* Note Editor, Boston College Environmental Affairs Law Review, 2000-01. The author wishes to thank his brother, Alex, for his help in framing the issues in this Note.
1 5 U.S. (1 Cranch) 137, 166 (1803).
2 See N. States Power Co. v. United States Dep’t of Energy, 128 F.3d 754, 755 (D.C. Cir. 1997) [hereinafter Northern States Power I].
3 See Michael A. Bauser, Recent Decisions Concerning DOE’s Commercial Radioactive Waste Disposal Program, 19 Energy L.J. 387, 387 (1998).
4 See Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793, 21,793–94 (1995). Department of Energy (DOE) stated that it would not be able to begin taking spent nuclear fuel from utilities by Jan. 1, 1998, and that it did not have an obligation to begin accepting waste by the deadline absent a permanent waste repository or interim storage facility constructed under the NWPA. See id.
5 See Ind. Mich. Power Co. v. Dep’t of Energy, 88 F.3d 1272, 1273 (D.C. Cir. 1996).
6 See id. at 1277.
7 See Northern States Power I, 128 F.3d at 756–57.
8 See id.
9 Id. at 758.
10 See Ind. Mich., 88 F.3d at 1277.
11 See Northern States Power I, 128 F.3d at 758. The D.C. Circuit held in Indiana Michigan that the DOE had an obligation to meet the 1998 deadline, without qualification or condition, in return for payments made by the utilities into the Nuclear Waste Fund. The utilities had dutifully paid several billion dollars into the Nuclear Waste Fund, binding DOE to its contractual bargain, and therefore DOE had a clear duty to act. See 88 F.3d at 1276. Following the ruling in Indiana Michigan, DOE nonetheless informed the utilities that it would be unable to accept waste by the deadline, providing the utilities with clear right to relief. See Northern States Power I, 128 F.3d at 757.
12 See id. at 759. The NWPA mandated that utilities generating spent nuclear fuel enter into a “Standard Contract,” to be discussed below, with DOE for the disposal of the spent fuel. See 42 U.S.C. § 10222(a) (1999). The D.C. Circuit Court found that the contract provides a potentially adequate remedy in the event one of the parties fails to meet their contractual obligation—essentially administrative relief negotiated through DOE’s contracting officer. See Northern States Power I, 128 F.3d at 756.
13 See Bauser, supra note 3, at 394–95.
14 See Nuclear Waste Policy Act of 1999: Hearing on H.R. 45 Before the Subcomm. on Energy and Power of the House Commerce Comm., 106th Cong. (1999) [hereinafter Feb. 10, 1999 House NWPA Hearing] (statement of Stuart Schiffer, Deputy Assistant Attorney General, United States Dept. of Justice) available at 1999 WL 72647.
15 See Nuclear Waste Policy Act of 1999: Hearing on S. 608 Before the Senate Comm. on Energy and Natural Resources, 106th Cong. (1999) (statement of Chairman Frank Murkowski).
16 See Margaret Kriz, Mountain of Trouble, 31 Nat’l J. 2545, 2543 (1999).
17 See id.
18 See id.
19 See id. See also Hearing on H.R. 45, the Nuclear Waste Policy Act of 1999 Before the Subcomm. on Energy and Power of the House Commerce Comm., 106th Cong. (1999) [hereinafter Mar. 12, 1999 House NWPA Hearing] (statement of Sec’y Bill Richardson, DOE) available at 1999 WL 140816.
20 See Rep. Fred Upton, How Should Waste Be Stored? Move Waste to a Safe, Central Site, Roll Call, Mar. 6, 2000, available at 2000 WL 8733826.
21 See H.R. 45, 106th Cong. (1999); S. 608, 106th Cong. (1999); S. 1287, 106th Cong. (1999).
22 See Bauser, supra note 3, at 387.
23 See id.
24 In a nuclear power plant, the fuel produces heat by the process of fission. See Bauser, supra note 3, at 387 n.1. This process creates radiation, and when the spent fuel is removed it remains highly radioactive. See id.
25 See id. at 387.
26 See Mark Holt, Civilian Nuclear Waste Disposal, 1, 1 (last modified May 24, 2000) <http://www.cnie.org/nle/waste-2.html> (Congressional Research Serv. Issue Brief for Congress No. 92059).
27 See id.
28 See Mark Holt, Civilian Nuclear Spent Fuel Temporary Storage Options, 1, 3 (last modified Mar. 27, 1998) <http://www.cnie.org/nle/waste-20.html> (Congressional Research Serv. Issue Brief for Congress No. 96–212 ENR).
