Amicus Curiae Brief — Hodges v. Abraham

Sapreme Conti, S|

FILED

No. 02-544 NOV 7 200?

QFFICE OF THE CLERK |

In The , an

Supreme Court of the nites States

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v

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JIM HODGES, Governor of the State of

South Carolina, in his official capacity,

Petitioner,

V.

SPENCER ABRAHAM, Secretary of the Department

of Energy, in his official capacity, and the

UNITED STATES DEPARTMENT OF ENERGY,

Respondents.

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Vv

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

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BRIEF OF AMICI CURIAE SIERRA CLUB,

ENVIRONMENTAL WORKING GROUP AND PUBLIC

CITIZEN IN SUPPORT OF THE PETITIONER

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RENA I. STEINZOR

Counsel of Record

UNIVERSITY OF MARYLAND

SCHOOL OF LAW

500 West Baltimore Street

Baltimore, MD 21201

(410) 706-0564

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

Table of Authorities ................ccsccsccssscesscesersseesenseesens ii

Interests of the A7Mict ..........ccccccseeceeceeeeceneeeeeeeseeeeeers 1

Summary of Argument ............:.:::s:sseeeseeeeeneeeeeeeeeeeees 2

Statement of Facts ............ccscccsccsseccsecrssecsseeesseeceeevens 5

Argument ............+++ tiie 8

I. DOE’s Action was Arbitrary and Capricious.. 8

II. NEPA Does Not Supplant the APA................. 10

a. NEP4A’s Statutory Language and Vermont |

WINE ova iva ci veicvnsdeiscoonvesconstbecisatsasteenstcunes 10

b. NEPA and the APA Serve Different Pur-

* 0): -): See 11

Il. A Circuit Split Exists Over Whether Other

Statutes May Substitute for Judicial Review... 12

a. Decisions Correctly Decided...................- 12

b. The Fourth Circuit Creates a Rift Among

the Circuits by Incorrectly Conflating the

APA’s Arbitrary and Capricious Test with

Review under the Underlying Statute........ 15

IV. Importance of APA Review of Substantive

TING ois oi cnsicevsicesninpsvesesacsiansersssensurscsterston 16

V. Large Scale Impact of Hodges v. Abraham on

the Nation’s Nuclear Policies..................ses-++. 18

CII oon ves ccc ecsvccocienccsnsuvnesenvonsesssansncesusssvonesesens 18

li

: TABLE OF AUTHORITIES

CASES

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289

Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, 462 U.S. 87 (1983)... cceeeeeeseeereeeees 11

Citizens Awareness Network, Inc. v. United States

Nuclear Regulatory Commission, 59 F.3d 284 (1st

Che, BOI esstiassncrcsnensoriervenniciassagumaaennns etenae 8, 14, 15

Hodges v. Abraham, 300 F.3d 432 (4th Cir. 2002)..... passim

Hodges v. Abraham, No. 1:02-1426-22 (D.S.C. June

17, 2002), available at www.scd.uscourts.gov/Orders/

PR ROCI.SIUE acevenssssrcsreierininininnenaaamaieaaeamnannnds 7

Latecoere International, Inc. v. United States of

America Department of the Navy, 19 F.3d 1342

(TU GRe Che. TR) ccecsscrarinisiosinienveninannamnsieneeamenmeananionts: 17

Maryland Dep’t of Human Res. v. United States

Dep’t of Agric., 976 F.2d 1462 (4th Cir. 1992)................. 8

Midwater Trawlers Co-operative v. Department of

Commerce, 282 F.3d 710 (9th Cir. 2002).................. 16, 17

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ina. Co., 43 U.S. BB UI ccccisiovetseamanininiain 8, 16

Puerto Rico Sun Oil Co. v. USEPA, 8 F.3d 73 (1st

Che, SII) wcevesssesesssansensconenitinsuutiansmaniinanaaiaammnian 8, 12,13

Shoals Am. Indus., Inc. v. United States, 877 F.2d

OOS CE TGs Ce, TI ss cciciicsccscsectauecncsiniceionsensnausbuntaiaieaen 17

Sierra Club v. United States Army Corps of

Engineers, 295 F.3d 1209 (11th Cir. 2002)............... 13, 14

ili

TABLE OF AUTHORITIES -— Continued

Page

State of South Carolina ex rel. Beasley v. O’Leary,

953 F. Supp. 699 (E.D.S.C. 1996)..................cccsccsscsseereee 6

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 425 U.S. 519 (1978)....... 3, 11

STATUTES

§ US.C. § 702........... sssevesenenseeasaracenessessseoesesnossacasasonsnseosseees 12

Re, ss ceinain csiaenbaibewmnnetewasenvenvhiontesonbvecenessneneines 11

I os as sesicenniinadaonnvbansiitoiesbngelannianietans 7,8

I os icnanskccpacetnsinebvopspuvndonesneiuvansssunstens 13, 14

rs ID svnsvivevevesseesacnssaccessooravsvensecoosebsesesees 6

aa cicilsscsnceysna eninieaneieinredanenierasenenreenneres 10

National Defense Authorization Act for Fiscal Year

2002, Pub. L. No. 107-107, § 3155, 115 Stat.

