ELR Citation: ELR 21063
No(s). s. 91-2527, -2929 (D.D.C. Dec 13, 1991)

The court holds that New Mexico and an environmental organization are entitled to a preliminary injunction preventing the U.S. Department of Energy (DOE) from introducing radioactive waste into the Waste Isolation Pilot Program (WIPP), a proposed nuclear waste repository in New Mexico. In January 1991, the U.S. Department of the Interior (DOI) granted DOE's application to extend, and change the purpose of, a withdrawal of federal land initially made to allow the construction of the repository in order to allow a test program that would introduce radioactive waste at the site. The court first holds that the plaintiffs have met their burden of showing a likelihood of success on the merits. The Federal Land Policy and Management Act (FLPMA) requires that before the term of a withdrawal of public land may be extended, DOI must determine that the purpose for which the withdrawal was first made requires the extension. In the present action, DOI made no such determination. Also, the extension that DOI granted to allow the transportation of radioactive waste to the site materially alters the purpose of the withdrawal. The court rules that DOI does not have complete discretion in making extensions, but may do so only if it finds that an extension is necessitated by the purpose of the original withdrawal. Here, DOI could not have made such a determination because the purposes of the original withdrawal and the extension/modification directly contradict each other. Additionally, DOI may authorize only the temporary withdrawal of public lands under FLPMA, and the record shows that there is a great likelihood that the wastes proposed to be placed in WIPP will not be retrievable after the test phase.

The court next holds that the plaintiffs have shown that they will be irreparably injured if a preliminary injunction is not issued. If DOE is allowed to proceed with the test phase before a final order can issue, the Agency will be able to introduce radioactive waste into the WIPP facility that may become unretrievable due to a collapse, impending collapse, or loss of required clearance at the facility. Also, Congress would be unable to permanently withdraw the site under the same circumstances that existed under the previous withdrawal, which expressly stated that no hazardous waste could be stored at the site until Congress makes such a withdrawal. Finally, the court holds that the plaintiffs have shown that the interests of third parties will not be harmed by the injunction, and that strong public interest favors issuing the injunction. The same amount of money will be expended on the WIPP project regardless of whether the test phase goes forward, and there is a strong public interest in diplomatic resolution of constitutional impasses between Congress and the executive.

[Another decision in this litigation is published at 22 ELR 21066.]

Counsel for Plaintiffs
Bernhardt Wruble
901 15th St. NW, Washington DC 20005
(202) 371-6000

Counsel for Defendants
Michael W. Reed
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000