29 See id.
30 See id.
31 See id. at 8. In the United Kingdom, British Nuclear Fuels Ltd. has recently opened a commercial reprocessing plant in Sellafield, England, which was developed with the intention of reprocessing spent fuel from throughout Europe, Japan, and possibly the United States. See id.
32 See Jason Hardin, Note, Tipping the Scales: Why Congress and the President Should Create a Federal Interim Storage Facility for High-Level Radioactive Waste, 19 J. Land Resources & Envtl. L. 293, 294 (1999).
33 See id.
34 See id.
35 See Denise Renee Foster, Comment, Utilities: De Facto Repositories for High-Level Nuclear Waste? 5 Dick. J. Envtl. L. & Pol’y 375, 375 (1996). The nuclear fuel assemblies, once removed from the reactor core, are placed underwater to both cool the spent fuel and provide radiation shielding. See id. at 389 n.93. This technique of storage is safe and relatively stable. Considering, however, that the spent nuclear fuel must be isolated from the environment for hundreds of thousands of years, on-site storage ponds clearly only offer a temporary solution to the waste problem. See id.
36 Holt, supra note 28, at 3.
37 See Norther States Power I, 128 F.3d 754, 754 (D.C. Cir. 1997).
38 See Kriz, supra note 16, at 2543.
39 See Holt, supra note 28.
40 See Kriz, supra note 16, at 2543.
41 See In re Application for a Certificate of Need for Const. of an Indep. Spent Fuel Storage Installation, 501 N.W.2d 638, 642 (Minn. Ct. App. 1993).
42 See Holt, supra note 28.
43 See Dean Rebuffoni, Minnesota May Be Considered as Nuclear-Waste Repository, Minneapolis Star-Tribune, Jan. 9, 1986, 1986 WL 4804104.
44 See In re Application for a Certificate of Need, 501 N.W.2d at 640–43, 649.
45 See id.
46 See Kriz, supra note 16, at 2543. The Minnesota Legislature, as a condition to approving Northern States Power’s plan, required the utility to make payments into a renewable energy fund. See id. By Jan. 2000, the utility had paid $3.5 million into the fund. See id.
47 See In re Application of Northern States Power Co. for Approval of Its 1998 Resource Plan, 604 N.W.2d 386, 388 (Minn. Ct. App. 2000).
48 See id. at 387.
49 Id.
50 See id. at 391. Northern States Power will completely run out of space for the storage of spent fuel by 2007 unless it is able to build new, additional storage facilities. See Kriz, supra note 16, at 2543.
51 See 42 U.S.C. §§ 10101–10270 (1999).
52 See 42 U.S.C. § 10131(a)(3)–(4).
53 See id.
54 Ind. Mich. Power Co. v. Dep’t of Energy, 88 F.3d 1272, 1273 (D.C. Cir. 1996).
55 See Bauser, supra note 3, at 387.
56 See id. at 388.
57 See id.
58 Ind. Mich. Power, 88 F.3d at 1273.
59 42 U.S.C. § 10222(a)(5)(A)–(B) (emphasis added).
60 See id.
61 See 42 U.S.C. § 10222(a)(2).
62 See Holt, supra note 26, at 7.
63 See Kriz, supra note 16, at 2543.
64 See Holt, supra note 26, at 3.
65 See id.
66 Id.
67 See id. In an interview with a senior Senate staff member who has worked extensively on the issue, it was suggested to the author that the NWPA was something of a white elephant for the civilian nuclear power industry. Unlike all other forms of electricity generation, nuclear power has a “closed” fuel cycle—the waste generated cannot be dispersed into the common via a smokestack or other method. The waste must be disposed of or recycled in some manner, and thus, if the fuel cycle cannot be closed, the industry cannot continue to operate. While ostensibly the NWPA provides for disposal and limits the industry’s liability for the radioactive waste it generates, it was suggested that because the NWPA requires site performance standards to be accurately predicted for 10,000 years and beyond—an inherently uncertain endeavor—site evaluation would take so long that the civilian nuclear power industry would in the meantime be forced out of business.
68 See Holt, supra note 26, at 3–4.
69 See id. at 3–4. Although the Nuclear Waste Fund is amply funded, DOE cannot spend the waste fees without Congressional approval, and only about half the fees collected have been appropriated. Id.
