Balderas v. United States Nuclear Regulatory Commission

Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 10, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
THE STATE OF NEW MEXICO
EX REL. HECTOR H. BALDERAS,
Attorney General; THE NEW
MEXICO ENVIRONMENT
DEPARTMENT,
Petitioners,
v. No. 21-9593
UNITED STATES NUCLEAR
REGULATORY COMMISSION;
UNITED STATES OF AMERICA,
Respondents.
______________________________________
INTERIM STORAGE PARTNERS,
LLC,
Intervenor - Respondent.
_________________________________
Petition for Review from the Nuclear Regulatory Commission
(NRC-1: 72-1050)
_________________________________
Submitted on the briefs *:
P. Cholla Khoury, William G. Grantham, and Zachary E. Ogaz, Assistant
Attorneys General, Office of the Attorney General for the State of New
Mexico, Albuquerque, New Mexico (Bruce C. Baizel, New Mexico
*
We have determined that oral argument would not be helpful, so we
forgo oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Appellate Case: 21-9593 Document: 010110811201 Date Filed: 02/10/2023 Page: 2
Environment Department, Office of General Counsel, Santa Fe, New
Mexico, with them on the briefs), on behalf of the Petitioners.
Todd Kim, Assistant Attorney General, and Justin D. Heminger, Attorney,
U.S. Department of Justice, Environment & Natural Resources Division,
Washington, D.C. (Marian L. Zobler, General Counsel, and Andrew P.
Averbach, Solicitor, U.S. Nuclear Regulatory Commission, Office of the
General Counsel, Rockville, Maryland, with them on the briefs), on behalf
of the Respondents.
Brad Fagg, Timothy P. Matthews, and Ryan K. Lighty, Morgan, Lewis &
Bockius LLP, Washington, D.C., on behalf of the Intervenor-Respondent.
_______________________________________
Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
_______________________________________
BACHARACH, Circuit Judge.
_______________________________________
This petition involves an agency’s regulation of private storage of
nuclear fuel. The agency, the Nuclear Regulatory Commission, granted a
license to Interim Storage Partners to store spent nuclear fuel near the New
Mexico border. New Mexico challenges the grant of this license, invoking
the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the National
Environmental Policy Act, 42 U.S.C. § 4321 et seq.
The Commission moves to dismiss for lack of jurisdiction. Objecting
to the motion, New Mexico invokes jurisdiction under the combination of
the Hobbs Act, 28 U.S.C. §§ 2342(4), 2344, and the Atomic Energy Act, 42
U.S.C. §§ 2011–2296b-7. But these statutes can combine to trigger
jurisdiction only when the petitioner was an aggrieved party in the
licensing proceeding.
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This limitation applies here because New Mexico didn’t participate
in the licensing proceeding or qualify as an aggrieved party. To the
contrary, New Mexico just commented to the Commission about its draft
environmental impact statement. Commenting on the environmental impact
statement didn’t create status as an aggrieved party, so jurisdiction isn’t
triggered under the combination of the Hobbs Act and Atomic Energy Act.
New Mexico not only invokes the Hobbs Act and Atomic Energy Act,
but also alleges that the Commission violated the Nuclear Waste Policy
Act, 42 U.S.C. §§ 10101–10270, and acted ultra vires. These allegations
don’t trigger our jurisdiction. The Nuclear Waste Policy Act governs the
establishment of a federal repository for permanent storage—not temporary
storage by private parties like Interim Storage. And even when an agency
acts ultra vires, we lack jurisdiction when the petitioner had other
available remedies. New Mexico had other available remedies by seeking
intervention in the Commission’s proceedings. So we grant the
Commission’s motion to dismiss the petition for lack of jurisdiction.
1. The Nuclear Regulatory Commission granted a temporary license
to Interim Storage.
The Nuclear Regulatory Commission bears the authority to license
the private use of facilities to store spent nuclear fuel. Pac. Gas & Elec.
Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 206–
207 (1983); Skull Valley Band Of Goshute Indians v. Nielson, 376 F.3d
3
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1223, 1232 (10th Cir. 2004). Based on this authority, the Commission
conducted proceedings to address Interim Storage’s application for a
license. See Interim Storage Partner’s Waste Control Specialists
Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29,
2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) (public notice of
Interim Storage’s application for a license).
To facilitate public participation, the Commission issued a notice
stating that any interested entity could request a hearing. Id. at 44,071(“[A]ny persons . . . whose interest may be affected by this action may file
a request for a hearing and petition for leave to intervene.”). This notice
stated what the entity would need to include and explained that permission
to intervene would create status as a party. Id. Despite this notice, New
Mexico didn’t request a hearing or petition to intervene in the licensing
proceeding.
The licensing proceeding closed over a year after the Commission
had issued the notice. See In the Matter of Interim Storage Partners LLC,
LBP-19-11, Docket No. 72-1050-ISFSI, Mem. & Order at 14 (Dec. 13,
2019) (statement by the Atomic Safety and Licensing Board that the
Interim Storage proceeding had terminated). After the proceeding closed,
the Nuclear Regulatory Commission prepared a draft environmental impact
statement, as required by federal regulations and the National
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Environmental Policy Act. See R. vol. 3, at 83; 42 U.S.C. § 4332(C); 10
C.F.R. § 51.20(a), (b)(9).
With preparation of this draft, the Commission notified the public
and invited comments. Interim Storage Partners Consolidated Interim
Storage Facility Project, 85 Fed. Reg. 27,447-03 (May 8, 2020). New
Mexico commented, criticizing the draft. R. vol. 4, at 931–41, 947–52
(comments by Michelle Lujan Grisham, Governor of New Mexico, the New
Mexico Environment Department, and the New Mexico Energy, Minerals
and Natural Resources Department). The Commission responded to New
Mexico in the final version of the environmental impact statement. See,
e.g., R. vol. 3, at 734, 737, 739–40 (designating Michelle Lujan Grisham as
commenter 81 and officials from the New Mexico agencies as commenters
60-22, 152, and 155); R. vol. 3, at 561–62, 564, 565, 583–85, 593, 596,
599–600, 602–05, 606–07, 635–37, 638–39, 645–47, 648–49, 651–52, 652–
53, 653–56, 662–63, 667–68, 669–72, 673–77, 703, 705–06, 706–08, 709–
10, 713–15, 728 (responding to commenters 60-22, 81, 152, and 155).
The Nuclear Regulatory Commission ultimately granted a temporary
license to Interim Storage to construct and operate a facility to store spent
nuclear fuel. Interim Storage Partners, LLC; WCS Consolidated Interim
Storage Facility; Issuance of Materials License and Record of Decision, 86
Fed. Reg. 51,926-02 (Sept. 17, 2021); id. at 51,927 (“The license
authorizes [Interim Storage] to store . . . spent nuclear fuel for a license
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period of 40 years.”). New Mexico petitions for us to review the grant of
this license, and the Commission challenges our jurisdiction over New
Mexico’s petition.
2. We lack jurisdiction under the Hobbs Act because New Mexico
wasn’t a “party aggrieved” by the Commission’s final order.
The Hobbs Act creates federal appellate jurisdiction over the Nuclear
Regulatory Commission’s final orders as defined in 42 U.S.C. § 2239. 1 28
U.S.C. § 2342(4). In turn, § 2239 authorizes review of final orders that
grant, suspend, revoke, or amend a license. 42 U.S.C. § 2239(a)(1)(A),
(b)(1).
This jurisdiction can be invoked only by “aggrieved” parties. See 28
U.S.C. § 2344 (stating that “[a]ny party aggrieved by the final order may
. . . file a petition to review the order in the court of appeals wherein venue
lies”). So we consider whether New Mexico qualifies as an aggrieved
party.
A. We must assess New Mexico’s status as a party based on its
participation in the administrative proceedings.
Status as an “aggrieved party” would exist only if we regard New
Mexico as a party to the administrative proceeding. See ACA Int’l v. Fed.
