United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 1997 Decided November 14, 1997
No. 97-1064
Northern States Power Company, et al.,
Petitioners
v.
United States Department of Energy and
United States of America,
Respondents
IES Utilities, Inc., et al.,
Intervenors
Consolidated with
Nos. 97-1065, 97-1370, 97-1398
On Petitions for Writs of Mandamus Directed to the
United States Department of Energy
Jay E. Silberg argued the cause for utility petitioners, with
whom David J. Cynamon and Mindy A. Buren, were on the
briefs.
Don L. Keskey, Assistant Attorney General, argued the
cause for state petitioners, with whom Frank J. Kelley,
Attorney General, Thomas L. Casey, Henry J. Boynton and
Larry G. Watterworth, Assistant Attorneys General, Michi-
gan, Robert S. Golden, Jr., Assistant Attorney General, Con-
necticut, Robert D. VanDiver, General Counsel, Florida Pub-
lic Service Commission, Judith S. Yogman and Leslie Greer,
Assistant Attorneys General, Massachusetts, Rolayne Ailts
Wiest, Assistant Attorney General, South Dakota, Greg
Huwe, Assistant Attorney General, Minnesota, Michael A.
Gross, Assistant Attorney General, Florida, Mary W. Coch-
ran, General Counsel, Arkansas Public Service Commission,
Bryan G. Moorhouse, General Counsel, and Susan S. Miller,
Assistant General Counsel, Maryland Public Service Commis-
sion, Roger W. Steiner, Assistant General Counsel, Missouri
Public Service Commission, Charles F. Walker and Kevin P.
Maloney, Deputy Attorneys General, Delaware, Carla J.
Stovall, Attorney General, and John W. Campbell, Deputy
Attorney General, Kansas, Diane Munns, Acting General
Counsel, Iowa Utilities Board, Conrad Smith, Vermont, Law-
rence F. Barth, Assistant Counsel, Veronica A. Smith, Depu-
ty Chief Counsel, and John F. Povilaitis, Chief Counsel,
Pennsylvania Public Utility Commission, Steven M. Schur,
Chief Counsel, and David Ludwig, Attorney, Public Service
Commission of Wisconsin, Edward W. O'Neill and Robert C.
Cagen, Public Utilities Commission of California, Lawrence G.
Malone, Solicitor, New York State Public Service Commis-
sion, Lester M. Bridgeman, Alabama Public Service Commis-
sion, James J. Grawe, Assistant Attorney General, Kentucky,
M. Brent Hare, Assistant Attorney General, Maryland, Caro-
line Vachier and Helene S. Wallenstein, Deputy Attorneys
General, New Jersey, James R. Anderson, Assistant Consum-
er Advocate, New Hampshire, Jeffrey B. Pine, Attorney
General, Paul J. Roberti and Alan M. Schoer, Special Assis-
tant Attorneys General, Rhode Island, Shirley E. Guntharp,
Deputy Attorney General, and Charles L. Moulton, Assistant
Attorney General, Arkansas, George M. Fleming, Mississippi
Public Service Commission, L. Steven Grasz, Deputy Attor-
ney General, Nebraska, Frank Spencer, Special Assistant
Attorney General, Mississippi, Wynn E. Arnold, Assistant
Attorney General, New Hampshire, Ben Stead, Iowa, Carl
Josephson, Assistant Attorney General, Virginia, F. David
Butler, General Counsel, Public Service Commission of South
Carolina, Thomas D. Warren, State Solicitor, Maine, Charles
E. Johnson, Special Assistant Attorney General, North Dako-
ta Public Service Commission, Daniel B. Dovenbarger, Depu-
ty Attorney General, Indiana, Sammy R. Kirby, Deputy
General Counsel, North Carolina Utilities Commission,
Duane W. Luckey and Steven T. Nourse, Assistant Attorneys
General, Public Utilities Commission of Ohio, Joel H. Peck,
Senior Counsel, and C. Meade Browder, Jr., Attorney, Virgi-
nia State Corporation Commission, Gary J. Newell and Fran-
ces E. Francis, Public Systems Group, Michael R. Fontham,
and Noel J. Darce, Louisiana Public Service Commission,
Charles D. Gray, General Counsel, and James Bradford
Ramsay, Assistant General Counsel, National Association of
Regulatory Utility Commissioners, and Eric A. Eisen, Ari-
zona Corporation Commission, were on the briefs.