70 See id. at 3.
71 See id.
72 See Mar. 12, 1999 House NWPA Hearing, supra note 19.
73 See Holt, supra note 26, at 10.
74 See id.
75 See id.
76 See Ind. Mich. Power Co. v. Dep’t of Energy, 88 F.3d 1272, 1274 (D.C. Cir 1996).
77 See id.
78 See id.
79 See id.
80 See id. at 1273.
81 See Ind. Mich. Power, 88 F.3d at 1274.
82 See id.; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
83 See Ind. Mich. Power, 88 F.3d at 1274.
84 See id. (quoting Wis. Elec. Power v. DOE, 778 F.2d 1, 4 (D.C. Cir. 1985)).
85 See id.
86 See id.
87 Nuclear Waste Policy Act, 42 U.S.C. § 10222(a)(5)(B).
88 See Ind. Mich. Power, 88 F.3d at 1275.
89 See id.
90 See id.
91 See id.
92 See id. at 1276.
93 See Ind. Mich. Power, 88 F.3d at 1276.
94 Id.
95 Id.
96 See id. at 1277.
97 See id.
98 See Bauser, supra note 3, at 391.
99 See Northern States Power I, 128 F.3d 754, 759 (D.C. Cir. 1997).
100 See Bauser, supra note 3, at 391.
101 See id. at 392.
102 See id.
103 See Northern States Power I, 128 F.3d at 759. A writ of mandamus is proper only if (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff. See id. at 758.
104 See id. at 758–59.
105 See id. at 759.
106 88 F.3d 1272, 1277 (D.C. Cir. 1996).
107 See Northern States Power I, 128 F.3d at 759.
108 Id.
109 See id.
110 See id. at 761.
111 See N. States Power Co. v. United States, 43 Fed. Cl. 374 (Fed. Cl. 1999) [hereinafter Northern States Power II], Conn. Yankee Atomic Power Co. v. United States, 42 Fed. Cl. 448 (Fed. Cl. 1998); Yankee Atomic Elec. Co. v. United States, 42 Fed. Cl. 223 (Fed. Cl. 1998).
112 See Holt, supra note 26, at 4.
113 See Yankee Atomic, 42 Fed. Cl. at 236.
114 See id. at 237.
115 See Northern States II, 43 Fed. Cl. at 388.
116 See id.
117 See id.
118 See id. at 377.
119 See id.
120 See id. at 377–78.
121 See Me. Yankee Atomic Elec. Co. v. United States, 1999 WL 626530 (Fed. Cir. 1999).
122 See Me. Yankee Atomic Elec. Co. v. United States, 2000 WL 1230587, at *8 (Fed. Cir. 2000); N. States Power Co. v. United States, 2000 WL 1231054, at *8 (Fed. Cir. 2000).
123 See Me. Yankee, 2000 WL 1230587, at *6.
124 See id. at *7
125 See Wisconsin Electric Sues DOE After Nuclear Talks Falter, Inside Energy, Aug. 30, 1999, available in 1999 WL 12810518.
126 See id.
127 See id.
128 See Wis. Elec. Power Co. v. United States Dep’t of Energy, 211 F.3d 646, 648 (D.C. Cir. 2000).
129 See id. Although DOE Secretary Richardson has suggested that the department is willing to take title to spent fuel kept on-site at power plants, DOE has yet to successfully negotiate any non-monetary remedies with holders of spent nuclear fuel. See id.
130 See Northern States Power I, 128 F.3d 754, 759 (D.C. Cir. 1997).
131 See Lorie Asseo, Court Declines Fuel Disposal Fight, Associated Press, Mar. 6, 2000, available in 2000 WL 15786653.
132 Secretary Richardson asserts that DOE does not currently have the authority to negotiate a settlement, and that Congress must first pass legislation allowing the Department to settle with the utilities. See Proposal Would Have DOE Take Title to Waste if Utilities Drop Lawsuits, Electric Utility Week, May 3, 1999, available in 1999 WL 12165446.
133 See Asseo, supra note 131.
134 See H.R. 45, 106th Cong. (1999); S. 608, 106th Cong. (1999); S. 1287, 106th Cong. 1999).
135 See H.R. 45, 106th Cong. (1999); S. 608, 106th Cong. (1999).
136 See Holt, supra note 28, at 6.
137 See Upton, supra note 20.
138 See id.
139 See Mar. 12, 1999 House NWPA Hearing, supra note 19, (statement of Sec’y Bill Richardson, DOE); see also Holt, supra note 28, at 7.