1
The Hobbs Act refers to final orders of the Atomic Energy
Commission. 28 U.S.C. § 2342(4). Congress later abolished the Atomic
Energy Commission and transferred licensing and regulatory functions to
the newly created Nuclear Regulatory Commission. 42 U.S.C. § 5814(a),
§ 5841(f).
6
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Commc’ns Comm’n, 885 F.3d 687, 711 (D.C. Cir. 2018) (“[T]he phrase
‘party aggrieved’ requires that petitioners have been parties to the
underlying agency proceedings, not simply parties to the present suit who
are aggrieved in a constitutional (Article III) sense.”). To assess status as a
party, we evaluate the level of participation required in the administrative
proceeding. Water Transp. Ass’n v. I.C.C., 819 F.2d 1189, 1192 (D.C. Cir.
1987). We evaluate that participation based on the practices of the agency
and the formality of the proceeding. See id.In making this evaluation, we’re not bound by the Commission’s
description of the entity as a party. See id.; Clark & Reid Co. v. United
States, 804 F.2d 3, 6 (1st Cir. 1986). We instead consider whether New
Mexico had participated appropriately under the available administrative
procedures. See Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1217
(D.C. Cir. 1973) (concluding that the court lacked jurisdiction to review an
Atomic Energy Commission order because the petitioner had “refrained
from participating in the appropriate and available administrative
procedure”). For example, if the Commission had required intervention and
New Mexico didn’t seek leave to intervene, we would lack jurisdiction
under the Hobbs Act. Water Transp. Ass’n, 819 F.2d at 1192.
B. New Mexico did not participate in the licensing proceeding.
We consider whether New Mexico needed to seek leave to intervene
in the Commission’s licensing proceeding. In this inquiry, we are guided
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by the Atomic Energy Act and its regulations. See Ohio Nuclear-free
Network v. U.S. Nuclear Regul. Comm’n, 53 F.4th 236, 239–40 (D.C. Cir.
2022). Under the Act, anyone interested in a licensing proceeding can
request a hearing. 42 U.S.C. § 2239(a)(1)(A). The Commission must
 grant interested entities a hearing upon request and
 admit the entity as a party to the proceeding.
Id.The regulations specify how entities are to request a hearing. For
example, an interested entity must file a written request and specify the
contentions for the hearing. 10 C.F.R. § 2.309(a). The agency will grant
the request if the entity
 has proposed a contention that’s within the scope of the
proceedings and material to the findings that the Commission
must make, see 10 C.F.R. § 2.309(f) (stating the requirements
for a contention to be admissible), and
 has standing, see 10 C.F.R. § 2.309(d) (stating the requirements
for standing).
And if an interested party unsuccessfully requests a hearing, the party can
appeal to the Commission. See 10 C.F.R. § 2.311(c) (“An order denying a
petition to intervene, and/or request for hearing . . . is appealable by the
requestor/petitioner on the question as to whether the request and/or
petition should have been granted.”).
New Mexico didn’t seek leave to intervene, request a hearing, or
submit contentions. New Mexico instead commented on the Commission’s
8
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draft of the environmental impact statement. By choosing only to comment,
New Mexico bypassed the chance to participate as a party in the licensing
proceeding. See Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1217
(D.C. Cir. 1973); see also Nat. Res. Def. Council v. U.S. Nuclear Regul.
Comm’n, 823 F.3d 641, 643 (D.C. Cir. 2016) (“To challenge the
Commission’s grant of a license renewal, . . . a party must have
successfully intervened in the proceeding by submitting adequate
contentions under 10 C.F.R. § 2.309.”). Given the failure to take advantage
of that chance, New Mexico doesn’t qualify as an aggrieved party under
the Hobbs Act. See Ohio Nuclear-free Network v. U.S. Nuclear Regul.
