CA1: State loses a round in pool fire fight with Nuclear Regulatory Commission, but more to come

Massachusetts v. NRC, Nos. 07-1482, 07-1483.  There is a re-licensing proceeding going on for two nuclear plants.  The state wants to make sure that the spent fuel rods will be disposed of properly (or, probably, in someone else’s backyard).  As is typical with such litigation, the state says 1) that our understanding of just how dangerous these puppies are has changed; and 2) terrorism.  (I sort of turn off when people use “terrorism” as a legal argument.).  But, the state and the NRC disagree about the right administrative way to get its concerns “heard” (or payed lip-service to).  The state has tried to participate in the re-licensing proceeding, and tried to initiate a rule-making proceeding.  The agency says that it can’t directly participate in the proceedings, but can participate as an “interested government entity” (a category created by its regulations in 10 C.F.R. § 2.315).   The First construes the agency has saying that it will listen to its concerns, even though the state construes an order saying that even listening to its concerns (via a rulemaking) is a matter of discretion.

So, what does the First do?  It sides with the agency.  Sort of. 

Look down!

It says that the interpretation by the agency of its own regulations was “reasonable” (even though there is a “textual mismatch” in the definition of “party” between two regulations).  But, it says this binds the agency to its litigating position, and it imposes a slight stay in lieu of a time-table sought by the state, and orders that “We therefore stay the close of hearings in both plant license renewal proceedings for fourteen days from the date of issuance of mandate in this case ...  in order to afford the Commonwealth an opportunity to request participant status under 10 C.F.R. § 2.315(c), should it desire to do so.”

The First also rejects the argument that the state will never be able to obtain judicial review, saying it really is a contingency, but seems to indicate that no matter what the state can try again, and even later change its position as to whether this current appeal was the only form of judicial review now available.

NEPA claims are rejected for failure to exhaust. 

Obviously there is a fair amount of nuclear waste nerdery in there, so nuclear waste nerds should read it.