Amicus Curiae Brief — Texas v. United States Department of Energy

Supreme Court, U.S

FILE®

NOV 12 1065

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N 85-662 “

ye:

Supreme Court of the United States

OcTOBER, 1985 TERM

STATE OF TEXAS,

Petitioner

a

UNITED STATES DEPARTMENT

OF ENERGY, ET AL.,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

|BEST AVAILABLE COPY

MOTION FOR LEAVE TO FILE

and

AMICI CURIAE BRIEF

Mary JoE CARROLL

P. O. Box 1148

Austin, Texas 78767

(512) 472-8800

Attorney for Texas Farm Bureau

and American Farm Bureau

Federation

A ALT MUNN. Nenana :

Alpha Law Brief Co., Inc—5606 Parkersburr—Houston, Texas 77036—223-3003 "

qq

NO. 85-662

IN THE

Supreme Court of the United States

OcTOBER, 1985 TERM

STATE OF TEXAS,

Petitioner

V.

UNITED STATES DEPARTMENT

OF ENERGY, ET AL.,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

To The Honorable Supreme Court of the United States:

The Texas Farm Bureau and the American Farm

Bureau Federation, under the authority of Rule 36.1 of

this Court, hereby move for leave to file the accompany-

ing Amici Curiae Brief in Support of the Petition for

Writ of Certiorari filed by the State of Texas and now

2

pending herein. As grounds for said motion, these agencies

would show the Court the following:

I.

The Texas Farm Bureau, which is a member of the

American Farm Bureau Federation, is a voluntary associ-

ation with 317,575 member families and affiliate organi-

zations in 217 Texas counties. The organization was

aware of this litigation from the time of the institution

of the suit and assumed that the Circuit Court would

enter a fair and equitable decision on the merits. The

Order of Dismissal was a disappointment, but much more

serious and alarming was the ambiguity of the Opinion

with regard to the appealability of actions or decisions of

the Secretary of Energy.

Il.

The American Farm Bureau Federation is a non-profit

corporation chartered in the State of Illinois. In addition

to Texas, the AFBF represents the interests of its member

state Farm Bureau organizations in 47 other states and

Puerto Rico. The AFBF represents 3,148,303 member

families through the state Farm Bureaus. The interest of

the AFBF in this case was prompted by the decision of

the Circuit Court which dismissed the appeal by adopting

contentions made by the Secretary of Energy that the

decisions in question were not “final” or not “ripe” for

judicial review without identifying any point in time at

which a determination by the Secretary of Energy, as

contrasted with an agency determination, becomes review-

able in the courts. The Opinion itself, therefore, converted

what might have been viewed as a local or state issue

into a question of nationwide importance.

3

Ii.

The Solicitor General has apparently attempted to

convince this Court that the case is of little or no im-

portance. The State of Texas has received a copy of the

waiver of response unless this Court directs that an answer

be filed to the State’s petition.

IV.

A challenge to adopted guidelines pending as Cause

No. 85-7128 in the Court of Appeals for the Ninth Cir-

cuit has been met with a Motion to Dismiss filed by the

Department of Energy. The motion is made on the same

contentions as those advanced against the State of Texas

and, if granted, will probably prompt the Solicitor Gen-

eral again to seek to avoid this Court’s review.

V.

These Movants are highly concerned with all pro-

cedures which indicate the motivation of the Department

of Energy to avoid judicial review at any stage or at least

to delay review until the process of waste disposal site

selection has advanced to such a point and resulted in

so great an expenditure of time and money that reversal

would be contrary to the public interest as a whole.

VI.

The Movants here are in complete accord with the

reasons for granting the writ urged in the petition filed

by the State of Texas but seek to supplement those

reasons and the arguments thereunder with others which

emphasize the importance of the case to every state in

the Union.

4

WHEREFORE, Movants pray for leave to file the

accompanying Amici Curiae Brief.

Respectfully submitted,

Mary Joe CARROLL

Attorney for Texas Farm Bureau

and American Farm Bureau

Federation

Of Counsel:

CLARK, THOMAS, WINTERS & NEWTON

P. O. Box 1148

Austin, Texas 78767

NO. 85-662

Supreme Court af the United States

OcTOBER, 1985 TERM

STATE OF TEXAS,

Petitioner

V.