1012, 1378 (2OO1) ..........eseesescesseseteeseseeereeeseesnsennees 10, 18

OTHER AUTHORITIES

Agency for Toxic Substances and Disease Registry &

United States Environmental Protection Agency,

Toxicological Profile for Plutonium 3 (1990)... 5

AMERICAN HERITAGE DICTIONARY (2000).............cseeeeeeeeeeeees 9

DOE, Amended Record of Decision, Surplus Pluto-

nium Disposition Plan, 67 Fed. Reg. 19,432 (Apr.

NE ei iecinnideiiinlbadenntiivinssadintevsasaieccnesensveneassonvconses 7,9, 10

Letter from Sec. Abraham to Gov. Hodges of

4/11/02, Pet. for Cert., App. 102, 103, 106-07........ 7,9, 10

National Priorities List for Uncontrolled Hazardous

Waste Sites, 40 C.F.R. § 300, App. B (2002) ................ 5,6

1V

TABLE OF AUTHORITIES — Continued

NNSA/DOE, Disposition of Surplus Plutonium at

Savannah River Site 4-24-27 (Feb. 15, 2002)

(available at http://www.nci.org/pdf/doe-pu-214

Ralph H. Petrucci, General Chemistry: Principles

and Applications 955 (5th ed. 1989).............ssceeeee

Record of Decision for the Storage and Disposition

of Weapons-Usable Fissile Material Final

Programmatic Environmental Impact Statement,

62 Fed. Reg. 3014 (Jan. 21, 1997)............cecesesseeeees

Supplemental Analysis for Storage of Surplus

Plutonium in the KAMS Facility 8, D.O.E/E.LS.-

PD CE WER, TIPU) vvssnensnssrsrcscorneveserssccacvesnsnscnnioess

United States Environmental Protection Agency,

NPL Site Narrative for Savannah River Site

(USDOE) (Oct. 4, 2002) (available at http://www.

epa.gov/superfund/sites/npl/nar1242.htm)..............

Page

INTERESTS OF THE AMICI

Amici Curiae, the Sierra Club, Environmental Work-

ing Group (EWG) and Public Citizen respectfully submit

this brief in support of the petition for writ of certiorari to

the Fourth Circuit filed by South Carolina Governor Jim

Hodges.’ Public Citizen is a non-profit consumer advocacy

group with approximately 125,000 members nationwide.

The Sierra Club is a membership-based non-profit organi-

zation devoted to exploring and enjoying the wild places of

the earth and to promoting the responsible use of the

Earth’s ecosystem and resources. EWG is a non-profit

environmental research organization dedicated to improv-

ing public health and protecting the environment by

reducing pollution in air, water, and food. Amici Curiae are

organizations dedicated to advocating the public interest

in protecting health and the environment, especially with

respect to nuclear waste management issues. We are

concerned that if Hodges v. Abraham, 300 F.3d 432 (4th

Cir. 2002) (Hodges), is allowed to stand, judicial review of

arbitrary and capricious actions by federal officials against

sovereign states will be compromised, including actions

undermining the ability of the states to protect public

health. The circuits are split on this crucial question and

in need of Supreme Court guidance. To avert these reper-

cussions, which directly affect our members and are

' Pursuant to United States Supreme Court Rule 37.6, we submit

that counsel for amici curiae authored the brief in its entirety. No

person or entity aside from amici curiae, their members, or their

counsel made a monetary contribution to the preparation or submission

of this brief. Governor Hodges, Secretary Abraham, and the Depart-

ment of Energy have granted consent for Sierra Club, Environmental

Working Group and Public Citizen to file this brief

central to our organizational missions, we submit this

brief.

