On Petition for Review of a Decision of the United States Department of Energy.
Alfred T. Goodwin, Betty B. Fletcher and David R. Thompson, Circuit Judges. Opinion by Judge Fletcher.
The State of Nevada and intervenors Environmental Defense Fund, State of Colorado and State of Nebraska petition for review of the "General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories" ("guidelines"), 10 C.F.R. pt. 960, promulgated by the Secretary of the Department of Energy ("Secretary") pursuant to § 112(a) of the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. § 10132(a) (1988).*fn1 Petitioners assert that the guidelines violate the language and purpose of the NWPA.
The Electric Utility Company Intervenors in Support of Respondent ("Utilities") assert as a threshold matter that this court lacks jurisdiction to review the Secretary's adoption of the guidelines. Because the NWPA explicitly defines the promulgation of the guidelines as a "preliminary decisionmaking activity," 42 U.S.C. § 10132(d), we conclude that we lack jurisdiction to review the guidelines at this juncture. Accordingly, we dismiss the petition for lack of subject matter jurisdiction.
As originally enacted, the NWPA set out a multi-stage process for locating, evaluating and selecting two sites for the construction of repositories to house the nation's high-level radioactive waste and spent nuclear fuel. It provided for the Secretary as a first step to identify the States with one or more potentially acceptable sites for the first repository within 90 days after January 7, 1983, and to notify those States within another 90 days. 42 U.S.C. § 10136(a) (1982). Within that same 180-day time period the Secretary was required to "issue general guidelines for the recommendation of sites for repositories." 42 U.S.C. § 10132(a).*fn3 Those guidelines are the subject of the present petition.
In addition to the guidelines to be promulgated by the Secretary, the NWPA also required the Environmental Protection Agency ("EPA") Administrator to "promulgate [by rule] generally applicable standards for protection of the general environment from offsite releases from radioactive material in repositories," 42 U.S.C. § 10141(a), and the Nuclear Regulatory Commission ("NRC") to "promulgate [by rule] technical requirements and criteria that it will apply" in authorizing construction of the repository and licensing its use. Id. § 10141(b)(1)(A). The NRC published its technical requirements and criteria in 1983. See 10 C.F.R. pt. 60. The EPA issued standards in 1985. See 40 C.F.R. pt. 191.*fn4
Following issuance of the guidelines, the Secretary was to "nominate" at least five sites suitable for site characterization and recommend three of the nominated sites to the President for site characterization by January 1, 1985. Id. § 10132(b)(1)(A), (B)(1982).*fn5 Each nomination of a site required the issuance of an "environmental assessment" ("EA"), id. § 10132(b)(1)(D)(1982), which the NWPA expressly provided would be "a final agency action subject to judicial review" in accordance with the APA and the NWPA review provisions. Id. § 10132(b)(1)(E)(1982).*fn6 Next the President would review and either approve or disapprove the candidate sites for characterization. Id. § 10132(c)(1982).
In May, 1986, the Secretary nominated five sites for characterization and recommended to the President that three of them be characterized: Yucca Mountain, Nevada; Deaf Smith County, Texas; and Hanford, Washington. NRDC v. EPA, 824 F.2d at 1262. The President approved characterization of the three sites. Nevada v. Herrington, 827 F.2d 1394, 1397 (9th Cir. 1987) (Herrington II) (citing 51 Fed. Reg. 19,788).
Prior to the commencement of the characterization process, however, in December, 1987, Congress amended the NWPA. Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, § 5011, 101 Stat. 1330-1, 1330-228. The amendments effectively eliminated all of the pre-characterization stages by requiring the Secretary to proceed with site characterization at Yucca Mountain and to cease investigation of all other potential sites for the first repository. The amendments also repealed the Secretary's authority to investigate potential sites for a second repository. Id. § 5012, 101 Stat. at 1330-231. As to the latter stages of the process, set out below, the NWPA remained largely intact.*fn7
Following characterization and specified public hearings, the Secretary is to decide whether to recommend Yucca Mountain for development as a repository. 42 U.S.C. § 10134(a)(1). The Secretary's recommendation to the President that the site be approved for the development of a repository must be accompanied by a final environmental impact statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-70. 42 U.S.C. § 10134(f).*fn8 If the Secretary recommends Yucca Mountain for approval and the President considers the site qualified, the President will submit a recommendation of the site to Congress. Id. § 10134(a)(2). Following such recommendation Nevada may submit a notice of disapproval to Congress, which prevents the use of the site for a repository unless Congress passes a joint resolution approving the President's recommendation within the next 90 days of continuous session. Id. §§ 10135(c), 10136(b).
Nevada and the petitioner-intervenors seek to challenge the guidelines as being inconsistent with the NWPA. The Utilities assert that judicial review of the guidelines is precluded by the specific language of sections 112 and 119 of the NWPA, 42 U.S.C. §§ 10132, 10139, and by the legislative scheme as a whole. Nevada and the Secretary assert that we have jurisdiction pursuant to 42 U.S.C. § 10139(a)(1)(A) because issuance of the guidelines constitutes a final decision of the Secretary within the meaning of that section.*fn9 The ...