ELR Citation: ELR 20833
No(s). 92-70055 (9th Cir. May 24, 1993)

The court denies Nevada's petition for review of a Department of Energy (DOE) interpretation of Nuclear Waste Policy Act (NWPA) §116(c)(3) as requiring DOE, rather than Nevada, to determine the amount of an NWPA-authorized federal grant to Nevada, and to resolve disputes pertaining to the amount. Section 116(c)(3) provides for a federal grant equivalent to what the state and affected units of local government would receive if those units were authorized to tax the federal activities at the Yucca Mountain nuclear waste depository site. The court holds that the statute does not unambiguously provide that Nevada must determine the amount of the grant. Although Nevada's interpretation is plausible, it is not unreasonable to allow DOE, rather than Nevada's taxing authorities, to decide the appropriate amount of the grant. The grant is designed to compensate the state for expenses Nevada may incur as a result of the federal government's activities, not to provide a substitute for state taxation of federal activities. Moreover, it is unlikely that Congress intended to remove control of the amount of financial assistance from DOE and confer it on state agencies.

Counsel for Petitioner
Harry L. Swainston, Deputy Attorney General
Attorney General's Office
Heroes Memorial Bldg., Olympia WA 89710
(702) 687-4170

Counsel for Respondent
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Schroeder, J. (before Pregerson and Nelson, JJ.)