ELR Citation: ELR 21449
No(s). 94-70148 (9th Cir. Jun 6, 1995)

The court holds that the Nuclear Waste Policy Act (NWPA) does not authorize judicial review of the U.S. Department of Energy's (DOE's) decision to terminate a study of calcite-silica deposits at Yucca Mountain. The presence of the deposits allegedly indicate that the site is unsuitable for use as a high-level nuclear waste repository. Relying on Nevada v. Watkins, 20 ELR 21360 (9th Cir. 1990), the court first holds that judicial review of the decision to terminate the calcite-silica study is not available under NWPA §119(a)(1)(B), which provides for judicial review of the Secretary of Energy's failure to make a decision or to take an action that the NWPA requires. Although NWPA §113(c) requires the Secretary to carry out site characterization activities, §113(c) does not require DOE to conduct any specific site characterization activities. Moreover, by defining certain activities as "preliminary," Congress intended to preclude them from judicial review. The court holds that the decision to terminate the investigation is a "preliminary decisionmaking activity" because it is part of the site characterization process. The decision, thus, is precluded from judicial review until there is a final decision to recommend Yucca Mountain as the site for the repository. The court holds that Nevada's contention that §119(a)(1)(B) provides jurisdiction because DOE's study was scientifically flawed is in conflict with the statutory scheme, which is designed to preclude judicial review of site characterization activities. The court finds that subsection (B) is intended to provide jurisdiction over DOE's conduct only if there is a total failure to take a specific action required by the statute. Finally, the court holds that Nevada's claim that the decision to terminate the study is a failure to carry out appropriate site characterization activities does not give rise to a claim that DOE "failed to act" within the meaning of the NWPA.

[Related cases include 16 ELR 20165, 17 ELR 21188, 19 ELR 20944, 20 ELR 21360, 21 ELR 20349, and 23 ELR 20833.]

Counsel not available at this printing.

Before Cummings,^* Schroeder, and Rymer, JJ.: