United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2005 Decided March 8, 2005
Reissued May 3, 2005
No. 04-1082
STATE OF NEVADA,
PETITIONER
v.
DEPARTMENT OF ENERGY AND
SAMUEL BODMAN , SECRETARY, UNITED STATES
DEPARTMENT OF ENERGY,
RESPONDENTS
Consolidated with
04-1319
On Petition for Review of an Order of the
Department of Energy
Robert J. Cynkar argued the cause for petitioner. With him
on the briefs were Joseph R. Egan, Martin G. Malsch, Brian
Sandoval, Attorney General, Attorney General’s Office of the
State of Nevada, and Marta A. Adams, Senior Deputy Attorney
General.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,
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argued the cause for respondents. With him on the brief were
Greer S. Goldman and John A. Bryson, Attorneys, and Marc
Johnston, Counsel, U.S. Department of Energy.
Michael A. Bauser and Robert W. Bishop were on the brief
for amicus curiae Nuclear Energy Institute, Inc. in support of
respondents.
Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Concerned about the construction of
a nuclear waste repository at Yucca Mountain, Nevada, the State
of Nevada asked the Department of Energy for a fiscal year
2004 grant to fund its participation in an upcoming Nuclear
Regulatory Commission proceeding that will determine whether
the project receives a license. Nevada argues that it is entitled
to a grant pursuant to section 116 of the Nuclear Waste Policy
Act, which provides that the Secretary of Energy “shall make
grants to the State of Nevada” from the Nuclear Waste Fund—a
special repository-related fund. Rejecting Nevada’s request, the
Energy Department concluded that contrary to the state’s
argument, section 116 creates no continuing appropriation for
Nevada, and that Congress’s enactment of a separate $1 million
FY04 appropriation expressly for Nevada bars any additional
grant from the Waste Fund. We agree.
I.
In 1983, responding to growing quantities of radioactive
waste and their potentially deadly health risks, Congress enacted
the Nuclear Waste Policy Act (“NWPA”), which directed the
federal government to begin the process of developing a nuclear
waste repository. Pub. L. No. 97-425, 96 Stat. 2201 (1983)
(codified as amended at 42 U.S.C. §§ 10101-10270). Among
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other things, the NWPA directed the Secretary of Energy to find
an appropriate site for the nation’s repository, 42 U.S.C. §§
10132-10133, and, following approval of the site by the
President, to apply to the Nuclear Regulatory Commission for
a license to begin construction, id. §§ 10134-10135. We
describe the NWPA and subsequent repository-related
developments in Nuclear Energy Institute v. EPA, 373 F.3d
1251, 1258-61 (D.C. Cir. 2004) (“NEI”).
To finance the repository’s development, NWPA section
302 established the Nuclear Waste Fund (“the Waste Fund”), a
“separate fund” in the Treasury, 42 U.S.C. § 10222(c),
“composed of payments made by the generators and owners of
[nuclear] waste,” id. § 10131(b)(4). Generators of nuclear waste
contribute to the fund according to the amount of electricity they
produce. Id. § 10222(a). Under section 302, “[t]he Secretary
[of Energy] may make expenditures from the Waste Fund . . .
only for purposes of radioactive waste disposal activities.” Id.
§ 10222(d). Using language central to the issue before us,
section 302 also makes the Secretary’s authority to spend Waste
Fund money “subject to appropriations.” Id. § 10222(e)(2).
Congress believed that “[s]tate . . . participation” in the
repository program “is essential.” Id. § 10131(a)(6).
Accordingly, Congress created mechanisms by which affected
states could monitor repository development activities and
participate in major repository-related decisions. See generally
id. §§ 10131-10137. Through NWPA section 116, Congress
also established a program of financial assistance for states that
choose to take part in the repository development process. See
NWPA § 116(c).
