NO Oral Argument Held on May 2, Order Issued on August 13, 2013 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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1 USCA Case # Document # Filed: 10/15/2013 Page 1 of 19 NO Oral Argument Held on May 2, 2012 Order Issued on August 13, 2013 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT In Re: AIKEN COUNTY, SOUTH CAROLINA; ROBERT L. FERGUSON; WILLIAM LAMPSON; GARY PETERSEN; STATE OF SOUTH CAROLINA; STATE OF WASHINGTON; NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS; NYE COUNTY, NEVADA, Petitioners. UNITED STATES NUCLEAR REGULATORY COMMISSION, and GREGORY B. JACZKO, Chairman of the United States Nuclear Regulatory Commission, Respondents. PETITIONERS RESPONSE TO INTERVENOR STATE OF NEVADA S PETITION FOR REHEARING EN BANC

2 USCA Case # Document # Filed: 10/15/2013 Page 2 of 19 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Circuit Rule 26.1 and 35(c), the National Association of Regulatory Utility Commissioners (NARUC) respectfully submits this disclosure statement. NARUC is a quasi-governmental non-profit association incorporated in the District of Columbia. NARUC has no parent corporation nor is there any publicly held corporation that owns stock or other interest in NARUC. NARUC is supported predominantly by dues paid by its State public utility commissioner members and through revenues generated by meetings of those members held three times each year. Respectfully submitted, s/ James Bradford Ramsay JAMES BRADFORD RAMSAY General Counsel National Association of Regulatory Utility Commissioners 1101 Vermont Avenue, N.W., Suite 200 Washington, DC DATED: October 14, 2013 (202)

3 USCA Case # Document # Filed: 10/15/2013 Page 3 of 19 On August 13, 2013, this Court granted a writ of mandamus directing the Nuclear Regulatory Commission ( NRC ) to resume its consideration of the license application for the Yucca Mountain high-level waste repository. See In re Aiken County, No , 725 F.3d 255 (D.C. Cir. 2013) (hereafter Opinion ). On September 26, 2013, intervenor State of Nevada filed a Petition for Rehearing En Banc. (Doc ) (hereafter Rehearing Petition ). Respondent NRC filed no rehearing petition. Nevada argues the Opinion failed to address critical equitable considerations such as whether the writ commands a useless thing. Rehearing Petition at 3. Nevada also claims the Opinion conflicts with well-established precedent in the District of Columbia Circuit that mandamus is an equitable remedy that does not automatically follow from a finding the agency violated a statute. Id. Notably, Nevada nowhere disputes or seeks rehearing en banc of the Panel s finding that NRC engaged in flagrant violations of the NWPA when it halted the licensing process. Instead, its only challenge is to the soundness of the Panel s decision ordering the NRC to recommence that process. The Court should deny Nevada s Petition because the Opinion is entirely consistent with prior decisions of this Court regarding when mandamus should be ordered after an agency fails to comply with a clear statutory duty. Although the 1

4 USCA Case # Document # Filed: 10/15/2013 Page 4 of 19 Opinion was premised on flagrant and ongoing violations of the NWPA, it was not based solely on those violations. The Court carefully considered the facts and circumstances surrounding the violations and the resources remaining available to the NRC. Only after a year, waiting at the request of NRC to see if Congressional action would render the controversy moot, and with no assertion by the NRC that ordering mandamus would not move the process forward, did the Panel order the remedy. The Opinion paves the way for NRC to make significant progress that will materially advance the Yucca Mountain proceeding. Accordingly, Rehearing en banc is unnecessary to secure or maintain uniformity of the Court s decisions under Fed. R. App. P. 35(a)(1). Furthermore, Nevada s Rehearing Petition does not raise a question of exceptional importance within the meaning of Fed. R. App. P. 35(a)(2). Nevada s sole basis for asserting exceptional importance is the argument that if mandamus issues simply because an agency fails to meet some statutory deadline, it will encourage the filing of numerous mandamus petitions. Rehearing Petition at 3. But as the Opinion makes clear, mandamus was not issued based solely on a violation of law and a missed statutory deadline. The Opinion is specific: In addition to the flagrant nature of the violations, it was based on the facts that the NRC has the resources and ability to move forward and that, contrary to the NRC s hope, Congress did not change the law or appropriations circumstances to relieve 2

