
June
construction DOE's fee
Act
courts
of appeals
should
review
29 -
Case 1:98-cv-00483-LMB
rules all, directly is more -~ is compatible
Document 244-4
the with review this
Filed 04/08/2005
no scheme courts.
Page 15 of 16
review than at the
incorrect,
alternative,
legislative district
assumption II.
of judicial
by the
THE DEPARTMENT OF ENERGY'S INTERPRETATION THAT SECTION 302(a)(3) OF THE NUCLEAR WASTE POLICY ACT DOES REQUIRE T.HE AGENCY TO BASE ITS ONE-TIME FEE ENTIRELY ON ELECTRICITY GENERATED AS ADVOCATED BY GEUMCO IS REASONABLE AND THERE IS NO BASIS FOR TIIIS CO~
As
a general
interpretation is entitled 16 are v. (1965),
statute
deference," be set
Udall by
Tallman, courts Lion
aside
"there Co.
compelling FCC, 395
reasons U.S. 367,
it is 381
wrong,"
Broadcasting DOE's had it been the
(1969). not mean the
uphold ~ourt,
interpretation charged Waste not by Policy that that
here
does to
Congress Act,
craft have
structure the same only
under result.
Nuclear need one, the
would
reached
"We
find
[DOE's] it is in the the
construction result first
is the
reasonable had
or even question
we would instance
have
reached
arisen
in judicial v. Aragon, that it is
proceedings." 329 U.S. I~3,
Unemployment 153 (19~6).
Compensation "We need of the only
Commission conclude
a reasonable Paper 103 v. S.
interpretation Institute Ct. 1921
relevant Electric also,
provisions." Power Service U.S.A., S. Ct.
'American Corp.., Inc. 2778
vo ~erican (1983)I Defense See,
Chevron inc., 104
Natural
Resources
Council, are
(1984). here which
Moreover, have weight frequently normally
there been
special as the
circumstances adding agency's to the
present already This
observed to
heavy is a
afforded
views.
- 30 -
Case 1:98-cv-00483-LMB
Document 244-4
Filed 04/08/2005
Page 16 of 16
CERTIFICATE OF FILING I hereby certify that on this 8th day of April 2005, a copyof foregoing "DEFENDANT'S RESPONSE TO THE COURT'S ORDER DATED MARCH 21, 2005"wasfiled electronically. I understandthat notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties mayaccess this filing through the Court's system.
s/HaroldD. Lester, Jr.
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