John A. Bryson, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for respondents. Martin
W. Matzen, Attorney, entered an appearance.
William H. Chambliss, Senior Counsel, and C. Meade
Browder, Jr., Attorney, were on the brief for intervenor
Virginia State Corporation Commission.
Michael A. Bauser was on the brief for intervenor North-
east Utilities Service Company.
Before: Williams, Ginsburg and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: In Indiana Michigan Power Co.
v. Department of Energy, 88 F.3d 1272 (D.C. Cir. 1996), we
held that the Nuclear Waste Policy Act ("NWPA") imposes
on the Department of Energy ("DOE") an unconditional
obligation to begin disposing of high-level radioactive waste
and spent nuclear fuel (collectively, "SNF") by January 31,
1998. After we issued our decision, DOE nonetheless in-
formed various utilities and state commissions ("petitioners")
that it would not accept the SNF for disposal by the 1998
deadline. Petitioners now seek a writ of mandamus requiring
DOE to comply with Indiana Michigan and begin disposing
of the SNF by the statutory deadline. We hold that the
Standard Contract between DOE and the utilities provides a
potentially adequate remedy if DOE fails to fulfill its obli-
gations by the deadline, and thus do not grant in full the writ
requested by petitioners. We do agree, however, that DOE's
current approach toward contractual remedies is inconsistent
with the NWPA and with our prior decision in Indiana
Michigan. We thus grant the petition in part, and issue a
writ of mandamus precluding DOE from advancing any con-
struction of the Standard Contract that would excuse its
delinquency on the ground that it has not yet established a
permanent repository or an interim storage program.
I. Background
In the NWPA, Congress, confronting the "national prob-
lem" posed by the accumulation of spent nuclear fuel and
radioactive waste produced by various domestic sources, 42
U.S.C. s 10131(a)(2), created a scheme whereby the federal
government would have the responsibility to provide for the
permanent disposal of the SNF, and the costs of such disposal
would be borne by the owners and generators of the waste
and spent fuel. 42 U.S.C. s 10131(a)(4). The plan provided
that the owners and generators of the SNF would have the
primary responsibility to provide and pay for its interim
storage until the Secretary of Energy accepts the material "in
accordance with the provisions of this chapter." 42 U.S.C.
s 10131(a)(5).
As part of this regulatory program, Congress authorized
the Secretary to enter into contracts with the owners and
generators for the acceptance, transportation, and ultimate
disposal of the SNF. 42 U.S.C. s 10222(a)(1). Congress left
open many of the terms of the contracts, but specifically
dictated, inter alia, the deadline by which DOE must begin
disposing of the SNF. In the language of the statute, the
"[c]ontracts entered into under this section shall provide that
... in return for the payment of fees established by this
section, the Secretary, beginning not later than January 31,
1998, will dispose of the high-level radioactive waste or spent
nuclear fuel involved as provided in this subchapter." 42
U.S.C. s 10222(a)(5)(B). "Payment of fees" referred to hefty
contributions into a so-called Nuclear Waste Fund by owners
and generators of the SNF.
In accordance with the NWPA, DOE adopted the final
Standard Contract after notice and comment. The language
of the Standard Contract is slightly different than that of the
statute, but does include the requirement that disposal begin
by January 31, 1998: "[t]he services to be provided by DOE
under this contract shall begin, after commencement of facili-
ty operations, not later than January 31, 1998 and shall
continue until such time as all SNF and/or HLW [high-level
radioactive waste] from the civilian nuclear power reactors
... has been disposed of." 10 C.F.R. s 961.11, Art. II (1996).
