Petition for Writ of Certiorari — Texas v. United States Department of Energy

No. _] JOSEPH F. SPANIOL,

eh

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

STATE OF TEXAS,

Petitioner.

vs.

UNITED STATES DEPARTMENT OF ENERGY, et ai.

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

JIM MATTOX NANCY N. LYNCH

Attorney General of Texas Assistant Attorney General

Chief, Environmental

DAVID R. RICHARDS Protection Division

Executive Assistant

Attorney General RENEA HICKs*

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711

(612) 475-1101

Attorneys for Petitioner

October 1985 *Counsel of Record

-i-

QUESTION PRESENTED

Is the Secretary of Energy’s final determination under Sec-

tion 116(a) of the Nuclear Waste Policy Act of 1982, identify-

ing two nine-square-mile sites of Texas farmland and thereby

subjecting them to investigation by the Department of Energy

for the nation’s first high-level radioactive waste repository.

a final action judicially reviewable under Section 119(a)(1)(A)-

(C) of the Act?*

* The parties in the court below were: State of Texas, petitioner; Deibert

L. Devin, Wayne and Evelyn Richardson, Wylie A. Byrd, Mike Richardson,

Donald Richardson, Glynn Burrell, Bryce Cook, W.A. Carter, James and

Geraldine Fangman, Anthony and Catherine Paschel, R.D. and Mildred

Hicks, Dorothy Fields, J. Morris Carter, F. Jean Carter, Tonya Kleuskens,

Swisher County Nuclear Development Rights Trust, STAND, Inc., and

POWER, Inc., private petitioners; and United States Department of Energy

and Donald Paul Hodel, Secretary of Energy (succeeded in office by John

S. Herrington), respondents.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED oa ie eR AAA i

TABLE OF GON TES (SEO GRAS A ii

TABLE OF AUFITM rae 60 NA AA iii

OPE NE ee ee See ee eee 1

FU | isk eee: A a eee ee 1

STA TIFT EPs eee vk AEA a a 2

STATEMENT OF THe GARE -i5.. oA evi cin cees g

REASONS FOR GRANTING THE WRIT:

I. The Determination of What Constitutes a

Final Decision or Action under Section

119(a)(1)(A)-(C) of the Act Is an Important

Question in the Administration of the

High-level Waste Program Upon Which This

Court’s Guidance Is Needed .................. 7

II. The Fifth Circuit’s Resolution of the

Finality and Ripeness Issues Conflicts with

Administrative Law Principles Established by

This Courts SRO Gs eek ea has 10

CONCLUSION 6s RA Ae eee Asal Cae 13

APPRINEMAA 6 6o S5S ee eeeeee A-l

APPEND Bo eA aa eee B-1

-jii-

T \BLE OF AUTHORITIES

Cases: Page

Abbott Laboratories v. Gardner, 387 U.S. 136

EE Peres oem eR anne Go 5 5.) ee SD a RE 8

Bell v. New Jersey, 461 U.S. 773 (1983) ............. 12

Harrison v. PPG Industries, Inc., 446 U.S. 578

ee a eae «ce REBUN Ao CON aN 00 ae 11,12

Lindahl v. Office of Personnel Management, 105

SN I: dice, ey ee i Sis cas 8

Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 12

Natural Resources Defense Council, Inc. v.

Nuclear Regulatory Commission, 539 F.2d 824

(2d Cir. 1976) ....... BR es aay 9 waco ee li

Pacific Gas and Electric Co. v. State Energy

Resources Conservation & Development

Commission, 461 U.S. 190 (1983) ................. 10

Port of Boston Marine Terminal Association v.

Rederiaktiebolaget Transatlantic, 400 U.S.

ee ee eG tag Cea wc Agee Vee 11

Texas v. Department of Energy, 764 F.2d 278

a RS a I 2S ee Gr ra passim

Thomas v. Union Carbide Agricultural Products Co.,

CNS sy sku b bisa vipe BAD os 13

Washington v. Department of Energy, No.

85-7128 (9th Cir. filed March 8, 1985) ............... 9

Western Oil and Gas Association v.

Environmental Protection Agency, 633 F.2d

eee A vA de Ws ae 12

-iv-

TABLE OF AUTHORITIES, continued

‘Page

Statutes and regulations:

Na, oo hs oe ged + kee Cee ea ees 1

Oe I I ci ek cece nes kns enn passim

49 Fed. Reg. 47,714 et seg. (1984) ..... Soa s ete 5,9,11

Other materials:

a Oe ee ok... TNE sebas Sat we

Wright, Miller, Cooper, & Gressman,

Federa’ Practice & Procedure: Jurisdiction,

Rs Bee a a ee eee a ists 12

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

STATE OF TEXAS,

Petitioner.

vs.

UNITED STATES DEPARTMENT OF ENERGY, et ai..

Respondents.

Petition for a Writ of Certiorari

The State of Texas (‘“Texas’’) petitions the Court to issue a

writ of certiorari to review a judgment of the United States

Court of Appeals for the Fifth Circuit.

OPINION BELOW

A panel of the court below issued an opinion-order granting

the motion to dismiss filed by the United States Department

of Energy (‘““DOE”’) and the Secretary of Energy (‘‘Secretary °).

It is reported at 764 F.2d 278 and reproduced as Appendix A.

The court below denied rehearing and rehearing en banc. This

denial is reported at 770 F.2d 164 and reproduced as Appen-

dix B.

JURISDICTION

The opinion ordering dismissal was entered on June 19, 1985.

The denial of rehearing and rehearing en banc was entered on

July 31, 1985. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

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STATUTE INVOLVED

The statute involved in this case is the Nuclear Waste Policy

Act of 1982, 42 U.S.C. §§ 10101-10226 (1982) (“NWPA” or “the

Act"). The provisions of the Act most pertinent to the mat-

ters raised in this petition follow.

