The Waste Isolation Pilot Plant Withdrawal Act: The Importance of FLPMA's Procedural Requirements

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I.   Introduction                                    226
II.  Allocation of Withdrawal Power                  230

A. Pre-FLPMA: Congressional Acquiescence and

        Executive Authority                          230
     B. FLPMA: Congress Takes Control                232
III. The History of WIPP                             234

A. Congressional Authorization and Initial

        Withdrawal                                   235
     B. Public Land Order 6403                       236
     C. Public Land Order 6826                       239
IV.  New Mexico V. Watkins                           241

A. Radioactive Mixed Waste and Interim Status

        Under RCRA                                   241
        1. Clear Congressional Intent                242
        2. Determining EPA's "Reasonable
           Interpretation"                           243
     B. Violation of FLPMA Withdrawal Provisions     247
        1. The District Court Opinion                248
        2. The D.C. Circuit Opinion                  249
     C. The Proper Remedy                            253
V.   The WIPP Land Withdrawal Act of 1991            256
VI.  Conclusion                                      260

Oh, sure, we will be sued. But we'll be sued not on the basis of environment concerns. We already demonstrated we know how to deal with all safety and environmental aspects of WIPP. The suits will be emotionally anti-nuclear--we don't like bombs and we don't like any thing connected with bombs, even safe waste disposal. OK, I understand there is a body of American thinking that says the nuclear deterrent is bad. I don't think it is majority thinking. But only pure emotionalism from this faction now stands between us and accepting waste at WIPP.(1)

I. INTRODUCTION

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

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

In a consolidated action, several environmental groups also alleged violations of the Resource Conservation and Recovery Act of 1976 (RCRA) interim status permitting provisions.(16) RCRA generally requires all hazardous waste disposal facilities to operate under a permit,(17) but DOE claimed that WIPP did not need a permit because it was operating under interim status. …