In 1993, various utilities and state agencies became con-
cerned about DOE's ability to meet the 1998 deadline, and
thus asked the Department to address how it would go about
performing its responsibilities. The Department, apparently
anticipating that it would not be ready to take the SNF by
the deadline, took the position that it did not have a clear
legal obligation to accept the SNF absent an operational
repository or other facility. In its Final Interpretation of
Nuclear Waste Acceptance Issues, issued in 1995, DOE an-
nounced that it "does not have an unconditional statutory or
contractual obligation to accept high level waste and spent
nuclear fuel beginning January 31, 1998 in the absence of a
repository or interim storage facility constructed under the
[NWPA]." 60 Fed. Reg. 21,793-94. The Department also
took the position that "it lacks statutory authority under the
Act to provide interim storage." 60 Fed. Reg. at 21,794.
The utilities and the states promptly filed petitions for
review. The question before us in Indiana Michigan was
whether the legal obligation of DOE to accept SNF by
January 31, 1998, was conditioned on the presence of an
operational repository or interim storage facility. Reviewing
DOE's construction of the NWPA under the two-step analysis
of Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
cil, 467 U.S. 837 (1984), we concluded that DOE's interpreta-
tion was contrary to the unambiguously expressed intent of
Congress. We reached this conclusion after analyzing the
plain language of the statute, which mandates that DOE
assume a contractual obligation to start disposing of the SNF
by January 31, 1998. We took special care to emphasize the
reciprocal nature of the obligations. DOE's duty to dispose
of the SNF in a timely manner is "in return for" the payment
of fees into the Nuclear Waste Fund. 42 U.S.C.
s 10222(a)(5)(B). We held that DOE's obligation to meet the
1998 deadline is "without qualification or condition," and
identified DOE's duty to "perform its part of the contractual
bargain." 88 F.3d at 1273. We therefore remanded the
matter to DOE for "further proceedings consistent with" our
opinion. Id. at 1277. DOE neither sought rehearing of that
decision nor petitioned the Supreme Court for further review.
After issuing our decision in Indiana Michigan, we would
have expected that the Department would proceed as if it had
just been told that it had an unconditional obligation to take
the nuclear materials by the January 31, 1998, deadline. Not
so. Quite to the contrary, the Department informed the
utilities and the states that it would be unable to comply with
the statutory deadline that this court had just reaffirmed. In
late 1996, the utilities and the states initiated discussions with
DOE and asked about the procedure and schedule that the
Department would follow to comply with the court's decision.
DOE responded to the utilities by announcing that it "will be
unable to begin acceptance of spent nuclear fuel for disposal
in a repository or interim storage facility by January 31,
1998." Utility Petitioners' Pet. at Tab 1; see also Tab 2.
The Department recognized that the delay would affect "large
number[s]" of contract holders, but nonetheless expressed
"uncertainty as to when DOE will be able to begin spent fuel
acceptance." Id. The letter ended by cordially inviting "the
views of all contract holders on how the delay can best be
accommodated." Id.
In a similar letter to the states, DOE wrote that it "under-
stands that states are concerned about the Department's
delay," and expressed an interest in talking with the states
about how to mitigate the harm caused by the delay. State
Petitioners' Pet., Att. D. DOE's letter also revealed one of
its asserted reasons for the delay: "The Administration con-
tinues to believe that interim storage siting should not pro-
ceed until the Department has the benefit of the information
resulting from the Yucca Mountain Project Viability Assess-
ment." Id. By the Department's own estimates, this Yucca
Mountain facility will not be operational until the year 2010.
Exhibits to Resp. Response, Tab 6, at 8.
On January 31, 1997, the utilities and state agencies sepa-
rately petitioned for a writ of mandamus, seeking to compel
DOE to comply with Indiana Michigan and begin disposal of
the nuclear materials by January 31, 1998. Petitioners also
requested that their payments to the Nuclear Waste Fund be
placed in escrow unless and until DOE meets its obligations
to dispose of SNF, and asked that the court prohibit DOE
from taking any punitive action toward those who suspend
payments to the Fund.
On June 3, 1997, DOE responded to comments submitted
by contract holders regarding the anticipated delay. The
Department began by recognizing that "Section 302 [of the
NWPA] specifies that the contracts shall provide for the
Department to begin to dispose of spent fuel not later than
January 31, 1998." Exhibits to Resp. Response, Tab 6, at 4.