NWPA § 116(a), 42 U.S.C. § 10136(a):

The Secretary shall identify the States with one or

more potentially acceptable sites for a repository

within 90 days after January 7, 1983. Within 90 days

of such identification, the Secretary shall notify the

Governor, the State legislature, and the tribal coun-

cil of any affected Indian tribe in any State of the

potentially acceptable sites within such State. For the

purposes of this subchapter, the term “‘potentially ac-

ceptable site’ means any site at which, after geologic

studies and field mapping but before detailed geologic

data gathering, the Department undertakes prelimi-

nary drilling and geophysical testing for the defini-

tion of site location.

NWPA § 119%a)(1), 42 U.S.C. § 10139(a)(1):

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 the Commission

under this part;

(B) alleging the failure of the Secretary, the

President, or the Commission to make any decision,

or take any action, required under this part;

(C) challenging the constitutionality of any deci-

sion made, or action taken, under any provision of

this part;

-3-

(D) for review of any environmental impact state-

ment prepared pursuant to the National En-

vironmental Policy Act of 1969 (42 U.S.C. 4321 et

seq.) with respect to any action under this subti-

tle, or as required under section 10155(c)(1) of this

title, or alleging a failure to prepare such statement

with respect to any such action;

E) for review of any environmental assessment

prepared under section 10132(b)(1) or 10155(c)(2) of

this title; or

(F) for review of any research and development

activity under subchapter II of this chapter.

STATEMENT OF THE CASE

Background: The High-Level Radioactive Waste Program

High-level radioactive waste (“high-level waste’’) includes

spent nuclear fuel and other forms of highly radioactive waste.

It is very dangerous and very long-lived. In the 1950’s, the

federal government, essentially unimpeded by legislative direc-

tives, began a geographical screening process of sorts to find

a permanent disposal site for this material. Finally, in an ef-

fort to establish a workable method for resolving what it termed

the ‘national problem” created by the accumulation of high-

level waste, Congress enacted the Nuclear Waste Policy Act

of 1982. The Act explicitly found that federai efforts during

the past thirty years to solve the high-level waste problem had

been inadequate, NWPA § 111(a)(3), 42 U.S.C. § 10131(a)(3),

and that state and public participation in the repository pro-

gram was essential, NWPA § 111(a)(6), 42 U.S.C. § 10131(a)(6).

The Act establishes a detailed framework and a step-by-step

schedule for implementing the Congressionally-chosen solution

to the problem: an environmentally-safe mined geologic

repository for the permanent disposal of high-level waste. Under

the NWPA schedule, with which DOE is not always in phase,

the first repository would be operative in 1998, approximate-

ly fifteen years from the Act's passage. The Act also contem-

plates the need for a second repository, NWPA § 112(b)(1)(C),

-4-

42 U.S.C. § 10132(b)(1)(C), and DOE has initiated preliminary

site screening activities for it.

The Fifth Circuit outlined the principal statutory steps in

the carefully segmented program for selecting the first

repository:

The NWPA...requires the Secretary to identify

states containing ‘“‘potentially acceptable sites”’

..Within 90 days of [January 7, 1983]. Within 90 days

of identification, the Secretary must notify the gover-

nors and legislatures of such states of the location

of such potentially acceptable s*tee. During this same

180 day period, the Secretary is tw. ‘romulgate general

guidelines for the recommendation of sites for

repositories. ...

Once the guidelines are promulgated, the Secretary

is to use them to determine which of the sites

designated by him are suitable for “‘site characteriza-

tion’’—i.e. further intensive testing—and he is to

nominate five sites as suitable for site characteriza-

tion. This nomination must be preceded by public

comment and hearings and must be accompanied by

an “environmental assessment.” This environmental

assessment is a comprehensive document that dis-

cusses the suitability of the nominated site for

characterization and development as a repository and

compares its suitability with the other four nominated

sites. ...

From these five nominated sites the Secretary is

to recommend three sites to the President for site

characterization, and the President must review and

approve this recommendation. Following site

characterization, the President is to recommend one

of the three sites to Congress for development as the

first repository. An affected state or Indian tribe may

submit to Congress a notice of disapproval of the

President ’s recommendation; and this veto prohibits

the President’s recommendation from becoming ef-

fective unless both houses of Congress override it by

passing a resolution of repository siting approval

within 90 days.

-5-

Texas v. DOE, 764 F.2d at 280-81 (statutory citations and foot-

notes omitted). After obtaining Congressional approval of the

chosen repository site, DOE must obtain an operating license

from the Nuclear Regulatory Commission. Only then, when Sec-

tion 119's judicial review provisions become inoperative,

NWPA § 125, 42 U.S.C. § 10145, can DOE begin actual

emplacement of the high-level waste.

DOE Actions Concerning Texas

The issue in this case arises from the crucial first statutory

step in the fifteen year program, a step DOE itself treats as

a “principal decision point,’’ see DOE Mission Plan, vol. II,

at 122 (June 1985). Under Section 116(a) of the Act, DOE had

180 days to identify the states containing potentially accep-

table sites for the first repository and to notify specified of-

ficials of the specific potentially acceptable sites in their states.

Within this period, DOE had identified six states with poten-

tially acceptable sites and notified all of them except Texas

of the exact location of those sites in their states.’

In Texas, when Section 116(a)’s deadline arrived, DOE still

had not completed its process of identifying the two Texas sites

it intended to designate as potentially acceptable. Therefore,

instead of clearly identifying the exact sites within the

statutory time period, ““DOE identified two potentially accep-

table locations of about 190 and 300 square miles each.’ DOE

Mission Plan, vol. II, at 117-18 (emphasis added).’ For the

1. Three of the states—Louisiana, Nevada, and Washington—contain one

potentially acceptable site each. Each of the other three states— Mississippi,

Texas, and Utah—contain two such sites. Thus, DOE has designated nine

potentially acceptable sites for the first repository. Seventeen additional

states are under consideration for the second repository.

2. “Potentially acceptable location" is not an NWPA-defined term. “‘Loca-

tion’ was a term of art in DOE's pre-Act screening program which referred

to the third stage of the narrowing process. The fourth (and final) stage—

“site “—typically encompassed less than ten square miles. See DOE's Draft

Environmental Assessment for Deaf Smith County Site. Texas. at 1-5—1-6

(Dec. 1984); see also Final Siting Guidelines, 49 Fed. Reg. at 47.715 (1984).

