Amicus Brief — Tennessee v. Herrington

Supreme Court, U.S.

EILED

( 3 MAR 4 1987

\, SPANIOL, JR.

No. 86-1280 ox 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

STATE OF TENNESSEE,

Petitioner,

VS.

JOHN HERRINGTON, Secretary of the

United States Department of Energy,

Respondent.

On Petition For Writ Of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

BRIEF OF AMICUS CURIAE

Americans for Clean Energy, Environmental Policy Institute,

Natural Resources Defense Council, Natural Rights Center,

New England Coalition on Nuclear Pollution, The Sierra Club,

Tennessee Environmental Council, Tennessee Nuclear Waste

Task Force, and Tennessee Valley Energy Coalition

ALBERT K. BATES

The Natural Rights Center

156 Drakes Lane

Summertown, TN 38483-0090

(615) 964-2334

Attorney for Amici Curiae

TABLE OF CONTENTS

Questions Presented ii

Introduction 1

Interest of Amici 2

Reasons for Granting the Writ 3

This Case Presents A Significant

Misconstruction Of The Nuclear Waste Policy

Act Which, If Sustained, Will Impose, In

Direct Contravention Of The Will Of

Congress, Far-Reaching Limitations Upon

The Rights Of States And Affected Localities

To Have Fair And Meaningful Participation In

Decisions Affecting Local Public Health And

Safety. 3

Conclusion 6

Appendix: Statutes In Issue

Certificate of Service

TABLE OF CITATIONS

Cases:

Tennessee v. Herrington,

806 F.2d 642, 653 (6th Cir.1986) 4,6

Statutes:

The Nuclear Waste Policy Act of 1982 passim

42 U.S.C.§ 10137 2

42 U.S.C.§ 10161(h) 4

Other Authorities:

H.R. Rep. No. 491, 91st Cong. 1st Sess.

1982 U.S. Code Cong. & Ad. News 3792 4

ey

QUESTIONS PRESENTED

1. Did the United States artment of Energy (DOE)

violate the rights of the State of Tennessee under the Nuclear

Waste Policy Act of 1982 (NWPA) in refusing to "consult and

cooperate” with Tennessee officials in determining the

suitability of sites in Tennessee for a (first-of-its-kind) facility

to process and store spent nuclear fuel generated by the

nation's civilian nuclear power plants?

2..When does the NWPA require DOE to "consult and

cooperate” with Tennessee officials in determining the

suitability of sites in Tennessee for a nuclear waste storage

facility?

(A) Does the NWPA require consultation and

cooperation with Tennessee when DOE evaluates the

suitability of areas in Tennessee for a nuclear waste

facility?

(B) Does the NWPA require consultation and

cooperation only upon completion of DOE's planning

process and after Congress authorizes site-specific,

design-specific plans to construct the facility in

Tennessee?

3. In light of the clear congressiona. mandate that DOE

engage in ‘meaningful" consultation and cooperation with

potential host states for proposed nuclear waste storage

facilities, did the Court of Appeals misapply Chevron, USA,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), by deferring to a DOE interpretation of the NWPA

that calls for consultation and cooperation with Tennessee only

after congressional authorization of DOE's proposed site-

ti design-specific plan to construct a facility in

ennessee?

4. Do the District Courts or the Courts of Appeals have

ee and exclusive jurisdiction over lawsuits arising out of

42 U.S.C. § 10161?

=

No. 86-1280

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

STATE OF TENNESSEE,

Petitioner,

VS.

JOHN HERRINGTON, Secretary of the

United States Department of Energy,

Respondent.