DOE then expressed its belief that "the Standard Contract
adopted by the Department pursuant to Section 302 and
entered into by the contract holders specifies the available
remedies in the event the Department is unable to meet the
January 31, 1998 date." Id. Under Article IX of the con-
tract, the Department asserted, the Department was "not
obligated to provide a financial remedy for the delay," be-
cause the delay, in the Department's estimation, was "un-
avoidable." Id. at 2. After conceding that the delay may
result in "hardship" to contract holders, DOE expressed its
willingness "to consider amendments to individual contracts
that would mitigate the impacts of the delay particular con-
tract holders will experience in the acceptance of their spent
fuel." Id.
II. Discussion
Petitioners assert that a writ of mandamus is necessary to
force DOE to comply with Indiana Michigan and begin
acceptance of the SNF by the 1998 deadline. Their argument
rests on our prior conclusion that "section 302(a)(5)(B) [of the
NWPA] creates an obligation in DOE, reciprocal to the
utilities' obligation to pay, to start disposing of the SNF no
later than January 31, 1998." 88 F.3d at 1277. DOE has not
only failed to undertake "further proceedings consistent with"
the court's opinion, petitioners argue, but has informed them
of its plans to default on its obligations. Petitioners draw
special attention to the fact that the Department currently
accepts SNF from 41 foreign countries, from which they
conclude that DOE is not unable but is simply unwilling to
meet the 1998 deadline. They submit that a writ of manda-
mus is an appropriate remedy for the Department's refusal to
comply with Indiana Michigan and perform its duties by the
deadline set by Congress.1
We start our consideration of the petition with the observa-
tion that "[t]he remedy of mandamus is a drastic one, to be
invoked only in extraordinary situations." Allied Chemical
Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Mandamus is
proper only if "(1) the plaintiff has a clear right to relief; (2)
the defendant has a clear duty to act; and (3) there is no
other adequate remedy available to plaintiff." Council of and
for the Blind of Delaware County Valley v. Regan, 709 F.2d
__________
1 The state petitioners also contend that a writ of mandamus is
warranted, wholly apart from our decision in Indiana Michigan,
under Telecommunications Research & Action Center v. F.C.C., 750
F.2d 70 (D.C. Cir. 1984) ("TRAC"). State Petitioners' Pet. at 9-12.
Because we issue a writ of mandamus to effectuate our decision in
Indiana Michigan, we decline to reach the additional question of
whether issuance of the writ would have been proper under TRAC.
1521, 1533 (D.C. Cir. 1983) (en banc). The party seeking
mandamus has the burden of showing that "its right to
issuance of the writ is clear and indisputable." Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988) (internal quotations and citations omitted).
Petitioners have established that they have a clear right to
relief, and thus have satisfied the first requirement for a writ
of mandamus. As we explained in Indiana Michigan, the
NWPA requires DOE, "in return for the payment of fees," to
begin disposing of the materials "not later than January 31,
1998." 42 U.S.C. s 10222(a)(5)(B). We specifically noted
that the payment of fees into the Nuclear Waste Fund is the
"only limitation placed on the Secretary's duties" found in the
text of the statute. 88 F.3d at 1276. The owners and
generators have dutifully complied with the NWPA, pouring
billions of dollars of payments into the Fund with the expecta-
tion that DOE would live up to its end of the bargain. The
Department, on the other hand, has tersely informed the
parties that it "will be unable to begin acceptance of spent
nuclear fuel for disposal in a repository or interim storage
facility by January 31, 1998." Utility Petitioners' Pet. at Tab
1. Petitioners' full compliance with the requirements of the
NWPA, taken in conjunction with DOE's refusal to perform
its reciprocal duties, compels the conclusion that petitioners
have established a clear right to relief in this case.
The second requirement is also satisfied. DOE's duty to
act could hardly be more clear. DOE argued in Indiana
Michigan that its obligations under the NWPA were contin-
gent on the existence of a repository or interim storage
facility. We held that DOE's interpretation was inconsistent
with the text of the NWPA, which clearly demonstrates a
congressional intent that the Department assume a contractu-
al obligation to perform by the 1998 deadline, "without qualifi-
cation or condition." 88 F.3d at 1276. DOE's duty to take
the materials by the 1998 deadline is also an integral part of
the Standard Contract, which provides that the Department
"shall begin" disposing of the SNF by January 31, 1998. 10
C.F.R. s 961.11, Art. II. The contractual obligations created
consistently with the statutory contemplation leave no room
for DOE to argue that it does not have a clear duty to take
the SNF from the owners and generators by the deadline
imposed by Congress.
