nevada petition for rehearing on yucca mountain

7/29/2019 Nevada petition for rehearing on Yucca Mountain

http://slidepdf.com/reader/full/nevada-petition-for-rehearing-on-yucca-mountain 1/54

NO. 11-1271

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN RE: AIKEN COUNTY, et al., Petitioners.

v.

UNITED STATES NUCLEAR REGULATORY COMMISSIONand GREGORY B. JACZKO, Chairman of the United States

Nuclear Regulatory Commission, Respondents.

On Petition for Writ of Mandamus (Agency Action Unreasonably Withheld)

STATE OF NEVADA PETITION FOR REHEARING EN BANC

Honorable Catherine Cortez Masto Egan Fitzpatrick Malsch & Lawrence, PLLC

Nevada Attorney General Martin G. Malsch *Marta Adams Charles J. Fitzpatrick *Chief Deputy Attorney General John W. Lawrence *100 North Carson Street 1750 K Street, N.W., Suite 350Carson City, Nevada 89701 Washington, D.C. 20006Tel: 775.684.1237 Tel: 202.466.3106Fax: 775.684.1108 Fax: 855.427.6554

[email protected]@nuclearlawyer.com

[email protected]

*Special Deputy Attorneys General

Attorneys for the State of Nevada September 26, 2013

USCA Case #11-1271 Document #1458272 Filed: 09/26/2013 of 18

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IN THE UNITED STATES COURT OF APPEALSDISTRICT OF COLUMBIA CIRCUIT

____________________________________________

No. 11-1271 ____________________________________________

IN RE AIKEN COUNTY, ET AL.

On Petition for Writ of Mandamus ____________________________________________


The State of Nevada (an intervenor in the captioned matter) respectfully

petitions for rehearing en banc of the panel’s majority decision (dated August 13,

2013) granting a writ of mandamus compelling the U.S. Nuclear Regulatory

Commission (“NRC”) to promptly continue with the proceeding on the U.S.

Department of Energy’s (“DOE’s”) application for a construction authorization for

a high-level radioactive waste repository in Yucca Mountain, Nevada.

I. STATEMENT REQUIRED BY FED. R. APP. 35 (b) (1).

En banc consideration is necessary to secure and maintain uniformity of the

court’s decisions because the majority’s decision conflicts with controlling

precedent in the District of Columbia Circuit. Moreover, the case is of exceptional

importance.

The opinion for the Court by Circuit Judge Kavanaugh, joined by Circuit

Judge Randolph, found that the NRC’s suspension of the Yucca Mountain


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licensing proceeding violated the Nuclear Waste Policy Act of 1982, as amended,

42 U.S.C. §§ 10101 et seq., but failed to address critical equitable considerations

such as whether the writ commands a useless thing. As pointed out by Chief Judge

Garland in his dissenting opinion, the majority decision conflicts with well-

established precedent in the District of Columbia Circuit that mandamus is an

equitable remedy that does not automatically follow from a finding the agency

violated a statute. In re: United Mine Workers of Am. Int’l Union, 190 F. 3d 545,

551 (D.C. Cir. 1999).

This case is also of exceptional importance. A holding that mandamus is

required simply because an agency fails to meet some statutory deadline will

encourage the filing of numerous mandamus petitions. As the Court is well aware,

Congress often imposes deadlines but fails to appropriate the money necessary to

meet them.

II. ISSUE PRESENTED.

When an agency suspends a proceeding and thereby fails to meet a statutory

deadline, should a writ of mandamus compelling a resumption of the proceeding be

issued based solely on a finding that the statute was violated, without any

consideration of equitable factors such as whether the writ commands a useless

thing.


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III. STATEMENT OF THE CASE.

The principal Federal statute governing the Yucca Mountain licensing

proceeding is the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. §§

10101 et seq. This case focuses on section 114 (d) of that Act, 42 U.S.C. § 10134

(d), which provides in relevant part that:

The Commission shall consider an application for a constructionauthorization for all or part of a repository in accordance with the lawsapplicable to such applications, except that the Commission shallissue a final decision approving or disapproving the issuance of a

construction authorization not later than the expiration of 3 years after the date of the submission of such application. . . .

The Yucca Mountain licensing proceeding began on October 22, 2008, after

DOE filed its application for a construction authorization. JA001632-001636. The

proceeding is extraordinarily complex – the most complex in NRC’s history. Two-

hundred eighty-eight separate contentions (similar to 288 separate verified counts

in a complaint) were admitted for litigation in a trial-type adjudicatory hearing

process. JA000480-000520, JA000540-000592. The parties identified 103 experts

for depositions just in the initial phase of the proceeding. JA000480-000520,

JA001265.

On June 29, 2010, the presiding panel of three NRC administrative judges

(the Licensing Board)1 denied DOE’s motion to withdraw the license application.

1 Such panels are authorized by section 191 of the Atomic Energy Act of 1954, asamended, 42 U.S.C. § 2241. The members are career Federal employees. The


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JA000540-000592. However, that same Licensing Board suspended all

depositions on May 20, 2011, citing among things, the “uncertain course of this

unique proceeding” and “our responsibility to control discovery to avoid undue and

potentially unnecessary expense.” JA001285-001288.

On September 9, 2011, the Commission announced it was split 2-2 (a fifth

Commissioner had previously recused himself) on whether to uphold the Licensing

Board’s denial of DOE’s motion to withdraw its application. The Commission

also directed the Licensing Board to complete appropriate case management

activities and document the history of the proceeding. JA000635-000636. The

Commission decision was unanimous (4-0).

The two key NRC decisions for purposes of this mandamus case soon

followed. On September 30, 2011, the Licensing Board suspended the licensing

proceeding “because both future appropriated NWF [Nuclear Waste Fund] dollars

and FTEs [full-time equivalent personnel] for this proceeding are uncertain.” No

party appealed to the Commission from the Licensing Board’s decision. Then, on

November 29, 2011, the Commission unanimously (4-0) affirmed the Licensing

Board. JA000637-000639, JA001316-001321. Prior to the suspension Congress

had appropriated only the minimal amount NRC requested to “support work

related to the orderly closure of the agency’s Yucca Mountain licensing support

panel in this case consisted of two lawyers with extensive litigation experience and an expert with a Ph. D in civil engineering.


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activities.” NRC Cong. Budget Justification for FY-2011 at 95 (2010); see Full-

Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, § 1423, 125 Stat.

38, 126 (2011). Congress completely zeroed out the Commission’s funding for

Yucca Mountain for both FY 2012 and 2013. Consolidated Appropriations Act,

2012, Pub. L. No. 112-74, 125 Stat. 786 and H.R. Rep. 112-331 (2011) at 884;

Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6,

Division I, Title F, section 1101. 2

Previously, NRC Chairman Jaczko had directed the NRC Staff to begin an

orderly closure of its efforts to complete its Safety Evaluation Report. JA000757.

The Staff Safety Evaluation Report serves as the basis for a final Commission

decision on uncontested safety issues (issues not raised in the hearing) near the

very end of the licensing process and as a prelude to Staff’s presentation of expert

testimony in the hearing. This closure would have delayed a licensing decision

only if depositions has been completed of all other parties’ experts and the absence

of a Safety Evaluation Report prevented Staff experts from being deposed. When

the proceeding was suspended, no depositions of any party’s experts had been

conducted and deposition schedules had been set for less than one-half of the DOE

and Nevada witnesses. JA001265, JA000602-000604. It is completely speculative

2 H.J. Res. 59, to fund the Government for Fiscal Year 2014, recently passed by theHouse of Representatives, also zeros out funding for Yucca Mountain.


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whether Chairman Jaczko’s highly controversial directive would have eventually

led to a delay in reaching a licensing decision.

Although work on the Safety Evaluation Report stopped, the NRC Staff’s

safety review continued and culminated in the issuance of three voluminous

“Technical Evaluation Reports” that documented the results of the Staff’s review.

JA001351-001359. The parties preserved all of their relevant documents,

including millions of e-mails and other discoverable documents. JA 001316,

001321. These documents had been available in an electronic data system called

the Licensing Support Network created especially for the Yucca Mountain

licensing proceeding, but that Network was shut down for budgetary reasons. See

10 C.F.R. § 2.1003.

The NRC’s suspension of the licensing proceeding made it impossible for it

to comply with the three-year decision deadline in section 114 (d) of the Nuclear

Waste Policy Act quoted above (although, in fact, the proceeding could not have

been completed within three years even if DOE had not moved to withdraw its

application and the proceeding had never been suspended). There will be no loss

of documentary material or of NRC institutional memory because the NRC Staff’s

technical work and all of the relevant documents were preserved. However, if the

licensing process were to be resumed, an expensive revival of the Licensing

Support Network will be required. If the proceeding were to be resumed but then


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suspended a second time for lack of money, the LSN would be shuttered and the

NRC Staff’s priorities would be reshuffled for the second time.

