Amicus Curiae Brief — Tennessee v. Herrington

ee )

Supreme Court, U.S,

EILED

;

NO. 86-1280 ‘ )

PH F. SPANIOL, JR.

Supreme Court of the Unite

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 FOR

THE STATES OF NORTH CAROLINA, KENTUCKY,

MISSISSIPPI, OHIO AND WEST VIRGINIA,

AMICI CURIAE, IN SUPPORT OF THE STATE OF

TENNESSEE’S PETITION FOR WRIT OF CERTIORARI

Lacy H. Thornburg

Attorney General of North Carolina

H. Al Cole

Senior Deputy Attorney General

Daniel C. Oakley

Special Deputy Attorney General

Counsel for Amici

ALPHA Grapuics, INC. e WASHINGTON, D.C. e (202) 331 8101

LIST OF AMICI STATES

STATE OF KENTUCKY :

Honorable David L. Armstrong 3

Attorney General i

STATE OF MISSISSIPPI

Honorable Edwin Lloyd Pittman,

Attorney General

Sidney J. Martin,

Deputy Attorney General

Lisa A. Spruill,

Special Assistant Attorney General

STATE OF NORTH CAROLINA

Honorable Lacy H. Thornburg,

Attorney General

H. Al Cole,

Senior Deputy Attorney General

Daniel C. Oakley,

Special Deputy Attorney General

STATE OF OHIO

Honorable Anthony J. Celebrezze, Jr.,

\ttorney General

Sharon L. Sigler,

Assistant Attorney General

STATE OF WEST VIRGINIA

Honorable Charlie Brown,

Attorney General

QUESTIONS PRESENTED

1. Did the United States Department 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 de-

termining 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

storage facility?

(B) Or 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 congressional 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-specific, design-specific plan to construct a facility in

Tennessee?

il

TABLE OF CONTENTS

pyc OR ee wish 6 ys ere err lii

UTE s SAP ADELE SEATS. 06 ccc ceecenensa as 1

ARGUMENT:

THE DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS CONTRAVENES THE

CONGRESSIONAL INTENT OF THE

NUCLEAR WASTE POLICY ACT FOR

BROAD AND MEANINGFUL STATE

PARTICIPATION IN NUCLEAR WASTE

FACILITY SITING PROCESSES AND

ee 8 8 ner eee ee 3

SUMMARY OF ARGUMENT ...... rr ree ene wrt 7

CEP EINES 0 pcan a kee these a deWee wes ee ee eee 8

gy we ee ee rr rs 9

iii

TABLE OF AUTHORITIES

PAGE

CASES CITED

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ........... a>G7

Tennessee v. Herrington, 626 F.Supp. 1345

ee WU Soo kasi eoeecae se ore 6

Tennessee v. Herrington, 806 F.2d 642

Se SN Ns aie Pha ras hes cas thn cdiwitoeees 3

STATUTES CITED

42 U.S.C. § 7401, et seq (1977)..... 00 cece. 6

42 U.S.C. § 10101, et seq (1982).........000 0.0.00, 1

OZ U.S.C. § 10152... ceccccccccvccscevceccccuses 2

42 U.S.C. § 10132 (b) (1) (A) ..... 0. eee eee, 2

42 U.S.C. § 10136(a) ....... 0... eee, 2

42 U.S.C. § 10137(b)... 2. eee eee 3, 5

42 U.S.C. § 10161....... cece eee eee 5

42 U.S.C. § 10161(h).... een, 5, 6

MISCELLANEOUS

Cong. Rec. S. 15642 (December 20, 1982) ........... 5

H.R. Rep. No. 491, Part 1, 97th Cong., 2d Sess.

26, reprinted in 1982 U.S. Code Cong. & Ad.

PO ic hoe ces Se esunssneednecencesvcces 4

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 FOR

THE STATES OF NORTH CAROLINA, KENTUCKY,

MISSISSIPPI, OHIO AND WEST VIRGINIA,

AMICI CURIAE, IN SUPPORT OF THE STATE OF

TENNESSEE’S PETITION FOR WRIT OF CERTIORARI

INTEREST OF AMICI STATES

The amici states, North Carolina, Kentucky, Mississippi,

Ohio and West Virginia are interested in the review of this

matter by the United States Supreme Court for several

reasons. The Nuclear Waste Policy Act, 42 U.S.C. §§ 10101,

et seq (1982) (NWPA, provides for a comprehensive

approach to the management and storage of spent nuclear

fuel and high-level radioactive waste in this country, and

establishes as one of its focal themes a joint federal/state

cooperative system. The individual amici states may be-

come integral players in that system, but additionally may

experience direct effects from the transportation of wastes

to and from the Monitored Retrievable Storage (MRS)

facility, which is the subject of this matter. The amici states

believe that the actions of the Department of Energy

(DOE) with regard to determining the appropriateness of a

MRS facility in our sister state of Tennessee are not in

compliance with the spirit and letter of the NWPA, but

equally as important to the amici, bode ominously for the

future relationship between the states and DOE.’ The

instant case represents the first opportunity for the United

States Supreme Court to interpret this important Act, and

provides an excellent opportunity for the national

ramifications of a narrowly-construed DOE policy of

“consultation and cooperation” to be reviewed.