Comm’n, 53 F.4th 236, 240 (D.C. Cir. 2022) (concluding that the
petitioners weren’t parties aggrieved under the Hobbs Act when they
emailed a letter rather than request a hearing or submit contentions related
to the license). 2
2
New Mexico points out that it unsuccessfully petitioned to suspend,
revoke, and stay the license and sought a hearing in connection with that
petition. Resp. to Mot. to Dismiss at 3 n. 1; see 10 C.F.R. § 2.206 (“Any
person may file a request to institute a proceeding pursuant to § 2.202 to
modify, suspend, or revoke a license.”). We don’t rule out the possibility
of jurisdiction to address the denial of that petition. See Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 741 (1985) (“Congress intended to vest
in the courts of appeals initial subject-matter jurisdiction over challenges
to Commission denials of § 2.206 petitions.”). But New Mexico is
challenging issuance of the license itself rather than the refusal to suspend,
revoke, or stay the license.
9
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Granted, some cases regard submission of comments as enough in
rulemaking proceedings, where the agency solicits input through comments
rather than intervention or submission of contentions. See ACA Int’l v.
Fed. Commc’ns Comm’n, 885 F.3d 687, 711 (D.C. Cir. 2018) (“Just as
submitting comments confers party aggrieved status in the context of a
rulemaking (assuming an adverse outcome), one who comments on
another’s petition for a rulemaking or declaratory ruling has presented its
view to the agency so as to qualify as a party.” (cleaned up)). New Mexico
invokes these cases, arguing that status as a “party” is the same when an
agency conducts rulemaking and adjudicative proceedings. For this
argument, New Mexico questions the distinction between rulemaking and
adjudication.
New Mexico’s argument overlooks the Commission’s requirements
for appropriate participation. Regardless of whether an agency is enacting
a rule or adjudicating a dispute, we consider an entity a “party” only if it
“participat[es] in the appropriate and available administrative procedure.”
Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1217 (D.C. Cir.
1973). The appropriateness and availability of these procedures differ
when agencies enact rules and adjudicate disputes.
10
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Here we must consider the administrative procedures available under
the rules accompanying the Atomic Energy Act. 3 Under these rules, New
Mexico needed to raise its claims by submitting contentions and requesting
a hearing or petitioning to intervene. See pp. 8–9, above. And for the
claims involving the National Environmental Policy Act, New Mexico
needed to frame the contentions based on Interim Storage’s environmental
report. See 10 C.F.R. § 2.309(f)(2) (stating that for “issues arising under
the National Environmental Policy Act, participants shall file contentions
based on the applicant’s environmental report”); Ohio Nuclear-free
Network v. U.S. Nuclear Regul. Comm’n, 53 F.4th 236, 240 (D.C. Cir.
2022) (concluding that a person seeking to intervene in a licensing
proceeding under the Atomic Energy Act “must request a hearing or
otherwise intervene in the proceeding as required by the [Act] and its
regulations,” which includes persons “who object to the agency’s discharge
of its [National Environmental Policy Act] duties”); see also Nat. Res. Def.
Council v. U.S. Nuclear Regul. Comm’n, 823 F.3d 641, 652 (D.C. Cir.
3
Though New Mexico invoked the National Environmental Policy Act,
this invocation couldn’t trigger jurisdiction because the statute doesn’t
create an independent cause of action. See Diné Citizens Against Ruining
Our Environment v. Haaland, ___ F.4th ___, No. 21-2116, slip op. at 14
(10th Cir. Feb. 1, 2023) (stating that the “[National Environmental Policy
Act] does not create a cause of action”); Ohio Nuclear-free Network v. U.S.
Nuclear Regul. Comm’n, 53 4th 236, 240 (D.C. Cir. 2022) (stating that
assertion of objections under the National Energy Policy Act doesn’t create
jurisdiction over challenges to an amended license).
11
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2016) (stating that the National Environmental Policy Act “does not, by its
own terms or its intent, alter the Commission’s hearing procedures”
(quoting Beyond Nuclear v. U.S. Nuclear Regul. Comm’n, 704 F.3d at 12,
18 (1st Cir. 2013))). 4 Given the failure to submit contentions, request a
hearing, or petition to intervene, New Mexico did not participate
appropriately based on the Commission’s practices and the formality of the
proceeding.