Pursuant to the NWPA, see 42 U.S.C. § 10132(b)(1)(A), the
Department of Energy (“DOE”) examined several potential
repository sites in several states. See NEI, 373 F.3d at 1259. In
1987, however, through an amendment to the NWPA, Congress
directed the Secretary to consider building a repository only at
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Yucca Mountain. See Omnibus Budget Reconciliation Act of
1987, Pub. L. No. 100-203 § 5011, 101 Stat. 1330 at 227-31
(1987) (codified at 42 U.S.C. § 10172). At the same time,
Congress revised NWPA section 116, narrowing it to mandate
grants only to “the State of Nevada and any affected unit of local
government.” Id. § 5032, 101 Stat. 1330 at 241-43 (codified at
42 U.S.C. § 10136(c)). Revised section 116 now provides that
“[t]he Secretary shall make grants to the State of Nevada . . . for
purposes of enabling” it to, among other things, “review
activities taken under this part with respect to the Yucca
Mountain site for purposes of determining any potential
economic, social, public health and safety, and environmental
impacts of a repository” and “make comments and
recommendations” to the Secretary of Energy “regarding any
activities taken under this part with respect to such site.” 42
U.S.C. § 10136(c)(1)(B). Such “[f]inancial assistance,” section
116 specifies, “shall be made out of amounts held in the Waste
Fund.” Id. § 10136(c)(5).
For each appropriations cycle beginning with the NWPA’s
passage and continuing through FY04, Congress appropriated
substantial amounts from the Waste Fund “for nuclear waste
disposal activities.” See, e.g., Consolidated Appropriations
Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11, 148 (2003).
In most cycles, Congress expressly provided either that Nevada
would receive none of this money or that the state would receive
some portion of it through direct payment, instead of through the
grants envisioned by section 116. See, e.g., id.; Energy and
Water Development Appropriations Act, 2002, Pub. L. No. 107-
66, 115 Stat. 486, 503 (2001); Departments of Veterans Affairs
and Housing and Urban Development—Appropriations, Pub. L.
No. 106-377, 114 Stat. 1441 at A-73 (2000). In those cycles
where Congress said nothing about funding for Nevada, see,
e.g., Energy and Water Development Appropriations Act, 1996,
Pub. L. No. 104-46, 109 Stat. 402, 413 (1995); Energy and
Water Development Appropriations Act, 1986, Pub. L. No. 99-
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141, 99 Stat. 564, 573 (1985); Energy and Water Development
Appropriations Act, 1985, Pub. L. No. 98-360, 98 Stat. 403, 414
(1984), DOE made grants to the state from the annual Waste
Fund appropriation (except for one year when Nevada had
money left over from a prior appropriation). See Nevada v.
Dep’t of Energy, 133 F.3d 1201, 1205 (9th Cir. 1998).
For fiscal year 2004—the year at issue in this
case—Congress appropriated “$190,000,000 . . . to be derived
from the Nuclear Waste Fund” “[f]or nuclear waste disposal
activities to carry out the purposes of Public Law 97-425.”
Energy and Water Development Appropriations Act, 2004, Pub.
L. No. 108-137, 117 Stat. 1827, 1855 (2003) (“2004
Appropriations Act”). While saying nothing one way or the
other about whether Nevada should receive any of the $190
million, the very same bill provides that “[o]f the funds made
available . . . for Defense Environmental Services,” funds not
derived from the Waste Fund, “$1,000,000 shall be provided to
the State of Nevada . . . to conduct scientific oversight
responsibilities and participate in licensing activities pursuant to
the” NWPA. Id. at 1865.
Following passage of the FY04 appropriations legislation,
Robert Loux, Executive Director of Nevada’s Agency for
Nuclear Projects, advised DOE by letter that the state intended
to spend $5 million on “licensing preparation” and scientific
oversight in FY04, observed that the state had received only $1
million from the DES appropriation, and asserted that DOE was
obliged to make up the difference with grants from the Waste
Fund. According to Loux, “[t]he provisions of Section 116 and
those establishing the Nuclear Waste Fund” create a continuing
appropriation for the state. The Secretary therefore “has a legal
duty to make grants from the Nuclear Waste Fund to Nevada .