The amici states vigorously support the Petition for Writ

of Certiorari of the State of Tennessee, and request this

Court to exercise its judicial discretion to consider this

matter, which involves an issue of obvious importance to

the states and the citizens of the nation. The United States

Supreme Court review of the interpretation of the NWPA

made below is of vital interest to the amici states.

‘The State of North Carolina is concerned about this future

relationship between the states and DOE since it had two sites under

consideration by DOE for possible development of a second re-

pository under 42 U.S.C. § 10132, prior to suspension of that process.

The State of Mississippi is equally concerned because the DOE is

analyzing two sites within her borders for a nuclear waste repository.

One Mississippi sitm has been designated as a “potentially acceptable

site” [42 U.S.C. § 10136(a)] and nominated for site characterization by

the Secretary of Energy [42 U.S.C. § 10132(b) (1) (A)], and the other

site is under consideration for the second repository. The citizens of

these States fully expect meaningful “consultation and cooperation.”

ARGUMENT

THE DECISION OF THE SIXTH CIRCUIT COURT

OF APPEALS CONTRAVENES THE CONGRESSIONAL

INTENT OF THE NUCLEAR WASTE POLICY ACT

FOR BROAD AND MEANINGFUL STATE

PARTICIPATION IN NUCLEAR WASTE FACILITY

SITING PROCESSES AND DETERMINATIONS.

The State of Tennessee has brought forward its Petition

for Writ of Certiorari for two reasons, with which the amici

states are in complete agreement. The decision below,

Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986), (1)

erroneously determines key provisions of the NWPA

relating to the consultation and cooperation between the

states and DOE in sucha manner that the underpinnings of

the contemplated cooperative m -chanism may be seri-

ously eroded, and, (2) erroneously applies the principles

of Chevron, ULS.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), to frustrate the Congressional

intent of NWPA for full state participation.

The NWPA provisions relating to full and meaningful

state participation in nuclear waste decision-making are

clear, and are of vital importance to the continued viability

of the Act and public acceptance of the determinations

made thereunder. 42 U.S.C. § 10137(b) provides as

follows:

In performing any study of an area within a

State for the purpose of determining the suit-

ability 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 co-

operate with the Governor and legislature of

such State and the governing body of any af-

fected 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.

The crucial importance of this process to the entire

decision-making matrix for nuclear waste management

and storage cannot be understated. Reference to the

Legislative History of the Act will bear this out.

H.R. 3809 as amended by the Committee pro-

vides for states or tribes which are “hosts” to sites

ied for repositories . . . clear rights and

procedures for participation in decisions effect-

ing the sites. ...

... Although the Department [of Energy] will

have fundamental responsibilities under the

Committee amendment to meet schedules, fully

explore sites and develop timely and appropriate

information for regulatory proceedings, its re-

sponsibilty to respond to and implement all

reasonable suggestions of a state or tribe is also

considered essential to the orderly implementa-

tion of the repository program.

... The state or tribe on whose territory a site is

located is considered to be the primary govern-

mental participant in the repository program.

H.R. Rep. No. 491, Part 1, 97th Cong., 2d Sess. 26,

reprinted in 1982 U.S. Code Cong. & Ad. News

3792, 3811-12.

x~o

In the instant case, the sections of NWPA involving the

MRS facility, 42 U.S.C. § 10161, should not be read with a

blind eye to the remainder of the Act. 42 U.S.C. § 10161(h)

incorporates by reference the “consultation and coopera-

tion” provisions of the Act, making them specifically

applicable to the MRS siting process. 42 U.S.C. § 10161(h)

provides as follows:

Any facilities authorized pursuant to this sec-

tion 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 through 10138 of this title to a

repository shall be considered to refer to a

monitored retrievable storage facility.

In the opinion of the Sixth Circuit Court of Appeals, the

key word “authorized” is interpreted narrowly to defeat

the utilization of the very procedures the section is

designed to incorporate. 42 U.S.C. § 10137(b) clearly

requires consultation and cooperation as a part of any DOE

study within a State. To interpret “authorized” in such a

manner as to prevent that occurrence is not a required

construction of the Act, and leads to the anomalous result

facing Tennessee at present. The proposal of the DOE

regarding the MRS facility, which triggered the instant

litigation, is a fait accompli without Tennessee participation.

Tennessee has correctly pointed out that its input may bea

virtual nullity once Congressional authorization is ob-

tained. The District Court’s determination that

2 As the State of Tennessee noted in its Petition, Senator McClure

commented on the addition of 42 U.S.C. § 10161 (h) to the Act, directly,

as follows: “Full state participation is provided for the MRS program in

exactly the same way as it is provided in the case of repository sites.”