Although petitioners have a clear right to relief, and the
Department has a clear duty to act, we decline to issue the
broad writ of mandamus sought by petitioners because they
are presented with another potentially adequate remedy.
Although the statute does not prescribe a particular remedy
in the event that the Department fails to perform on time, the
Standard Contract does provide a scheme for dealing with
delayed performance. 10 C.F.R. s 961.11, Art. IX. Specifi-
cally, Article IX of the Standard Contract outlines how the
parties are to proceed if one party is unable to fulfill its
obligations in a timely manner. Under Article IX, unavoid-
able delays are to be treated differently than avoidable de-
lays. A failure to perform is considered "unavoidable" only if
such failure "arises out of causes beyond the control and
without the fault or negligence of the party failing to per-
form." Id. at Art. IX.A. If a party's delay is determined to
be unavoidable, that party is not liable for damages caused by
the failure to perform in a timely manner. Id. An avoidable
delay, in contrast, is caused by "circumstances within the
reasonable control" of the delinquent party. Id. at Art. IX.B.
If a party's delay is avoidable, the charges and schedules in
the contract must be equitably adjusted to reflect additional
costs incurred by the other party. Id. The contract also
provides a mechanism for resolving disputes of fact that the
parties may encounter along the way. See id. at Art. XVI.
Petitioners have not convinced us that this contractual
scheme is inadequate to deal with DOE's anticipated delay in
accepting the SNF. Petitioners have suggested that the
contractual processes are inadequate, claiming that they will
"suffer additional billions of dollars in additional costs if DOE
fails to meet its January 1998 obligation," Utility Petitioners'
Pet. at 4, and that they will not be able to recover these costs
in the contract proceedings because the Department is excus-
ing its own default. See Utility Petitioners' Reply at 2. Such
costs may in fact ensue if DOE fails to perform on time, but
there is no reason to believe that these additional expenses
will not be taken into account if the contractual processes
operate as Congress intended. See infra at 11-13. Accord-
ingly, we conclude that petitioners must pursue the remedies
provided in the Standard Contract in the event that DOE
does not perform its duty to dispose of the SNF by January
31, 1998. This conclusion, we should note, comports with our
decision in Indiana Michigan. Even though we did not enter
a remedy at that time, we suggested that the provisions of
the Standard Contract would determine the appropriate rem-
edy for the Department's failure to perform its obligations.
88 F.3d at 1277.
A writ of mandamus is required, however, to compel DOE
to comply with our prior mandate in Indiana Michigan. See
Office of Consumers' Counsel v. FERC, 826 F.2d 1136, 1140
("A federal appellate court has the authority, through the
process of mandamus, to correct any misconception of its
mandate by a lower court or administrative agency subject to
its authority."); see also Potomac Electric Power Co. v.
Interstate Commerce Comm., 702 F.2d 1026, 1032 (D.C. Cir.
1983). We held in Indiana Michigan that the NWPA impos-
es an unconditional obligation, memorialized in the Standard
Contract, to begin disposing of the materials by January 31,
1998. We rejected the Department's attempt to water-down
its obligations, finding that DOE's interpretation would "de-
stroy[ ] the quid pro quo created by Congress" and would
mean that the payment of fees into the Nuclear Waste Fund
"was for nothing." 88 F.3d at 1276. To effectuate DOE's
duty, as we recognized in Indiana Michigan, petitioners must
be able to enforce the terms of the contract in a meaningful
way. Petitioners' ability to enforce the contract would be
frustrated if DOE were allowed to operate under a construc-
tion of the contract inconsistent with our prior conclusion that
the NWPA imposes an obligation on DOE "without qualifica-
tion or condition." Id.