. . even if Congress has enacted no appropriation for such
funding or Nevada’s needs exceed the appropriation.”
Responding to Loux, Dr. Margaret Chu, Director of DOE’s
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Office of Civilian Radioactive Waste Management, “disagree[d]
with [Nevada’s] position . . . that section 116 of the NWPA,
without more, ‘imposes on DOE an obligation to assist Nevada
financially.’” Chu asserted that because NWPA section 302
“specifically makes expenditures of Nuclear Waste Fund funds
subject to an appropriation,” “[t]he language of the 2004
Appropriations Act . . . governs the terms on which Nevada may
receive funds.” Pointing out that Congress had appropriated $1
million for Nevada, she explained that “[i]t is settled
appropriations law that where, as here, there is a specific
appropriation for a particular item,” an agency cannot
supplement it with money from a more general appropriation.
Consequently, Chu concluded, “Congress left no doubt that it
intended to cover all of Nevada’s FY04 funding requirements
with the $1 million that it appropriated.”
Nevada now seeks review of Dr. Chu’s determination.
II.
The parties disagree about the level of deference we owe
Dr. Chu’s analysis. Asserting that “Congress . . . implicitly
delegated to [it] the authority to interpret . . . the NWPA,” DOE
urges us to review Chu’s conclusion under the deferential
standard outlined in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
Respondent’s Br. at 17-18. By contrast, Nevada contends that
we owe deference under neither Chevron nor Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944). Chevron is inapplicable,
Nevada insists, because Chu’s conclusion “was not the fruit of
. . . rulemaking or formal adjudication,” Petitioner’s Br. at 33,
and Skidmore does not apply because “DOE’s letter advances”
only “unsupported and erroneous characterizations,” id. at 34-
36. We need not resolve this debate, however, for even
reviewing de novo we reach the same result as Chu.
Commanding that “No Money shall be drawn from the
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Treasury, but in Consequence of Appropriations made by Law,”
U.S. Const. art. I. § 9, cl. 7, the Appropriations Clause of the
U.S. Constitution “vests Congress with exclusive power over the
federal purse.” Rochester Pure Waters Dist. v. EPA, 960 F.2d
180, 185 (D.C. Cir. 1992). For Nevada to prevail, then, it must
identify not just a command to make grants, but an appropriation
of Waste Fund money that DOE may use for that purpose.
Nevada tries to do so in two ways. First, it asserts that NWPA
section 116 creates a continuing appropriation for it, requiring
DOE to grant reasonable sums from the Waste Fund in any year
Congress fails to prohibit such grants. Second, Nevada argues
that even if section 116 does not amount to a continuing
appropriation, it requires DOE to make grants from the $190
million FY04 appropriation for “nuclear waste disposal
activities.” We examine each contention in turn.
Does Section 116 Create a Continuing Appropriation?
A continuing appropriation is one that “is always available
for specified purposes and does not require repeated action by
Congress to authorize its use.” 1 Office of the General Counsel,
United States General Accounting Office, Principles of Federal
Appropriations Law 2-14 (3d ed. 2004) (“POFAL”). Relying on
section 116’s requirement that “[t]he Secretary shall make grants
to the State of Nevada,” 42 U.S.C. § 10136(c), and its provision
specifying that such grants “shall be made out of amounts held
in the Waste Fund,” id. § 10136(c)(5), Nevada contends that
section 116 creates just such a continuing appropriation.
According to Nevada, the mandatory phrase “shall make grants”
amounts to “a specific direction to pay,” which the Government
Accountability Office (“GAO”) would treat as an appropriation.
Petitioner’s Br. at 38. Nevada also informs us that the GAO
“view[s] statutes which authorize the collection of fees and their
deposit into a particular fund, and which make the fund
available . . . for a specified purpose, as constituting continuing
or permanent appropriations.” Id. (quoting 59 Comp. Gen. 215
8
(1980)). Given that Waste Fund revenues come from fees paid
by waste generators, Nevada therefore concludes, section 116’s
express reference to the Waste Fund makes clear that this
section creates a continuing appropriation.