Initially, the Petitioners sued DOE for attempting to withdraw its license

application and for shutting down its Yucca Mountain licensing effort. That

lawsuit was dismissed for lack of ripeness and justiciability. In re Aiken County,

645 F.3d 428 (D.C. Cir. 2011) (“ Aiken I”). Petitioners then sought a writ of

mandamus asking the Court to determine that the NRC had unreasonably delayed

its consideration of the application and to direct the NRC to resume the proceeding

and decide the application.

The Court granted mandamus, directing the NRC to “promptly continue with

the legally mandated licensing process.” Majority Slip Opinion at 22. The Court

dismissed the NRC’s justifications for the suspension, holding that (1) the NRC

was under a legal obligation to continue the licensing process as long as left-over

appropriated funds were available to do so (approximately $11 million remained

available 3); (2) allowing political guesswork about future Congressional

appropriations to excuse compliance with the law would “gravely upset the balance

of powers between the Branches and represent a major and unwarranted expansion

of the Executive’s power at the expense of Congress;” and (3) the appropriations

laws cited by the NRC did not direct any suspension, prevent the NRC from

3 An additional $2.5 million of obligated, unexpended funds is now available.


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spending previously appropriated funds, or repeal the NRC’s statutory obligation.

Id. at 6-8. The Court also speculated that the NRC might have disagreed with the

Nuclear Waste Policy Act and held (correctly) that “Congress sets the policy, not

the Commission.” Id. at 8-9.

Judge Randolph issued a separate concurring opinion focused on Chairman

Jaczko’s efforts to halt the completion of the NRC Staff’s Safety Evaluation

Report. He said Chairman Jaczko “orchestrated a systematic campaign of

noncompliance.” Concurring Slip Opinion at 1.

Neither Judge Kavanaugh’s majority opinion, nor Judge Randolph’s

concurring opinion, contained any discussion of equitable factors such as whether

anything useful would be accomplished by resuming the proceeding. Instead, it is

clear that mandamus was considered warranted because, as the panel majority saw

it, the NRC had engaged in a “deliberate and continued agency disregard of a

statutory mandate.” Majority Slip Opinion at 21.

Chief Judge Garland dissented. As Chief Judge Garland saw it, this was a

case like others before the Court in the past where mandamus was sought as a

remedy to compel agency action unreasonably delayed. He stated, among other

things, that “mandamus[] does not necessarily follow a finding of a [statutory]

violation,” Dissenting Slip Opinion at 1 (citing In re: United Mine Workers of Am.

Int’l Union, 190 F. 3d 545, 551 (D.C. Cir. 1999)), and that “[c]ourts will not issue


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the writ to do a useless thing, even though technically to uphold a legal right.” Id.

at 2 (citing United States ex rel. Sierra Land & Water Co. v. Ickes, 84 F.2d 228,

232 (D.C. Cir. 1936)). He stated that “the only real question … is whether the

Commission can make any meaningful progress with $11 million,” id. at 3-4, that

“[t]he Commission has concluded that it cannot,” and that “we are not in a position

– nor do we have any basis – to second-guess that conclusion.” Id. at 4. He

concluded that “given the limited funds that remain available, issuing a writ of

mandamus amounts to little more than ordering the Commission to spend part of

those funds unpacking its boxes, and the remainder packing them back up again.”

Id. at 5.

IV. ARGUMENT.

One would think, upon reading the majority and concurring opinions, that

this case is a clash between the Executive and Congressional Branches with grave

consequences for our system of Constitutional government if the NRC were

allowed to prevail. It is no such thing. The NRC never claimed the right to

disregard a Federal statute and never based any of its decisions upon a

disagreement with the policies established in the Nuclear Waste Policy Act.

Instead, when faced with Congress’ refusal to provide funds sufficient to

make meaningful progress on the Yucca Mountain license application, three

independent administrative judges and a unanimous Commission did what they


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thought was both lawful and prudent – they suspended consideration of the Yucca

Mountain application and took responsible and extensive steps to assure that the

licensing process could be restarted if additional funds were provided.

Section 114 (d) of the Nuclear Waste Policy Act, as amended, 42 U.S.C §

10134 (d), required the Commission to “consider” the application “in accordance

the laws applicable to such applications” and to reach a final decision within three

years. The “laws applicable to such applications” include the Commission’s Rules

of Practice, and those Rules provide for appropriate action when necessary to

prevent undue burden and expense. See 10 C.F.R § 2.1018 (c) (1). The suspension

prevented great burden and expense while also preserving resources for the future,

but it also meant that the Commission could not (and therefore would not) comply

with the three-year statutory deadline for a final decision. The Commission

thereupon joined the large and ever growing collection of Executive Branch

agencies confronted with statutory deadlines and insufficient funds to meet them.

Accordingly, the case at hand is prototypical and there are well-established

precedents in this Circuit that address this situation, beginning with the landmark

case Telecommunications Research and Action Center v. FCC , 750 F.2d 70 (D.C.

Cir 1984) (“TRAC ”). The remedy under TRAC for unreasonable agency delay

(including failure to meet a statutory deadline) is a writ of mandamus, precisely

what Petitioners here sought.


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Circuit precedents are clear, however, that “equitable relief, particularly

mandamus, does not necessarily follow a finding of a [statutory] violation.” In re:

United Mine Workers of Am. Int’l Union, 190 F.3d 545, 551 (D.C. Cir. 1999),

quoting In re: Barr Labs, 930 F.2d 72, 74 (D.C. Cir. 1991). See also In re:

Medicare Reimbursement Litigation Baystate Health Systems, d/b/a Baystate

Medical Center v. Leavitt, 414 F.3d 7, 10 (D.C. Cir. 2005) (“Even when the legal

requirements for mandamus jurisdiction have been satisfied, however, a court may

grant relief only when it finds ‘compelling . . . equitable grounds,’” quoting from

13th Reg'l Corp. v. U.S. Dep't of the Interior , 654 F.2d 758, 760 (D.C. Cir. 1980)).

The Court’s decision does not comport with these precedents. The Court

issued a writ of mandamus compelling agency action unreasonably delayed based

solely on its finding of a statutory violation. The panel majority’s decision did not

discuss and weigh equitable considerations; in particular the consideration

expressed in Chief Judge Garland’s dissenting opinion that “granting the writ in

this case will indeed direct the Nuclear Regulatory Commission to do ‘a useless

thing.’” Dissenting Slip Opinion at 2.

The panel majority’s opinion endeavored to distinguish the cases cited by

Chief Judge Garland. Majority Slip Opinion at 20-21, note 12. Two grounds were

offered, specifically that some cases did not involve a “statutory mandate with a

defined deadline” and, in other cases, the Court “made clear that either the agency


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had to act or the Court would grant mandamus in the future.” The first is a

distinction without a difference. Unless the agency has some legal duty to act in

the first place, any issue about compliance with a deadline could be mooted by the

agency reconsidering whether to proceed with the action at all. As for the second

distinction, the fact that a balancing of the equities led the Court in some cases to

threaten mandamus in the future cannot detract from the Court’s obligation to

consider the equities in the case at hand.

The panel majority’s opinion ultimately justified the issuance of mandamus

(and its disagreement with Chief Judge Garland) by citing the Court’s “cautious

and incremental approach in prior iterations of this litigation, the significant

amount of money available for the Commission to continue the licensing process,

and the Commission’s continued disregard for the law. . . .” Majority Slip Opinion

at 21-22, note 12. But these are not equitable grounds for issuing a writ of

mandamus.

The Court did indeed adopt a cautious and incremental approach in prior

iterations of this litigation by, among other things, holding the case in abeyance

pending Congressional action on Fiscal Year 2013 appropriations. See Order dated

August 3, 2012. (The resulting Fiscal Year 2013 appropriation for Yucca

Mountain was zero dollars). And it was quite clear from the two August 3

concurring opinions that a majority of the panel thought mandamus would be


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justified unless Congress spoke by taking away the NRC’s left-over funds. But

this should count against the NRC only if we assume that mandamus was justified

(or nearly justified) back in August, 2012, or perhaps earlier at the beginning of

Aiken I . This is a kind of circular argument that brings us back to the original

question whether mandamus was justified when all equitable factors are

considered.

The availability of money simply meant that it was possible for the NRC to

proceed, but this alone is not an equitable factor supporting mandamus, but rather a

predicate for the finding of a violation and the means to avoid the severe

Constitutional problem that would arise if the Court were to demand agency action

notwithstanding the unavailability of appropriated funds. In any event, while $11

million may be a significant amount of money in some contexts, the panel majority

was not in a position to second-guess the NRC’s judgment that $11 million was

insufficient to make meaningful progress, let alone render a final licensing

decision.