In Texas, DOE has employed the phrase “‘potentially acceptable site" in-

consistently, sometimes referring to the broader “locations and sometimes

to the nine-square-mile sites. Only the latter use is consistent with the Act

and with DOE's use of the phrase in the other affected states.

6-

purpose of comparing the nine potentially acceptable sites with

one another, which Section 112 requires before the Secretary

can nominate the five sites he deems suitable for site

characterization, DOE had to narrow the Texas areas from loca-

tion size to site size. 764 F.2d at 281. On November 27, 1984,

DOE issued a three-volume final report entitled Identification

of Sites Within the Palo Duro Basin (‘“Texas Site Identifica-

tion Report’’ or ‘‘Report’’). The Report was issued well over

a year after the timely identification under Section 116(a) of

the seven potentially acceptable sites in other states. Further-

more, it came out only three weeks before DOE indicated in

a draft report that it would recommend one of the Texas sites

to be among the three sites scheduled to undergo site

characterization.

The Report constituted the Secretary’s notice to Texas of-

ficials of his final determination of the exact identity of the

two nine-square-mile Texas sites that DOE would compare with

the other seven potentially acceptable sites to decide: (a) which

five sites it would nominate; and (b) in turn, which three of these

five sites it would recommend for site characterization activities

under Section 113 of the NWPA. This action—the final deter-

mination of the exact identity of the potentially acceptable sites

in Texas—is the one Texas challenges.

Court proceedings

Pursuant to Section 119(a)(1) of the Act, Texas promptly peti-

tioned the Fifth Circuit for review of the Secretary’s action em-

bodied in the Texas Site Identification Report and of his inac-

tion in failing to determine Texas’ potentially acceptable sites

in a timely manner. DOE filed a Motion to Dismiss, and the

Fifth Circuit, without affording Texas the opportunity for oral

argument, granted DOE’s motion, holding that the challenged

administrative action was not final and, alternatively, that it

was not ripe for judicial review. Texas now seeks a reversal

of the Fifth Circuit’s decision and a remand for resolution of

the merits of the controversy.

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REASONS FOR GRANTING THE WRIT

I. The Determination of What Constitutes a Final

Decision or Action under Section 119(a)(1(A)4{C) of

the Act Is an Important Question in the Ad-

ministration cf the High-Level Waste Program

Upon Which This Court’s Guidance Is Needed.

The question presented here is an important one to the federal

government, the states, and the federal judiciary. It is impor-

tant to the short- and long-term federal administration of the

massive fifteen year program that will be “‘the nation’s largest

civil works project,’’ see Crawford, DOE, States Reheat Nuclear

Waste Debate, Sct., Oct. 11, 1985, at 150. It is important to

the states, which during this highly intrusive and demanding

program’s implementation often will be confronted with

deciding whether a legal challenge to a particular federal deci-

sion or action must be instituted immediately or, instead,

should be deferred. And it is important to the judiciary, offer-

ing the Court its first opportunity to construe this long-needed

federal statute, enacted to address a “national problem,”

NWPA § 111(a)(2), 42 U.S.C. § 10131(a)(2), implicating “‘ma-

jor subjects of public concern,’’ NWPA § 111(a)(7), 42 U.S.C.

§ 10131(a)(7). The opportunity should be seized, because the

case presents a func amental question about when the federal

courts should become available to fulfill their assigned role of

judicial review during the Act’s implementation.

The Fifth Circuit’s denial of judicial review of the Secretary's

final site determinations for Texas ignores the plain meaning

of Section 119(a)(1)(A) of the Act and DOE's own characteriza-

tion of the challenged administrative action as a final one. In

doing so, it undermines the states’ statutory rights to employ

judicial review periodically to check DOE's final decisions and

actions when they veer from the legally prescribed course. A

further consequence of leaving the Fifth Circuit's decision un-

disturbed may be that the crucial substantive decision at issue

in this case will be insulated permanently from judicial

review.°

3. The Fifth Circuit's decision is disturbingly ambiguous on this point.

There are vague hints that the Fifth Circuit ‘s decision was one on reviewabili-

ty, although cloaked in the guise of finality and ripeness. This ambiguity,

(footnote continued on following page)

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DOE has estimated that over the life span of the high-level

waste program. encompassing both the first and second

repositories, its cost will range from $20.9 billion to $35.3

billion. DOE Mission Plan, vol. 1, at 398. The estimated cost

from construction to decommissioning of a repository in salt—

the host rock for the Texas sites—is $6.8 billion. Jd. at 395.

As the implementation of the program moves from its early

stages, the costs will increase. Thus, uncorrected legal or

technical mistakes made early in the program will cost more

and be more difficult to correct as the project moves into its

later stages.

As the costs increase for correcting mistakes, DOE’s reluc-

tance to recognize them inevitably will increase, too. And if

the states are forced to wait until the later stages of the pro-

gram to avail themselves of their statutory right to judicial

review of final DOE decisions and actions, the courts will be

confronted with major difficulties in fulfilling their judicial

review duties. First, the accretion of issues caused by deferral

of their consideration may lead to confusion. Second, and more

importantly from a practical viewpoint, the courts’ resolution

of mistakes made early in the process undoubtedly will be in-

fluenced by the prospect that, if DOE is found to have acted

improperly, a substantial portion of the project may have to

be redone at a cost of billions of dollars. Deferral thereby

threatens the values of safety lying at the heart of the Act.

Therefore, from a purely pragmative perspective, see Abbott

Laboratories v. Gardner, 387 U.S. 136, 149 (1967) (finality of

administrative action is interpreted pragmatically), if the Act’s

judicial review provisions (which specify direct circuit court

review) permit it, early rather than late resolution of certain

crucial issues is an important principle to establish under this

Act.

(footnote continued from previous page)

when coupled with DOE's Fifth Circuit position that the challenged action

is never judicially reviewable, provides an additional reason for granting this

petition. It must be made clear that the action challenged here is judicially

reviewable. Cf. Lindahl v. Office of Personnel Management, 105 S.Ct. 1620,

1627 (1985) (only clear and convincing evidence of Congressional intent to

do so suffices to protect administrative action from judicial review). Nothing

in the Act insulates final potentially acceptable site decisions from judicial

review.

