11 1271 1451347
Number of Pages:29
Date Created:February 20, 2014
Date Uploaded to the Library:February 20, 2014
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United States Court Appeals FOR THE DISTRICT COLUMBIA CIRCUIT Argued May 2012 Decided August 13, 2013 Ordered Held Abeyance August 2012 No. 11-1271 RE: AIKEN COUNTY, AL., PETITIONERS STATE NEVADA, INTERVENOR Petition for Writ Mandamus Andrew Fitz, Senior Counsel, Office the Attorney General for the State Washington, argued the cause for petitioners. With him the briefs were Robert McKenna, Attorney General, Todd Bowers, Senior Counsel, Thomas Gottshall, Ross Shealy, Alan Wilson, Attorney General, Office the Attorney General for the State South Carolina, William Henry Davidson II, Kenneth Paul Woodington, James Bradford Ramsay, Robin Lunt, Barry Hartman, Christopher Nestor, and Robert Andersen. Jerry Stouck and Anne Cottingham were the brief for amicus curiae Nuclear Energy Institute, Inc. support petitioners. Charles Mullins, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondent. Argued May 2012 Decided August 13, 2013 Ordered Held Abeyance August 2012 IKEN OUNTY With him the brief were Stephen Burns, General Counsel, John Cordes Jr., Solicitor, and Jeremy Suttenberg, Attorney. Martin Malsch argued the cause for intervenor State Nevada. With him the briefs were Charles Fitzpatrick and John Lawrence. Before: GARLAND, Chief Judge, KAVANAUGH, Circuit Judge, and RANDOLPH, Senior Circuit Judge. Opinion for the Court filed Circuit Judge KAVANAUGH, with whom Senior Circuit Judge RANDOLPH joins except Part III. Concurring opinion filed Senior Circuit Judge RANDOLPH. Dissenting opinion filed Chief Judge GARLAND. KAVANAUGH, Circuit Judge: This case raises significant questions about the scope the Executives authority disregard federal statutes. The case arises out longstanding dispute about nuclear waste storage Yucca Mountain Nevada. The underlying policy debate not our concern. The policy for Congress and the President establish they see fit enacting statutes, and for the President and subordinate executive agencies (as well relevant independent agencies such the Nuclear Regulatory Commission) implement within statutory boundaries. Our more modest task ensure, justiciable cases, that agencies comply with the law has been set Congress. Here, the Nuclear Regulatory Commission has continued violate the law governing the Yucca Mountain licensing With him the brief were Stephen Burns General Counsel, John Cordes Jr. Solicitor, and process. therefore grant the petition for writ mandamus. This case involves the Nuclear Waste Policy Act, which was passed Congress and then signed President Reagan 1983. That law provides that the Nuclear Regulatory Commission shall consider the Department Energys license application store nuclear waste Yucca Mountain and shall issue final decision approving disapproving the application within three years its submission. U.S.C. Petitioners include the States South Carolina and Washington, well entities and individuals those States. Nuclear waste currently stored those States the absence long-term storage site such Yucca Mountain. Since 2010, petitioners have sought writ mandamus requiring the Commission comply with the law and resume processing the Department Energys pending license application for Yucca Mountain. Mandamus extraordinary remedy that takes account equitable considerations. The writ may granted to correct transparent violations clear duty act. American Rivers and Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004) (internal quotation marks omitted); see also Arizona Inter Tribal Council Arizona, Inc., No. 12-71, slip. op. n.10 (U.S. 2013) (noting that the federal Election Assistance Commission did not act states statutorily permitted request, Arizona would free seek writ mandamus compel agency action unlawfully withheld unreasonably delayed) (quoting U.S.C. 706(1)). cases, allowed time for Congress clarify this issue wished so. But majority the Court also made clear that, given the current statutory language and the funds available the Commission, the Commission was violating federal law declining further process the license application. And the Courts majority further indicated that the mandamus petition eventually would have granted the Commission did not act Congress did not enact new legislation either terminating the Commissions licensing process otherwise making clear that the Commission may not expend funds the licensing process. See Order, Aiken County, No. 11-1271 (D.C. Cir. Aug. 2012). Since issued that order more than year ago August 2012, the Commission has not acted, and Congress has not altered the legal landscape. things stand, therefore, the Commission simply flouting the law. light the constitutional respect owed Congress, and having fully exhausted the alternatives available us, now grant the petition for writ mandamus against the Nuclear Regulatory Commission.