Finally, as to the Commission’s “continued disregard for the law,” this is a

restatement of the erroneous proposition that mandamus is justified based solely on

a finding of a violation. There was no bad faith disregard for the law. Instead,

three administrative law judges and a unanimous Commission endeavored in good

faith to make the best of a difficult situation. Moreover, there was no NRC attempt


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to “hide the ball” by simply dragging things out, like other agencies sometimes do;

the NRC explicitly suspended the proceeding for stated reasons.

If equitable factors are considered properly, mandamus should be denied

because, as Chief Judge Garland found, it would direct the NRC to do “a useless

thing,” something that “amounts to little more than ordering the Commission to

spend part of those funds unpacking its boxes, and the remainder packing them

back up again.” Dissenting Slip Opinion at 2, 5.

V. CONCLUSION.

Rehearing en banc should be granted and, upon rehearing, mandamus should be

denied.

Respectfully submitted,

/s/Martin G. Malsch *

Charles J. Fitzpatrick *

John W. Lawrence *

Egan, Fitzpatrick, Malsch & Lawrence, PLLC

1777 N.E. Loop 410, Suite 600

San Antonio, TX 78217

(210) 496-5001

* Special Deputy Attorneys General

Attorneys for the State of Nevada

DATED: September 26, 2013


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CERTIFICATE OF SERVICE

I certify that on September 26, 2013, the State of Nevada Petition for

Rehearing En Banc was served on all parties or their counsel of record through theCM/ECF system if they are registered users or, if they are not, by serving a trueand correct copy at the addresses listed below:

Thomas Rush Gottshall [email protected] Ross Shealy [email protected] Sinkler Boyd, PAP.O. Box 11889Columbia, SC 29211-1889For Petitioner Aiken County, South Carolina:

Barry M. Hartman [email protected] R. Nestor [email protected]&L Gates, LLP1601 K Street, NWWashington, DC 20006-1600For Petitioners Robert L. Ferguson, William Lampson and Gary Petersen

William Henry Davidson, II [email protected] Paul Woodington [email protected]

Davidson Morrison & Lindemann, PA1611 Devonshire DriveP. O. Box 8568Columbia, SC 29202-8568For Petitioner State of South Carolina, ex rel. Henry Dargan McMaster, Attorney

General

Andrew A. Fitz [email protected] R. Bowers [email protected]

Office of the Attorney GeneralState of WashingtonP. O. Box 40117Olympia, WA 98504-0117For Petitioner State of Washington


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James Bradford Ramsay [email protected] J. Lunt [email protected]

National Association of RegulatoryUtility Commissioners

1101 Vermont Avenue, Suite 200Washington, DC 20005For Petitioner National Association of Regulatory Utility Commissioners

Robert Michael Andersen [email protected] Hill PLC1250 Eye Street NW, Suite 900Washington, DC 20005For Petitioner Nye County

Charles Mullins [email protected] M. Suttenberg [email protected] P. Averbach, Solicitor [email protected]. Nuclear Regulatory Commission11555 Rockville PikeRockville, Maryland 20852-2738For Respondents U.S. Nuclear Regulatory Commission, NRC Atomic Safety and

Licensing Board, Gregory B. Jaczko, Thomas Moore, Paul Ryerson and Richard

Wardwell

Ellen C. Ginsberg [email protected] W. Cottingham [email protected]

Nuclear Energy Institute, Inc.1776 I Street, NW, Suite 400Washington, DC 20006

Jerry Stouck [email protected] Traurig LLP

2101 L Street NWSuite 1000Washington, DC 20037For Amicus Curiae Nuclear Energy Institute, Inc.


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Aaron P. Avila [email protected] J. Durkee ellen.durkee@us doj.govAppellate SectionEnvironment & Natural Resources DivisionU.S. Department of JusticeP.O. Box 7415, Ben Franklin StationWashington, D.C. 20044For Amicus Curiae, The United States

/s/John W. Lawrence


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NO. 11-1271

UNITED STATES COURT OF APPEALS


IN RE: AIKEN COUNTY, et al., Petitioners.

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION

and GREGORY B. JACZKO, Chairman of the United States

Nuclear Regulatory Commission, Respondents.

On Petition for Writ of Mandamus (Agency Action Unreasonably Withheld)

ADDENDUM TO


Honorable Catherine Cortez Masto Egan Fitzpatrick Malsch & Lawrence, PLLC Nevada Attorney General Martin G. Malsch *

Marta Adams Charles J. Fitzpatrick *

Chief Deputy Attorney General John W. Lawrence *

100 North Carson Street 1750 K Street, N.W., Suite 350

Carson City, Nevada 89701 Washington, D.C. 20006

Tel: 775.684.1237 Tel: 202.466.3106

Fax: 775.684.1108 Fax: 855.427.6554

[email protected]

[email protected] [email protected]

*Special Deputy Attorneys General


September 26, 2013

USCA Case #11-1271 Document #1458272 Filed: 09/26/2013 Page 1 of 36

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IN THE UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

____________________________________________

No. 11-1271

____________________________________________

IN RE AIKEN COUNTY, ET AL.

On Petition for Writ of Mandamus

____________________________________________

ADDENDUM TO


CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A. Parties and Amici.

The following is a list of all parties, intervenors and amici in this action.

1. Parties

The Petitioners in this action are: Aiken County, South Carolina; Robert L.

Ferguson, William Lampson, and Gary Petersen (the “Ferguson Petitioners”); the

State of South Carolina; the State of Washington; the National Association of

Regulatory Utility Commissioners (NARUC); and Nye County, Nevada.

The Respondents are the United States Nuclear Regulatory Commission

(NRC) and NRC Chairman, Gregory Jaczko..

2. Intervenor

The Intervenor is: the State of Nevada.


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3. Amici Curiae

The Amici are: Nuclear Energy Institute, Inc. and The United States.

B. Ruling Under Review

This is an original action filed pursuant to 42 U.S.C. 10139(a)(1)(B).

C. Related Cases

None.

Respectfully submitted,

/s/

Martin G. Malsch *

Charles J. Fitzpatrick *

John W. Lawrence *

Egan, Fitzpatrick, Malsch & Lawrence, PLLC

1777 N.E. Loop 410, Suite 600

San Antonio, TX 78217

(210) 496-5001

* Special Deputy Attorneys General


DATED: September 26, 2013


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OPINION OF THE PANEL FROM WHICH

REHEARING IS BEING SOUGHT


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United States Court of Appeals


Argued May 2, 2012 Decided August 13, 2013Ordered Held in Abeyance August 3, 2012

No. 11-1271

I N RE: AIKEN COUNTY, ET AL.,

PETITIONERS

STATE OF NEVADA,I NTERVENOR

On Petition for Writ of Mandamus

Andrew A. Fitz, Senior Counsel, Office of the AttorneyGeneral for the State of Washington, argued the cause for

petitioners. With him on the briefs were Robert M. McKenna,Attorney General, Todd R. Bowers, Senior Counsel, Thomas

R. Gottshall, S. Ross Shealy, Alan Wilson, Attorney General,Office of the Attorney General for the State of SouthCarolina, William Henry Davidson II , Kenneth Paul

Woodington, James Bradford Ramsay, Robin J. Lunt , Barry

M. Hartman, Christopher R. Nestor , and Robert M. Andersen.

Jerry Stouck and Anne W. Cottingham were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of petitioners.

Charles E. Mullins, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondent.

USCA Case #11-1271 Document #1451347 Filed: 08/13/2013 Page 1 of 29USCA Case #11-1271 Document #1458272 Filed: 09/26/2013 Page 5 of 36

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With him on the brief were Stephen G. Burns, GeneralCounsel, John F. Cordes Jr., Solicitor, and Jeremy M.

Suttenberg, Attorney.

Martin G. Malsch argued the cause for intervenor Stateof Nevada. With him on the briefs were Charles J.

Fitzpatrick and John W. Lawrence.

Before: GARLAND, Chief Judge, K AVANAUGH, Circuit

Judge, and R ANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge K AVANAUGH, with whom Senior Circuit Judge R ANDOLPH joins except as to Part III.

Concurring opinion filed by Senior Circuit Judge R ANDOLPH.

Dissenting opinion filed by Chief Judge GARLAND.

K AVANAUGH, Circuit Judge: This case raises significantquestions about the scope of the Executive’s authority todisregard federal statutes. The case arises out of alongstanding dispute about nuclear waste storage at YuccaMountain in Nevada. The underlying policy debate is not our concern. The policy is for Congress and the President toestablish as they see fit in enacting statutes, and for thePresident and subordinate executive agencies (as well asrelevant independent agencies such as the Nuclear RegulatoryCommission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that

agencies comply with the law as it has been set by Congress.Here, the Nuclear Regulatory Commission has continued toviolate the law governing the Yucca Mountain licensing


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process. We therefore grant the petition for a writ of mandamus.

