Natural Resources Defense Council and Snake River Alliance (collectively "NRDC") sought to have the Department of Energy's (DOE) Order 435.1 (the Order) set aside as contrary to the Nuclear Waste Policy Act (NWPA).[1] NRDC argued that the Order defined high-level radioactive waste in a manner contrary to the NWPA's definition.[2] Because the Ninth Circuit determined that the Order was not an agency decision pursuant to section 10139(a) of the NWPA, which confers original jurisdiction in the U.S. courts of appeals,[3] the court concluded that it lacked subject matter jurisdiction over the petition and transferred it to the District of Idaho.

Section 10139(a)(1)(A) of the NWPA states that "the United States courts of appeals shall have original and exclusive jurisdiction over any civil action (A) for review of any final decision or action of the Secretary, the President, or the Commission under this part. . . ."[4] The NWPA states that the purposes of subchapter I, to which original jurisdiction refers, are to develop siting schedules, regulate construction and operation of repositories, establish the federal responsibility and policy for civilian waste and spent fuel disposal, define the federal and state relationship regarding waste disposal, and establish a Nuclear Waste Fund.[5] Further, the NWPA is a scheme created to manage waste generated by civilian facilities, and "does not apply to any atomic energy defense activity or facility."[6]

DOE Order 435.1 addressed waste management at the DOE facilities at Hanford, Savannah, and the Idaho National Engineering Laboratory, which generate and store high-level waste, but pre-date the NWPA and are not repositories. For these reasons, DOE argued that the NWPA does not govern waste management at these facilities, and therefore, the Order was not a decision under the NWPA subject to original jurisdiction in the federal courts of appeals.

The Ninth Circuit first noted that authority for DOE's Order derives from the Atomic Energy Act (AEA),[7] the Energy Reorganization Act (ERA),[8] and the Department of Energy Organization Act (Organization Act).[9] The AEA authorized the Atomic Energy Commission (AEC)--reorganized as DOE and Nuclear Regulatory Commission (NRC)[10]--to promulgate regulations governing possession and use of nuclear material and the operation of nuclear facilities.[11] The ERA gave NRC authority to license and regulate commercial facilities and to license DOE facilities that are authorized for long-term storage of high-level radioactive waste.[12] DOE took over most of the remaining functions originally performed by AEC, including regulation of existing government facilities and defense nuclear waste.[13] Because the Order applies to the management of high-level, transuranic, and low-level waste for which DOE is responsible, which are actions covered under the AEA, the ERA, and the Organization Act, the court concluded that the Order is not a decision "under this part" of the NWPA.

NRDC argued that even though the Order is pursuant to authority under the AEA, because the Manual and Guide that accompanies the Order states that all high-level waste must be disposed pursuant to the NWPA, the NWPA is implicated whenever high-level waste is disposed, and the AEA cannot exclusively control disposal of defense waste. NRDC also pointed to the purpose of the NWPA--to establish a federal policy for safe disposal of high-level waste[14]--to support its argument that the NWPA should apply to the disposal of any high-level waste. Finally, NRDC relied on a D.C. Circuit case[15] that expanded the judicial review provision to apply to a section of the NWPA not found in subchapter I, to support its argument that the Ninth Circuit should take jurisdiction over the case.

The Ninth Circuit rejected these arguments and found that the case relied on by NRDC dealt with a DOE decision that was promulgated pursuant to statutory mandate under the NWPA.[16] Additionally, a similar case that expanded original jurisdiction involved DOE conduct required under a section of the NWPA that incorporated part A.[17] In the current situation, however, the court determined that DOE's Order defining "waste incidental to reprocessing" was not required by any section of the NWPA that could be linked to subchapter I. Thus, the court concluded that it lacked subject matter jurisdiction over the petition. However, rather than dismissing the action, the court determined that on balancing the equities, it was more appropriate to transfer the petition to a district court. The Ninth Circuit chose to transfer to the District of Idaho because "it is the only district in this circuit where a target plaintiff resides."[18]