ELR Citation: ELR 20697
No(s). s. 89-70142, -70162 (9th Cir. Feb 20, 1991)

The court holds that the Department of Energy's (DOE's) decision not to designate Inyo County, California, and Esmeralda County, Nevada, as local units of government affected by the Yucca Mountain High Level Nuclear Waste Repository Project was arbitrary and capricious. Under the Nuclear Waste Policy Act (NWPA), designation as an "affected unit of local government" entitles a local government to receive DOE funds to participate in evaluation activities. Affected units may, at DOE's discretion, include local governments that are contiguous to the unit of local government with jurisdiction over the site. Petitioner counties are contiguous to the county with jurisdiction over the site. DOE designated two other contiguous counties as affected units, but refused to designate petitioner counties. The court first holds that it has jurisdiction to review DOE's decision, because Inyo County withdrew its motion for reconsideration, rendering DOE's decision final. The court next holds that review of DOE's decision is appropriate, because the subtitle of the NWPA relevant to this case expressly provides for judicial review of "any final decision or action of the Secretary." Moreover, this type of action will not endanger the purposes of the Act. The court notes that, contrary to the petitioners' assertions, the NWPA does not require DOE to designate all or none of the local government units contiguous to the county with jurisdiction over the repository site. The court also notes that DOE's decision does not disregard past DOE policy, since DOE has promulgated no formal rule or policy statement on this issue. Further, the court notes that DOE did not disregard socioeconomic impacts on Inyo County. However, because the court holds that DOE disregarded the possibility of groundwater contamination and radioactive releases from the repository operation and overlooked the fact that rail and highway transportation of nuclear waste through the counties is likely, further proceedings are necessary.

A concurring and dissenting judge would hold that the court has jurisdiction to review the petition, but that DOE's decision is unreviewable, since the NWPA does not provide any meaningful criteria for evaluating DOE's decision. The concurring and dissenting judge would also hold that, even if DOE's decision were reviewable, the Department did not abuse its discretion in denying affected unit status to the petitioners. Congress gave DOE broad discretion to determine whether a contiguous county is affected.

Counsel for Petitioners
Jed Courtney
Esmeralda County District Attorney
Esmeralda County Courthouse, P.O. Box 527, Goldfield NV 89013
(702) 485-6352

Counsel for Respondent
Vicki L. Plaut, Angus E. Crane
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514- 2000

Before Wallace and Alarcon, JJ.