I

This case involves the Nuclear Waste Policy Act, whichwas passed by Congress and then signed by President Reaganin 1983. That law provides that the Nuclear RegulatoryCommission “shall consider” the Department of Energy’s

license application to store nuclear waste at Yucca Mountainand “shall issue a final decision approving or disapproving”the application within three years of its submission. 42U.S.C. § 10134(d). The statute allows the Commission toextend the deadline by an additional year if it issues a writtenreport explaining the reason for the delay and providing theestimated time for completion. Id. § 10134(d), (e)(2).

In June 2008, the Department of Energy submitted itslicense application to the Nuclear Regulatory Commission.As recently as Fiscal Year 2011, Congress appropriated funds

to the Commission so that the Commission could conduct thestatutorily mandated licensing process. Importantly, theCommission has at least $11.1 million in appropriated fundsto continue consideration of the license application.

But the statutory deadline for the Commission tocomplete the licensing process and approve or disapprove theDepartment of Energy’s application has long since passed.Yet the Commission still has not issued the decision required by statute. Indeed, by its own admission, the Commission hasno current intention of complying with the law. Rather, the

Commission has simply shut down its review and consideration of the Department of Energy’s licenseapplication.


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Petitioners include the States of South Carolina and Washington, as well as entities and individuals in thoseStates. Nuclear waste is currently stored in those States in theabsence of a long-term storage site such as Yucca Mountain.

Since 2010, petitioners have sought a writ of mandamusrequiring the Commission to comply with the law and toresume processing the Department of Energy’s pendinglicense application for Yucca Mountain. Mandamus is an

extraordinary remedy that takes account of equitableconsiderations. The writ may be granted “to correcttransparent violations of a clear duty to act.” In re American

Rivers and Idaho Rivers United , 372 F.3d 413, 418 (D.C. Cir.2004) (internal quotation marks omitted); see also Arizona v.

Inter Tribal Council of Arizona, Inc., No. 12-71, slip. op. at17 n.10 (U.S. 2013) (noting that if the federal ElectionAssistance Commission did not act on a state’s statutorily permitted request, “Arizona would be free to seek a writ of mandamus to ‘compel agency action unlawfully withheld or unreasonably delayed’”) (quoting 5 U.S.C. § 706(1)).

In 2011, a prior panel of this Court indicated that, if theCommission failed to act on the Department of Energy’slicense application within the deadlines specified by the Nuclear Waste Policy Act, mandamus likely would beappropriate. See In re Aiken County, 645 F.3d 428, 436 (D.C.Cir. 2011). In 2012, after a new mandamus petition had beenfiled, this panel issued an order holding the case in abeyanceand directing that the parties file status updates regardingFiscal Year 2013 appropriations. At that time, we did notissue the writ of mandamus. Instead, in light of the

Commission’s strenuous claims that Congress did not wantthe licensing process to continue and the equitableconsiderations appropriately taken into account in mandamus


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cases, we allowed time for Congress to clarify this issue if itwished to do so. But a majority of the Court also made clear that, given the current statutory language and the fundsavailable to the Commission, the Commission was violatingfederal law by declining to further process the licenseapplication. And the Court’s majority further indicated thatthe mandamus petition eventually would have to be granted if the Commission did not act or Congress did not enact newlegislation either terminating the Commission’s licensing process or otherwise making clear that the Commission maynot expend funds on the licensing process. See Order, In re

Aiken County, No. 11-1271 (D.C. Cir. Aug. 3, 2012).

Since we issued that order more than a year ago onAugust 3, 2012, the Commission has not acted, and Congresshas not altered the legal landscape. As things stand, therefore,the Commission is simply flouting the law. In light of theconstitutional respect owed to Congress, and having fullyexhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory

Commission.

II

Our analysis begins with settled, bedrock principles of constitutional law. Under Article II of the Constitution and relevant Supreme Court precedents, the President must followstatutory mandates so long as there is appropriated moneyavailable and the President has no constitutional objection tothe statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional

objection to the prohibition. If the President has aconstitutional objection to a statutory mandate or prohibition,the President may decline to follow the law unless and until a


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final Court order dictates otherwise. But the President maynot decline to follow a statutory mandate or prohibitionsimply because of policy objections. Of course, if Congressappropriates no money for a statutorily mandated program,the Executive obviously cannot move forward. But absent alack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.

Those basic constitutional principles apply to thePresident and subordinate executive agencies. And theyapply at least as much to independent agencies such as the Nuclear Regulatory Commission. Cf. FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 525-26 (2009) (opinion of Scalia,J., for four Justices) (independent agency should be subject tosame scrutiny as executive agencies); id. at 547 (opinion of Breyer, J., for four Justices) (independent agency’s“comparative freedom from ballot-box control makes it all themore important that courts review its decisionmaking toassure compliance with applicable provisions of the law”).

In this case, however, the Nuclear RegulatoryCommission has declined to continue the statutorily mandated Yucca Mountain licensing process. Several justificationshave been suggested in support of the Commission’s actionsin this case. None is persuasive.

First , the Commission claims that Congress has not yetappropriated the full amount of funding necessary for theCommission to complete the licensing proceeding. ButCongress often appropriates money on a step-by-step basis,

especially for long-term projects. Federal agencies may notignore statutory mandates simply because Congress has notyet appropriated all of the money necessary to complete a


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project. See City of Los Angeles v. Adams, 556 F.2d 40, 50(D.C. Cir. 1977) (when statutory mandate is not fully funded,“the agency administering the statute is required to effectuatethe original statutory scheme as much as possible, within thelimits of the added constraint”). For present purposes, the key point is this: The Commission is under a legal obligation tocontinue the licensing process, and it has at least $11.1million in appropriated funds – a significant amount of money – to do so. See Commission Third Status Report, at 2 (Apr. 5,2013).

Second , and relatedly, the Commission speculates thatCongress, in the future, will not appropriate the additionalfunds necessary for the Commission to complete the licensing process. So it would be a waste, the Commission theorizes, tocontinue to conduct the process now. The Commission’s political prognostication may or may not ultimately prove to be correct. Regardless, an agency may not rely on politicalguesswork about future congressional appropriations as a basis for violating existing legal mandates. A judicial green

light for such a step – allowing agencies to ignore statutorymandates and prohibitions based on agency speculation aboutfuture congressional action – would gravely upset the balanceof powers between the Branches and represent a major and unwarranted expansion of the Executive’s power at theexpense of Congress.

Third , the Commission points to Congress’s recentappropriations to the Commission and to the Department of Energy for the Yucca Mountain project. In the last threeyears, those appropriations have been relatively low or zero.

The Commission argues that those appropriations levelsdemonstrate a congressional desire for the Commission toshut down the licensing process.


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But Congress speaks through the laws it enacts. No lawstates that the Commission should decline to spend previouslyappropriated funds on the licensing process. No law statesthat the Commission should shut down the licensing process.And the fact that Congress hasn’t yet made additionalappropriations over the existing $11.1 million available to theCommission to continue the licensing process tells us nothingdefinitive about what a future Congress may do. As theSupreme Court has explained, courts generally should notinfer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of moneyCongress has appropriated. See TVA v. Hill, 437 U.S. 153,190 (1978) (doctrine that repeals by implication aredisfavored “applies with even greater force when the claimed repeal rests solely on an Appropriations Act”); United States

v. Langston, 118 U.S. 389, 394 (1886) (“a statute fixing theannual salary of a public officer at a named sum . . . should not be deemed abrogated or suspended by subsequentenactments which merely appropriated a less amount for theservices of that officer for particular fiscal years”); cf. 1 GAO,

PRINCIPLES OF FEDERAL APPROPRIATIONS LAW at 2-49 (3d ed.2004) (“a mere failure to appropriate sufficient funds will not be construed as amending or repealing prior authorizinglegislation”).

In these circumstances, where previously appropriated money is available for an agency to perform a statutorilymandated activity, we see no basis for a court to excuse theagency from that statutory mandate.

Fourth, the record suggests that the Commission, as a

policy matter, simply may not want to pursue YuccaMountain as a possible site for storage of nuclear waste. ButCongress sets the policy, not the Commission. And policy


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disagreement with Congress’s decision about nuclear wastestorage is not a lawful ground for the Commission to declineto continue the congressionally mandated licensing process.To reiterate, the President and federal agencies may notignore statutory mandates or prohibitions merely because of policy disagreement with Congress. See Lincoln v. Vigil, 508U.S 182, 193 (1993) (“Of course, an agency is not free simplyto disregard statutory responsibilities: Congress may alwayscircumscribe agency discretion to allocate resources by putting restrictions in the operative statutes . . . .”); 18 Comp.Gen. 285, 292 (1938) (“the question with the accountingofficers is not the apparent general merit of a proposed expenditure, but whether the Congress, controlling the purse,has by law authorized the expenditure”).1

1 Like the Commission here, a President sometimes has policyreasons (as distinct from constitutional reasons, cf. infra note 3) for

wanting to spend less than the full amount appropriated byCongress for a particular project or program. But in thosecircumstances, even the President does not have unilateral authorityto refuse to spend the funds. Instead, the President must proposethe rescission of funds, and Congress then may decide whether toapprove a rescission bill. See 2 U.S.C. § 683; see also Train v. City

of New York , 420 U.S. 35 (1975); Memorandum from William H.Rehnquist, Assistant Attorney General, Office of Legal Counsel, toEdward L. Morgan, Deputy Counsel to the President (Dec. 1,1969), reprinted in Executive Impoundment of Appropriated Funds:

Hearings Before the Subcomm. on Separation of Powers of the S.