C. New Mexico could have raised its environmental objections
by submitting contentions about Interim Storage’s
environmental report.
New Mexico observes that the adjudicatory proceeding had closed
before the Commission issued the draft environmental impact statement.
Based on this observation as to the timing, New Mexico insists that public
comments provided the only chance to address the Commission’s draft. But
New Mexico overlooks the relationship between Interim Storage’s
environmental report and the Commission’s environmental impact
statement.
In applying for a license, Interim Storage had to submit an
environmental report, addressing all of the considerations required under
4
The Nuclear Regulatory Commission argues not only that we lack
jurisdiction but also that New Mexico had failed to exhaust available
administrative remedies. We need not address the exhaustion issue because
jurisdiction doesn’t exist.
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the National Environmental Policy Act. 42 U.S.C. § 4332(C); 10 C.F.R.
§ 51.45(b). The Commission then had to prepare an environmental impact
statement to evaluate and document the environmental impacts. See 10
C.F.R. § 51.20(b)(9) (requiring the preparation of an environmental impact
statement before the agency can issue a license to store spent nuclear fuel);
see also Ohio Nuclear-free Network v. U.S. Nuclear Regul. Comm’n, 53
F.4th 236, 237 (D.C. Cir. 2022) (“[The National Environmental Policy Act]
requires all federal agencies to document the environmental impacts of
certain proposed federal actions.”). So if New Mexico had environmental
concerns, it could have asserted contentions and requested a hearing when
Interim Storage submitted its environmental report. 10 C.F.R.
§ 2.309(f)(2); see p. 11, above.
In fact, many of New Mexico’s criticisms of the environmental
impact statement appear equally applicable to the environmental report. 5
For example, New Mexico makes three criticisms of the environmental
impact statement based on its
5
Interim Storage’s environmental report doesn’t appear in the record.
But the report is subject to judicial notice because it’s publicly available
on the Commission’s website. See Winzler v. Toyota Motor Sales U.S.A.,
Inc., 681 F.3d 1208, 1212–13 (10th Cir. 2012) (taking judicial notice of the
existence of “documents filed with [an agency] and now available on the
agency’s public website”). We’re considering the environmental report
only for its contents—not to prove the truth of those contents. See Tal v.
Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006) (concluding that the
court can take judicial notice of public documents to show their contents
but not to prove the truth of matters stated).
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 assumptions about the eventual availability of a federal
repository and cost of transportation to a permanent repository,
 failure to consider the possibility of terrorism or New Mexico’s
cost to use the Texas-New Mexico rail line, and
 failure to consult New Mexico.
All of these criticisms involve matters that had appeared in Interim
Storage’s environmental report.
First, New Mexico petitions for judicial review based on the
Commission’s assumption involving a permanent repository and future
transportation costs to the repository. For example, New Mexico criticizes
the environmental impact statement for assuming the existence of a
permanent repository by 2048. Petitioner’s Opening Br. at 33–35. But this
assumption also appeared in Interim Storage’s environmental report. WCS
Consolidated Interim Spent Fuel Storage Facility Environmental Report
(Rev. 2), 72-1050, at 1-5 (“[T]he earliest estimated time by which a
permanent geologic repository could be licensed and operational is
2048.”).
New Mexico also argues here that the environmental impact
statement mistakenly assumed the cost of transportation even though a
permanent repository doesn’t yet exist. Petitioner’s Opening Br. at 36. But
Interim Storage’s environmental report had made the same assumptions
despite the absence of a permanent repository. See WCS Consolidated
Interim Spent Fuel Storage Facility Environmental Report (Rev. 2), 72-
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1050, at 4-12, 4-16 (assuming shipments from the facility would be to “the
proposed repository at Yucca Mountain in Nye County, Nevada”).