-9-

Of the crucial i, . ss in the program's implementation which

need early resolution, the legal ramifications of DOE's deter-

mination of the exact identity of sites subjected to detailed in-

vestigation and comparison with each other is perhaps the most

important one. It is the first statutorily specified step that DOE

was obligated to take, see NWPA § 116(a), 42 U.S.C. § 10136(a),

and it is the first step that DOE indeed took.‘ The ability of

the first repository to isolate its extremely dangerous contents

for essentially an eternity from contact with the outside en-

vironment depends directly on the quality of the initial pool

of sites—the nine potentially acceptable sites—from which DOE

draws its ultimate choice. It is for this reason that DOE has

called its identification of potentially acceptable sites a ‘‘prin-

cipal decision point,’’ see DOE Mission Plan, vol. II, at 122,

in the high-level waste program.

The issue of whether and when potentially acceptable site

determinations are reviewable under Section 119(a)(1) retains

vitality beyond the selection process for the first repository.

The two Texas sites likely will remain potentially acceptable

sites for the second repository even if they are not recommend-

ed for the first one. DOE Mission Plan, vol. 1, at 54; see also

NWPA § 112(b)(1)(C), 42 U.S.C. § 10132(b)(1)(C) (only sites

nominated but not among the three recommended for site

characterization for first repository are excluded from con-

sideration for second repository). Thus, the pall cast over this

prime Texas farmland will linger for a very long time. It will

have concrete consequences in terms of depressed land values,

disincentives to investment in the land to improve production,

and psychological uncertainty for its private owners until at

4. Under Section 112(a) of the Act, DOE was to have promulgated siting

guidelines for the recommendation of sites for repositories within the same

180 day period it was to have chosen potentially acceptable sites; however,

these guidelines were not final until January 7, 1985—a year and a half after

the deadline. See Final Siting Guidelines, 49 Fed. Reg. 47,714 (1984). Ten

states and several environmental organizations have challenged their validity

in litigation pending in the United States Court of Appeals for the Ninth

Circuit. See, e.g, Washington v. DOE, No. 85-7128 (9th Cir. filed March 8,

1985). Pending in that court is a DOE Motion to Dismiss, which argues that

the siting guidelines are neither a final action nor ripe for judicial review

under Section 119(a)(1)(A) of the Act, despite their promulgation as final Ad-

ministrative Procedure Act (‘““APA’) rules.

————— eee

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least the end of 1991, DOE's current estimate of when site

characterization recommendations for the second repository

will be completed. DOE Mission Plan, vol. 1, at 69. Further-

more, the potentially acceptable site designations for the se-

cond repository have not yet been made. Therefore, for the

seventeen additional states currently under consideration for

the second repository, see n.1, supra, the issue presented here

looms as an important one.

The high-level waste program is of national importance. It

implicates concerns of safety, economics, cf. Pacific Gas and

Electric Co. v. State Energy Resources Conservation & Develop-

ment Commission, 461 U.S. 190, 196 (1983), and federalism.

The issue presented in this case touches upon all these concerns,

plus the role the federal judiciary will play in carrying out the

responsibilities Congress has given it through the NWPA. Now,

in this early but crucial stage of the long program, is the ap-

propriate time for the Court to provide guidance on the rules

governing the affected parties.

II. The Fifth Circuit’s Resolution of the Finality and

Ripeness Issues Conflicts with Administrative Law

Principles Established by This Court’s Decisions.

The Fifth Circuit’s holding that, regardless of the seeming

finality of the Secretary’s decision on two Texas sites, it is not

final for purposes of judicial review, 764 F.2d at 282-83, can-

not be squared either with the plain language of Section

119(a)(1)(A) of the NWPA or with principles established by this

Court. That provision establishes for affected parties a right

to judicial review of ‘‘any final decision or action of the

Secretary...under this part[.]’” NWPA § 119(a)(1)(A), 42 U.S.C.

§ 10139(a)(1)(A) (emphasis added).° The challenged site nar-

rowing determination was made under the part of the Act to

which Section 119(a)(1)(A) is expressly applicable. DOE

repeatedly said that the determinacion was final. See, e.g.,

November 27, 1984, letter from Donald Paul Hodel to

Honorable Mark White (referring to ‘‘the final report”); 49 Fed.

5. Subsections 119(a)(1)(B) and 119(a)(1)(C) omit any reference t» finality.

Because their language reaches at least as far as subsection 119(a)(1)(A), the

analysis in the text also applies to them, and they will not be treated

separately. “

-l1-

Reg. at 47,716 (1984) (same); Texas “ite Identification Report,

vol. 3, at 99, 100, 101, and 102 (same). Thus, the conclusion

that the challenged action was a final one under the NWPA

for purposes of judicial review seems obvious.

The Fifth Circuit avoided this obvious conclusion by import-

ing concepts of finality from the APA into the NWPA and con-

cluding that judicial pragmatism dictated 2 conclusion that the

challenged action was not final. Both _ of the Fifth Cir-

cuit’s analysis are flawed.

First, finality under the APA for purposes of non-statutory

judicial review is not necessarily the same as finality under

statutes specifically providing for judicial review. See, e.g.,

Natural Resources Defense Council, Inc. v. NRC, 539 F.2d 824,

837 (2d Cir. 1976), remanded for consideration of mootness, 434

U.S. 1030 (1978). The validity of this principle is implicit in

this Court’s decision in Harrison v. PPG Industries, Inc., 446

U.S. 578, 586-92 (1980), in which judicial review provision of

the Clean Air Act was construed in light of the act’s statutory

scheme and legislative history, not of the APA’s finality

provisions.

Second, judicial pragmatism does not dictate a conclusion

that the challenged decision is not final. As already explained,

pragmatism counsels for review of a major statutory milestone

in the program such as the designation of the pool of sites which

will be subjected to further investigation so that the final site

can be chosen. Judicial review at this stage makes sense, even

if the stage is a relatively early one. In any event, the Court

has explained the considerations that bound the pragmatic

assessment:

[T]he relevant considerations in determining finality

are whether the process of administrative decision-

making has reached a stage where judicial review will

not disrupt the orderly process of adjudication and

whether rights or obligations have been determined

or legal consequences will flow from the agency

action.