140 See Holt, supra note 28, at 7.
141 See id.
142 See id.
143 See Rep. Jim Gibbons, H.R. 45 Is Bad for Nevada, Environment and Nation, Roll Call, Mar. 6, 2000, available at 2000 WL 8733826.
144 See id.
145 See Mar. 12, 1999 House NWPA Hearing, supra note 19 (statement of Sec’y Bill Richardson, DOE).
146 See id.
147 See id.
148 See S. 1287, 106th Cong. (1999).
149 See id.
150 See id.
151 See Tina Davis, Revised Nuke Waste Bill Does Not Win Democratic Favor, The Energy Daily, Feb. 10, 2000.
152 See Brody Mullins, Governors Get Murkowski to Drop Nuclear Waste Provision, National Journal’s Congress Daily, Feb. 9, 2000, available at 2000 WL 11085618.
153 See id.
154 See id.
155 See id.
156 See id.
157 See Mullins, supra note 147.
158 See Senate Effort to Speed Up Nuclear Waste Shipments Declared Dead Until Next Year, Copley News Service, Feb. 10, 2000.
159 See id.
160 See generally Me. Yankee Atomic Power v. United States, 2000 WL 1230587 (Fed.Cir. 2000), N. States Power Co. v. United States, 2000 WL 1231054 (Fed. Cir. 2000).
161 See Dan Harrie, Nuclear Waste, Tailings Occupy Western Governors, Salt Lake Tribune, June 16, 1999, available at 1999 WL 3366166 (quoting Sec’y Richardson as saying at a Western Governors Conference, “DOE will take title to waste at the facilities while we look at the viability of Yucca Mountain.”).
162 See Proposal Would Have DOE Take Title to Waste if Utilities Drop Lawsuits, Electric Utility Week, May 3, 1999, available at 1999 WL 12165446.
163 See generally Me. Yankee, 2000 WL 1230587, *1.
164 See Court Declines Fuel Disposal Fight, The Associated Press, Mar. 6, 2000, available at 2000 WL 15786653 (discussing the Supreme Court’s refusal to review a lower court order limiting a damages remedy against a utility); see also Northern States Power I, 128 F.3d 754, 761 (D.C. Cir. 1997) (holding DOE had an unconditional obligation to accept waste, but refusing to order specific performance).
165 See Energy Secretary Hopes for Waste Pact this Session, Las Vegas Review-Journal, Mar. 9, 2000, at 4A.
166 See 2000 WL 1230587, *8.
167 See 2000 WL 1231054, *3.
168 1999 WL 626530.
169 See Kriz, supra note 16, at 2543.
170 See Holt, supra note 28, at 6.
171 See id.
172 See id. at 3
173 See id. at 5.
174 Id.
175 See Holt, supra note 28, at 5.
176 See id. at 7.
177 See id.
178 See id.
179 See Yankee Atomic Elec. Co. v. United States, 42 Fed. Cl. 223, 235 (Fed. Cl. 1998).
180 See id.
181 Kriz, supra note 16, at 2543.
182 See Holt, supra note 26.
183 See Harrie, supra note 153 (discussing a nuclear waste storage facility on the Goshute Indian Reservation in Utah proposed by a consortium of electric power utilities).
184 See Holt, supra note 28.
185 See id.; Harrie, supra note 153, at D2; see also Kriz, supra note 16, at 2543.
186 See id.
187 See Holt, supra note 28.
188 See id.
189 See DOE Challenging Nevada Law Barring Nuclear Waste Disposal, The Energy Daily, Mar. 13, 2000.
190 See id.
191 See id.
192 See id. As is discussed infra, this law has already been litigated in Nevada v. Watkins, 914 F.2d 1545 (9th Cir. 1990). In that case, the court ultimately reached its decision based upon the Property Clause of the Constitution, not the Supremacy Clause, whereas in the current case it appears the government is basing its appeal on the NWPA’s preemption of the Nevada law. See DOE Challenging Nevada Law, The Energy Daily, Mar. 13, 2000.