On Petition For Writ Of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

BRIEF OF AMICUS CURIAE

Amici environmental and public interest organizations,

Americans for Clean Energy, Environmental Policy Institute,

Natural Resources Defense Council, Natural Rights Center,

New England Coalition on Nuclear Pollution, The Sierra Club,

Tennessee Environmental Council, Tennessee Nuclear Waste

Task Force, and Tennessee Valley Energy Coalition,

respectfully urge that a Writ of Certiorari issue to review the

Judgment and Opinion of the United States Court of Appeals

for the Sixth Circuit entered in this proceeding on November

25, 1986. The issues presented on review are timely,

substantial and of great significance to the amici organizations

and to the parties and interests which they represent. Both

parties have consented to the entry of this Brief of Amicus

Curiae.

mS

INTEREST OF AMICI

Amici Curiae are nine independent, nonprofit, non-

governmental, membership organizations concerned with and

affected by national nuclear waste management issues.

Americans for Clean Energy is a regional environmental

organization concerned with the health and safety of the people

of Oak Ridge, Tennessee and its surrounding area. Americans

for Clean Energy has offices at Box 77, Kingston, TN, 37763.

The Environmental Policy Institute is a nonprofit public

interest organization engaged in research, public education,

litigation and lobbying. The Institute is actively involved in

formulating national and international nuclear waste policy.

Organizational headquarters are at 218 D Street SE,

Washington DC, 20003.

The Natural Resources Defense Council is a nonprofit

membership organization dedicated to protecting America's

natural resources and to improving the quality of the human

environment. The organization's headquarters are at 122 East

42nd Street, New York NY, 10168.

The Natural Rights Center is a regional, nonprofit, public

interest law project with offices at 156 Drakes Lane,

Summertown TN, 38483. The Center actively represents the

interests of its members in governmental actions having

significant transgenerational implications.

The New England Coalition on Nuclear Pollution is a

nonprofit membershi Xt tion with offices at Box 545,

Brattleboro, VT, 05301. e Coalition has actively pursued

safe and effective resolution of nuclear waste issues in

administrative and court proceedings for the past 20 years.

The Sierra Club is a nonprofit organization with 350,000

members dedicated to the preservation of the natural

environment. Principal offices are at 530 Bush Street, San

Francisco, CA 94108.

The Tennessee Environmental Council is a nonprofit

association of citizens and organizations dedicated to the

conservation of Tennessee's natural resources and protection

of the public health. Its 34 organizational members include

state and local chapters of the American Camping Association,

the American Lung Association, the Audubon Society, Church

Women United, the Izaak Walton League, the League of

Women Voters, Tennessee Conservation League, Tennessee

Forestry Association, Tennessee Recreation and Parks

-*.

Association, Tennessee Scenic Rivers Association, and the

Wildlife Society. Principal offices are at 1720 West End Ave,

Nashville TN, 37203.

The Tennessee Nuclear Waste Task Force is a coalition of

nine environmental groups in the Southeastern United States

having interest and expertise in the proposed transportation and

retreivable storage of nuclear waste. The Task Force has

offices at Route 6, Box 526, Crossville TN, 38555.

The Tennessee Valley Energy Coalition is a statewide

nonprofit environmental organization with headquarters at

1407 East Fifth Avenue, Knoxville TN, 37917.

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS A SIGNIFICANT MIS-

CONSTRUCTION OF THE NUCLEAR WASTE POLICY

ACT WHICH, IF SUSTAINED, WILL IMPOSE, IN DIRECT

CONTRAVENTION OF THE WILL OF CONGRESS, FAR-

REACHING LIMITATIONS UPON THE RIGHTS OF

STATES AND AFFECTED LOCALITIES TO HAVE FAIR

AND MEANINGFUL PARTICIPATION IN DECISIONS

AFFECTING LOCAL PUBLIC HEALTH AND SAFETY.

The Nuclear Waste Policy Act (NWPA) includes

provisions for State and Domestic Nation participation in the

development of monitored retrievable storage (MRS) facilities

for commercially generated nuclear waste. !

The intention of Congress was to insure that the

Department of Energy (DOE) consults and cooperates with

states in which there are potentially acceptable MRS sites, in

order to resolve all significant concerns regarding health,

safety, environmental, and economic impacts. Under the

1. 42 U.S.C.§ 10137 provides in relevant part:

(b) Consultation and cooperation

In performing any study of an area within a State for the purpose of

determining the suitability of such area... the Secretary shall consult

and cooperate with the Governor and legislature of such State... in an

effort to resolve the concerns of such State... regarding the public

health and safety, environmental and economic impacts of any such

repository.

ie

rovisions incorporated by 42 U.S.C. § 10161(h), the

De artment of Energy is required to notify an affected state

in 90 days of any study related to identification of a

potentially acceptable MRS site.?

