The Waste Isolation Pilot Plant Withdrawal Act: the importance of FLPMA's procedural requirements.

• Author: Rauch, III, Samuel D.
• Position: Federal Land Policy and Management Act - Case Note

1. Introduction 226 II. Allocation of Withdrawal Power 230 A. Pre-FLPMA: Congressional Acquiescence and

   Executive Authority 230 B. FLPMA: Congress Takes Control 232 III. The History of WIPP 234 A. Congressional Authorization and Initial

   Withdrawal 235 B. Public Land Order 6403 236 C. Public Land Order 6826 239 IV. New Mexico V. Watkins 241 A. Radioactive Mixed Waste and Interim Status

   Under RCRA 241 1. Clear Congressional Intent 242 2. Determining EPA's "Reasonable Interpretation" 243 B. Violation of FLPMA Withdrawal Provisions 247 1. The District Court Opinion 248 2. The D.C. Circuit Opinion 249 C. The Proper Remedy 253 V. The WIPP Land Withdrawal Act of 1991 256 VI. Conclusion 260 Oh, sure, we will be sued. But we'll be sued not on the basis of environment concerns. We already demonstrated we know how to deal with all safety and environmental aspects of WIPP. The suits will be emotionally anti-nuclear--we don't like bombs and we don't like any thing connected with bombs, even safe waste disposal. OK, I understand there is a body of American thinking that says the nuclear deterrent is bad. I don't think it is majority thinking. But only pure emotionalism from this faction now stands between us and accepting waste at WIPP.(1)

1. INTRODUCTION

   The tension between the executive and legislative branches has become a recurring issue in federal public lands(2) management. While Congress has the power "to dispose of and make all needful Rides and Regulations" regarding United States property,(3) Congress has historically acquiesced in many executive public land management decisions.(4) However, by passing the Federal Land Policy and Management Act of 1976 (FLPMA),(5) Congress attempted to end this acquiescence and reassert control over the public lands.(6) Recently, the Department of Energy's (DOE) decision to begin the test phase of the Waste Isolation Pilot Plant (WIPP) project(7) without congressional approval renewed the controversy about the scope of the Executive's power over the public lands.

   In 1983, the Secretary of the Interior (Secretary) withdrew(8) 9000 acres of federal land in New Mexico from the operation of the public land laws for eight years to construct DOE's WIPP project.(9) Explaining the purpose of his withdrawal to Congress, as required by FLPMA,(10) the Secretary said that no radioactive waste would be stored or disposed at the facility.(11) However, when the withdrawal expired in 1991, the Secretary modified and extended the withdrawal to carry out a "test phase" which would include storing defense-related radioactive waste.(12) FLPMA provides that withdrawals may be extended without requiring the same elaborate congressional reporting provisions as original withdrawals. However, such extensions may be granted only if the purpose of the original withdrawal requires the extension.(13) In response, the state of New Mexico(14) sued to enjoin the storage of radioactive waste on the WIPP site, alleging that an extension which allowed for waste storage violated the limits imposed by FLMA.(15)

   In a consolidated action, several environmental groups also alleged violations of the Resource Conservation and Recovery Act of 1976 (RCRA) interim status permitting provisions.(16) RCRA generally requires all hazardous waste disposal facilities to operate under a permit,(17) but DOE claimed that WIPP did not need a permit because it was operating under interim status.(18) The district court found that the facility was ineligible for interim status because WIPP was built after radioactive mixed waste had become regulated under RCRA in 1980.(19)

   In New Mexico v. Watkins,(20) the D.C. Circuit disagreed and found that radioactive mixed waste originally had not been covered by RCRA. Instead, the court found that a 1986 Environmental Protection Agency (EPA) notice(21) constituted a regulatory change.(22) Therefore, WIPP may have been eligible for interim status, depending on when it came into existence.(23) The D.C. Circuit upheld New Mexico's FLPMA claim, however, and affirmed the district court injunction preventing waste storage at WIPP under the administrative withdrawal.(24) The court determined that the original purpose of the withdrawal--facility construction--did not include the storage of radioactive waste.(25) Consequently, the Department of Interior (Interior) breached the provisions of FLPMA by extending the withdrawal order to allow for the storage of radioactive waste without Congressional authorization.(26) DOE and Interior had violated a "fundamental part" of FLPMA's congressional plan to retake control of administrative withdrawals.(27) For this reason, the D.C. Circuit affirmed the district court's injunction.(28)