193 See id.
194 See id.
195 N. States Power Co. v. Minn., 447 F.2d 1143, 1145 (8th Cir. 1971).
196 Id. at 1146.
197 Id.
198 Id.
199 See id.
200 N. States Power Co. v. Minn., 447 F.2d at 1146.
201 See Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 247 (1984)).
202 Id.
203 Id.
204 See N. States Power v. Minn., 447 F.2d at 1147.
205 Id.
206 See id. at 1148.
207 Id.
208 Id. at 1154. The “radioactive effluents” referred to in Northern States Power v. Minnesota were not spent-fuel rods but rather radioactive liquid and gaseous discharges. Id. at 1145. Northern States Power had been permitted by the United States Atomic Energy Commission to construct and operate a nuclear power plant. When the utility applied to the Minnesota Pollution Control Agency for a waste disposal permit, however, the permit was granted subject to substantially more stringent standards than those imposed by federal law. See id. at 1144–45. The court found that discharge of radioactive effluents was inextricably intertwined with the construction and operation of the facility, and were states allowed to individually regulate such releases, they could stifle the development of the nuclear power industry. Thereby, the states could create an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. See id. at 1154.
209 461 U.S. 190 (1983).
210 See id. at 194.
211 See id. at 198.
212 Id.
213 See id. at 205.
214 See Pacific Gas & Elec. Co., 461 U.S. at 196–97.
215 See id. at 205.
216 See id. at 196–97.
217 See id. at 205.
218 447 F.2d 1143 (8th Cir. 1971), aff’d 405 U.S. 1035 (1972).
219 See Pacific Gas & Elec. Co., 461 U.S. at 212, n.24.
220 Id.
221 See id. at 219.
222 See 914 F.2d 1545, 1561 (9th Cir. 1990).
223 See id. at 1550–51.
224 See id. at 1551.
225 See id. at 1550.
226 The Yucca Mountain site is on federal lands. Congress retains the power to enact legislation effecting federal lands pursuant to the Property Clause, and when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. See id. at 1554.
227 See id. at 1561.
228 See Holt, supra note 28.
229 See Minn. v. United States Nuclear Regulatory Comm’n, 602 F.2d 412, 414 (D.C. Cir. 1979). The Nuclear Regulatory Commission (NRC) has a general license for on-site dry storage that allows any nuclear power plant to install NRC-approved dry storage systems without further formal NRC approval. See also Holt, supra note 28.
230 See id.
231See Pacific Gas & Elec., 461 U.S. at 197–98.
232 “[W]e hold that the federal government has exclusive authority under the doctrine of pre-emption to regulate the construction and operation of nuclear plants, which necessarily includes regulation of the levels of radioactive effluents discharged from the plant.” 447 F.2d at 1154.
233 “[I]t is certainly possible to interpret the Act as directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken.” 461 U.S. at 220.
234 See Holt, supra note 28.
235 See In re Application of N. States Power Co. for Approval of Its 1998 Resource Plan, 604 N.W.2d 386, 387–88 (2000).
236 See generally, Minn. Stat. § 216B (1999).
237 See Kriz, supra note 16, at 2543; Holt, supra note 28.
238 See Kriz, supra note 16, at 2543 (stating that seven nuclear facilities are limited by regulations in the amount of waste they can store on-site).
239 See N. States Power Co v. United States Dep’t of Energy, 128 F.3d 754, 755 (D.C. Cir. 1997).
240 See Yankee Atomic Elec. Co. v. United States, 42 Fed. Cl. 223, 225 (Fed. Cl. 1998).
241 See Holt, supra note 28; Kriz, supra note 16, at 2543.
242 See Dori Meinert, Senate Effort to Speed Up Nuclear Waste Shipments Declared Dead ‘til Next Year, Copley News Service, Feb. 10, 2000.
243 See Pacific Gas & Elec. Co., 461 U.S. at 203.
244 Id.
245 N. States Power v. Minn., 447 F.2d at 1147.
246 See Pacific Gas & Elec. Co., 461 U.S. at 223.
247 See id.
248 See Nuclear Waste Policy Act, 42 U.S.C. § 10131(a)(5) (giving generators of high-level waste primary responsibility to provide for, and responsibility to pay the costs of, the interim storage of such waste and spent fuel until it is accepted by the Secretary of Energy in accordance with the NWPA).
249 See Holt, supra note 28 (discussing how successful state and local opposition to expanding on-site storage could force reactors to shut down).
250 See Dori Meinert, Senate Effort to Speed Up Waste Shipments Declared Dead ‘til Next Year, Copley News Service, Feb. 10, 1999.
251 See Ann Scott Tyson, Congress, Finally, May Act on Nuclear Waste, Christian Science Monitor, Feb. 10, 2000, at 3.