Second, New Mexico criticizes the environmental impact statement
for factors that were overlooked. For example, New Mexico argues that the
environmental impact statement failed to account for New Mexico’s cost to
use the Texas-New Mexico rail line. Petitioner’s Opening Br. at 40–41. But
the same was true of Interim Storage’s environmental report. WCS
Consolidated Interim Spent Fuel Storage Facility Environmental Report
(Rev. 2), 72-1050, at 3-5, 3-7.
New Mexico also argues that the environmental impact statement
omitted an assessment of possible terrorism. Petitioner’s Opening Br. at
44–46. But Interim Storage’s environmental report contained the same
omission.
Third, New Mexico argues that it should have been able to provide
input into the environmental impact statement. Petitioner’s Opening Br. at
46. But in its environmental report, Interim Storage had omitted the New
Mexico environmental agencies in the list of entities to be consulted. See
WCS Consolidated Interim Spent Fuel Storage Facility Environmental
Report (Rev. 2), 72-1050, at 1-7. 6
6
The only New Mexico entity listed was the New Mexico State
Historic Preservation Office. See WCS Consolidated Interim Spent Fuel
Storage Facility Environmental Report (Rev. 2), 72-1050, at 1-14.
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As these examples indicate, Interim Storage’s environmental report
shared many of the features that New Mexico criticizes. And New Mexico
had access to that environmental report when Interim Storage requested a
license. New Mexico thus had a chance to object to many of the features
reappearing in the Commission’s draft of the environmental impact
statement.
With contentions and a request for a hearing or a petition for leave to
intervene, New Mexico could later have filed new or amended contentions
to challenge the environmental impact statement. See 10 C.F.R.
§ 2.309(f)(2) (stating that participants can “file new or amended
environmental contentions after the deadline . . . based on a draft or final
[Nuclear Regulatory Commission] environmental impact statement”). So
New Mexico could have raised its current arguments even though the
Commission had closed the administrative record before issuing the draft
environmental impact statement.
3. We lack jurisdiction under the Nuclear Waste Policy Act because
it does not govern Interim Storage’s license.
New Mexico also invokes the Nuclear Waste Policy Act, 42 U.S.C.
§§ 10101–10270. This statute addresses plans to develop a federal
repository for storing spent nuclear fuel. Skull Valley Band of Goshute
Indians v. Nielson, 376 F.3d 1223, 1242 (10th Cir. 2004).
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The Nuclear Waste Policy Act provides federal appellate jurisdiction
over challenges to an environmental impact statement prepared with
respect to an action under Part A of the statute. See 42 U.S.C.
§ 10139(a)(1)(D) (granting original jurisdiction to the federal courts of
appeal to review environmental impact statements prepared with respect to
an action under “this part,” which is Part A). 7 But the Commission did not
prepare the environmental impact statement with respect to an action under
Part A.
Part A “establishe[s] a schedule for siting, construction, and
operation of a permanent federal repository.” Bullcreek v. Nuclear Regul.
Comm’n, 359 F.3d 536, 538 (D.C. Cir. 2004); 42 U.S.C. §§ 10131–10145,
10101(18) (defining “repository” under Part A as “any system licensed by
the Commission that is intended to be used for, or may be used for, the
permanent deep geologic disposal of . . . spent nuclear fuel” (emphasis
added)); see also Skull Valley Band of Goshute Indians v. Nielson, 376
F.3d 1223, 1242 (10th Cir. 2004) (stating that Part A establishes “a
7
Section 10139(a)(1)(D) also creates jurisdiction “for review of any
environmental impact statement prepared pursuant to [the National
Environmental Policy Act] . . . as required under section 10155(c)(1) of
this title.” 42 U.S.C. § 10139(a)(1)(D). Section 10155(c)(1) requires an
environmental impact statement for certain sites owned by the federal
government. 42 U.S.C. § 10155(c)(1). Because Interim Storage is a private
entity, § 10155(c)(1) does not apply.
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schedule for developing a permanent federal repository”). But Interim
Storage’s facility and license are neither permanent nor federal.
The license is temporary, as it will expire in 40 years. During this
period, Interim Storage can store spent nuclear fuel. R. vol. 4, at 827.
Because the license is temporary, Part A doesn’t apply.