5 USCA Case # Document # Filed: 10/15/2013 Page 5 of 19 the NRC from having to move forward. Indeed, the Opinion s careful and measured approach will reduce the instances of mandamus petitions. Moving forward, agencies will know that they cannot simply ignore laws based on speculation about future congressional action. DISCUSSION I. THE PANEL S OPINION IS CONSISTENT WITH PRECEDENT AND DOES NOT THREATEN THE UNIFORMITY OF THIS CIRCUIT S APPROACH TO WHEN MANDAMUS LIES AGAINST AN AGENCY. Nevada s Rehearing Petition attempts to manufacture a conflict[] with controlling precedent by arguing that the Court (a) provided no discussion of equitable factors, and (b) ordered a useless thing. Rehearing Petition at 2-3. Nevada is wrong on both counts. A. The Court Considered and Addressed Equitable Considerations. Nevada incorrectly asserts that [n]either Judge Kavanaugh s majority opinion, nor Judge Randolph s concurring opinion, contained any discussion of equitable factors, Rehearing Petition at 9, and that the Opinion was based solely on its finding of a statutory violation, id. at 12. In fact, the Opinion took into account a number of equitable considerations, including the nature of the violation and the NRC s argument that it did not have sufficient resources to fully complete the licensing process absent further congressional action. The Panel even took into 3

6 USCA Case # Document # Filed: 10/15/2013 Page 6 of 19 consideration the NRC s unusual plea to wait to see if congressional action would address the NRC s concern or otherwise render mandamus inappropriate. The Panel ordered mandamus based on deliberate and continued agency disregard of a statutory mandate, even after a clear warning from the Court and despite a significant amount of funding to comply with the law. Opinion at n.12. These are compelling equitable grounds for mandamus that go beyond the initial statutory violations by NRC, demonstrating that the Opinion was not based solely on a finding that the statute was violated. Rehearing Petition at 3. 1 Indeed, the Panel took into account equitable considerations completely independent of the flagrant violations of law. These equitable considerations caused the Court to delay issuing mandamus for over a year. See, e.g., In re Aiken County, 2012 U.S. App. LEXIS 16093, 6-7 (D.C. Cir. Aug. 3, 2012) (Kavanaugh, Circuit Judge, concurring) ( In applying the appropriate equitable considerations our cases set forth for mandamus cases, out of appropriate respect for the coordinate branches of Government, and so as to not unnecessarily waste government resources, it behooves us to wait for Congress. If Congress provides no additional clarity on the matter, however, we will be compelled to act on the petition for mandamus. ) (emphasis added). See also Opinion at 4-5 ( [I]n light 1 Nevada, without further explanation, states that these are not equitable grounds for issuing a writ of mandamus. Rehearing Petition at 13. 4

7 USCA Case # Document # Filed: 10/15/2013 Page 7 of 19 of the NRC's strenuous claims that Congress did not want the licensing process to continue and the equitable considerations appropriately taken into account in mandamus cases, we allowed time for Congress to clarify this issue if it wished to do so. ) (emphasis added). Equitable considerations, in fact, were really the only issues in dispute in this case. Unlike intervenor Nevada, the NRC never denied that its conduct violated the NWPA s clear mandate that the agency shall consider the license application. 42 U.S.C (d). In the end, the difference between the majority opinion and the dissent ( whose position Nevada now advances) came down to different views on how the relevant facts should be weighed in this case: Our respectful factbound difference with Chief Judge Garland, then, is simply that we believe especially given [1] the Court s cautious and incremental approach in prior iterations of this litigation, [2] the significant amount of money available for the Commission to continue the licensing process, and [3] the Commission s continued disregard of the law that the case has by now proceeded to the point where mandamus appropriately must be granted. Opinion at 21 n.12. Contrary to Nevada s claim, the Panel addressed equitable considerations in this case. 5