Port of Boston Marine Terminal Association ov.

Rederiaktiebolaget Transatlantic. 400 U.S. 62, 71 (1970); see

-12-

also Bell v. New Jersey, 461 U.S. 773, 780 (1983). Here, DOE's

identification of the Texas sites was ‘‘a definitive statement

of its position[.]”’ Jd. It finally determined the rights and obliga-

tions of DOE and Texas by settling exactly which Texas sites

are to receive more searching scrutiny, including especially the

extensive scrutiny given them in the final versions of the

statutory environmental assessments when they are issued. The

pragmatic concept of finality is sufficiently realistic to include

the situation presented here within its ambit.

Finally, the application of another finality principle estab-

lished by the Court reveals the failure of the Fifth Circuit to

follow guiding administrative law principles. In Mathews v.

Eldridge, 424 U.S. 319 (1976), the Court explained that a “‘core

principle" required that statutory finality provisions should

be construed so that ‘‘crucial collateral claims” will not be left

unreviewable. Jd. at 331 n.11. Given the fact that DOE

argues—and that the Fifth Circuit may be inclined to hold—

that final potentially acceptable site decisions are not judicially

reviewaple at all, see n.3, supra, it is especially appropriate that

the decision challenged by Texas be reviewed now. Otherwise,

this crucial step in the high-level waste program may never be

subjected to the judicial scrutiny Congress intended it to

receive when sought by an affected party.

As an alternative to its finality holding, the Fifth Circuit

determined that the challenged action was not ripe for judicial

reviow. Ripeness determinations, however, are inapposite in

cases such as this one where final agency action is challenged

pursuant to statutory review provisions. See, e.g., Harrison v.

PPG Industries, Inc., supra (Court did not undertake ripeness

analysis in administrative challenge governed by judicial review

provisions of Clean Air Act); see also Western Oil and Gas

Association v. EPA, 633 F.2d 803, 807-08 (9thCir. 1980). A

noted authority on federal courts has observed that on direct

appellate court review of agency action “finality rules can serve

all the purposes of avoiding premature interference [with agen-

cy action] that are served in other contexts by exhaustion and

ripeness." 16 Wright, Miller, Cooper, & Gressman, Federal

Practice and Procedure: Jurisdiction, § 3942, at 314-15 (1977).

Thus. once the challenged decision is found to be a final one

for judicial review purposes under Section 119(a)(1)(A) of the

Act. there is no basis or need for engaging in an analysis

of ripeness principles. They simply are inapplicable.

|

-13-

Even if ripeness principles were applicabie, the consequences

to Texas and to the high-level waste program of the Texas site

designations are sufficiently concrete to make the issue ripe

for review. A basic, common sense understanding of the im-

pact of DOE’s decision on the farmers whose land lies within

the two nine-square-mile sites reveals that Texas is presenting

the courts with much more than an abstract disagreement

which the ripeness principle is meant to help the courts avoid,

see, e.g., Thomas v. Union Carbide Agricultural Products Co.,

105 S.Ct. 3325, 3333 (1985). The psychological impact and the

effect on land values is palpable. The issue of whether DOE

properly identified the Texas sites and what Texas’ remedy

shall be if DOE acted improperly can get no riper than it is

now. The time is right for the issue to be reviewed by the courts

as Congress contemplated when it gave the courts the power

(and duty) of judicial review in the NWPA’'s Section 119(a)(1)(A).

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

to the United States Court of Appeals for the Fifth Circuit

should be granted and its judgment vacated.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

DAVID R. RICHARDS

Executive Assistant

Attorney General

NANCY N. LYNCH

Assistant Attorney General

Chief, Environmental

Protection Division

RENEA HICKS*

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711

(512) 475-1101

Attorneys for Petitioner

October 1985 *Counsel of Record

APPENDIX A

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-4826

STATE OF TEXAS,

DELBERT L. DEVIN, ET AL,

Petitioners,

versus

UNITED STATES DEPARTMENT

UF ENERGY, and DONALD PAUL

HODEL, Secretary, United States

Department of Energy,

Respondent.

Petition for Review of an Order of the

United States Department of Energy

(June 19, 1985)

Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit

Judges.

HIGGINBOTHAM, Circuit Judge:

On December 19, 1984 the State of Texas and several of its

citizens filed petitions in this court challenging certain actions

taken by the Secretary of Energy under the Nuclear Waste

Policy Act of 1982, 42 U.S.C. § 10101 et seg. The petitions

sought review of the Secretary's designation of two sites in

Texas as potentially acceptable for development as nuclear

waste repositories under the NWPA. The Secretary asks us

to dismiss the petition, contending that the challenged actions

are neither final under the Act nor ripe for review. We agree

with the Secretary and grant the motion to dismiss.

A-2

I

The Nuclear Waste Policy Act is designed to achieve a per-

manent and workable solution to the mounting problem of

disposal of high-level radioactive wastes in the United States.

The Act establishes an ongoing process by which the Secretary

of Energy, acting within carefully defined time frames, is to

select a number of sites potentially suitable for development

as nuclear waste disposal facilities, and after a winnowing pro-

cess in which the sites are evaluated not only by the Secretary,

but also by the President, Congress, and the affected states,

is to develop one of the sites into an operational waste

repository by the year 1998. We will not here attempt a com-

prehensive explication of the NWPA’s statutory scheme, but

a brief description of the site selection process is necessary to

put in context the actions challenged by Texas.

.*

The NWPA, effective as of January 7, 1983, requires the

Secretary to identify states containing ‘‘potentially acceptable

sites’” for the first repository within 90 days of that date. §

116(a), 42 U.S.C. § 10136(a). Within 90 days of identification,

the Secretary must notify the governors and legislatures of such

states of the location of such potentially acceptable sites. Ibid.