Nevada’s argument falters on the fact that section 302
makes expenditures from the Waste Fund, including section 116
grants, “subject to appropriations.” 42 U.S.C. § 10222(e)(2).
As DOE observes, “there is nothing unclear . . . about the
meaning of [this] phrase.” Respondent’s Br. at 32. The phrase
“expressly limits DOE’s authority to make expenditures from
the Waste Fund to the amounts” later “appropriated by
Congress.” Id. at 31. Given section 302’s plain language,
moreover, the GAO’s belief that a statute may “be construed as
making an appropriation if it contains a specific direction to pay
. . . and a designation of the [f]unds to be used,” 63 Comp. Gen.
331, 335 (1984), proves unhelpful to Nevada, for the state has
identified no authority, nor have we found any, ruling that a
statute creating a funding source and ordering payment “subject
to appropriations” amounts to a continuing appropriation.
Similarly, while the GAO has treated “statutes which authorize
the collection of fees and their deposit into a particular fund, and
which make the fund available . . . for a specified purpose, as
constituting continuing or permanent appropriations,” 59 Comp.
Gen. 215, 216-17 (1980), neither Nevada nor we have identified
any authority suggesting that a continuing appropriation exists
when Congress creates a special fund but makes spending from
it “subject to appropriations.”
Nevada argues that when Congress wants to require annual
appropriations for special fund expenditures, it uses one of
several more direct phrases, such as “[s]ubject to such amounts
as are provided in Appropriations Acts,” Petitioner’s Br. at 51
(quoting 26 U.S.C. § 9611(c)(3)), “as provided in appropriation
Acts,” id. (quoting 26 U.S.C. § 9507(c)(1)), or “as provided by
appropriation Acts,” id. (quoting 26 U.S.C. § 9503(e)(3)). To be
9
sure, such phrases are more precise than section 302, but
“subject to appropriations” means just that—subject to
appropriations. The statutes cited by Nevada indicate nothing
more than that Congress has several ways of requiring
appropriations before an agency may spend from a special fund.
In a similar vein, Nevada argues that NWPA section 141, by
providing that states hosting a monitored retrievable storage
(“MRS”) facility will receive grants “only to the extent provided
in advance in appropriation Acts,” Petitioner’s Br. at 49 (quoting
42 U.S.C. § 10161(f)(4)), shows that Congress must not have
required appropriations when it used the less explicit “subject to
appropriations” language in section 302. Section 141, however,
simply bars grants to states affected by an MRS facility absent
an appropriation specifically for that purpose, i.e., DOE may not
grant these states money out of a general-purpose appropriation
designed to cover expenses related to a broadly defined goal or
project.
Nevada insists that the phrase “subject to appropriations”
merely permits Congress to “limit the amount of a grant” in any
given year, “limit what a grant might be spent for,” or “even
cancel the prior appropriation” allegedly made by section 116.
Petitioner’s Br. at 45. This interpretation suffers from a fatal
flaw: reading “subject to appropriations” as “capable of being
limited in a subsequent appropriations act” would rob section
302 of any meaning, for Congress may always enact legislation
limiting, modifying, or cancelling a previously enacted
appropriation.
Attempting to find some purpose for section 302, Nevada
tells us “there is no actual appropriation” for NWPA
expenditures other than section 116 grants, and “[f]or purposes
of these authorized expenditures . . . the ‘subject to
appropriations’ language refers to the appropriations that are
indeed needed to actually make those expenditures.” Id. at 46-
47. In other words, according to Nevada, as applied to section
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116 grants, the phrase “subject to appropriations” merely means
Congress may limit expenditures through subsequent
appropriations, but as applied to other Waste Fund expenditures
the phrase means no spending may occur absent an annual
appropriation by Congress. We disagree. Not only must a
single clause—here section 302’s requirement that “[t]he
Secretary may make expenditures from the Waste Fund”
“subject to appropriations”—mean the same thing with respect
to every provision that it modifies, but Nevada’s theory still
leaves “subject to appropriations” devoid of meaning as applied
to section 116.
