ELR Citation: ELR 20711
No(s). 84-4826 (5th Cir. Jun 28, 1985)

The court holds that the Secretary of Energy's designation under the Nuclear Waste Policy Act (NWPA) of two locations in the Texas panhandle as "potentially acceptable sites" for nuclear waste repositories is neither final under the Act nor ripe for judicial review. The statutory scheme of the NWPA suggests that potentially acceptable site designations should not be considered final. This designation is the first step in the site selection process that later requires the Secretary to nominate five sites and prepare accompanying environmental assessments (EAs). That Congress explicitly provided for judicial review of the EAs under §112, while not conclusive, militates against granting review at other stages in the site selection process. The court reasons that since the challenged action is a preliminary step to actions that will later be reviewable, granting review at this stage would be a waste of judicial resources. The court next rejects petitioners' argument that it would not be possible to challenge the Secretary's failure to follow the §112(a) guidelines during the site screening process upon later review of the EAs. These guidelines are not applicable to the challenged site screening process. The deadlines for issuing the guidelines and for making preliminary site designations are the same, suggesting that Congress could not have intended the guidelines to govern the designations.

Even assuming the designations are final under the NWPA, none of the other three criteria for ripeness are met. First, the issues involved are not purely legal. Despite the existence of an administrative record, review at this stage would lack the specific framework to evaluate the agency's decision that would be provided by the EAs and the standards for their review in the Act. Second, the Secretary's decision does not have the requisite direct and immediate impact on petitioners. That petitioners must now rely on the ongoing public hearing process to ensure that the Secretary will consider their views is not a sufficient burden. Third, review at this stage would likely interfere with the ongoing administrative process by encouraging petitioners to bypass the public hearing and comment forum that Congress intended to be the focus of review during this preliminary stage.

Counsel for Plaintiffs
Renea Hicks, Ass't Attorney General
P.O. Box 12548, Capital Station, Austin TX 78711
(512) 475-0425

Alice G. Hector
820 2nd St. NW, Albuquerque NM 87102
(505) 242-7600

Counsel for Defendants
John A. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Counsel for Amicus Curiae
Michael A. Bauser
Newman & Holtzinger
1615 L St. NW, Washington DC 20036
(202) 955-6600

Before REAVLEY, POLITZ, and HIGGINBOTHAM, Circuit Judges.