ELR Citation: ELR 21003
No(s). 91-2281 (6th Cir. Jun 2, 1993)

The court holds that Michigan lacks standing under the National Environmental Policy Act (NEPA) to seek mandamus relief to compel the Nuclear Regulatory Commission (NRC) to supplement its 1982 environmental impact statement (EIS) for its low-level radioactive waste (LLRW) disposal licensing regulations, and to compel the Department of Energy to prepare a programmatic EIS to consider the potential impact of all proposed LLRW disposal facilities on the disposal of LLRW in light of declining LLRW volumes.

The court first observes that Michigan is concerned with avoiding its responsibilities under the LLRW Policy Act rather than with any NEPA requirements regarding action taken by the NRC. The court next holds that a challenge to the NRC's regulations is the only action that directly touches upon Michigan's responsibilities. The court holds that the fact that the regulations to which the EIS apply are applicable to Michigan and that the state is insisting on appropriate implementation of NEPA does not confer standing. Michigan has not filed for a license to construct a disposal facility. Michigan failed to identify any harm or immediate threat of harm to its resources or its residents that the preparation of an EIS could alleviate. An update of the EIS by itself has no effect on the rights or obligations of Michigan unless Michigan seeks a license under the requirements of the regulations.

Counsel for Plaintiffs-Appellants
John C. Scherbarth, Ass't Attorney General
Attorney General's Office
525 W. Ottawa St., Rm. 640, Lansing MI 48913
(517) 373-7780

Counsel for Defendants-Appellees
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: MILBURN and RYAN, Circuit Judges; and COFFIN,^* Senior Circuit Judge.