Failure by DOE to recognize the NWPA process in its

extensive site screening and identification studies has

eliminated meaningful input by Tennessee during MRS site

selection. The district court found that DOE violated the

NWPA in refusing to permit state participation in the selection

of three candidate sites in Tennessee and enjoined DOE from

submitting its "fatally flawed" proposal to Congress. In a split

opinion, the Circuit Court adopted DOE's incredible

interpretation of the NWPA and ruled that DOE did not have to

consult and cooperate with Tennessee until after Congress had

authorized construction of the waste facility.

In her majority opinion, Judge Kennedy reviewed the

legislative history of the NWPA and concluded that Congress

had two main objectives in mind when creating the processes

- for siting nuclear waste dumps. The first was meaningful

participation by affected states and Native American nations in

order to preserve their rights to protect local health and safety.

The second objective was timely resolution of the nuclear

waste dilemma. In the majority's view, the second objective

was preeminent. Where a conflict between the two goals

arises, the balance must be struck on the side of speed.

Bets ge of the State's position would defeat the

second goal, though it would further the first. The

DOE's interpretation, on the other hand, would further

the second goal, while impeding the first. In such an

instance, we must adopt the DOE's position."

Tennessee v. Herrington, 806 F.2d 642, 653 (6th Cir.1986).

2. State participation was an important subject of debate in Congress during

the drafting and passage of the Act. The House Report concluded:

{P}jrior to such time as a site has been approved for licensing and

repository construction, states and tribes have rights to receive all

relevant information from investigations, to participate in planning of

environmental assessments and site characterization activities and to

make recommendations regarding other aspects of conduct of the

investigations which affect the social and economic well-being of

citizens of the state or tribe.

H.R. Rep. No. 491, 97th Cong., Ist Sess. 45, reprinted in 1982 US. Code

Cong. & Ad. News 3792, 3811.

= Be

In actuality, adoption of the State's position would only

hinder the second goal (by setting the program back a few

months while siting-studies were reviewed), while adoption of

the DOE's interpretation totally destroys the goal of meaningful

state ee mo (since the State will be allowed input only

after Congress has authorized both the site and the design for

the facility).

The whole idea of rushing to dispose of nuclear wastes,

which the Court of Appeals found to be of overriding

importance, is exceedingly unwise. The health hazard created

by the byproducts of the nuclear fuel cycle will linger for

hundreds of thousands of years, longer than any previous

artifact of civilization. Whether these wastes are emplaced this

year or next year is almost meaningless on that time scale. The

speed objective is mainly for the benefit of the utility

companies, which will have to spend less money storing these

wastes if DOE will take possession now instead of a year from

now.? From the standpoint of protecting the public health and

the public interest, undue speed is both unwise and

unnecessary. Democratic debate and the system of federalism

3. Commercial reactor fuel is currently changed about once every three

years, and the spent fuel is stored in cooling pools within each reactor's

containment dome. The fuel is not changed because it has lost its

potency. On the contrary, irradiation within the reactor for three years

increases the quantity of transuranic and other fissionable materials, like

plutonium, americium, curium, neptunium, and technitium, making the

fuel more radioactive, not less. It is removed because it is deemed to be

too volatile, too unstable, and too unpredictable to use after three years.

Entrapped within the spent fuel's cladding are a number of radioactive

gases like krypton, xenon, and radon. Normal stress on the fuel

assemblies creates small cracks in the fuel, so that some percent of these

gases and metals escape into the water coolant in the spent fuel pools.