8 USCA Case # Document # Filed: 10/15/2013 Page 8 of 19 B. Rehearing is Not Necessary to Maintain Uniformity with the Court s Decisions Because the Panel Considered Equities Consistent with Circuit Precedent For its part, the sole equitable consideration Nevada advances is that the Court commanded a useless thing. Nevada argues that the purported uselessness of the mandamus remedy should have been given dispositive weight. Nevada relies on the dissenting opinion, which states that the agency has only about $11 million left in available funds, which [n]o one disputes... is wholly insufficient to complete the processing of the [Yucca Mountain] application. Opinion, Chief Judge Garland, dissenting, at 3 (emphasis add ed). The majority, however, specifically considered whether ordering the NRC to move forward with its remaining funding would be worthwhile. Nevada simply disagrees with the conclusions. Nevada s disagreement is insufficient grounds for granting rehearing en banc. The majority specifically addressed the issue of funding, noting that Congress often appropriates money on a step-by-step basis, especially for longterm projects. Opinion at 6. The majority cited City of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C. Cir. 1977) for the proposition that when [a] statutory mandate is not fully funded, the agency administering the statute is required to 6

9 USCA Case # Document # Filed: 10/15/2013 Page 9 of 19 effectuate the original statutory scheme as much as possible, within the limits of the added constraint. Opinion at 7. The majority also found that the (at least) $11.1 million in carryover funding, admittedly available to NRC, was a significant amount of money. Opinion at 7. At oral argument, Petitioners argued that this amount of funding was sufficient to complete the multi-volume Yucca Mountain Safety Evaluation Report ( SER ), the underpinning of the NRC s consideration of the application, which would be a significant advancement in the Yucca Mountain proceeding. Oral Argument Tr. 8:3-11; 9: The NRC admitted that completion of the SER could be done with the money in hand, id. at 37:19-22, and made no suggestion that completing the SER would not advance the licensing process. 3 As a result, it is undisputed that the NRC can accomplish something useful with its available funds. It can still effectuate the original statutory scheme as much as possible, 2 See also Petitioners Response to Brief of United States as Amicus Curiae, Document No at 8-9 (July 6, 2012) ( Issuance of the SERs with the safety conclusions intact is at the heart of the NRC licensing process and available funding is undeniably sufficient to issue SERs). 3 NRC agency staff recently confirmed NRC counsel s concession at oral argument that the SER can be issued with available funding, and recommended this very action to the Commission. See NRC Staff Response to August 30 Commission Order (Sept. 30, 2013) at 7-10, 22, available online at document accession number ML13273A822. NRC agency staff noted that completion of the SER is a prerequisite both to completion of a hearing and a Commission licensing determination and referred to the issuance of the SER as meaningful progress that could serve multiple purposes. Id. at

