59 F.4th 1112
10th Cir.2023Background
- The Nuclear Regulatory Commission (NRC) issued a 40-year temporary license to Interim Storage Partners to construct and operate a private consolidated interim spent fuel storage facility near the New Mexico border.
- NRC opened a licensing adjudication and publicly invited interested entities to request hearings and petition to intervene under 10 C.F.R. § 2.309; New Mexico did not request a hearing or intervene during that adjudicatory proceeding.
- The licensing proceeding terminated before the NRC published a draft Environmental Impact Statement (EIS); the NRC later solicited public comments on the draft EIS, and New Mexico submitted critical comments.
- New Mexico sued seeking review of the NRC’s license decision, alleging violations of the Administrative Procedure Act and NEPA, invoking Hobbs Act/Atomic Energy Act jurisdiction, asserting claims under the Nuclear Waste Policy Act (NWPA), and claiming the NRC acted ultra vires.
- The court addressed whether federal appellate jurisdiction lies: (1) under the Hobbs Act/Atomic Energy Act (requires a "party aggrieved"), (2) under NWPA (Part A), and (3) under the Leedom/ultra vires exception to exclusive appellate review.
- The Tenth Circuit held New Mexico lacked Hobbs Act/AEA standing because it never participated as a party (did not intervene or submit contentions), NWPA Part A did not apply to a private, temporary license, and the ultra vires exception was unavailable because administrative remedies (intervention/hearing) were available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under Hobbs Act / Atomic Energy Act | New Mexico contends it is an "aggrieved party" entitled to appellate review of the NRC license. | Hobbs Act jurisdiction requires the petitioner to have been a party in the underlying administrative proceeding; New Mexico never intervened or requested a hearing. | New Mexico is not a "party aggrieved"; Hobbs Act/AEA jurisdiction unavailable. |
| Does commenting on the draft EIS confer party status? | Commenting on the draft EIS suffices (rulemaking analog); agency received and addressed New Mexico's comments. | Licensing proceedings require intervention/requested hearing and admissible contentions per 10 C.F.R. § 2.309; mere comments are insufficient. | Comments alone do not confer party status in this adjudicatory licensing context; intervention/contentions required. |
| Jurisdiction under the Nuclear Waste Policy Act (Part A) | NWPA applies because the EIS and decision reference repository timing, DOE analyses, and long-term storage issues. | Part A governs federal, permanent repositories; Interim Storage’s license is private and temporary (40 years), so Part A and NWPA appellate jurisdiction provision do not apply. | NWPA Part A does not apply; it does not provide appellate jurisdiction here. |
| Ultra vires / Leedom exception to exclusive review | Agency action exceeded statutory authority, so district/court review is proper notwithstanding exclusive review scheme. | Even if ultra vires, New Mexico had available administrative remedies (could have intervened or sought hearings); Leedom applies only when no other review is available. | Ultra vires exception does not apply because adequate administrative remedies existed; no jurisdiction. |
Key Cases Cited
- Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (Sup. Ct. 1983) (agency licensing authority over nuclear matters)
- Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214 (D.C. Cir. 1973) (party status requires participation in appropriate administrative procedures)
- Ohio Nuclear‑free Network v. U.S. Nuclear Regulatory Comm’n, 53 F.4th 236 (D.C. Cir. 2022) (intervention/filing contentions required to be an aggrieved party)
- Bullcreek v. Nuclear Regul. Comm’n, 359 F.3d 536 (D.C. Cir. 2004) (NWPA Part A concerns federal permanent repositories)
- Leedom v. Kyne, 358 U.S. 184 (Sup. Ct. 1958) (ultra vires doctrine permitting district-court review when no other review is available)
- Matter of Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317 (7th Cir. 1986) (rejecting broad exception to statutory party-based review)
- Nat. Res. Def. Council v. U.S. Nuclear Regulatory Comm’n, 823 F.3d 641 (D.C. Cir. 2016) (NEPA objections do not alter NRC hearing procedures)