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SUMMARY OF ARGUMENT

The United States Department of Energy's (DOE’s)

decision to establish the Savannah River Site (SRS) as the

sole long-term storage site for weapons-grade plutonium

violated the Administrative Procedure Act (APA), the

National Environmental Policy Act (NEPA), and the

Defense Authorization Act for Fiscal Year 2002. The Amici

agree with Governor Hodges that DOE’s action violated

NEPA and support his petition on those issues. However,

because of the broader national implications of the Fourth

Circuit’s misreading of the relationship between NEPA

and the APA for the right of citizens to be protected from

arbitrary and capricious government action, this brief

focuses on the APA claims.

DOE’s action was arbitrary and capricious under the

APA and the Defense Authorization for Fiscal Year 2002.

DOE’s change in policy on the long-term storage of pluto-

nium at SRS was a sudden, significant, and unexplained

departure from precedent and was evidently motiviated by

improper considerations. In addition, DOE’s action was

arbitrary and capricious because the new policy failed to

develop an exit strategy for plutonium for SRS as required

by the Defense Authorization bill for Fiscal Year 2002.

Because DOE has not made any plans to move the pluto-

nium waste out of permanent storage, its decisions with

respect to SRS will create a major disincentive to minimize

or more safely manage plutonium waste.

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NEPA procedure does not supplant the APA’s require-

ments for judicial review. NEPA procedure expressly

supplements other law and does not repeal any other

statute by implication. In Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, the Supreme

Court concluded NEPA could not be the basis for a “sub-

stantial revision” of the APA. 425 U.S. 519, 548 (1978).

Now in Hodges, the Fourth Circuit’s finding that satisfac-

tion of NEPA’s procedural mandate automatically results

in satisfaction of the APA’s arbitrary and capricious review

is a substantive change in the APA.

The APA’s jurisdiction over arbitrary and capricious

final agency actions serves a fundamentally different

purpose than NEPA, which is a procedural statute de-

signed to improve the quality of decision-making. Or, to

state the matter tautologically, a decision may violate

NEPA but be neither arbitrary or capricious. Conversely, a

decision may satisfy NEPA but constitute unquestionably

arbitrary and capricious behavior. Only by analyzing such

claims separately can congressional intent in crafting

these distinct avenues for judicial review be preserved.

Other Courts of Appeals understand that NEPA and the

APA are separate statutes, and the Fourth Circuit's

decision is in direct conflict with their precedents.

The Circuits are split over whether underlying stat-

utes may serve as a substitute for the APA’s arbitrary and

capricious judicial review. The First Circuit and the

Eleventh Circuit correctly understand that claims under

the APA are separate from claims under other procedural

statutes. The Fourth Circuit in Hodges, however, incor-

rectly conflated the APA with the underlying statute. The

Fourth Circuit confused a decision regarding an agency's

violation of statutory requirements with a decision

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4

whether the agency’s action on the merits was arbitrary

and capricious. Where the underlying statute is substan-

tive and directly addresses the bureaucratic conduct at

issue, prescribing what is acceptable and what is unac-

ceptable with respect to that conduct, this conflation may

well have no more than theoretical implications. When,

however, the underlying statute addresses process, as in

this case, and does not define the substantive considera-

tion that determines the propriety of the agency’s actions,

the conflation of the court’s analysis has the effect of.

denying petitioners the judicial review that Congress

intended them to have. The latter situation is the posture

of this case and it deserves this Court’s review.

The Fourth Circuit’s finding that satisfaction of

NEPA’s procedural mandates automatically results in

satisfaction of the APA blocks states and their citizens

from seeking review of blatantly arbitrary and capricious

actions by federal officials who seek to run roughshod over

the states’ assertion of their sovereignty in the arena of

safeguarding public health. The public needs the protec-

tion that the APA provides from the admittedly rare but

nevertheless destructive actions of bureaucrats acting

irrationally. APA review affords the essential opportunity

to compel review of such decisions by an independent

judiciary, serving as a check and balance when the elec-

toral system operates too slowly or imperfectly to deter

such conduct. The APA should have served the state of

South Carolina well in keeping the nation’s nuclear waste

processing policy on track; however, the Court of Appeals

for the Fourth Circuit abandoned its role in that process.

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5

STATEMENT OF FACTS

Amici adopt Governor Hodges’s Statement of Facts

and incorporate them by reference. See Brief for Governor

Jim Hodges, at 1-15, Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit of

Hodges v. Abraham, 300 F.3d 432 (4th Cir. 2002) (No. 02-

544). Below, we add some additional facts and restate the

basic chronology of events.