During this same 180 day period, the Secretary is to promulgate

general guidelines for the recommendation of sites for

repositories. These guidelines are to address specific considera-

tions that Congress deemed pertinent to the site selection pro-

cess, as well as those the Secretary finds appropriate. § 112(a),

42 U.S.C. § 10132(a).

Once the guidelines are promulgated, the Secretary is to use

them to determine which of the sites designated by him are

suitable for ‘‘site characterization’’—i.e. further intensive

testing—and he is to nominate five sites as suitable for site

1. The term “potentially acceptable site’ means

any site at which. after geologic studies and field mapping but before

detailed geologic data gathering, the Department undertakes

preliminary drilling and geophysical testing for the definition of site

location.

§ 116(a), 42 U.S:C. § 10136(a).

A-3

characterization.”? § 112(b)(1)(4), 42 U.S.C. § 10132(b)(i 4A).

This nomination must be preceded by public comment and hear-

ings, § 112(b)(2), 42 U.S.C. § 10132(b)(2), and must be accom-

panied by an ‘‘environmental assessment.” § 112(b)(1)(E), 42

U.S.C. § 10132(b)(1)(E). This environmental assessment is a

comprehensive document that discusses the suitability of the

nominated site for _aracterization and development as a

repository and compares its suitability with the other four

nominated sites. The environmental assessments are express-

ly labelled by the statute as ‘“‘final agency action’’ and are sub-

ject to judicial review. See §§ 112(b)(1)(F)i), 119(a)(1E), 42

U.S.C. §§ 10132(b)(1)(F Yi), 10139(a)(1)(E).

From these five nominated sites the Secretary is to recom-

mend three sites to the President for site characterization, and

the President must review and approve this recommendation.

§ 112(c), 42 U.S.C. § 10132(c). Following site characterization,

the President is to recommend one of the three sites to Con-

gress for development as the first repository, § 114, 42 U.S.C.

§ 10134. An affected state or Indian tribe may submit to Con-

gress a notice of disapproval of the President’s recommenda-

tion, see §§ 116\b)(2), 118(a), 42 U.S.C. §§ 10136(b)(2), 10138(a),

and this veto prohibits the President's recommendation from

becoming effective unless both houses of Congress override it

by passing a resolution of repository siting approval within 90

days. § 115(c), 42 U.S.C. § 10135(c).

2

The action challenged here occurred at the very first stage

of the Secretary's site selection process under the NWPA—

his identification of ‘potentially acceptable sites” for the first

repository. The short time period Congress allotted the

Secretary for this step—a maximum of 180 days—was no ac-

cident. This brief period reflected the fact that prior to passage

of the NWPA, DOF had already identified seven potentially

acceptable sites in states other than Texas, and, in Texas, had

2. Site characterization is an involved process that involves not only the

sinking of shafts at the candidate sites, but also onsite testing with radioac-

tive material. See § 113, 42 U.S.C. § 10133.

A-4

substantially completed identification of two sites. This site

screening work had been under way for a number of years prior

to passage of the NWPA, and the Act used that work as a

springboard into the site nomination process.

Because the sites in states other than Texas had already been

identified, the Secretary was able to issue on time the notifica-

tions to those states required by section 116. The screening

process for the Texas sites was not yet complete when the 180

day period expired, however; thus, the notification given to

Texas in February 1983 was that there were “two locations”

in the Palo Duro Basin of the Texas Panhandle that the

Secretary believed contained ‘‘one or more potentially accep-

table sites.”” The areas of the Panhandle that were being

evaluated covered hundreds of square miles and could not readi-

ly be compared to the potential sites identified in other states,

which were each roughly ten square miles in area. Such com-

parisons were to be determinative of the Secretary’s decision

on which potentially acceptable sites to nominate under sec-

tion 112 as suitable for site characterization; accordingly, the

Secretary continued screening the potential sites in Texas.

By February 1984 the Secretary had tentatively identified

two nine-square-mile sites in the Palo Duro Basin, and publish-

ed his conclusions in the form of a draft report in March 1984.

Texas and some of the individual petitioners commented on

this draft, with the result that the Secretary shifted the loca-

tion of the sites by about two miles in each case. In November

1984 the Secretary issued a report entitled Identification of

Sites Within the Palo Duro Basin that notified Texas of the

finalized location of the potentially acceptable sites in the

Panhandle. It is this action—the Secretary ’s completion of the

site screening process in Texas—that the State invites us to

review.

II

Texas contends that section 119(a)(1)(A) of the NWPA, 42

U.S.C. 10139(a)(1)(A), which gives the courts of appeal jurisdic-

tion to review “‘any final decision or action of the Secretary,”’

provides a basis for the review it seeks. The State points out

that the Secretary’s site screening process in Texas is

A-5

complete—i.e. he has chosen two nine mile sites in Texas as

potentially acceptable for repositories under the NWPA from

among the hundreds of square miles in the Panhandle previous-

ly under his consideration. Therefore, the State argues, this

action is reviewable under the plain terms of section 119(a)(1)(A).

The Secretary agrees that the two areas designated in his

November 1984 report are the only Texas sites that will

possibly be nominated by him for the first repository; indeed

he acknowledges that the screening of the large areas first iden-

tified in Texas, so as to narrow the location of potential sites

to a size comparable to sites in other states, was necessary if

any sites in Texas were to be nominated as suitable for site

characterization under section 112(b)(1)(A). But the Secretary

vigorously disputes Texas’ conclusion that his actions are

“final’’ within the meaning of section 119(a)(1)(A). He explains

that his selection of these two particular sites from among

others in the Panhandle as acceptable for further evaluation

is only a preliminary but necessary step in the nomination pro-

cess. Until he makes his nominations under section 112, the

Secretary argues, the suitability of potential sites is a matter

for his discretion. Once nomination occurs and environmental

assessments are prepared for the selected sites, judicial review,

as well as other public and governmental scrutiny of the siting

decisions, is expressly provided for by the NWPA. This

statutory scheme, the Secretary contends, demonstrates that

the preliminary siting choices challenged here should not be

considered “‘final’’ for purposes of judicial review under sec-

tion 119(a)(1).