UNITED STATES DEPARTMENT

OF ENERGY, ET AL.,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

AMICI CURIAE BRIEF

IN SUPPORT OF PETITION

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INDEX OF CONTENTS

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INDEX OF AUTHORITIES ..............cccceceee

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1

1

ARIE Wibs cb cc cas edwededeccsvccecccescccces 2

1. The case is an important one of first impression. 2

2. The question is one of extreme importance. ..... 3

3. Enormous amounts of money are involved. ...... 2

4

. Even an interlocutory order should be reviewed if

its effect is immediate. ............cccccccceess

5

CARN vc ccc ncend camer tSeccetecsvsccccesuees 5

PUES, Ass cccessvavensas Leak ecenaceseeseee wees ots 6

SIGNATURE OF COUNSEL ............ccceeeeeeees 6

PE GF Te www nici cnnccecsensaces scesess 7

I

INDEX OF AUTHORITIES

CASES

Alaska v. American Can Company, 358 U.S. 224 (1959)

American Federation of Musicians v. Wittstein, 379 U.S.

"ER RRRARREM ie nec

Davis v. Scherer, US. , 104 S. Ct. 3012 (1984)

Federal Power Commission v. Transcontinental Gas Pipe

Line Corporation, 423 U.S. 326 (1976) ..............

General Electric Uranium Management Corporation v.

United States Department of Energy, 584 F.Supp. 234

CR. TE eae saw ob ken Fic saeeaphetacbaneecises

Liberty Mutual Insurance Company v. Wetzel, 424 U‘S.

Se. CE De kd hw nen khb4CGaR 8 5RAS 00562e8066 00800

Nixon v. Fitzgerald, 457 U.S. 731 (1982) .............

Pacific Gas & Electric Company v. State Energy Resources

Conservation & Development Commission, US.

+ Cw we 8: Si eaeenE

Pate v. Robinson, 383 U.S. 375 (1966) ...............

Perry Educ. Association v. Perry Local Educators’ Associa-

ee i Oe SUED acs ea cerbe can sincascess.

United States v. Powell, 330 U.S. 238 (1947) ...........

United States v. Ruzicka, 329 U.S. 287 (1946) ........

United States v. Standard Oil of California, 332 U.S. 361

ERTE Gabe CARH GREK GASWOAS USS CRGKh S05 6054004000

United States v. Zazove, 334 U.S. 602 (1948) ..........

or wn

Beh

NO. 85-662

IN THE

Supreme Court of the United States

OcTOBER, 1985 TERM

STATE OF TEXAS,

Petitioner

Vv.

UNITED STATES DEPARTMENT

OF ENERGY, ET AL.,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

AMICI CURIAE BRIEF

IN SUPPORT OF PETITION

THE INTERESTS OF AMICI CURIAE

The Texas Farm Bureau and the American Farm

Bureau Federation do not seek to protect any state or

any area from or to advocate any site or sites for selec-

tion as a nuclear waste repository or repositories. Instead,

the reasons for supporting the petition are that these

2

organizations are concerned with the rights of all people

of this nation to strict enforcement of law and to statutory

construction in conformity with time-tested and proven

principles which preserve the rights guaranteed by the

Constitution.

Congress provided for judicial review of decisions and

actions of the Secretary of Energy in carrying out the

duties assigned to him under the Nuclear Waste Policy

Act of 1982, Pub. L. 97-425, 96 Stat. 2201, 42 U.S.C.

§§ 10121, et seq. The Department of Energy apparently

seeks to avoid or at least to delay judicial review until

such time as the right would become meaningless. Only

this Court can enforce the will of Congress and preserve

the constitutional rights of the states and of their in-

habitiants.

ARGUMENT

The reasons for granting the writ set forth in the peti-

tion of the State of Texas are adopted. Additional rea-

sons for granting the writ include the following:

1. The case is an important one of first impression.

This Court has considered the measure here involved,

the Nuclear Waste Policy Act of 1982, only in Pacific

Gas & Electric Company v. State Energy Resources

Conservation & Development Commission, U.S .

103 S. Ct. 1713 (1983). The basic issue there was pre-

emption. The question urged in the pending petition of

the State of Texas was in no way involved, but this

Court did in the reported case recognize that the measure

is “a complex bill” (103 S. Ct. 1730).

3

The only other reported case under the Act is General

Electric Uranium Management Corporation v. United

States Department of Energy, 584 F.Supp. 234 (D.C.

1984). There, the Department of Energy protested dis-

trict court jurisdiction over the waste fee authorized by

Section 302 of the Act, contending that exclusive juris-

diction was vested in the Courts of Appeal. The district

court, however, pointed out that Section 302 does not

fall within the same “part” of the Act as Section 119

and, therefore, that the attack made was within the general

jurisdiction of the District Court. The case is another

example of the Department’s efforts to avoid judicial re-

view.