The challenge of safely treating, recycling, or dispos-

ing of dangerous radioactive waste has vexed the United

States since it began harnessing atomic energy. Pluto-

nium-239, the material at issue here, has a half-life of

24,000 years. Ralph H. Petrucci, General Chemistry:

Principles and Applications 955 (5th ed. 1989). This

characteristic means that 24,000 years must pass for half

of the atoms in any given amount of plutonium to radioac-

tively decay. Id. at 944. Exposure to plutonium has caused

cancer in laboratory animals and it may weaken the

human immune system. Agency for Toxic Substances and

Disease Registry & United States Environmental Protec-

tion Agency, Toxicological Profile for Plutonium 3 (1990).

When stored in permeable containers, plutonium can leach

and seep into soil and groundwater, and from there into

surface waters that pose direct exposure pathways for

people not only living near such facilities, but many miles

away. See id. at 89 (explaining that radioactive waste

disposal is one of the methods by which plutonium may

enter waterways).

Because of poor storage practices in the past, SRS is

now included on the Environmental Protection Agency’s

(EPA’s) National Priorities List (NPL) for environmental

6

cleanup. National Priorities List for Uncontrolled Hazard-

ous Waste Sites, 40 C.F.R. § 300, App. B (2002). The NPL

contains the worst environmental waste disposal sites in

the country. See 42 U.S.C. § 9605(aX(8\B) (2000) (directing

the President to create a prioritized list of the most con-

taminated sites in the United States). EPA reports that

the site is contaminated with plutonium, uranium, trit-

ium, heavy metals, and volatile organic compounds such as

trichloroethylene. United States Environmental Protection

Agency, NPL Site Narrative for Savannah River Site (US-

DOE), at http://www.epa.gov/superfund/sites/npl/nar1242.htm

(last modified Oct. 4, 2002).

Additionally, as part of the “Atoms for Peace” pro-

gram, SRS is also the recipient of spent nuclear power fuel

rods from foreign nuclear research reactors. State of South

Carolina ex rel. Beasley v. O’Leary, 953 F.Supp. 699, 701

(E.D.S.C. 1996). The SRS may receive up to seventy-five

percent of spent fuel rods from foreign nuclear power

research reactors. Id. at 703.

In the context of these ongoing problems, when DOE

began the decision-making process just sanctioned by the

Fourth Circuit, the Department promised to find treat-

ment or recycling options for the plutonium that entered

SRS. Record of Decision for the Storage and Disposition of

Weapons-Usable Fissile Materials Final Programmatic

Environmental Impact Statement, 62 Fed. Reg. 3014 (Jan.

21, 1997). By February 2002, DOE had eliminated the

treatment concept. NNSA/DOE, Disposition of Surplus

Plutonium at Savannah River Site 4-24-27 (Feb. 15, 2002),

available at http://www.nci.org/pdf/doe-pu-2142002.pdf. Never-

theless, it remained committed to only temporary storage

at SRS. Supplemental Analysis for Storage of Surplus

Plutonium in the KAMS Facility 8, D.O.E./E.1.S.-0229-SA2

(Feb. 2002). Two months later, abruptly reversing many

years of policy and commitments to the sovereign state of

South Carolina, Secretary Abraham issued his ultimatum

to Governor Hodges, threatening that if the Governor

failed to sign DOE’s agreement regarding disposal at SRS,

DOE would make SRS the nation’s sole and permanent

burial ground for weapons-grade plutonium. Letter from

Secretary Abraham to Governor Hodges of 4/11/02, Pet.

For Cert., App. 102, 106-07. Governor Hodges rejected

Secretary Abraham’s offer because it was not legally

binding, so Secretary Abraham followed through on his

threat to issue an amended record of decision. See DOE,

Amended Record of Decision, Surplus Plutonium Disposi-

tion Plan, 67 Fed. Reg. 19,432 (Apr. 19, 2002).

Governor Hodges immediately sought review of this

decision in the District Court for the District of South

Carolina on two grounds. See Hodges v. Abraham, No.

1:02-1426-22 (D.S.C. Jun. 17, 2002), available at www.scd.

uscourts.gov/Orders/Plutonium.pdf. First, he argued that

DOE had violated NEPA because the Agency failed to

prepare an environmental assessment or supplemental

environmental impact statement while making its plans

for SRS. Id. at 4. He also argued that DOE’s decision, more

specifically its irrational policy reversal, was arbitrary and

capricious under section 706(2)A) of the Administrative

Procedure Act. Id. at 5. The district court granted DOE’s

motion for summary judgment. Id. at 45.

