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 petitions for review of an environmental assessment ("EA") prepared by the Secretary of the Department of Energy ("Secretary") pursuant to the Nuclear Waste Policy Act of 1982 ("NWPA"), Pub. L. No. 97-425, 96 Stat. 2201 (codified as amended at 42 U.S.C. §§ 10101-10270 (1988)). The NWPA provides for the location and development of a site for a permanent repository to house spent nuclear fuel and high-level radioactive waste. As required by the NWPA, the Secretary prepared an EA for each potential site to support his recommendations about which sites to investigate further in a process known as "site characterization." Nevada's petition alleges that the EA prepared for the site at Yucca Mountain, Nevada, is inadequate, and seeks an order requiring the Secretary to correct the inadequacies before proceeding with site characterization at Yucca Mountain. Because Congress amended the NWPA in 1987 to require the Secretary to proceed with site characterization at Yucca Mountain, we dismiss Nevada's petition as moot.
Nevada's petition is the latest in a series of challenges to various aspects of the NWPA and its plan for the siting of a high-level nuclear waste repository.*fn1 As originally conceived and signed into law in January of 1983, the NWPA called on the Secretary to nominate at least five candidate sites suitable for selection as the first repository site and recommend three of the nominated sites to the President for further investigation through the process known as site characterization.*fn2 42 U.S.C. §§ 10132(b)(1)(A),(B) (1982). For each of the nominated sites, the Secretary was to prepare an environmental assessment,
which shall include a detailed statement of the basis for such recommendation and of the probable impacts of the site characterization activities planned for such site, and a discussion of alternative activities relating to site characterization that may be undertaken to avoid such impacts.
Id. § 10132(b)(1)(E) (1982); see also id. § 10132(b)(1)(E)(i)-(vi) (1982) (specifying items to be addressed in EA). The NWPA also provided for nomination and recommendation of potential sites for a second repository. Id. § 10132(b)(1)(C) (1982).
The next step in the original NWPA scheme was for the President to review the Secretary's recommendations and either approve or disapprove the recommended candidate sites. Id. § 10132(c) (1982). After performing site characterization at the approved sites pursuant to site characterization plans, see id. § 10133 (1982), the Secretary was to decide whether to recommend any of the sites for actual development as a repository, id. § 10134(a)(1) (1982). Congress directed the Secretary to submit an environmental impact statement along with any recommendation that a site be developed as a repository. Id. § 10134(f)(1) (1982). If the Secretary decided to make such a recommendation, the President then would consider whether the site was qualified and, if so, submit the recommendation to Congress. Id. § 10134(a)(2) (1982). The NWPA scheme also provided the state within which the recommended site was located the opportunity to submit to Congress a notice of disapproval. Id. § 10136(b) (1982). Congress then would have 90 days during its first period of continuous session to override the state's notice by joint resolution. Id. § 10135(c) (1982).
On May 28, 1986, the Secretary nominated five sites and recommended three of them for site characterization: Yucca Mountain, Nevada; Deaf Smith County, Texas; and Hanford, Washington. Nevada v. Watkins (II), 939 F.2d 710, 713 (9th Cir. 1991). The same day, Nevada filed the present petition, asking the court to invalidate the Secretary's nomination and recommendation of Yucca Mountain on the ground that the Yucca Mountain EA was inadequate. While Nevada's petition was pending, however, Congress legislated a different direction for the site selection process. On December 22, 1987, Congress amended the NWPA to require the Secretary to proceed with site characterization at Yucca Mountain and terminate investigation of all other candidate sites, including the Deaf Smith County and Hanford sites. Nuclear Waste Policy Amendments Act of 1987, Subtitle A of Title V of Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, § 5011, 101 Stat. 1330-1, 1330-228. The NWPA amendments also repealed the Secretary's authority to investigate potential sites for a second repository.*fn3 Id. § 5012, 101 Stat. at 1330-231.
In response to the NWPA amendments, Nevada has reformulated the relief it requests. Nevada now asks us to enjoin site characterization activities at Yucca Mountain until the Secretary promulgates a valid, adequate, and sufficient EA. The Secretary counters that the NWPA amendments have rendered Nevada's petition moot.
We have statutory jurisdiction over Nevada's petition in accordance with section 119 of the NWPA, 42 U.S.C. § 10139(a)(1)(E) (1988). However, our assertion of jurisdiction must also comport with the "case or controversy" requirement of Article III of the Constitution. If Congress's amendments to the NWPA have rendered this case moot, we lack Article III jurisdiction. DeFunis v. Odegaard, 416 U.S. 312, 316, 40 L. Ed. 2d 164, 94 S. Ct. 1704 (1974); In re Bunker Ltd. Partnership, 820 F.2d 308, 310 (9th Cir. 1987). A case is moot if "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 71 L. Ed. 2d 353, 102 S. Ct. 1181 (1982) (internal quotation omitted). The critical question is whether, in light of the amendments to the NWPA, we could grant "any effective relief" to Nevada if we were to rule in its favor on the merits. See Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986); see also United States v. Alder Creek Water Co., 823 F.2d 343, 345 (9th Cir. 1987) ("A case becomes moot when interim relief or events have deprived the court of the ability to redress the party's injuries.").
The Secretary presents two arguments for why no effective relief is available to Nevada. First, the Secretary contends that the sole legal effect and purpose of the EAs was to inform and support the Secretary's decision on which sites to nominate and recommend for site characterization. Now that Congress has directed the Secretary to proceed with site characterization at Yucca Mountain and nowhere else, site characterization must go forward regardless of any inadequacies of the EA. Second, the Secretary claims that as a practical matter any inadequacies in the Yucca Mountain EA will be resolved by the further investigation that site characterization entails. In preparing the EA, the Secretary was statutorily limited to the use of "available geophysical, geologic, geochemical and hydrologic, and other information." 42 U.S.C. § 10132(b)(3) (1988). The Secretary thus argues ...