New Mexico argues that Interim Storage’s facility could become a de
facto permanent warehouse for storage, pointing to uncertainty over the
feasibility of a permanent repository for spent nuclear fuel. We reject this
argument.
Though we don’t know whether the government will complete a
permanent repository, Interim Storage’s license would remain temporary
either way because of the 40-year term. By the end of the 40-year period,
Interim Storage would need to seek renewal. If the Nuclear Regulatory
Commission were to decline renewal of the license, Interim Storage
couldn’t continue to use the facility to store spent nuclear fuel. See 10
C.F.R. § 72.54. So the possibility of renewal doesn’t make the license
permanent.
Even if the license were permanent, however, Part A wouldn’t govern
because the storage facility is owned and operated by a private entity
(Interim Storage). Because the entity is private, the Commission relied on
the Atomic Energy Act, which authorizes licensing and regulation of
“private use of private away-from-reactor spent fuel storage facilities.”
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Bullcreek v. Nuclear Regul. Comm’n, 359 F.3d 536, 542 (D.C. Cir. 2004)
(emphasis added); see R. vol. 4, at 827 (the Interim Storage license stating
that it was issued “[p]ursuant to the Atomic Energy Act of 1954”). So the
license does not concern a federal facility.
New Mexico points out that the license refers to the Department of
Energy, suggesting that the reference implies that the federal government
will use the facility. This suggestion reflects a misunderstanding of the
license. The license says that operations can’t start until Interim Storage
obtains a contract with the U.S. Department of Energy or another title-
holder that’s “responsible for funding operations.” R. vol. 4, at 829. This
provision allocates responsibility for funding operations, ensuring that
whoever owns the nuclear fuel will pay for the storage. (If the Department
of Energy owned the nuclear fuel, the Department would pay for the
storage; if a private entity owned the fuel, the private entity would pay.)
That provision doesn’t
 authorize the federal government to store its spent nuclear fuel
at the facility or
 make the federal government the licensee or operator of the
storage facility.
See Don’t Waste Michigan v. U.S. Nuclear Regul. Comm’n, No. 21-1048,
2023 WL 395030, at *2 (D.C. Cir. Jan. 25, 2023) (per curiam; unpublished)
(interpreting the same language and concluding that it does not make the
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Department of Energy responsible for the spent nuclear fuel being stored at
Interim Storage’s private facility).
New Mexico also argues that the environmental impact statement,
record of decision, and issuance of the license are “inextricably linked to
actions taken pursuant to [the Nuclear Waste Policy Act] provisions.”
Resp. to Mot. to Dismiss at 13. New Mexico points to the Nuclear
Regulatory Commission’s
 reliance on a previous determination that a permanent
repository would be available by 2048, R. vol. 3, at 134,
 discussion that the facility is needed for storage capacity
before a permanent repository is available, id. at 115,
 assumption that spent nuclear fuel will be moved to a
permanent repository, id. at 172–73, and
 reference to the Department of Energy’s analyses, id. at 286.
These references don’t show the issuance of an action under the Nuclear
Waste Policy Act. See 42 U.S.C. § 10139(a)(1)(D). After all, the
Commission didn’t prepare the environmental impact statement for a
facility that was permanent or operated by the federal government.
* * *
The Commission didn’t issue the environmental impact statement
based on an action under Part A of the Nuclear Waste Policy Act. So this
Act doesn’t trigger jurisdiction.
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4. We would lack jurisdiction even if the Commission had acted
ultra vires.
New Mexico also argues that we have jurisdiction because the
Nuclear Regulatory Commission acted ultra vires. We disagree.
District courts can review administrative actions when an agency acts
ultra vires if no court could otherwise review the action. See Quivira
Mining Co. v. U.S.E.P.A., 728 F.2d 477, 484 (10th Cir. 1984) (“[Leedom v.
Kyne, 358 U.S. 184, 190 (1958)] stands for the proposition that ultra vires
agency action may be reviewed by the district courts, notwithstanding
exclusive court of appeals review provisions, when no relief is otherwise
available.”).
