ELR Citation: ELR 20654
No(s). s. 83-2073, 84-5234 (D.C. Cir. Jun 18, 1985)

The court holds that the appeals courts have original and exclusive jurisdiction over a Department of Energy rule promulgated under §302(a)(3) of the Nuclear Waste Policy Act (NWPA), and that the rule, establishing a one-time fee based on the volume of spent nuclear fuel rather than the amount of electricity generated, is a reasonable construction of the Act. The court first holds that the district court lacked subject matter jurisdiction to review the rule. NWPA's first and second subchapters contain review provisions giving the appeals courts exclusive jurisdiction; §119(a)(1)(A) in the first subchapter limits its applicability to "this part," which includes a statement of the congressional purpose for establishing the Nuclear Waste Fund. The challenged rule was promulgated under the third subchapter, which lacks a review provision. The court rules that the third subchapter is covered by the review provisions of the prior two. The integrated purpose and structure of the NWPA, which includes matters relating to the Fund in both subchapters I and III, counsels against overreliance on the reference to "this part" in §119. Appeals court jurisdiction is favored in administrative appeals because it avoids duplicative review. In this case an evidentiary hearing is not necessary because the administrative record is extensive. Finally, the efficiency and predictability of limited review is especially important given the urgency of the nuclear waste disposal problem. The court next holds that the rule for calculating the one-time fee under §302(a)(3) is neither unlawful nor arbitrary and capricious. The statutory language is at best ambiguous on whether fuel volume or electricity generated should be the basis of the one-time fee and the Department of Energy is entrusted with the administration of the NWPA. Section 302(a)(2) establishes an ongoing fee of 1.0 mil per kilowatt-hour to pay for the disposal of fuel still in use after April 7, 1983. Section 302(a)(3), which establishes the one-time fee for fuel spent before that date, merely requires that the fee be "equivalent to an average charge of 1.0 mil per kilowatt-hour" of electricity generated. The legislative history does not indicate that the per kilowatt-hour approach of subsection (a)(2) is necessary for (a)(3). Congress used distinct language in the two subsections, and therefore the extensive legislative history of (a)(2) is not dispositive of questions concerning (a)(3). While legislative history suggests that the two fees should be equivalent, it does not necessitate that the methods for computing them be identical. Since the statute and legislative history do not reveal a clear congressional plan for setting the one-time fee, the court holds it must defer to the agency's reasonable interpretation of the law.

[The lower court decision appears at 14 ELR 20442.]

Counsel for Appellants
John T. Boese
Fried, Frank, Harris, Shriver & Kampelman
600 New Hampshire Ave. NW, Washington DC 20037
(202) 342-3500

Counsel for Appellees
Richard K. Willard
Civil Division
Department of Justice, Washington DC 20530
(202) 633-1706

Counsel for Amicus Curiae
Scott T. Maker
Weil, Gotshal & Manges
1101 14th St. NW, Washington DC 20005
(202) 682-7000

Before WALD, EDWARDS, and BORK, Circuit Judges.