Comm. on the Judiciary, 92d Cong. 279, 282 (1971) (“With respect

to the suggestion that the President has a constitutional power todecline to spend appropriated funds, we must conclude thatexistence of such a broad power is supported by neither reason nor precedent.”).


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III2

We thus far have concluded that the Commission’sinaction violates the Nuclear Waste Policy Act. To be sure,there are also two principles rooted in Article II of theConstitution that give the Executive authority, in certaincircumstances, to decline to act in the face of a clear statute.But neither of those principles applies here.

First , the President possesses significant independentauthority to assess the constitutionality of a statute. See U.S. CONST. art. II, § 1, cl. 1 (Executive Power Clause); U.S.

CONST. art. II, § 1, cl. 8 (Oath of Office Clause); U.S. CONST.art. II, § 3 (Take Care Clause). But that principle does nothelp the Commission.

To explain: The President is of course not bound byCongress’s assessment of the constitutionality of a statute.The Take Care Clause of Article II refers to “Laws,” and those Laws include the Constitution, which is superior to

statutes. See U.S. CONST. art. VI (Constitution is “supremeLaw of the Land”). So, too, Congress is not bound by thePresident’s assessment of the constitutionality of a statute.Rather, in a justiciable case, the Supreme Court has the finalword on whether a statutory mandate or prohibition on theExecutive is constitutional. See Nixon v. Administrator of

General Services, 433 U.S. 425 (1977) (PresidentialRecordings and Materials Preservation Act is constitutional); see also Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.579, 639 (1952) (Jackson, J., concurring) (congressionalstatutes that together preclude President from seizing steel

mills are constitutional); see generally Marbury v. Madison, 5U.S. 137 (1803).

2 Judge Kavanaugh alone joins Part III of the opinion.


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So unless and until a final Court decision in a justiciablecase says that a statutory mandate or prohibition on theExecutive Branch is constitutional, the President (and subordinate executive agencies supervised and directed by thePresident) may decline to follow that statutory mandate or prohibition if the President concludes that it isunconstitutional. Presidents routinely exercise this power through Presidential directives, executive orders, signingstatements, and other forms of Presidential decisions. See,

e.g., Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (based onArticle II, Presidents Bush and Obama refused to comply withstatute regulating passports of individuals born in Jerusalem); Myers v. United States, 272 U.S. 52 (1926) (based on ArticleII, President Wilson refused to comply with statutory limit onthe President’s removal power); see also Freytag v.

Commissioner of Internal Revenue, 501 U.S. 868, 906 (1991)(Scalia, J., concurring) (President has “the power to vetoencroaching laws or even to disregard them when they areunconstitutional”) (citation omitted); Presidential Authority to

Decline to Execute Unconstitutional Statutes, 18 Op. Off.

Legal Counsel 199, 199-200 (1994) (Walter Dellinger)(describing as “uncontroversial” and “unassailable” the proposition that a President may decline to execute anunconstitutional statute in some circumstances); 2 THE

DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION 446 (JonathanElliot ed., 2d ed. 1836) (“the President of the United Statescould shield himself, and refuse to carry into effect an act thatviolates the Constitution”) (statement of James Wilson).3

3 In declining to follow a statutory mandate that the Presidentindependently concludes is unconstitutional, the President generallymay decline to expend funds on that unconstitutional program, atleast unless and until a final Court order rules otherwise. But in


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But even assuming arguendo that an independent agencysuch as the Nuclear Regulatory Commission possesses ArticleII authority to assess the constitutionality of a statute and thusmay decline to follow the statute until a final Court order saysotherwise,4 the Commission has not asserted that the relevantstatutes in this case are unconstitutional. So that Article II principle is of no help to the Commission here.

declining to follow a statutory prohibition that the Presidentindependently concludes is unconstitutional (and not just unwise policy, cf. supra note 1), the Appropriations Clause acts as aseparate limit on the President’s power. It is thus doubtful that thePresident may permissibly expend more funds than Congress hasappropriated for the program in question. See U.S. CONST. art. I,§ 9, cl. 7 (Appropriations Clause); see also OPM v. Richmond , 496U.S. 414, 425 (1990) (“Any exercise of a power granted by theConstitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the

Treasury.”). It is sometimes suggested, however, that the Presidentmay elect not to follow a statutory prohibition on how otherwise

available appropriated funds are spent if the President concludesthat the prohibition is unconstitutional, at least unless and until afinal Court order rules otherwise. See David J. Barron & Martin S.Lederman, The Commander in Chief at the Lowest Ebb – Framing

the Problem, Doctrine, and Original Understanding, 121 HARV. L. R EV. 689, 740 (2008). This case does not require analysis of thosedifficult questions.

4 It is doubtful that an independent agency may disregard astatute on constitutional grounds unless the President has concluded that the relevant statute is unconstitutional. But we need not delve

further into that question here. Compare Humphrey’s Executor v.United States, 295 U.S. 602 (1935), with Myers, 272 U.S. 52, and Free Enterprise Fund v. Public Company Accounting Oversight

Board , 130 S. Ct. 3138 (2010).


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Second , it is also true that, under Article II, the President possesses a significant degree of prosecutorial discretion notto take enforcement actions against violators of a federal law.But that principle does not support the Commission’s inactionhere. To demonstrate why, the contours of the Executive’s prosecutorial discretion must be explained.

The Presidential power of prosecutorial discretion isrooted in Article II, including the Executive Power Clause,

the Take Care Clause, the Oath of Office Clause, and thePardon Clause. See U.S. CONST. art. II, § 1, cl. 1 (ExecutivePower Clause); U.S. CONST. art. II, § 1, cl. 8 (Oath of OfficeClause); U.S. CONST. art. II, § 2, cl. 1 (Pardon Clause); U.S. CONST. art. II, § 3 (Take Care Clause); see also U.S. CONST.art. I, § 9, cl. 3 (Bill of Attainder Clause). The President maydecline to prosecute certain violators of federal law just as thePresident may pardon certain violators of federal law.5 ThePresident may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law or because of policy objections to the law, among other reasons.6

See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974)(“the Executive Branch has exclusive authority and absolutediscretion to decide whether to prosecute a case”); Community

for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201(D.C. Cir. 1986) (“The power to decide when to investigate,

5 The power to pardon encompasses the power to commutesentences. See Schick v. Reed , 419 U.S. 256, 264 (1974).

6 One important difference between a decision not to prosecuteand a pardon is that a pardon prevents a future President from prosecuting the offender for that offense. Prosecutorial discretion,

meanwhile, might be exercised differently by a future President – subject to statute of limitations issues or any due process limits thatmight apply when an offender has reasonably relied on a prior Presidential promise not to prosecute particular conduct.


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and when to prosecute, lies at the core of the Executive’s dutyto see to the faithful execution of the laws . . . .”); United

States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“Thediscretionary power of the attorney for the United States indetermining whether a prosecution shall be commenced or maintained may well depend upon matters of policy whollyapart from any question of probable cause.”); Prosecution for

Contempt of Congress of an Executive Branch Official Who

Has Asserted a Claim of Executive Privilege, 8 Op. Off. LegalCounsel 101, 125 (1984) (Theodore B. Olson) (“theconstitutionally prescribed separation of powers requires thatthe Executive retain discretion with respect to whom it will prosecute for violations of the law”); id. at 115 (“TheExecutive’s exclusive authority to prosecute violations of thelaw gives rise to the corollary that neither the Judicial nor Legislative Branches may directly interfere with the prosecutorial discretion of the Executive by directing theExecutive Branch to prosecute particular individuals.”);Congressman John Marshall, Speech to the House of Representatives (1800), reprinted in 18 U.S. app. at 29 (1820)

(The President may “direct that the criminal be prosecuted nofurther. This is . . . the exercise of an indubitable and aconstitutional power.”); see also United States v. Klein, 80U.S. 128, 147 (1871) (“To the executive alone is intrusted the power of pardon; and it is granted without limit.”).

