ELR Citation: ELR 20260
No(s). 99-5192 (D.C. Cir. Nov 14, 2000)

The court holds that a low-level radioactive waste (LLRW) facility developer lacks standing to challenge the Secretary of the Interior's rescission of its previous record of decision approving the sale and transfer of federal land to the state of California, which would have allowed the developer to construct and operate the LLRW facility. After a district court upheld the rescission, California elected not to appeal, but the developer went forward. The court first holds that the developer failed to demonstrate that it is likely, as opposed to merely speculative, that its injury will be redressed by a favorable decision. When redress depends on the cooperation of a third party, it becomes the burden of the appellant to adduce facts showing that these choices have been or will be made in such a manner as to produce causation and permit redressability of injury. The developer did not meet this burden because even were the U.S. Department of the Interior to approve the sale and transfer of federal land for the LLRW facility, only the state of California is capable of accepting title and taking ownership of the land. Although the developer invested, and perhaps lost, time and money in the project, such injury, without more, is not enough. Moreover, the developer cannot demonstrate any legally enforceable right that California must, if offered, accept the land and proceed with plans to build the facility.

Counsel for Appellant
Karl S. Lytz
Latham & Watkins
505 Montgomery St., Ste. 1900, San Francisco CA 94111
(415) 391-0600

Counsel for Appellees
Mark R. Haag
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Ginsburg and Tatel, JJ.