Cong. Rec. S. 15642 (December 20, 1982).

the term ‘authorized’ in Section 141(h) must

assume the meaning advanced by the State

referring to a facility ‘generally contemplated for

study and development by the Secretary and

presentation to Congress’... . Tennessee v. Herring-

ton, 626 F.Supp. 1345, 1359 (M.D. Tenn., 1986),

is clearly the more appropriate resolution of any ambiguity

in the meaning of “authorized.” Neither DOE nor the

majority opinion of the Sixth Circuit Court of Appeals

made an attempt to read 42 U.S.C. § 10161(h) contextually

with the remainder of the NWPA. This failure greatly

concerns the amici states, which must now suspect that

DOE will take the opportunity to narrowly interpret key

provisions of the Act to the detriment of full State

participation. This occurrence is even more likely if the

opinion of the Sixth Circuit regarding the applicability of a

Chevron, supra, analysis to the DOE’s construction of

NWPA is allowed to stand.

The amici states strenuously assert that the Circuit Court

misapplied the principle of statutory construction as set

forth in Chevron, supra. That case involved a review of

EPA’s air quality regulations regarding the use of the

“bubble” concept around a polluting industry. The Court

found that there was neither statutory language nor

specific legislative intent to define the term “stationary

source” as used in the Clear Air Act Amendments of 1977,

42 U.S.C. § 7401, et seq (1977); and that the use of the

“bubble concept” was a reasonable policy choice for the

agency to make, and was entitled to deference.

The instant case can be distinguished from Chevron.

First, even though the NWPA is arguably ambiguous

regarding the timing of MRS consultation and coopera-

tion, the Congressional intent through the legislative

history is evident. State participation throughout the

process is firmly established. In Chevron, Congress did not

squarely address the definition of “stationary source” in

either the statute or in the legislative history, but left that

issue and other policy decisions to EPA.

Secondly, EPA’s interpretation in Chevron came after the

process of promulgating regulations (with notice and

hearing), as opposed to DOE’s unilateral decision not to

consult and cooperate with Tennessee during the site

screening and technology selection process. DOE's posi-

tion appears to be a post hoc rationalization in response to

a law suit rather than a policy considered and promulgated

through “informed rulemaking.”

The statute requires DOE to consult and cooperate with

Tennessee (and other states, if under study for a MRS or

repository pursuant to the NWPA). The Congressional

intent provides that states should participate. The Chevron

case was misapplied below, as there is a substantial

difference between an agency policy developed through

rulemaking and one developed to rationalize neglect of

statutory responsibility. |

SUMMARY OF ARGUMENT

The amici states support the granting of the State of

Tennessee’s Petition for Writ of Certiorari. This matter

should be heard because of the significant questions

brought forward concerning the Nuclear Waste Policy Act,

an Act of extreme national importance. The interpretations

of the Act at issue should be settled by this Court. The

decision below renders meaningless a vital component of

the Act’s delicate mechanism for assuring that sound

policy determinations are made--that of a full “consulta-

tion and cooperation” process between affected states and

the Department of Energy. Further, the decision errone-

ously allows deference to the Department of Energy’s

construction of the Act in a situation entirely divorced

from more accepted notions of agency expertise.

CONCLUSION

For the reasons set forth above, the amici states, North

Carolina, Kentucky, Mississippi, Ohio and West Virginia,

respectfully request, in support of the State of Tennessee,

that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Sixth

Circuit, decided and filed November 25, 1986.

Respectfully submitted this the 7th day of March, 1987.

LACY H. THORNBURG

Attorney General

H. Al Cole

Senior Deputy Attorney General

Daniel C. Oakley oe)

Special Deputy Attorney General

N. C. Department of Justice

P. O. Box 629

Raleigh, North Carolina 27602-0629

919/733-5725

a RT

CERTIFICATE OF SERVICE

This is to certify that I have this day served the requisite

number of copies of the foregoing BRIEF FOR THE

STATES OF NORTH CAROLINA, KENTUCKY, MISSIS-

SIPPI, OHIO AND WEST VIRGINIA, AMICI CURIAE, IN

SUPPORT OF THE STATE OF TENNESSEE'S PETITION

FOR WRIT OF CERTIORARI on the attorneys of record by

depositing a copy in the United States Mail, postage

prepaid, addressed as follows:

Mr. Frank J. Scanlon

Deputy Attorney General

State of Tennessee

450 James Robertson Parkway

Nashville, Tennessee 37219-5025

Honorable John S. Herrington

Secretary of the U.S. Department of Energy

James Forrestal Building

1000 Independence Avenue, S.W.

Washington, D.C. 20585

Honorable Charles Fried

Solicitor General

United States Department of Justice

Constitution Avenue & 10th Street

Washington, D.C. 20530

This the 7th day of March, 1987.

LACY H. THORNBURG

Attorney General

Daniel C. Oakley

Special Deputy Attorney General

P. O. Box 629

Raleigh, N.C. 27602-0629

919/733-5725