We think the Secretary’s point is well taken. Courts inter-

pret ‘‘finality,’’ as that concept is used in the Administrative

Procedure Act, in a “‘pragmatic way,’’ Pennzoil Co. v. FERC,

645 F.2d 394, 399 (5th Cir. 1981), and that approach is ap-

propriate here as well. Despite the seeming “‘finality’’ of the

Secretary’s decision to narrow the proposed repository sites

in Texas to two areas of a size suitable for site caaracteriza-

tion, when viewed in the context of the statutory scheme of

the NWPA, the action is not final for purposes of our review.

As the Secretary explains in his motion to dismiss:

Section 112 was carefully designed by Congress to lead

to the Secretary's nomination of five sites suitable for site

characterization, and the subsequent recommendation to

the President of three sites for actual characterization as

candidate sites. Congress determined the level of en-

vironmental review necessary at these stages by providing

that “{elach nomination of a site under this subsection shall

be accompanied by an environmental assessment,’ 42

U.S.C. 10132(b)(1(E), and then providing that the en-

vironmental assessments would be “‘final agency action”’

subject to judicial review within the mening of Section

119 and the APA. 42 U.S.C. 10132(b)(1)(F).

The Secretary contends that implicit in Congress’ provision

for such review is a determination that activities leading up

to that point are neither final nor reviewable. While we are

aware that a statute’s express provision for review of certain

agency actions does not necessarily negate the availability of

review for other acts, see Abbott Laboratories v. Gardner, 387

U.S. 136, 141 (1967), the provision for review of environmen-

tal assessments does give us pause.

If the merits of the Secretary’s decision on the Texas sites

will be comprehensively evaluated in the environmental

assessments should he determine that either or both sites are

suitable for sive characterization and nominate them under sec-

tion 112(b)(1), and if the environmental assessments are

themselves subject to judicial review, we see little point in

reviewing his preliminary sting decisions now. The time frame

within which these decisions are being made highlights our con-

cern: the Secretary is presently trying to determine which of

the sites that have been screened in a number of states are

suitable for nomination under section 112(b)(1). Should he decide

not to nominate either Texas site our review would have serv-

ed little purpose, and if either is nominated, review will swift-

ly follow. We limit judicial review to ‘‘final’’ actions in an ef-

fort to avoid needless interruption of the administrative pro- ;

cess. Were we to interpret ‘‘finality’’ here so generously as :

Texas suggests, the only certain result would be a waste of both

A-7

judicial resources and the time of all concerned. Surely such

was not the intent of Congress in section 119(a)(1)(A).

-2-

Texas argues, however, that delay of review is not all that

it seeks to avoid by petitioning at this juncture. At least part

of the review it seeks here, the State suggests, would not be

possible upon later review of the environmental assessments.

Specifically, Texas contends that the Secretary should have

screened the Texas sites under the guidelines he was required

to promulgate under section 112(a) of the NWPA, and that

because the issuance of those guidelines did not precede the

screening process in Texas, the Secretary’s selections cannot

stand. This procedural attack on the Secretary’s screening pro-

cess cannot ke made upon review of the environmental

assessments,’ and if we deny review now, Texas argues, the

point will be irretrievably lost.

We are not persuaded. The guidelines that Texas contends

restricted the Secretary’s choices in site screening for the first

repository simply have no application to that process. None

of the sites selected in other states were chosen against the

backdrop of such guidelines, and the happenstance that site

selections in Texas were not complete when the NWPA took

effect does not entitle Texas to different treatment. Indeed the

short time limits imposed on the Secretary for notifying states

with potentially acceptable sites and for identifying sites within

the states suggest that this process was one subject to the agen-

cy’s broad discretion. As described above, the deadlines for pro-

mulgating the section 112(a) guidelines and the deadline for

making the section 116(a) site notifications were one and the

same; with the time frame so arranged, it is difficult to imagine

that Congress intended these guidelines to govern the initial

site screening process. That the Secretary was unable to meet

either deadline does not alter the degree of discretion given

3. Section 112(b)(1XF) limits judicial review of the environmental

assessments to the factors enumerated in § 112(b)(1E)i){vi). Although these

factors permit review of the environmental assessment on all pertinent issues,

the procedural formalities which attend the preliminary site screening pro-

cess are not amony them.

A-8

him for this particular decision.‘ Since the section 112(a)

guidelines were inapplicable to the decision that Texas

challenges here, even if we decline the State’s invitation for

review now, we will not preclude any attack on the Secretary’s

decision that will not be available upon later review.

Ill

Even assuming that the Secretary’s preliminary siting deci-

sions challenged here are ‘‘final’’ within the meaning of sec-

tion 119(a)(1)(A), that action is nevertheless not “‘ripe”’ for our

review. We have long imposed a ripeness requirement even

where the statute authorizing our review did not do so, see,

e.g., Pennzoil Co. v. FERC, 742 F.2d 242, 244 (5th Cir. 1984),

and such a requirement is appropriate here.

The doctrine of ripeness, first announced by the Court’s deci-

sion in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967),

requires us to evaluate both “‘the fitness of the issues for judicial

decision and the hardship to the parties of withholding court

consideration.” Jd. at 149. Four factors are relevant: (1) whether

the issues presented are purely legal; (2) whether the challenged

agency action constitutes ‘final agency action’’ within the

meaning of the APA; (3) whether the challenged action has or

will have a direct and immediate impact on the petitioner; and

(4) whether resolution of the issues will foster, rather than im-

pede, effective enforcement and administration by the agen-

cy. Id. at 149-54; Pennzoil, 742 F.2d at 244. Assuming for the

sake of argument that the challenged action is “‘final,’’ none

of the other criteria necessary for ripeness are met here.

,

First, the issues before us are not purely legal. Texas sug-

gests that this requirement is met because the factual record

supporting the Secretary’s action is complete, see, e.g.,

Mississippi Valley Gas Co. v. FERC, 659 F.2d 488, 498 (5th

4. The Secretary does not dispute that he issued neither the § 112(a)

guidelines nor his final decision on the Texas sites within 180 days of January

7, 1983. As explained above, however, the Secretary did notify Texas within

this time limit that there were one or more potentially acceptable sites within

the large area-of the Panhandle he was then evaluating.