Viewed in this light, DOE's current approach toward con-
tractual remedies violates our directives in Indiana Michi-
gan. As explained above, the Department has endeavored to
proceed according to Article IX of the Standard Contract, by
first informing the parties of its anticipated delay, and then
evaluating whether its own delay is "unavoidable." Article IX
describes an unavoidable delay as a party's "failure to per-
form its obligations ... aris[ing] out of causes beyond the
control and without the fault or negligence of the party failing
to perform." 10 C.F.R. s 961.11, Art. IX.A. The contract
goes on to list a few examples of circumstances "beyond the
reasonable control" of the delayed party: "acts of God, or of
the public enemy, acts of Government in either its sovereign
or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes and unusually severe
weather." Id. The Contracting Officer isolated six factors
that, taken together, supposedly support the conclusion that
DOE experienced an unavoidable delay in this case: technical
problems; regulatory delays; roadblocks to implementation
of interim or monitored retrievable storage; funding restric-
tions; litigation delays; and consultation requirements. Ex-
hibits to Resp. Response, Tab 6. Reaching the preliminary
conclusion that the delay was unavoidable, the Department's
Contracting Officer let DOE off the hook for monetary dam-
ages.
The most glaring problem with DOE's position is that it is
answering the wrong question: it is attempting to explain
why it will not have a "state-of-the-art, deep geologic facility
for the permanent disposal of the Nation's spent nuclear fuel
and high-level waste" ready by 1998. Id. Put another way,
DOE's position is that its delayed performance is unavoidable
because it does not have an operational repository, and does
not have the authority to provide storage in the interim.
DOE is simply recycling the arguments rejected by this court
in Indiana Michigan. DOE unsuccessfully argued in that
case that it does not have an obligation to take the SNF in
the absence of an operational repository or other facility;
here, DOE recycles that same argument in the slightly differ-
ent form that it does not have responsibility for the costs
resulting from its failure to perform that duty because it does
not have an operational repository or other facility. As we
pointed out in Indiana Michigan, the NWPA directs DOE to
undertake the duty to begin taking the SNF by January 31,
1998, whether or not it has a repository or interim storage
facility. DOE cannot now render its obligation contingent,
and free itself of the costs caused by its delay, by advancing
the same failed position that we rejected before.
Given DOE's repeated attempts to excuse its delay on the
ground that it lacks an operational repository or interim
storage facility, we find it appropriate to issue a writ of
mandamus to correct the Department's misapprehension of
our prior ruling. Accordingly, we order DOE to proceed with
contractual remedies in a manner consistent with NWPA's
command that it undertake an unconditional obligation to
begin disposal of the SNF by January 31, 1998. More
specifically, we preclude DOE from concluding that its delay
is unavoidable on the ground that it has not yet prepared a
permanent repository or that it has no authority to provide
storage in the interim.
This necessarily means, of course, that DOE not implement
any interpretation of the Standard Contract that excuses its
failure to perform on the grounds of "acts of Government in
either its sovereign or contractual capacity." 10 C.F.R.
s 961.11, Art. IX.A. We held in Indiana Michigan that the
NWPA imposes an unconditional duty on DOE to take the
materials by 1998. Congress, in other words, directed DOE
to assume an unqualified obligation to take the materials by
the statutory deadline. Under the Department's interpreta-
tion of the governing contractual provisions, however, the
government can always absolve itself from bearing the costs
of its delay if the delay is caused by the government's own
acts. This cannot be a valid interpretation, as it would allow
the Executive Branch to void an unequivocal obligation im-
posed by Congress. DOE has no authority to adopt a
contract that violates the directives of Congress, just as it
cannot implement interpretations of the contract that contra-
vene this court's prior ruling. We hold that this provision in
the Standard Contract, insofar as it is applied to DOE's
failure to perform by 1998, is inconsistent with DOE's statu-
tory obligation to assume an unconditional duty.
III. Conclusion
In conclusion, we do not grant petitioners' broad request
for a writ of mandamus because we conclude that the remedi-
al scheme of the Standard Contract offers a potentially
adequate remedy. We do, however, grant the petition in part
because DOE has not abided by our prior conclusion that the
NWPA imposes an unconditional obligation on the Depart-
ment to begin disposal of the SNF by January 31, 1998. We
therefore issue a writ of mandamus precluding DOE from
excusing its own delay on the grounds that it has not yet
prepared a permanent repository or interim storage facility.
We retain jurisdiction over this case pending compliance with
the mandate issued herewith.