10 USCA Case # Document # Filed: 10/15/2013 Page 10 of 19 within the limits of the added constraint. City of Los Angeles, 556 F.2d at 50. The Panel considered the equities of whether meaningful relief was available and determined it was, consistent with Circuit precedent. Of course, how the NRC complies with the Court s mandate is now in the hands of the agency. The Court can take judicial notice that the NRC has solicited the views of the parties to its licensing proceeding on that subject. 4 Those Petitioners who are also parties to the NRC proceeding have encouraged the NRC to turn its energy toward issuing the SER, 5 as have other parties in the proceeding. 6 Nevada has encouraged the NRC to instead commit its remaining resources toward reconstituting the Licensing Support Network ( LSN ), 7 an electronic discovery database that the NRC asserted at oral argument would cost millions to restore. 4 Order of the Secretary (Soliciting Views from Participants) (August 30, 2013), available online at document accession number ML13242A Nye County, Nevada, the States of South Carolina and Washington, Aiken County, South Carolina, and the National Association of Regulatory Utilities Commissioners Consolidated Response to NRC Order of August 30, 2013 and to Other Parties Submittals (September 30, 2013) available online at document accession number ML13273A See These parties include White Pine County, Nevada (accession number ML13269A387); Lincoln County, Nevada (ML13269A394); Four Nevada Counties (Churchill County, Esmerelda County, Lander County, and Mineral County) (ML13273A510); Prairie Island Indian Community (ML13273A828); and the Nuclear Energy Institute (ML13273A344). 7 State of Nevada Comments in Response to the Secretary s August 30, 2013 Order (Sept. 30, 2013), available online at document accession number ML13273A214. 8

11 USCA Case # Document # Filed: 10/15/2013 Page 11 of 19 Oral Argument Tr. 46:9-14. Nevada is incorrect that the Court s Order requires revival of the LSN, see Rehearing Petition at 7, and at oral argument the NRC admitted that its consideration of the Yucca Mountain application could resume without the LSN. 8 Oral Argument Tr. 49: At this point, the NRC has not yet decided what action it will take in response to the Court s mandate, and Nevada s identification of one particular way in which the NRC could waste its available funds does not mean there is no meaningful relief to accompany the Court s mandamus order. 9 8 Nevada is well aware that the NRC s administrative law judges eliminated concern over the loss of the LSN by requiring all relevant documents be made available to the parties on disk, as well as placed on NRC s searchable ADAMS database. That action renders reconstitution of the LSN unnecessary. Order, In re U.S. Dep t of Energy, NRC No , ASLBP No HLW-CAB04 (April 11, 2011), at JA Nevada relies on United States ex rel. Sierra Land & Water Co. v. Ickes, 84 F.2d 228 (D.C. Cir. 1936) for the proposition that the Court should not issue mandamus to do a useless thing. Ickes involved a company seeking mandamus to order the Secretary of Interior to approve a right of away application for irrigation ditches, despite the fact that the California Supreme Court had already ruled the company did not have rights to the necessary water. Id. at 232. Without rights to the requisite water, the company could not satisfy the regulatory requirements, and rejecting the applications was therefore appropriate. Id. Thus, it was not just a useless thing the court was asked to order, but a legally impermissible one at the time the mandamus was being considered. In the instant case, meaningful progress on the Yucca Mountain license application can be made and there is no legal bar to doing so. NRC did not discontinue its consideration of the Yucca Mountain license application based upon failure to satisfy regulatory requirements. 9

12 USCA Case # Document # Filed: 10/15/2013 Page 12 of 19 Nevada s argument is not a basis for rehearing en banc. Because the Panel weighed the equities and provided meaningful relief, the Opinion does not conflict[] with controlling precedent. Rehearing Petition at 2. Rehearing en banc is not warranted under Fed. R. App. P. 35(a)(1). II. THE REHEARING PETITION DOES NOT PRESENT A QUESTION OF EXCEPTIONAL IMPORTANCE Nevada attempts to create a question of exceptional importance by arguing that [a] holding that mandamus is required simply because an agency fails to meet some statutory deadline will encourage the filing of numerous mandamus petitions. Rehearing Petition at 3 (emphasis added). Nevada s argument misapprehends the Court s Opinion. The Opinion is not based solely on a failure to meet a statutory deadline, but rather upon a federal agency flouting the law. Opinion at 5. See also id., Circuit Judge Randolph, concurring at 1 ( systematic campaign of noncompliance. ) (citing NRC Inspector General Report, JA ). The statute upon which the Order is based, 42 U.S.C (d), expressly provides that NRC shall consider the Yucca Mountain license application and, as a separate Congressional command, directs the agency to make a final decision on a statutory timetable. See Order at 1. The NRC flagrantly violated both requirements. 10