Contrary to Nevada’s contention, nothing in the policies
underlying Congress’s creation of the Waste Fund suggests the
existence of a continuing appropriation. It is true, as Nevada
points out, that Congress created the Waste Fund “to ensure that
‘the costs of carrying out activities relating to the disposal of
[radioactive] waste and spent fuel will be borne by the persons
responsible for generating such waste or spent fuel.’” NEI, 373
F.3d at 1259 (quoting 42 U.S.C. § 10131(b)(4)) (alteration in
original). Yet requiring waste producers to finance the entire
project is perfectly consistent with Congress’s desire to maintain
annual control over how much Waste Fund money DOE spends
and how DOE spends it. It may also be true that Congress
designed the Waste Fund to ensure that “appropriate levels of
funding [would] be reliably available over the years the
repository process would unfold,” Petitioner’s Br. at 12. Again,
however, this has nothing to do with whether section 116 creates
a continuing appropriation. The Waste Fund’s independent
source of revenue and the requirement that money in the Waste
Fund be spent “only for purposes of radioactive waste disposal
activities,” 42 U.S.C. § 10222(d), ensure a consistent source of
funding regardless of whether the NWPA amounts to a
continuing appropriation. Indeed, although Nevada quotes one
Senate sponsor of the NWPA for the proposition that the Waste
Fund “would provide an assured source of funds” and eliminate
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“annual budgetary perturbations in an evermore constrained
Federal budget,” 128 Cong. Rec. 32,557 (1982) (statement of
Sen. McClure), the Senator also observed—in a phrase not
quoted by Nevada—that under the NWPA fees paid by waste
producers “would be placed in a separate account in the
Treasury . . . and would then be appropriated . . . on an annual
basis,” id. at 32,556.
Must DOE Make a Grant from the FY04 Waste Fund
Appropriation?
Nevada asserts that even if it is not the beneficiary of a
continuing appropriation, section 116—with its command that
the Secretary “shall make grants” to it—requires DOE to grant
it money from the $190 million FY04 Waste Fund appropriation
for “nuclear waste disposal activities.” Were this the sole
repository-related appropriation for FY04, and assuming that
section 116 mandates grants for activities related to
licensing—an issue about which the parties disagree but that we
need not address to resolve this case—we would agree with
Nevada. As the Ninth Circuit has noted, section 116 speaks in
mandatory terms, obliging DOE to grant Nevada reasonable
sums for repository-related expenditures when Congress
appropriates Waste Fund money for general repository-related
purposes. State of Nevada ex rel. Loux v. Herrington, 777 F.2d
529, 536 (9th Cir. 1985). That is precisely what Congress did
when it enacted the $190 million FY04 appropriation.
The issue of Nevada’s eligibility for FY04 Waste Fund
grants, however, is not so simple. In the same bill in which
Congress appropriated the $190 million, it also appropriated $1
million from an alternate source expressly for Nevada. 2004
Appropriations Act, 117 Stat. at 1855, 1865. Reiterating Dr.
Chu’s analysis, DOE asserts that this appropriation specifically
for Nevada precludes a grant from the Waste Fund
appropriation.