On review in the Court of Appeals for the Fourth

Circuit, the Governor’s claims met a similar fate. With

respect to the APA claim, the appeals court noted:

Governor Hodges also maintains that the DOE’s

decision making process violated the Administra-

tive Procedure Act (the “APA”). Under the APA,

Ce ee

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we must uphold an agency decision if it is sup-

ported by “substantial evidence,” and is not “ar-

bitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A), (E). In conducting our review under

the APA, “we perform only the limited, albeit im-

portant, task of reviewing agency action to de-

termine whether the agency conformed with

controlling statutes, and whether the agency has

committed a clear error of judgment.” Maryland

Dep't of Human Res. v. United States Dep’t of Ag-

ric., 976 F.2d 1462, 1475 (4th Cir. 1992). (internal

quotations and citations omitted). In view of the

DOE’s compliance with NEPA, the Governor’s

APA challenge is also without merit.

Hodges, 300 F.3d at 449 n.17.

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ARGUMENT

I. DOE’s Action was Arbitrary and Capricious

DOE’s action was arbitrary and capricious under the

APA because DOE failed to provide a rational explanation

for its significant, sudden, and unexplained change in

policy on the long-term storage of plutonium at SRS.

“When an administrative agency significantly departs

from its precedent” it must make a reasonable explanation

for the departure. Citizens Awareness Network, Inc. v.

United States Nuclear Regulatory Commission, 59 F.3d

284, 290 (1st Cir. 1995) (citing Motor Vehicles Mfrs. Ass’n

v. State Farm Mut. Ins. Co., 463 U.S. 29, 41 (1983)); Puerto

Rico Sun Oil Co. v. USEPA, 8 F.3d 73, 77 (1st Cir. 1993).

Under DOE’s precedent, some plutonium at SRS would be

converted into fuel for nuclear power plants and other

plutonium would be immobilized for transfer to a geologic

9

site. DOE, Record of Decision for the Storage and Disposi-

tion of Weapons-Usable Fissile Material Final Program-

matic Environmental Impact Statement, 62 Fed. Reg. 3014

(Jan. 21, 1997). From 1996 through 2002, DOE analysis,

Records of Decision, and a report to Congress consistently

supported a two-track policy with conversion and immobi-

lization. DOE, Record of Decision, 62 Fed. Reg. 3014 (Jan.

21, 1997); NNSA/DOE, Disposition of Surplus Plutonium

at Savannah River Site 4-24-27 (Feb. 15, 2002), available

at http://www.nci.org/pdf/doe-pu-2142002. Just two months

after DOE’s 2002 report to Congress, Secretary Abraham

suddenly reversed course. After Governor Hodges stated

that he would not sign a letter of agreement if Secretary

Abraham would not make it legally binding, DOE pub-

lished a Record of Decision making SRS the site for the

long-term storage of plutonium. DOE, Amended Record of

Decision, Surplus Plutonium Disposition Program, 67 Fed.

Reg. 19,432 (Apr. 19, 2002). Such a sudden change in

course must be supported by a reasonable explanation in

order to survive judicial review under the APA. DOE has

not offered such an explanation.

While “arbitrary and capricious” is a legal term of art,

Secretary Abraham’s action was arbitrary within the

ordinary meaning of the term. The American Heritage

Dictionary defines arbitrary as “[djJetermined by chance,

whim, or impulse, and not by necessity, reason, or princi-

ple.” AMERICAN HERITAGE DICTIONARY (2000). In an April

11, 2002 letter, Secretary Abraham assured Governor

Hodges that DOE was committed to a “credible pathway

out” for the plutonium. Pet. for Cert., App. 103. Secretary

Abraham then threatened Governor Hodges that DOE

would give its 30-day notice to begin shipping plutonium

without the negotiated terms protecting that pathway if

10

Governor Hodges did not sign the agreement. Jd., App.

102, 106-107. When Governor Hodges insisted on making

the agreement legally binding, Secretary Abraham re-

versed DOE’s policy on long-term storage at SRS. The

course of events strongly indicates that Secretary Abra-

ham’s action was based on anger and frustration with the

negotiation, instead of on a reasoned decision to choose a

new long-term plutonium disposal policy.

DOE’s reversal was arbitrary and capricious, because

the new policy failed to develop an exit strategy for pluto-

nium for the SRS, as required by the Defense Authoriza-

tion Act for Fiscal Year 2002. In this law, Congress

directed DOE to develop a plan for the disposal of pluto-

nium, including the timely removal of plutonium materials

from the SRS. National Defense Authorization Act for

Fiscal Year 2002, Pub. L. No. 107-107, § 3155, 115 Stat.

1012, 1878 (2001). Instead, DOE’s amended Record of

Decision announced the consolidated long-term storage of

plutonium at SRS and failed to develop any exit strategy.