13 USCA Case # Document # Filed: 10/15/2013 Page 13 of 19 Indeed, as mentioned above, NRC had ample warning from the Court that its failure to consider the Yucca Mountain license application violated the NWPA s mandates. See, e.g., In re Aiken County, 645 F.3d 428, 435 (D.C. Cir. 2011) ([T]he NWPA requires the Commission to review the application... and therefore we must assume that the Commission will comply with its statutory mandate. Although mandamus is an extraordinary remedy reserved for extraordinary circumstances, we will interfere with the normal progression of agency proceedings to correct transparent violations of a clear duty to act. ) (internal citations omitted); id. at 438 (Brown, Circuit Judge, concurring) ( It is arguable the NRC has abdicated its statutory responsibility under the NWPA. ); In re Aiken County, 2012 U.S. App. LEXIS 16093, 4 (D.C. Cir. Aug. 3, 2012) (Kavanaugh, Circuit Judge, concurring) ( [T]he law mandates that th e Nuclear Regulatory Commission act on the license application, and the agency still has a significant amount of appropriated money available to at least begin that task. ); id. at 7 (Randolph, Circuit Judge, dissenting) ( [T]he Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward. There is no reason to delay issuing a writ of mandamus to correct this transparent violation of the law. ). The NRC had over a year to consider these warnings and, on its own, take action to move forward in ways that it admitted at oral argument it could. It declined to do so. 11

14 USCA Case # Document # Filed: 10/15/2013 Page 14 of 19 It is equally clear in the record that NRC terminated its review of the Yucca Mountain license application while significant continuing appropriations were available, despite Nevada s mischaracterization of the circumstances. The suggestion that NRC s conduct was prompted by Congressional funding decisions conflates cause and effect, and ignores the fact that NRC unilaterally stopped performing its mandatory work while appropriated funds were available. See Oral Argument Tr. 59:25-60:2 (Randolph, J.: [W]hy should Congress appropriate money when the Commission is acting in defiance of the congressional mandate? ). The record demonstrates that NRC (specifically the NRC Chairman) began a systematic campaign of non-compliance with the NWPA in October 2010, while significant continuing appropriations were available, to purposefully thwart the review and adjudication of the Yucca Mountain license application. See Pet rs Br. at Given the particular circumstances of this case, there is no basis for Nevada s assertion that the Court s Opinion will encourage numerous mandamus petitions premised on statutory deadlines. The opinion is based on NRC s outright failure to consider the Yucca Mountain license application as the law requires, despite the NWPA s command that it shall consider the application as a separate 12

15 USCA Case # Document # Filed: 10/15/2013 Page 15 of 19 requirement from the statutory timeline. 10 Nevada s speculation regarding the possibility that the Opinion would encourage numerous mandamus petitions is further undermined by the Court s incremental approach and clear warnings, which gave NRC every opportunity to comply with its statutory duty to consider the Yucca Mountain license application. The Rehearing Petition presents no question of exceptional importance within the meaning of Fed. R. App. P. 35(a)(2). En banc rehearing is not warranted. CONCLUSION The Opinion decided the issues Nevada now raises in its Rehearing Petition, including the equitable considerations that must be considered for mandamus to issue. The Panel issued its decision only after deliberate judicial restraint and an incremental process that insured mandamus was necessary. The decision addresses outright defiance of a specific and clear Congressional mandate command by a federal agency. Mandamus will result in significant, material advancement of NRC s consideration of the Yucca Mountain license application, even if currently available funds are limited. 10 Even if the Opinion in this case was based solely on a statutory deadline (which it was not) NRC s violation would not have been a mere technical violation, but rather a deliberate and systematic one. See Opinion at 5; id., Circuit Judge Randolph, concurring at 1; Pet rs Br. at