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Resolution of this issue is governed by the principle that
“[a]n appropriation for a specific purpose is exclusive of other
appropriations in general terms which might be applicable in the
absence of the specific appropriation.” 4 Comp. Gen. 476, 476
(1924). “[E]stablished ‘from time immemorial,’” 1 POFAL 2-
21 (quoting 1 Comp. Dec. 126, 127 (1894)), this rule makes
applicable to appropriations bills the “general principle of
statutory construction,” id. at 2-23, reiterated repeatedly by the
Supreme Court, that “a more specific statute will be given
precedence over a more general one,” Busic v. United States,
446 U.S. 398, 406 (1980). Here, Congress provided $1 million
from the DES appropriation for “Nevada . . . to conduct
scientific oversight responsibilities and participate in licensing
activities,” 2004 Appropriations Act, 117 Stat. at 1865—a
purpose that covers all of Nevada’s proposed FY04
expenditures. Far less specific, the $190 million appropriation
contained in the very same bill covers “nuclear waste disposal
activities” and never mentions Nevada. See id. at 1855. Thus,
the $1 million appropriated expressly for Nevada would seem to
bar any grants from the $190 million Waste Fund appropriation.
Nevada argues that the specific-over-general rule has no
applicability to this case. “[T]he Defense Environmental
Services account,” the state contends, “is by its nature so
distinctive, so different from a grant from the Waste Fund under
§ 116,” that the $1 million provided in the DES appropriation
cannot limit DOE’s obligation to grant Nevada Waste Fund
money. Petitioner’s Br. at 55 (internal quotations omitted).
According to the GAO, however, specific appropriations
preclude the use of general ones even when the two
appropriations come from different accounts. See 4 Comp. Gen.
476 (1924). For instance, the GAO found that an appropriation
expressly for repairing jails in Alaska, made from a fund
comprised of “fines, forfeitures, [and] judgments,” precluded the
financing of repairs to an Alaskan jail with funds appropriated
from the Treasury for the more general purpose of “repairs,
13
betterments, and improvements of United States jails.” Id. at
477-78. Although GAO decisions are not binding, we “give
special weight to [GAO’s] opinions” due to its “accumulated
experience and expertise in the field of government
appropriations.” United Auto., Aerospace & Agric. Implement
Workers v. Donovan, 746 F.2d 855, 861 (D.C. Cir. 1984)
(internal quotations and citation omitted). GAO’s view,
moreover, seems exactly right. Even if the Defense
Environmental Services and Waste Fund appropriations are as
different as Nevada thinks, the fact that Congress appropriated
$1 million expressly for Nevada indicates that is all Congress
intended Nevada to get in FY04 from whatever source.
Directing our attention to section 116’s statement that
grants “shall be made out of amounts held in the Waste Fund,”
Nevada argues that no appropriation from a source other than
the Waste Fund could have a preclusive effect. Yet while
Congress appropriated the $1 million from a source not
contemplated by section 116, this money serves the “specific
purpose,” see 4 Comp. Gen. at 476—financing “scientific
oversight” and “licensing activities”—for which Nevada seeks
funds from the $190 million “appropriation[] in general terms
which might be applicable in the absence of the specific
appropriation,” id. The similarity between the $1 million
appropriation and recent Waste Fund appropriations for Nevada,
moreover, reinforces the conclusion that Congress viewed the $1
million as a substitute for assistance from the Waste Fund. In
past years, Congress provided for a direct payment of Waste
Fund money instead of the grants that section 116 envisions,
specified that federal assistance go only to Nevada’s Division of
Emergency Management, and required the state to certify it used
the funds for authorized purposes. See Consolidated
Appropriations Resolution, 2003, 117 Stat. at 148-49; Energy
and Water Development Appropriations Act, 2002, 115 Stat. at
503-04; Departments of Veterans Affairs and Housing and
Urban Development—Appropriations, 114 Stat. at 1441A-73-
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74. Congress designed the $1 million FY04 appropriation for
Nevada in exactly the same way, providing for direct payment
to Nevada, specifying that the funds go to the Division of
Emergency Management, and requiring the state to certify it
used the funds for authorized purposes. 2004 Appropriations
Act, 117 Stat. at 1865.
III.
For the foregoing reasons, we agree with DOE that it lacks
authority to provide Nevada with additional FY04 financial
assistance from the Waste Fund. The petition for review is
denied.
So ordered.