DOE, Amended Record of Decision, Surplus Plutonium

Disposition Program, 67 Fed. Reg. 19432 (Apr. 19, 2002).

II. NEPA Does Not Supplant the APA

a. NEPA’s Statutory Language and Vermont

Yankee

By its express terms, NEPA supplements and does not

replace any other statute. NEPA states, “The policies and

goals set forth in this chapter are supplementary to those

set forth in existing authorizations of Federal Agencies.”

42 U.S.C. § 4335. The Supreme Court has also found that

NEPA does not repeal any other statute by implication.

Aberdeen & Rockfish Railroad Co. v. SCRAP, 422 U.S.

11

218, 319 (1975); Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 425 U.S. 519, 548

(1978). In Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., the Court considered

whether NEPA allowed a court to require an agency to

follow additional procedures beyond those required by the

APA. 425 U.S. at 548. The Court held that NEPA did not

require additional procedures. Jd. The Court concluded,

“(I]t is clear NEPA cannot serve as the basis for a substan-

tial revision of the carefully constructed procedural speci-

fications of the APA.” Jd. The Fourth Circuit’s finding in

Hodges that satisfaction of NEPA automatically satisfies

the APA is a substantive revision of APA procedure and

deserves the Court’s review.

b. NEPA and the APA Serve Different Pur-

poses

NEPA’s procedural obligations are not designed to

supplant the APA’s obligations. NEPA is a procedural

statute designed to create an obligation for an agency to

consider the environmental consequences of agency

actions. Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, 462 U.S. 87, 97 (1983). To enforce that

obligation, NEPA grants a cause of action for adversely

affected parties. Aberdeen & Rockfish R. Co. v. SCRAP,

422 U.S. 289, 319 (1975). In comparison, the APA is

designed to provide a right to judicial review of “all final

agency action for which there is no other adequate rem-

edy....” 5 U.S.C. § 704. NEPA does not give a court power

to review general arbitrariness. The APA, by contrast,

provides a right of review for “[a] person suffering legal

wrong because of agency action, or adversely affected or

12

aggrieved by agency action within the meaning of the

relevant statute.” 5 U.S.C. § 702.

By confusing NEPA’s procedural obligations with the

APA’s protection against arbitrary and capricious govern-

ment action, the Fourth Circuit cut off the right to judicial

review. By conflating the statutes, the Fourth Circuit

removed the APA’s substantive protection when it found

that DOE satisfied NEPA’s procedure.

Il. A Circuit Split Exists Over Whether Other

Statutes May Substitute for Judicial Review

Under the APA’s Arbitrary and Capricious Test

a. Decisions Correctly Decided

Several Courts of Appeals decisions support 2zmici's

interpretation of the law. While one of the following cases

involve NEPA claims, others concern the Clean Water Act

(CWA) or the Endangered Species Act (ESA). The analysis

in these opinions plainly shows that the First and Elev-

enth Circuits believe the APA’s arbitrary and capricious

review performs a role separate from reviewing an

agency's compliance with an underlying statute.

In perhaps the most strongly worded opinion support-

ing amict’s position, the Court of Appeals for the First

Circuit considered the EPA’s issuance of a pollution dis-

charge permit to Puerto Rico Sun Oil Company. Although

the EPA's action conformed with all of the substantive and

procedural aspects of the governing statute and regula-

tions, the court still found the permitting decision to be

arbitrary and capricious under the APA. Puerto Rico Sun

Oil Co. v. USEPA, 8 F.3d 73, 74, 81 (1st Cir. 1993). The

court wrote:

13

EPA’s action in adopting the permit in this case

is not flawed by procedural mistake. On the con-

trary, EPA did a commendable job of dotting i’s

and crossing t’s. Nor is there any violation of

substantive provisions of the Clean Water

Act.... The problem with EPA’s decision is sim-

ply that the outcome appears on its face to make

no sense.

Id. at 77. More specifically, the EPA had refused to use a

“mixing zone analysis” in granting the permit. Id. at 76.

This, in and of itself, would have been permissible, but the

court noted that the only location where EPA had refused

to incorporate such an analysis was Puerto Rico. Jd. at 78.

The court stated that “apparent irrational discrimination”

existed in EPA’s decision. Jd. at 78-79. As a result, the

court remanded the matter to the agency for reconsidera-

tion. Id. at 81.