16 USCA Case # Document # Filed: 10/15/2013 Page 16 of 19 The Opinion does not present any concerns over uniformity of precedent, nor does it conflict with any precedent. Nor does it present an issue of exceptional importance. Accordingly, en banc reconsideration is not warranted. \\\ \\\ \\\ 14

17 USCA Case # Document # Filed: 10/15/2013 Page 17 of 19 RESPECTFULLY SUBMITTED this 14th day of October s/ Thomas R. Gottshall THOMAS R. GOTTSHALL S. ROSS SHEALY Haynsworth Sinkler Boyd, P.A. Post Office Box Columbia, SC Attorneys for Aiken County ALAN WILSON* Attorney General for the State of South Carolina JOHN W. MCINTOSH* ROBERT D. COOK* Post Office Box Columbia, SC *not admitted s/ Kenneth Paul Woodington WILLIAM HENRY DAVIDSON, II KENNETH PAUL WOODINGTON Davidson & Lindemann, P.A Devonshire Dr., 2nd Floor Post Office Box 8568 Columbia, SC Attorneys for the State of South Carolina s/ James Bradford Ramsay JAMES BRADFORD RAMSAY HOLLY RACHEL SMITH National Assoc. of Regulatory Utility Commissioners 1101 Vermont Ave. N.W., Suite 200 Washington, DC Attorneys for NARUC s/ Barry M. Hartman BARRY M. HARTMAN CHRISTOPHER R. NESTOR K&L Gates LLP 1601 K Street, N.W. Washington, DC *not admitted Attorneys for Robert L. Ferguson, William Lampson, and Gary Petersen ROBERT W. FERGUSON* Attorney General s/ Andrew A. Fitz ANDREW A. FITZ TODD R. BOWERS State of Washington Office of the Attorney General Post Office Box Olympia, WA *not admitted Attorneys for State of Washington s/ Robert M. Andersen ROBERT M. ANDERSEN Clark Hill PLC 601 Pennsylvania Ave. N.W. North Building, Suite 1000 Washington, DC Attorney for Nye County 15

18 USCA Case # Document # Filed: 10/15/2013 Page 18 of 19 CERTIFICATE OF SERVICE I hereby certify that on the 14th day of October, 2013, a copy of the foregoing was filed using the CM/ECF system which will serve the same on all parties of record as follows: Mullins, Charles Nestor, Christopher R. Andersen, Robert Michael Cordes, John F., Jr. Ramsay, James Bradford Hartman, Barry M. Smith, Holly Rachel Gottshall, Thomas Rush Woodington, Kenneth Paul Bowers, Todd R. Fitz, Andrew Arthur charles.mullins@nrc.gov christopher.nestor@klgates.com, dottie.messimer@klgates.com, klgateseservice@klgates.com randersen@clarkhill.com John.Cordes@nrc.gov jramsay@naruc.org barry.hartman@klgates.com, klgateseservice@klgates.com hsmith@naruc.org tgottshall@hsblawfirm.com, lgantt@hsblawfirm.com, bvaldes@hsblawfirm.com kwoodington@dml-law.com, sstafford@dml-law.com, jangus@dml-law.com, nbouknight@dml-law.com toddb@atg.wa.gov, TORSeaEF@atg.wa.gov, aaronw@atg.wa.gov, taliaz@atg.wa.gov, jenniferd4@atg.wa.gov andyf@atg.wa.gov, ecyolyef@atg.wa.gov, dianam@atg.wa.gov

19 USCA Case # Document # Filed: 10/15/2013 Page 19 of 19 Suttenberg, Jeremy Shealy, Samuel Ross Cottingham, Anne W. Stouck, Jerry Fitzpatrick, Charles J. Lawrence, John W. Malsch, Martin Guilbert Durkee, Ellen J. Avila, Aaron Peter DATED this 14th day of October, 2013, in Columbia, South Carolina. s/ Barry M. Hartman BARRY M. HARTMAN