New Mexico argues that we obtained jurisdiction because the
Commission acted ultra vires. But even if the Commission had acted ultra
vires, New Mexico could have obtained judicial review by participating in
the Commission’s proceedings through submitting contentions and a
request for a hearing or petition for leave to intervene. This opportunity
prevents New Mexico from invoking this exception even if the Commission
had acted ultra vires. See id. (rejecting a claim that the district court had
jurisdiction despite a provision for exclusive appellate review because the
plaintiffs had bypassed opportunities to challenge the regulation).
New Mexico urges an exception that would create jurisdiction
regardless of the possibility of administrative action. In urging this
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exception, New Mexico relies on a Fifth Circuit opinion—American
Trucking Associations, Inc. v. I.C.C., 673 F.2d 82, 85 n.4 (5th Cir. 1982)
(per curiam)—which permitted review “if the agency action is ‘attacked as
exceeding the power of the Commission.’” Id. at 85 n.4 (quoting Schwartz
v. Alleghany Corp., 282 F. Supp. 161, 163 (S.D.N.Y. 1968)).
Most circuits have declined to follow American Trucking. See Matter
of Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 334–35 (7th
Cir. 1986) (deciding not to follow American Trucking and concluding that
“[t]he statute limits review to petitions filed by parties, and that is that”);
Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd., 167 F.3d 111,
112 (2d Cir. 1999) (characterizing American Trucking’s exceptions as
unpersuasive dicta); Nat’l Ass’n Of State Util. Consumer Advocs. v.
F.C.C., 457 F.3d 1238, 1249 (11th Cir.), opinion modified on denial of
reh’g, 468 F.3d 1272 (11th Cir. 2006) (declining to follow American
Trucking and stating that a party is aggrieved when it “participated in the
agency proceeding” (quoting Alabama Power Co. v. F.C.C., 311 F.3d 1357,
1366 (11th Cir. 2002))); cf. Baros v. Texas Mexican Ry. Co., 400 F.3d 228,
238 n.24 (5th Cir. 2005) (recognizing that American Trucking has “been
squarely rejected by some of our sister circuits”). We agree with these
courts, concluding that non-parties cannot appeal orders that “exceed the
power” of the agency because
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 “‘exceeding the power’ of the agency may be a synonym for
‘wrong,’ so that the statute then precludes review only when
there is no reason for review anyway” and
 “[the Hobbs Act] is the source of the court’s jurisdiction, . . .
[a] court may not decide a case just because that would be a
good idea; power must be granted, not assumed.”
Matter of Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 335
(7th Cir. 1986).
Nor does American Trucking support New Mexico’s reliance on the
exception for ultra vires action. There the Fifth Circuit concluded that “it
is incumbent upon an interested person to act affirmatively to protect
himself in administrative proceedings, and . . . (s)uch a person should not
be entitled to sit back and wait until all interested persons who do so act
have been heard, and then complain that he has not been properly treated.”
Am. Trucking Associations, Inc., 673 F.2d at 84 (quoting Nader v. Nuclear
Regul. Comm’n, 513 F.2d 1045, 1054 (D.C. Cir. 1975)) (emphasis added)
(internal quotation marks omitted). Given the need for affirmative action to
protect oneself, reliance on American Trucking is misplaced because New
Mexico could have participated in the licensing proceeding.
Because American Trucking is neither persuasive nor applicable,
jurisdiction wouldn’t exist even if the Commission had acted ultra vires.
5. Conclusion
We dismiss the petition for lack of jurisdiction. The Hobbs Act and
Atomic Energy Act don’t trigger jurisdiction because New Mexico didn’t
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take advantage of the chance to participate in the Commission’s licensing
proceeding. Nor does jurisdiction exist under the Nuclear Waste Policy
Act, for the Commission didn’t issue the environmental impact statement
with respect to an action under Part A of the Act. And even if the
Commission had acted ultra vires, we’d lack jurisdiction because New
Mexico could otherwise have asserted its arguments in the licensing
proceeding.
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