The Court of Appeals for the Eleventh Circuit also

recognized that compliance with the underlying statute

and compliance with the APA’s arbitrary and capricious

standard of review are two different questions. In Sierra

Club v. United States Army Corps of Engineers, Sierra

Club challenged the Corps of Engineers’ (Corps) and

Florida Department of Transportation’s (FDOT) construc-

tion of a four-lane road running though Hillsborough

County Florida. 295 F.3d 1209, 1211 (11th Cir. 2002). The

Sierra Club asserted that the Corps had failed to conduct a

proper section 7 consultation under the ESA. Jd. Section

7(a)(2) of the ESA requires federal agencies to ensure that

their actions are “not likely to jeopardize the continued

existence of any endangered species or threatened species

or result in the destruction or adverse modification of

habitat of such species which is determined by the Secre-

tary ... to be critical.” 16 U.S.C. § 1536(a)(2) (2000). In

14

order to make this determination, an agency must consult

with either the Fish and Wildlife Service (FWS) or the

National Marine Fisheries Service before taking action. Id.

If FWS determines that endangered or threatened species

exist in the area of interest, then FWS must perform a

biological assessment. Id. § 1536(c)(1).

After exploring the intricacies of the ESA, the court

found that the Corps had complied with ESA, and for that

matter NEPA, when developing the highway. Sierra Club,

295 F.3d at 1221. The court then went on to address Sierra

Club’s arbitrary and capricious claims separately. See id.

at 1222-23 (explaining that the Corps did not act in an

arbitrary and capricious manner by adopting FWS’s

decision that threatened or endangered species would not

be harmed by the highway project). The Eleventh Circuit

concluded “[w]Je are satisfied that the Corps took a ‘hard

look’ at the environmental consequences of the Suncoast

Parkway, and that its determinations were not arbitrary

and capricious.” Jd. at 1223 (emphasis added).

Finally, in a case that involved nuclear energy issues,

Citizens Awareness Network, Inc. v. United States Nuclear

Regulatory Commission, the First Circuit separately

analyzed a Nuclear Regulatory Commission (NRC) deci-

sion under NEPA and the APA. 59 F.3d 284, 291-92 (1st

Cir. 1995). The First Circuit found that NRC violated

NEPA when it allowed Yankee Electric to decommission

over 90 percent of a nuclear power plant before conducting

a NEPA mandated Environmental Assessment. Id. at 292.

With regard to the Citizens Awareness Network’s APA

claim, the First Circuit found that NRC’s reversal of its

prior decommissioning regulations to allow permanent

removal of most major structures and radioactive material

prior to the submission of a decommissioning plan was

emcees anecnemnamnnssee

15

arbitrary and capricious. Jd. at 292. Again, the First

Circuit realized that an agency’ compliance with the

underlying statute is a separate consideration from review

of the agency’s decision under the APA’s arbitrary and

capricious standard.

b. The Fourth Circuit Creates a Rift Among

the Circuits by Incorrectly Conflating the

APA’s Arbitrary and Capricious Test with

Review under the Underlying Statutes

Despite precedents from the First and Eleventh

Circuits recognizing the distinctly different purposes

served by underlying statutes and the APA, the Fourth

Circuit's Hodges decision has wrongly conflated an

agency’s compliance with an underlying statute with

satisfaction of the APA’s prohibition on arbitrary and

capricious administrative decisions. This decision creates

a split of opinion among the Circuit Courts of Appeals and

amici urge this Court to clarify that an agency’s decision

may comply with the procedural and substantive portions

of the underlying statute, but still fail the APA’s arbitrary

and capricious standard of review. The Courts of Appeals,

the states, the administrative agencies, and the people

need definitive guidance from this Court that procedurally

and substantively complying with an underlying statute

does not obviate the need for arbitrary and capricious

review under the APA. Given the widely varying subject

matter of agency action, the impact of a court, such as the

Fourth Circuit, consistently failing properly to use its

congressionally bestowed powers under section 706 of the

APA could have widespread impact. Without such review,

states and private parties would lose their principal

16

avenue of judicial recourse against federal agencies that

inject improper considerations into their decisions.

IV. Importance of APA Review of Substantive

Decisions

In a more general sense, plaintiffs need arbitrary and

capricious review in order to prevent federal bureaucrats

from coming to irrational conclusions in administrative

decisions. The Court has long recognized the important

role of arbitrary and capricious review to prevent both

irrational and improperly motivated agency action. The

Court clearly stated this principle when it defined the

scope of the arbitrary and capricious standard of review:

Normally, an agency rule would be arbitrary and

capricious if the agency has relied on factors

which Congress has not intended it to consider,

entirely failed to consider an important aspect of

the problem, offered an explanation for its deci-

sion that runs counter to the evidence before the

agency, or is so implausible that it could not be

ascribed to a difference in view or the product of

agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (emphasis added). The Court’s

admonition regarding use of “unintended” factors encom-

passes those administrative officials who make politically

charged decisions when Congress did not intend for

politics to play a part in those decisions. While admittedly

rare, cases in which agencies have incorporated illegal

considerations into their adjudications do exist.