In light of the President’s Article II prosecutorialdiscretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. Ashas been settled since the Founding, the President has

absolute authority to issue a pardon at any time after anunlawful act has occurred, even before a charge or trial. See

Ex parte Grossman, 267 U.S. 87, 120 (1925) (“The Executive


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can reprieve or pardon all offenses after their commission,either before trial, during trial or after trial, by individuals, or by classes . . . .”). So it would make little sense to think thatCongress constitutionally could compel the President to prosecute certain offenses or offenders, given that thePresident has undisputed authority to pardon all suchoffenders at any time after commission of the offense. See

AKHIL R EED AMAR , AMERICA’S CONSTITUTION: A

BIOGRAPHY 179 (2005) (“greater power to pardon subsumed the lesser power to simply decline prosecution”).7

The Executive’s broad prosecutorial discretion and pardon powers illustrate a key point of the Constitution’sseparation of powers. One of the greatest unilateral powers aPresident possesses under the Constitution, at least in thedomestic sphere, is the power to protect individual liberty byessentially under-enforcing federal statutes regulating private behavior – more precisely, the power either not to seek charges against violators of a federal law or to pardonviolators of a federal law.8 The Framers saw the separation of

the power to prosecute from the power to legislate as essential

7 If the Executive selectively prosecutes someone based onimpermissible considerations, the equal protection remedy is todismiss the prosecution, not to compel the Executive to bringanother prosecution. See United States v. Armstrong, 517 U.S. 456,459, 463 (1996); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886);cf. Linda R.S. v. Richard D., 410 U.S. 614, 618-19 (1973).

8 Congress obviously has tools to deter the Executive fromexercising authority in this way – for example by using theappropriations power or the advice and consent power to thwart

other aspects of the Executive’s agenda (and ultimately, of course,Congress has the impeachment power). But Congress may notoverturn a pardon or direct that the Executive prosecute a particular individual or class of individuals.


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to preserving individual liberty. See THE FEDERALIST NO. 47,at 269 (James Madison) (Clinton Rossiter ed., rev. ed. 1999)(“The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced thevery definition of tyranny.”); 1 MONTESQUIEU, THE SPIRIT OF

LAWS bk. 11, ch. 6, at 163 (Thomas Nugent trans., 1914)(“When the legislative and executive powers are united in thesame person, or in the same body of magistrates, there can beno liberty; because apprehensions may arise, lest the samemonarch or senate should enact tyrannical laws, to executethem in a tyrannical manner.”). After enacting a statute,Congress may not mandate the prosecution of violators of thatstatute. Instead, the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of oppressive lawsthat Congress may have passed (and still further protectioncomes from later review by an independent jury and Judiciaryin those prosecutions brought by the Executive).9

9 It is likely that the Executive may decline to seek civil penalties or sanctions (including penalties or sanctions inadministrative proceedings) on behalf of the Federal Government inthe same way. Because they are to some extent analogous tocriminal prosecution decisions and stem from similar Article IIroots, such civil enforcement decisions brought by the FederalGovernment are presumptively an exclusive Executive power. See

Buckley v. Valeo, 424 U.S. 1, 138 (1976) (“The Commission’senforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded asmerely in aid of the legislative function of Congress. A lawsuit isthe ultimate remedy for a breach of the law, and it is to the

President, and not to the Congress, that the Constitution entrusts theresponsibility to ‘take Care that the Laws be faithfully executed.’”)(quoting U.S. CONST. art. II, § 3); Heckler v. Chaney, 470 U.S. 821,831-33 (1985); Confiscation Cases, 74 U.S. 454, 457 (1868); see


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To be sure, a President’s decision to exercise prosecutorial discretion and to decline to seek charges againstviolators (or to pardon violators) of certain laws can be verycontroversial. For example, if a President disagreed onconstitutional or policy grounds with certain federalmarijuana or gun possession laws and said that the ExecutiveBranch would not initiate criminal charges against violators of those laws, controversy might well ensue, including publiccriticism that the President was “ignoring” or “failing toenforce” the law (and if a court had previously upheld the lawin question as constitutional, additional claims that thePresident was also “ignoring” the courts). But the Presidenthas clear constitutional authority to exercise prosecutorialdiscretion to decline to prosecute violators of such laws, justas the President indisputably has clear constitutional authorityto pardon violators of such laws. See, e.g., 1963 AttorneyGen. Ann. Rep. 62, 62-63 (1963) (President Kennedycommuted the sentences of many drug offenders sentenced tomandatory minimums); Letter from Thomas Jefferson toAbigail Adams (July 22, 1804), in 11 THE WRITINGS OF

THOMAS JEFFERSON 42, 43-44 (Andrew A. Lipscomb &Albert Ellery Bergh eds., 1904) (President Jefferson both pardoned those convicted under the Sedition Act and refused to prosecute violators of the Act); President George

also Butz v. Economou, 438 U.S. 478, 515 (1978); Seven-Sky v.

Holder , 661 F.3d 1, 50 & n.43 (D.C. Cir. 2011) (Kavanaugh, J.,dissenting) (referring to possibility that a President might exercise prosecutorial discretion not to seek civil penalties against violatorsof a statute). That said, it has occasionally been posited that thePresident’s power not to initiate a civil enforcement action may not

be entirely absolute (unlike with respect to criminal prosecution)and thus might yield if Congress expressly mandates civilenforcement actions in certain circumstances. Cf. Heckler , 470U.S. at 832-33.


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Washington, Proclamation (July 10, 1795), in 1 A

COMPILATION OF THE MESSAGES AND PAPERS OF THE

PRESIDENTS 1789-1897, at 181 (James D. Richardson ed.,1896) (President Washington pardoned participants in thePennsylvania Whiskey Rebellion).10 The remedy for

10 As a general matter, there is widespread confusion about thedifferences between (i) the President’s authority to disregard statutory mandates or prohibitions on the Executive, based on the

President’s constitutional objections, and (ii) the President’s prosecutorial discretion not to initiate charges against (or to pardon)violators of a federal law. There are two key practical differences.

First , the President may disregard a statutory mandate or prohibition on the Executive only on constitutional grounds, not on policy grounds. By contrast, the President may exercise the prosecutorial discretion and pardon powers on any ground – whether based on the Constitution, policy, or other considerations.

Second , our constitutional structure and tradition establish that aPresident is bound to comply with a final Court decision holdingthat a statutory mandate or prohibition on the Executive isconstitutional. But in the prosecutorial discretion and pardon

context, when a Court upholds a statute that regulates private parties as consistent with the Constitution, that ruling simplyauthorizes prosecution of violators of that law. Such a Court rulingdoes not require the President either to prosecute violators of thatlaw or to refrain from pardoning violators of that law. So thePresident may decline to prosecute or may pardon violators of a lawthat the Court has upheld as constitutional. To take one example, aPresident plainly could choose not to seek (or could commute)federal death sentences because of the President’s own objectionsto the death penalty, even though the Supreme Court has upheld thedeath penalty as constitutional. See Daniel J. Meltzer, Executive

Defense of Congressional Acts, 61 DUKE L.J. 1183, 1189-90 (2012)

(“President Jefferson ended pending prosecutions under theSedition Act and pardoned individuals previously convicted under that Act, even though the courts had upheld the Act’sconstitutionality. . . . [I]t can hardly be said that his pardons


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Presidential abuses of the power to pardon or to decline to prosecute comes in the form of public disapproval,congressional “retaliation” on other matters, or ultimatelyimpeachment in cases of extreme abuse.

So having said all of that, why doesn’t the principle of prosecutorial discretion justify the Nuclear RegulatoryCommission’s inaction in this case? The answer isstraightforward. Prosecutorial discretion encompasses the

Executive’s power to decide whether to initiate charges for legal wrongdoing and to seek punishment, penalties, or sanctions against individuals or entities who violate federallaw. Prosecutorial discretion does not include the power todisregard other statutory obligations that apply to theExecutive Branch, such as statutory requirements to issuerules, see Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007)(explaining the difference), or to pay benefits, or toimplement or administer statutory projects or programs. Putanother way, prosecutorial discretion encompasses thediscretion not to enforce a law against private parties; it does

not encompass the discretion not to follow a law imposing amandate or prohibition on the Executive Branch.11

disregarded a duty to enforce or defend a congressional statute,given that the pardon power, by its nature, involves undoing the prior enforcement, via conviction, of a statute. And although theabatement of pending prosecutions failed in one sense to enforcethe Sedition Act, given the breadth of prosecutorial discretion – whether rooted in the Constitution, in the presumed intention of Congress, or in some combination of the two – it is hard to view

Jefferson as having disregarded a congressional mandate.”)(footnotes omitted).

11 Of course, for reasons already discussed, the President maydecline to follow a law that purports to require the Executive


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This case does not involve a Commission decision not to prosecute violations of federal law. Rather, this case involvesa Commission decision not to follow a law mandating that theCommission take certain non-prosecutorial action. So theExecutive’s power of prosecutorial discretion provides nosupport for the Commission’s inaction and disregard of federal law here.