   Three-and-a-half months after the D.C. Circuit upheld the injunction forcing DOE to obtain congressional authorization to store radioactive waste at WIPP, Congress passed the Waste Isolation Pilot Plant Land Withdrawal Act (WIPP Act).(29) This Act placed stricter environmental controls on WIPP and transferred environmental oversight of the facility from DOE to EPA.(30) The WIPP Act also significantly increased the amount of compensation New Mexico will receive as the host state.(31) Without judicial intervention, it is unlikely that these environmental and financial provisions would have attached to the WIPP project; the injunction allowed Congress to exercise the type of managerial oversight envisioned in FLPMA.

   This note outlines the ongoing controversy between the legislative and executive branches surrounding the exercise of the withdrawal power regarding WIPP. The second section provides a historical context for the D.C. Circuit's opinion and Congress' subsequent action. Section three discusses the executive actions that led to the D.C. Circuit's decision in New Mexico v. Watkins.

   Section four analyzes the D.C. Circuit's opinion, including the court's rulings on RCRA, FLPMA, and injunctive relief. Section five discusses the limits Congress placed on executive branch managerial discretion through the WIPP Act. The note concludes that the D.C. Circuit properly enjoined the storage of radioactive waste at WIPP to preserve Congress' role in overseeing executive withdrawal decisions.

2. ALLOCATION OF WITHDRAWAL POWER

   The WIPP controversy is just the latest skirmish in the continuing struggle between the executive and legislative branches over management of the public lands. To understand the significance of the congressional victory in the D.C. Circuit, one must first examine the historical antecedents of the conflict.

   1. Pre-FLPMA: Congressional Acquiescence and Executive Authority.

      Congress has the "power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."(32) Throughout the early period of U.S. history, Congress generally exercised this power to open federal public lands to private acquisition.(33) By the end of the nineteenth century, however, Congress began to make withdrawals for its own purposes.(34) Congress also enacted several statutes which delegated power to the President to withdraw lands and reserve them for specific public purposes.(35)

      In addition to delegated powers, the executive branch claimed an inherent power to withdraw the lands.(36) Presidents routinely set aside Indian, military, and bird reservations on the public lands by executive orders without any statutory authority.(37) The validity of these withdrawals went unchallenged until the early twentieth century.(38) Then, in 1909, President Taft withdrew approximately three million acres of valuable oil land in Wyoming and California "in aid of proposed legislation" to protect the lands.(39) In United States v. Midwest Oil Co,(40) the Supreme Court upheld the validity of President Taft's withdrawal because the long history of executive withdrawals, "known to and acquiesced in by Congress," raised the presumption that Congress either consented to the withdrawal or recognized an inherent withdrawal power in the executive branch.(41)

      After the 1909 withdrawals, but before the Midwest Oil decision, President Taft asked Congress to pass legislation clarifying his withdrawal power.(42) Congress responded by enacting the Pickett Act of 1910,(43) which allowed the President to temporarily withdraw and reserve all public lands.(44) These "temporary" withdrawals were to remain in effect only until revoked by the President or an act of Congress.(45) Thus, Congress only allowed the President to make withdrawals which were subject to legislative termination.(46) Controversy remained, however, over executive authority to make "permanent" withdrawals of land.(47)

   2. FLPMA: Congress Takes Control

      In an effort to harmonize the nation's myriad public land laws, Congress established the Public Land Law Review Commission (PLLRC) in 1964.(48) Among its many inquiries, the PLLRC reviewed the ambiguities surrounding executive withdmwal authority after the Pickett Act. Six years later, in its report, One Third of the Nation's Land, the PLLRC recommended that Congress definitively set standards governing the exercise of the executive withdrawal power.(49) Congress eventualy incorporated "6 recommendation into FLPMA,(50) stating its intention to "exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and [to] delineate the extent to which the Executive may withdraw lands without legislative action."(51)

      In pursuit of this policy, FLPMA authorizes the Secretary of Interior(52) "to make, modify and extend, or revoke withdrawals" as long as the procedures outlined in FLPMA are followed.(53) FLPMA provides an expansive definition of withdrawals,(54) and its provisions "clearly cover any implied or inherent executive withdrawal authority."(55) Moreover, the Act also expressly repealed "the implied authority of the President to make withdrawals and reservations resulting from...