County of Esmeralda, State of Nevada v. U.S. Department of Energy, County of Inyo, State of California v. U.S. Department of Energy

925 F.2d 1216 32 ERC 1809 , 21 Envtl. L. Rep. 20 ,697 COUNTY OF ESMERALDA, STATE OF NEVADA, Petitioner, v. U.S. DEPARTMENT OF ENERGY, Respondent. COUNTY OF INYO, STATE OF CALIFORNIA, Petitioner, v. U.S. DEPARTMENT OF ENERGY, Respondent. Nos. 89-70142, 89-70162. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 16, 1990. Decided Feb. 20, 1991. Jed Courtney, Esmeralda County Dist. Atty., Goldfield, Nev., and Gregory L. James, County Counsel, County of Inyo, Paul N. Bruce, Asst. County Counsel, County of Inyo, Independence, Cal., for petitioners. Vicki L. Plaut and Angus E. Crane, Atty., Dept. of Justice, Washington, D.C., for respondent. Appeal from a Decision of the United States Department of Energy. Before WALLACE, Chief Judge, ALARCON and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: 1 Esmeralda County, Nevada, and Inyo County, California, petition this court to vacate as arbitrary and capricious the Department of Energy's denial of their request to designate them units of local government affected by the Yucca Mountain High Level Nuclear Waste Repository Project. We grant the counties' petitions and vacate the Secretary's decisions not to designate the…

Esmeralda County, Nevada, and Inyo County, California, petition this court to vacate as arbitrary and capricious the Department of Energy’s denial of their request to designate them units of local government affected by the Yucca Mountain High Level Nuclear Waste Repository Project. We grant the counties’ petitions and vacate the Secretary’s decisions not to designate the counties affected units.

BACKGROUND

The Nuclear Waste Policy Act requires the Department of Energy to site, construct, and operate repositories for high level radioactive waste. 42 U.S.C. § 10131 (b)(1). As amended in 1987, the Act provides that Yucca Mountain is the sole area to be evaluated as a potential site for the first waste dump. 42 U.S.C. § 10172 . In association with the Department’s site evaluation, the Secretary of Energy must provide funds for participating in evaluation activities to affected units of local government, 42 U.S.C. § 10136 (c), as well *1218 as involve them in the evaluation process to a significant extent, see, e.g., 42 U.S.C. § 10173 (a)(3); 42 U.S.C. § 10178b(a)(2). The Act defines an “affected unit of local government” as:

42 U.S.C. § 10101 (31). The unit of local government…

concurring and dissenting:

I agree we have jurisdiction to review Inyo County’s petition, and concur in part 3.A. and the first holding of part 3.B. I respectfully dissent from the remainder of the majority opinion.

Because 42 U.S.C. § 10101 (31) does not provide any meaningful criteria for evaluating the Secretary’s decision to deny affected unit status, I conclude that the decision is unreviewable. Even assuming that the Secretary’s decision is subject to judicial review, I see no persuasive basis for the majority’s conclusion that the Secretary abused his discretion in denying affected unit status to Esmeralda and Inyo counties.

I

Judicial review of agency action may not be had when the statute is “drawn so that a court [has] no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 , 105 S.Ct. 1649, 1655 , 84 L.Ed.2d 714 (1985) (Chaney); Merrill Ditch-Liners, Inc. v. Pablo, 670 F.2d 139, 141 (9th Cir.1982) (Merrill Ditch-Liners). In such cases, the action is considered “committed to agency discretion by law.” 5 U.S.C. § 701 (a)(2); see Chaney, 470 U.S. at 830 , 105 S.Ct. at 1655 .

This is true even where, as…