For example, in Midwater Trawlers Co-operative uv.

Department of Commerce, another case involving the

ee

17

prerogatives of sovereign states, the states of Oregon and

Washington challenged a National Marine Fisheries

Service (NMFS) regulation that allocated increased fishing

rights for Pacific whiting to four Indian tribes. 282 F.3d

710, 714 (9th Cir. 2002). Because the Court of Appeals for

the Ninth Circuit found that NMFS had made a political

judgment rather than evaluating the scientific merits of

the allocation options, the court deemed the regulation to

be arbitrary and capricious - NMFS had relied on factors

that Congress did not intend it to consider. Jd. at 720-21.

Similarly, in Latecoere International, Inc. v. United

States of America Department of the Navy, the Court of

Appeals for the Eleventh Circuit found a U.S. Department

of the Navy decision was arbitrary and capricious because

it had awarded a defense contract to an American contrac-

tor that was otherwise unqualified, while denying that

contract to a qualified French contractor (Latecoere). 19

F.3d 1342, 1357-59 (11th Cir. 1994). The court ruled that

the Navy had been irrational and had illegally exhibited

bias against Latecoere because of the Navy's concerns

about the political ramifications of hiring a French com-

pany over an American company. Id. 1364-65. In reaching

its decision, the Court of Appeals for the Eleventh Circuit

employed the APA’s arbitrary and capricious standard of

review to remove illegitimate political considerations from

the Navy’s decision. Jd. at 1355, 1364-65. The court recog-

nized that failing to provide relief against the agency’s

action “would, in effect, repeal Congress’ grant of jurisdic-

tion via the APA.” Jd. at 1356 (quoting Shoals Am. Indus.,

Inc. v United States, 877 F.2d 883, 889 (11th Cir. 1989)).

18

V. Large Scale Impact of Hodges v. Abraham on

the Nation’s Nuclear Policies

Aside from its general removal of a judicial check on

agency decision making, Hodges has a direct impact on our

nation’s treatment and storage of nuclear waste. By

allowing SRS to become a long-term dumping ground for

weapons grade plutonium, DOE eliminates an incentive to

quickly process the waste because storage considerations

no longer exert pressure to keep pace with the aggregate

inbound waste stream. DOE’s decision regarding SRS

sidesteps this important nuclear waste policy objective.

Besides being poor policy, DOE’s action disregards the

will of Congress. Congress had directed DOE to develop a

plan that would cause “all such defense plutonium and

defense plutonium materials [to] be removed in a timely

manner from the Savannah River Site for storage or

disposal elsewhere.” National Defense Authorization Act

for Fiscal Year 2002, Pub. L. No. 107-107, § 3155(c)4), 115

Stat 1012, 1378 (2001). DOE’s plan to keep nuclear waste

at SRS for up to fifty years hardly complies with the

“timely” removal requirement. Reuse of plutonium and

disposal at a site other than SRS are the overarching

policies embodied in section 3155 of the National Defense

Authorization Act. DOE failed to embrace those goals in

allowing long term plutonium storage at South Carolina’s

Savannah River Site.

4

vv

CONCLUSION

This Court should grant the petition for certiorari and

reverse the Court of Appeals for the Fourth Circuit's

decision. DOE’s action was arbitrary and capricious.

19

Beyond the implications for the Savannah River Site and

its environs, the decision incorrectly allows NEPA to

supplant APA judicial review. The Circuits are split over

whether other statutes may serve as a substitute for the

APA’s arbitrary and capricious review. In addition, allow-

ing satisfaction of a procedural statute to replace APA

review cuts off the right of sovereign states and aggrieved

persons to seek judicial review of unreasonable govern-

ment action. The Fourth Circuit’s decision may have a

broad impact on future NEPA decisions as well as deci-

sions under other statutes. This case’s subject matter

warrants the highest level of protection for the people of

South Carolina. If allowed to stand, the decision could

deter the development of alternatives to permanent

storage of plutonium waste.

Respectfully submitted,

RENA I. STEINZOR

Counsel of Record

UNIVERSITY OF MARYLAND

SCHOOL OF LAW

500 West Baltimore Street

Baltimore, MD 21201

(410) 706-0564

Counsel for Amici Curiae