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Natural Resources Defense Council v. Abraham



The Department of Energy (DOE) appealed from a grant of summary judgment favoring Natural Resources Defense Council, who, along with several other environmental and tribal organizations (collectively NRDC), challenged a DOE order governing the disposal of radioactive waste generated at federal defense facilities. The Ninth Circuit held the challenge was not ripe for review.

In 1999, DOE issued Order 435.1, which was designed to ensure all radioactive waste would be managed to protect workers, as well as public health and the environment. In conjunction with the Radioactive Waste Management Manual and the DOE Implementation Guide, Order 435.1 established management responsibilities for varying levels of radioactive waste. NRDC asserted DOE would construe the order to reclassify high-level waste as waste incidental to reprocessing that required minimized handling protections, thus violating the Nuclear Waste Policy Act (NWPA).[1] The district court found the issue ripe and granted summary judgment to NRDC. The Ninth Circuit reviewed the ripeness decision de novo.

The Ninth Circuit pointed out that ripeness is dependent on the “fitness of the issues for judicial decision and . . . the hardship to the parties of withholding court consideration.”[2] The court then noted that, although the order was a final agency action, its ability to review NRDC’s concerns regarding differences between the definition of high-level waste in the order and the NWPA would be improved with “further factual development.”[3] The court acknowledged DOE could potentially exploit definitional differences in violation of the NWPA, but there was no indication the agency would do so. Indeed, the manual accompanying Order 435.1 expressly stated high-level waste would be treated in accordance with the NWPA. The Ninth Circuit concluded that because the DOE order did not require the interpretation asserted by NRDC, the issue was not fit for review.

The Ninth Circuit then noted legal hardship was lacking as well. The court pointed out the order did not change or create any legal rights or obligations, nor did it “force NRDC to modify its behavior ‘to avoid future adverse consequences.'”[4] The court concluded there was no realistic danger that NRDC would be adversely affected by waiting for DOE to construe the order and challenging it at that time. Because premature judicial review would interfere with the administrative process and because there was no indication DOE would construe the order in the manner alleged by NRDC, the Ninth Circuit held the issue was not ripe.

[1] Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10270 (2000).

[2] Natural Res. Def. Council v. Abraham, 388 F.3d 701, 705 (9th Cir. 2004) (citing Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003)).

[3] Id.

[4] Id. at 706 (citing Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733-34 (1998)).

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