IV

At the behest of the Commission, we have repeatedlygone out of our way over the last several years to defer amandamus order against the Commission and thereby giveCongress time to pass new legislation that would clarify thismatter if it so wished. In our decision in August 2012, theCourt’s majority made clear, however, that mandamus likelywould have to be granted at some point if Congress took nofurther action. See Order, In re Aiken County, No. 11-1271(D.C. Cir. Aug. 3, 2012). Since then, Congress has taken nofurther action on this matter. At this point, the Commission is

simply defying a law enacted by Congress, and theCommission is doing so without any legal basis.

We therefore have no good choice but to grant the petition for a writ of mandamus against the Commission.12

Branch to prosecute certain offenses or offenders. Such a lawwould interfere with the President’s Article II prosecutorialdiscretion.

12 In his dissent, Chief Judge Garland cites several cases toexplain his vote against granting mandamus in this case. Of the

eight cases he cites, however, five did not involve a statutorymandate with a defined deadline, as we have here. In the other three cases, the Court made clear that either the agency had to act or the Court would grant mandamus in the future. See In re United


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This case has serious implications for our constitutionalstructure. It is no overstatement to say that our constitutionalsystem of separation of powers would be significantly altered if we were to allow executive and independent agencies todisregard federal law in the manner asserted in this case by

Mine Workers of America International Union, 190 F.3d 545, 554(D.C. Cir. 1999) (“however modest [an agency’s] personnel and budgetary resources may be, there is a limit to how long it may use

these justifications to excuse inaction”); Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 477 (D.C. Cir. 1998) (denyingmandamus partly because “this is not a case where an agency has been contumacious in ignoring court directions to expeditedecision-making”); In re Barr Laboratories, Inc., 930 F.2d 72, 76(D.C. Cir. 1991) (mandamus inappropriate where it would interferewith agency priorities set by applying agency expertise but notingthat “[w]here the agency has manifested bad faith, as by . . .asserting utter indifference to a congressional deadline, the agencywill have a hard time claiming legitimacy for its priorities”).Consistent with those precedents, we followed a cautious approachin our decision more than a year ago when we declined to issue

mandamus against the Commission at that time. But the Court’smajority clearly warned that mandamus would eventually have to be granted if the Commission did not act or if Congress did notchange the law. Since then, despite the clear warning, theCommission has still not complied with the statutory mandate. Onthe contrary, the Commission has reaffirmed that it has no plans tocomply with the statutory mandate. In the face of such deliberateand continued agency disregard of a statutory mandate, our precedents strongly support a writ of mandamus. Our respectfulfactbound difference with Chief Judge Garland, then, is simply thatwe believe – especially given the Court’s cautious and incrementalapproach in prior iterations of this litigation, the significant amount

of money available for the Commission to continue the licensing process, and the Commission’s continued disregard of the law – that the case has by now proceeded to the point where mandamusappropriately must be granted.


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the Nuclear Regulatory Commission. Our decision todayrests on the constitutional authority of Congress, and therespect that the Executive and the Judiciary properly owe toCongress in the circumstances here. To be sure, if Congressdetermines in the wake of our decision that it will never fund the Commission’s licensing process to completion, we would certainly hope that Congress would step in before the current$11.1 million is expended, so as to avoid wasting thattaxpayer money. And Congress, of course, is under noobligation to appropriate additional money for the YuccaMountain project. Moreover, our decision here does not pre- judge the merits of the Commission’s consideration or decision on the Department of Energy’s license application,or the Commission’s consideration or decision on anyDepartment of Energy attempt to withdraw the licenseapplication. But unless and until Congress authoritativelysays otherwise or there are no appropriated funds remaining,the Nuclear Regulatory Commission must promptly continuewith the legally mandated licensing process. The petition for a writ of mandamus is granted.

So ordered.


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R ANDOLPH, Senior Circuit Judge, concurring: I join all of

the majority opinion except part III, which I believe isunnecessary to decide the case.

I also believe some background information is needed to

understand what has occurred here. The Nuclear Waste PolicyAct states that the Commission “shall consider” the Yucca

Mountain license application and “shall issue a final decision

approving or disapproving” the application “not later than” three

years after its submission. 42 U.S.C. § 10134(d). TheDepartment of Energy filed the Yucca Mountain application in

June 2008, see Yucca Mountain; Notice of Receipt and

Availability of Application, 73 Fed. Reg. 34,348 (June 17,2008), and Congress later provided substantial appropriations

for the licensing process, see U.S. NUCLEAR R EGULATORY

COMMISSION, NUREG-1100, VOL. 26, CONGRESSIONAL BUDGET

JUSTIFICATION FOR FY 2011 94–95 (2010). Although the

Commission had a duty to act on the application and the means

to fulfill that duty, former Chairman Gregory Jaczko

orchestrated a systematic campaign of noncompliance. Jaczkounilaterally ordered Commission staff to terminate the review

process in October 2010; instructed staff to remove key findings

from reports evaluating the Yucca Mountain site; and ignored

the will of his fellow Commissioners. See U.S. NUCLEAR

R EGULATORY COMMISSION, OFFICE OF THE I NSPECTOR

GENERAL, OIG CASE NO. 11-05, NRC CHAIRMAN’S

U NILATERALDECISION TO TERMINATE NRC’S R EVIEW OF DOE

YUCCA MOUNTAIN R EPOSITORY LICENSE APPLICATION 7–10,

17, 44–46 (2011). These transgressions prompted an

investigation by the Commission’s Inspector General, as well asa letter from all four of the Commission’s other members

expressing “grave concerns” about Jaczko’s performance in

office. See Matthew Daly, Nuclear Agency’s Commissioners and

Chief Trade War of Words, WASH. POST, Dec. 10, 2011, at A18.

After we heard oral argument in this case, Jaczko resigned.


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2

Today’s judgment should ensure that the Commission’s

next chapter begins with adherence to the law. In the Nuclear

Waste Policy Act Congress required the Commission to rule on

the Yucca Mountain application, and it appropriated funds for that purpose. The Commission’s duty is to comply with the law

and our duty is to make sure it does so. “Once Congress . . . has

decided the order of priorities in a given area, it is for theExecutive to administer the laws and for the courts to enforce

them when enforcement is sought.” TVA v. Hill, 437 U.S. 153,

194 (1978).


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GARLAND, Chief Judge, dissenting: Mandamus is a “drastic

and extraordinary remedy reserved for really extraordinarycauses.” Cheney v. U.S. Dist. Court for the Dist. of Columbia,542 U.S. 367, 380 (2004) (internal quotation marks omitted).Even if a petitioner can show that it has a “clear and indisputable” right to the writ, issuing the writ remains “a matter vested in the discretion of the court.” Id . at 381, 391. Likewise,“mandamus[] does not necessarily follow a finding of a[statutory] violation.” In re United Mine Workers of Am. Int’l

Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (second alteration inoriginal) (quoting In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C.Cir. 1991)). To the contrary, this court has not hesitated to deny

the writ even when an agency has missed a statutory deadline byfar more than the two years that have passed in this case. See id.

at 546, 551 (declining to issue the writ, notwithstanding that theagency missed an “express” statutory deadline by 8 years in“clear violation” of the statute).1 Finally, and most relevant

1See also, e.g., In re Core Commc’ns, Inc., 531 F.3d 849, 850(D.C. Cir. 2008) (noting that the court had declined to issue the writafter the agency failed to respond to the court’s remand for 3 years, but issuing the writ when the delay reached 6 years); Mashpee

Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100-01(D.C. Cir. 2003) (vacating and remanding the district court’sdetermination that a 5-year delay was unreasonable, due to the districtcourt’s failure to consider the agency’s resource constraints); Grand

Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 477-78 (D.C. Cir. 1998)(declining to order agency action notwithstanding a 10-year delay inissuing a rule and a 20-year delay in achieving the rule’s statutoryobjective); In re Int’l Chem. Workers Union, 958 F.2d 1144, 1146-47,1150 (D.C. Cir. 1992) (noting that the court had declined to issue thewrit after a 3-year delay, but issuing the writ when the delay reached 6 years); In re Monroe Commc’ns Corp., 840 F.2d 942, 945-47 (D.C.Cir. 1988) (declining to issue the writ despite the agency’s 3-year

delay since the ALJ’s initial decision, and 5-year delay since the startof agency proceedings); Oil, Chem. & Atomic Workers Int’l Union v.

Zegeer , 768 F.2d 1480, 1487-88 (D.C. Cir. 1985) (declining to issuethe writ after a 5-year delay).


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2

here, “[c]ourts will not issue the writ to do a useless thing, eventhough technically to uphold a legal right.” United States ex rel.