A-9

Cir. 1981), but we think that this factor entails something more.

It expresses the reviewing court’s need for a completed and

specific framework within which the agency’s decision can pro-

perly be evaluated, and such a framework is absent here. Other-

wise stated, judicial review of the Secretary’s site screening

process will be more meaningful if we require Texas to wait

until environmental assessments are prepared. Such documents

and the framework they provide for our review, see §

112(b)(1(E), 42 U.S.C. § 10132(b)(1)(E); supra n.3, make our task

more manageable and permit both us and the parties to focus

on the concerns in repository site selection that Congress deem-

ed important. Were we to attempt to review the Secretary's

decision at this point, we would have little or no source of

guidance for our decision. We eschew such judicial dead-

reckoning where we can avoid it.

-2-

Nor do we think the Secretary’s decision here has the re-

quisite direct and immediate impact on the petitioners. Texas

and its interested citizens can attack the Secretary’s decision

now by bringing complaints directly to him through the public

hearing process of section 112(b)(2).° That section requires the

Secretary to hold public hearings in the vicinity of any site that

is subject to nomination under section 112(b)(1)(A), so that the

public may voice their concerns about the choice. If the chosen

sites are in fact unsuitable for characterization and ultimate

development as repositories, Texas and the affected citizens

may yet convince the Secretary that this is so before he decides

which sites to nominate. At the least, the public can use the

hearings to apprise him of particular issues they wish to see

addressed in the environmental assessments if the proposed

5. Section 112(b)(2) provides:

Before nominating any site the Secretary shall hold public hear-

ings in the vicinity of such site to inform the residents of the

area in which such site is locatcd of the proposed nomination of

such site and to receive their comments. At such hearings, the

Secretary shall also solicit and receive any recommendations of

such residents with respect to issues that should be addressed

in the environmental assessment described in paragraph (1) and

the site characterization plan described in section 10133(b)(1) of

this title.

A-10

sites are nominated.® The hardship that participation in this

ongoing process may impose on Texas and its citizens is not

sufficient to meet the requirement that they sustain a “direct

and immediate impact”’ from the Secretary’s action. See F.T.C.

v. Standard Oil Co., 449 U.S. 232, 244 (1980).’

-3-

Moreover, judicial review at this juncture would likely in-

terfere with the administrative process underway with respect

to the Texas sites at issue. If we allow Texas to bring its case

before us now, we encourage it to forego its opportunities before

the Secretary described above. If we deny the review requested

here as premature, however, we further Congress’ intent that

the public hearing and comment forum, rather than the courts,

be the focus of review at this point in the site selection process.

Relatedly, the environmental assessment process is not the

only means of review of the Secretary’s siting decision. The

statute contemplates repeated review of the Secretary's action

by the President, see § 112(c), 42 U.S.C. § 10132(c), the Con-

gress, see §§ 114(a)(2)(A), 115, 42 U.S.C. §§ 10134(a)(2)(A), 10135

and the states, see § 116(b), 42 U.S.C. § 10136(b). We recognize

that this step by step review process of the NWPA is inten-

tionally revetitive and designed to assure that no site be chosen

that is not safe for use as a repository, but in the face of so

many planred opportunities for review, we are reluctant to im-

ply more from the general language of section 119(a)(1)(A).

The review procedures expressly provided were carefully

planned with the statutory time frame in mind so that the

ultimate goal of the NWPA, a working repository by the year

6. Should the Secretary nominate either site and fail to address the con-

cerns raised in the hearings, his environmental assessment may be attacked

as deficient on that ground when it is reviewed under section 119(a)(1)(E).

7. The private petitioners also complain that they are suffering from the

effect of the Secretary's decision now because, for example, land values in

the designated areas have fallen due to their designation by the Secretary

as ‘‘potentially acceptable sites” for the first repository. This circumstance,

however, may be only temporary, because the Secretary has not yet decid-

ed which sites to nominate under Section 112. Only after nomination will

the effects of the Secretary's decision be permanent, and at that point the

NWPA expressly authorizes our review.

A-11

1998, could be achieved. Unnecessary judicial review will un-

doubtedly impede the Secretary's ability to meet that goal.

IV

In sum, we conclude that the Secretary’s preliminary siting

decisions challenged here by Texas and the private petitioners

are not “final actions’’ which are ripe for our review. When con-

sidered in the context of the statutory scheme of the NWPA,

these decisions are but a preliminary step to actions that will

later be reviewable by this court. Review at this point would

entail a waste of judicial and administrative resources, would

be difficult to conduct in any event for lack of a meaningful

framework within which such review may go forward, and

would detract from the public review process currently in pro-

gress. All these considerations suggest that the Secretary’s

siting decisions challenged here are neither “‘final’’ nor “‘ripe”’

for judicial review. Accordingly, we grant the Secretary ’s mo-

tion to dismiss.

APPENDIX B

B-1

IN THE UNIYED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-4826

STATE OF TEXAS, DELBERT L. DEVIN, ET AL..,

Petitioners,

versus

UNITED STATES DEPARTMENT OF ENERGY and

DONALD PAUL HODEL, Secretary, United States

Department of Energy,

Respondents.

Petitions for Review of an Order of the

Department of Energy

ON PETITIONS FOR REHEARING AND SUGGESTIONS

FOR REHEARING EN BANC

(Opinion June 19, 5 Cir., 1985, F.2d_ )

(July 31, 1985)

Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit

Judges.

PER CURIAM:

( X ) The Petitions for Rehearing are DENIED and no

member of this panel nor Judge in regular active service on

the Court having requested that the Court be polled on rehear-

ing en banc, (Federal Rules of Appellate Procedure and Local

Rule 35) the Suggestions for Rehearing En Banc are DENIED.

B-2

( ) The Petitions for Rehearing are DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it, (Federal Rules

of Appellate Procedure and Local Rule 35) the Suggestions for

Rehearing En Banc are also DENIED.

( ) Amember of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a ma-

jority of the judges in active service not having voted in favor

of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Patrick E. Higginbotham

United States Circuit Judge REHG-7