Filtering of the water and containment air removes many of these

radioactive products. The remainder reach the environment surrounding

each nuciear plant and are taken up in the food chain where they

eventually cause a small but statistically certain amount of cancers, birth

defects and ill health in subjected populations. It is Secretary

Herrington's proposal to collect 70,000 of these spent fuel assemblies

(containing 15,000 metric tons of uranium fuel) at one storage facility in

Tennessee where they can be stored in dry casks in an open field until

such time as deep geological emplacement is prepared or the consensus,

technology and economic incentive exist to extract the plutonium and

uranium oxides to make fresh reactor fuel or nuclear warheads.

x

- 5 ae

may consume more time, but should, in the end, produce the

best result.

In his vigorous dissent, Judge Harry Wellford defended

the clear intention of Congress to provide ample state

articipation at every stage of the nuclear waste debate. He

ound his panel's interpretation of the NWPA to require

consultation with the state only after formal authorization of the

specific site and design was "unreasonable and unacceptable."

As Judge Wellford indicated, the issues in this case run to

the very heart of the nuclear waste debate. Will decisions

affecting the life or death of millions of people, some of whom

will not be born until 1,000 years from now, be decided by

democratic processes, or will they be decided by the DOE?

Judge Wellford wrote:

"The decision in this case not only resolves a serious

dispute for the State of Tennessee in its efforts to protect

its environment and citizens, but will have important

ramifications for the whole process of selecting nuclear

waste disposal sites in the United States. It represents the

first appellate consideration of a substantial portion of the

Nuclear Waste Policy Act."

Tennessee v. Herrington, 806 F.2d 642, at 655.

CONCLUSION

For the reasons set forth above, Amici support the

arguments of the State of Tennessee and respectfully request

that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Sixth

ircuit.

Respectfully Submitted,

ALBERT K. BATES

Attorney for Amici Curiae

The Natural Rights Center

156 Drakes Lane

Summertown TN 38483

(615) 964-2334

APPENDIX

STATUTES IN ISSUE

42 U.S.C. § 10161:

(h) Participation of States and Indian tribes.

Any facility authorized pursuant to this section shall be subject

to the provisions of sections 10135, 10136(a), 10136(b),

10136(d), 10137, and 10138 of this title. For purposes of

carrying out the provisions of this subsection, any reference in

sections 10135 a 10138 of this title to a repository shall

be considered to refer to a monitored retrievable storage

facility. (Pub. L. 97-425, Title I, $141; 96 Stat. 2241)

42 U.S.C. § 10137:

(a) Consultation with States and affected In:"‘an tribes.

(1) The Secretary, the Commission, and other agencies

involved in the construction, operation, or regulation of any

aspect of a repository ina State shall provide to the Governor

and legislature of such State, and to the governing body of any

affected Indian tribe, timely and complete information

regarding determinations or fer made with respect to the site

characterization, siting, development, design, licensing,

construction, operation, regulation, or decommissioning of

such repository.

(b) Consultation and cooperation.

In performing any study of an area within a State for the

purpose of determining the suitability of such area for a

repository pursuant to section 10132(c) of this title, and in

subsequently developing and loading any repository within

such State, the Secretary shall consult and cooperate with the

Governor and legislature of such State and the governing body

of any affected Indian tribe in an effort to resolve the concerns

of such State and any affected Indian tribe regarding the public

health and safety, environmental and economic impacts of any

such repository. In carrying out his duties under this part, the

Secretary shall take such concerns into account to the

maximum extent feasible and as specified in written

agreements entered into under subsection (c) of this section.

Vie es

Ste ee

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i:

CERTIFICATE OF SERVICE

I hereby certify that the requisite number of copies of the

foregoing Brief of Amicus Curiae have been forwarded to the

below listed counsel via first-class U.S. Mail, postage prepaid,

on this the Y44,, day of March, 1987:

Hon. Charles Fried

U, ad States Department of Justi

nit or Justice

Constitution Ave. & 10th Street N.W.

Washington D.C. 20530 -

Hon. W.J. Michael Cody

Attn: Frank J. Scanlon

Office of the Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219-5025

oer kK. Bates

ALBERT K. BATES

Attorney for Amici Curiae