Sierra Land & Water Co. v. Ickes, 84 F.2d 228, 232 (D.C. Cir.1936).2

Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do “a uselessthing.” The NRC has not refused to proceed with the YuccaMountain application. Rather, by unanimous votes of both theCommission and its Atomic Safety and Licensing Board, it has

suspended the application proceeding until there are sufficientfunds to make meaningful progress. See Mem. and Order at 1-2(N.R.C. Sept. 9, 2011); Mem. and Order (SuspendingAdjudicatory Proceeding) at 3 (A.S.L.B. Sept. 30, 2011); NRCBr. 53; NRC Resp. Br. 5; Oral Arg. Tr. 36. Five months prior tothat suspension, Congress had given the Commission only theminimal amount it requested to “support work related to theorderly closure of the agency’s Yucca Mountain licensingsupport activities.” NRC, CONG. BUDGET JUSTIFICATION FOR

FY 2011, at 95 (2010); see Full-Year Continuing AppropriationsAct, 2011, Pub. L. No. 112-10, § 1423, 125 Stat. 38, 126 (2011).

The following year, Congress completely zeroed out theCommission’s funding for the project. And the year followingthat -- after we held this case in abeyance so that Congress could indicate whether it intended to fund the project going forward,see Order, In re Aiken County, No. 11-1271 (D.C. Cir. Aug. 3,2012) -- Congress once again appropriated no money for YuccaMountain activities.

2See Weber v. United States, 209 F.3d 756, 760 (D.C. Cir. 2000)

(declaring that the writ “is not to be granted in order to command agesture”); Realty Income Trust v. Eckerd , 564 F.2d 447, 458 (D.C. Cir.1977) (holding that “equity should not require the doing of a ‘vain or useless thing’”).


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3

As a consequence, the agency has only about $11 millionleft in available funds. No one disputes that $11 million iswholly insufficient to complete the processing of theapplication. By way of comparison, the Commission’s budgetrequest for the most recent year in which it still expected theYucca Mountain proceeding to move forward was $99.1 million.See Inspector Gen. Mem. at 8 (June 6, 2011) (describing NRC’sFY 2010 performance budget request, which Congress did notgrant).3 The only real question, then, is whether the

3To put the size of the application process in concrete terms, atthe time the NRC suspended its licensing proceeding, 288 contentions-- claims that must be resolved before the application can be granted --remained outstanding. See Mem. and Order (SuspendingAdjudicatory Proceeding) at 3 (A.S.L.B. Sept. 30, 2011); see also

Mem. and Order at 2 (N.R.C. June 30, 2009) (noting that the YuccaMountain proceeding “is the most extensive . . . in the agency’shistory”). Over 100 expert witnesses had been identified for depositions, to address contentions on such diverse subjects ashydrology, geochemistry, climate change, corrosion, radiation,volcanism, and waste transport -- and those were just for the first

phase of the proceeding. See Mem. and Order (IdentifyingParticipants and Admitted Contentions), Attachment A at 1-10(A.S.L.B. May 11, 2009); Dep’t of Energy Mot. to Renew TemporarySuspension (“DOE Mot.”) at 5 n.14 (A.S.L.B. Jan. 21, 2011).

Nor is funding for the NRC the only problem. The Departmentof Energy (DOE) is the license applicant and an indispensable partyin the application process; it bears the burden of proof on each of theremaining 288 contentions. See 10 C.F.R. § 2.325. But Congress haszeroed out DOE’s Yucca Mountain funding for three years running.It, too, has only a comparatively small amount of carryover fundsavailable -- enough for less than two months’ participation. See U.S.

Amicus Br. 6; see also infra note 4.

Of course, processing the application is itself only the tip of theiceberg. Completing the project, including constructing the Yucca


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4

Commission can make any meaningful progress with $11million.

The Commission has concluded that it cannot. See NRCResp. Br. 5; U.S. Amicus Br. 9; see also NRC Br. 42. And weare not in a position -- nor do we have any basis -- to second-guess that conclusion. Two years ago, citing insufficient fundsto proceed and the need to preserve the materials it had collected, the NRC shuttered the licensing program, dismantled the computer system upon which it depended, shipped the

documents to storage, and reassigned the program’s personnelto projects that did have congressional funding. See Mem. and Order at 1-2 (N.R.C. Sept. 9, 2011); NRC Br. 3; Pet’rs Br. 16;Oral Arg. Tr. 45. The Commission believes it will take asignificant part of the $11 million to get the process started again. See Oral Arg. Tr. 45-49; see also U.S. Amicus Br. 6.4 Nor would that leave the Commission with the remainder tospend on moving the application along, however slightly. Inlight of the NRC’s previous three years of appropriationsexperience, the only responsible use for the remaining moneywould be to spend it on putting the materials back into storage --

in order to preserve them for the day (if it ever arrives) thatCongress provides additional funds. See Oral Arg. Tr. 48-49.

Mountain facilities themselves, would require another $50 billion,none of which has been appropriated. See Oral Arg. Tr. 63.

4The Department of Energy is in a position similar to that of the NRC. The DOE office with responsibility for the Yucca Mountain project ceased operations in September 2010. See DOE Mot. at 4-5.

“An active licensing proceeding would thus require DOE to, amongother things, re-hire employees, enter into new contracts for necessaryservices, and re-create capabilities . . . .” Id. at 5; see also supra note3.


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In short, given the limited funds that remain available,issuing a writ of mandamus amounts to little more than orderingthe Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again. This exercisewill do nothing to safeguard the separation of powers, which mycolleagues see as imperiled by the NRC’s conduct. See CourtOp. at 7, 21-22. And because “[i]t is within our discretion notto order the doing of a useless act,” Sierra Land & Water , 84F.2d at 232, I respectfully dissent.5

5Cf. In re Barr Labs., 930 F.2d at 76 (“Congress sought to getgeneric drugs into the hands of patients at reasonable prices -- fast.

The record before us reflects a defeat of those hopes. There are probably remedies[, including] more resources. . . . [N]one is withinour power, and a grant of [the] petition [for mandamus] is no remedyat all.”).


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CERTIFICATE OF SERVICE

I certify that on September 27, 2013, the State of Nevada Petition for

Rehearing En Banc was served on all parties or their counsel of record through theCM/ECF system if they are registered users or, if they are not, by serving a true

and correct copy at the addresses listed below:

Thomas Rush Gottshall [email protected]

Samuel Ross Shealy [email protected]

Haynsworth Sinkler Boyd, PA

P.O. Box 11889

Columbia, SC 29211-1889

For Petitioner Aiken County, South Carolina:

Barry M. Hartman [email protected]

Christopher R. Nestor [email protected]

K&L Gates, LLP

1601 K Street, NW

Washington, DC 20006-1600

For Petitioners Robert L. Ferguson, William Lampson and Gary Petersen

William Henry Davidson, II [email protected] Paul Woodington [email protected]

Davidson Morrison & Lindemann, PA

1611 Devonshire Drive

P. O. Box 8568

Columbia, SC 29202-8568

For Petitioner State of South Carolina, ex rel. Henry Dargan McMaster, Attorney

General

Andrew A. Fitz [email protected]

Todd R. Bowers [email protected]

Office of the Attorney General

State of Washington

P. O. Box 40117

Olympia, WA 98504-0117

For Petitioner State of Washington


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35

James Bradford Ramsay [email protected]

Robin J. Lunt [email protected]

National Association of Regulatory

Utility Commissioners

1101 Vermont Avenue, Suite 200

Washington, DC 20005

For Petitioner National Association of Regulatory Utility Commissioners

Robert Michael Andersen [email protected]

Clark Hill PLC

1250 Eye Street NW, Suite 900

Washington, DC 20005For Petitioner Nye County

Charles Mullins [email protected]

Jeremy M. Suttenberg [email protected]

Andrew P. Averbach, Solicitor [email protected]

U.S. Nuclear Regulatory Commission

11555 Rockville Pike

Rockville, Maryland 20852-2738

For Respondents U.S. Nuclear Regulatory Commission, NRC Atomic Safety and

Licensing Board, Gregory B. Jaczko, Thomas Moore, Paul Ryerson and Richard

Wardwell

Ellen C. Ginsberg [email protected]

Anne W. Cottingham [email protected]

Nuclear Energy Institute, Inc.

1776 I Street, NW, Suite 400


Jerry Stouck [email protected] Traurig LLP

2101 L Street NW

Suite 1000


For Amicus Curiae Nuclear Energy Institute, Inc.


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Aaron P. Avila [email protected]

Ellen J. Durkee ellen.durkee@us doj.gov

Appellate Section

Environment & Natural Resources Division

U.S. Department of Justice

P.O. Box 7415, Ben Franklin Station

Washington, D.C. 20044

For Amicus Curiae, The United States

/s/

John W. Lawrence


nevada petition for rehearing on yucca mountain

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