A case of first impression on statutory construction

merits decision by this Court. American Federation of

Musicians v. Wittstein, 379 U.S. 171 (1964); Nixon v.

Fitzgerald, 457 U.S. 731 (1982).

2. The question is one of extreme importance.

The manner in which the Nuclear Waste Policy Act is

to be administered will be determined by this Court’s

action on the pending petition. That fact alone could well

prompt acceptance of jurisdiction. United States v.

Ruzicka, 329 U.S. 287 (1946).

No state has been categorically excluded from considera-

tion as a possible site of a nuclear waste repository. The

ultimate operation of the Act is a matter of nationwide

importance. The issues presented involve state-federal

relations and are, therefore, clearly appropriate for this

Court’s exercise of jurisdiction. Pate v. Robinson, 383

U.S. 375 (1966); Davis v. Scherer, U.S , 104

S. Ct. 3012 (1984).

4

An early and definitive ruling by this Court on the ¢ sn-

eral matter of appealability under the Act is highly desir-

able and could well avoid a multiplicity of appeals which

otherwise would be encouraged by the opinion below.

When concerned parties do not know at what stage in

the selection process a decision of the Secretary of Energy

becomes appealable, the normal tendency will be to ap-

peal from any order or decision, either because the

specific question has not been determined or because

there is alv..ys a possibility that one circuit court will

not follow a ruling made by another. United States v.

Powell, 330 U.S. 238 (1947); United States v. Standard

Oil of California, 332 U.S. 361 (1947); Perry Educ.

Association v. Perry Local Educators’ Association, 460

U.S. 37 (1983).

Questions of jurisdiction, either of this Court itself

or of the lower federal courts, are matters of importance

peculiarly within this Court's sphere of authority. Liberty

Mutual Insurance Company -v. Wetzel, 424 U.S. 737

(1976).

3. Enormous amounts of money are involved.

Every step in the site selection process requires great

expenditures of time and money. Judicial review at the

earliest possible appropriate time is clearly in the best

interest of the agency as well as of potentially affected

states, local areas and inhabitants. Fiscal importance is

a reason for granting writ of certiorari. Alaska v. Ameri-

can Can Company, 358 U.S. 224 (1959); United States

v. Zazove, 334 U.S. 602 (1948).

5

4. Even an interlocutory order should be reviewed

if its effect is immediate.

The parties here represented agree with the position

of the State of Texas that the decision in question was

reviewable under the specific provisions of the Act, but

even if they are mistaken in that regard, the exercise

of this Court’s © -cisdiction is clearly appropriate under

the rules set forth in Federal Power Commission v. Trans-

continental Gas Pipe Line Corporation, 423 U.S. 326

(1976).

CONCLUSION

For all of the reasons set icrth above as well as those

presented in the petition of the State of Texas, this Court

should accept jurisdiction.

Denial of certiorari under the circumstances of this

case would create rather than solve problems for the

states and for the residents of all areas subject to con-

sideration as nuclear waste repository sites. Even though

it apparently seeks to avoid judicial review, even the

Department of Energy will be benefited by a specific

ruling by this Court. The Solicitor General should be

required to respond to the petition unless this Court

sees fit to note probable jurisdiction without the filing

of any response on behalf of the Department of Energy.

6

PRAYER

WHEREFORE, PREMISES CONSIDERED, Amici

Curiae join the State of Texas in urging that the Petition

for Writ of Certiorari be granted.

Respectfully submitted,

Mary JoE CARROLL

Attorney for Texas Farm Bureau

and American Farm Bureau

Federation

Of Counsel:

CLARK, THOMAS, WINTERS & NEWTON

P. O. Box 1148

Austin, Texas 78767

7

PROOF OF SERVICE

I, Mary Joe Carroll, Attorney for Texas Farm Bureau

and American Farm Bureau Federation, Amici Curiae

herein, and a member of the Bar of the Supreme Court

of the United States, hereby certify that on the

day of November, 1985, I served copies of the foregoing

Amici Curiae Brief in Support of Petition on the parties

hereto, said copies being mailed to:

Mr. Renea Hicks

Assistant Attorney General

P. O. Box 12548, Capitol Station

Austin, Texas 78711

representing the State of Texas

Ms. Alice G. Hector

Hector & Associates, P.A.

820 Second Street, N.W.

Albuquerque, New Mexico 87102

The Solicitor General

Department of Justice

Washington, D.C. 20530

Mr. John A. Bryson

Appellate Section

Land and Natural Resources Division

United States Department of Justice

Washington, D.C. 20530

Attorneys for Respondents

Mary Joe CARROLL