The Waste Isolation Pilot Plant Withdrawal Act: the importance of FLPMA's procedural requirements.

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.(18) The district court found that the facility was ineligible for interim status because WIPP was built after radioactive mixed waste had become regulated under RCRA in 1980.(19)

In New Mexico v. Watkins,(20) the D.C. Circuit disagreed and found that radioactive mixed waste originally had not been covered by RCRA. Instead, the court found that a 1986 Environmental Protection Agency (EPA) notice(21) constituted a regulatory change.(22) Therefore, WIPP may have been eligible for interim status, depending on when it came into existence.(23) The D.C. Circuit upheld New Mexico's FLPMA claim, however, and affirmed the district court injunction preventing waste storage at WIPP under the administrative withdrawal.(24) The court determined that the original purpose of the withdrawal--facility construction--did not include the storage of radioactive waste.(25) Consequently, the Department of Interior (Interior) breached the provisions of FLPMA by extending the withdrawal order to allow for the storage of radioactive waste without Congressional authorization.(26) DOE and Interior had violated a "fundamental part" of FLPMA's congressional plan to retake control of administrative withdrawals.(27) For this reason, the D.C. Circuit affirmed the district court's injunction.(28)

Three-and-a-half months after the D.C. Circuit upheld the injunction forcing DOE to obtain congressional authorization to store radioactive waste at WIPP, Congress passed the Waste Isolation Pilot Plant Land Withdrawal Act (WIPP Act).(29) This Act placed stricter environmental controls on WIPP and transferred environmental oversight of the facility from DOE to EPA.(30) The WIPP Act also significantly increased the amount of compensation New Mexico will receive as the host state.(31) Without judicial intervention, it is unlikely that these environmental and financial provisions would have attached to the WIPP project; the injunction allowed Congress to exercise the type of managerial oversight envisioned in FLPMA.

This note outlines the ongoing controversy between the legislative and executive branches surrounding the exercise of the withdrawal power regarding WIPP. The second section provides a historical context for the D.C. Circuit's opinion and Congress' subsequent action. Section three discusses the executive actions that led to the D.C. Circuit's decision in New Mexico v. Watkins.

Section four analyzes the D.C. Circuit's opinion, including the court's rulings on RCRA, FLPMA, and injunctive relief. Section five discusses the limits Congress placed on executive branch managerial discretion through the WIPP Act. The note concludes that the D.C. Circuit properly enjoined the storage of radioactive waste at WIPP to preserve Congress' role in overseeing executive withdrawal decisions.

II. ALLOCATION OF WITHDRAWAL POWER

The WIPP controversy is just the latest skirmish in the continuing struggle between the executive and legislative branches over management of the public lands. To understand the significance of the congressional victory in the D.C. Circuit, one must first examine the historical antecedents of the conflict.

A. Pre-FLPMA: Congressional Acquiescence and Executive Authority.

Congress has the "power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."(32) Throughout the early period of U.S. history, Congress generally exercised this power to open federal public lands to private acquisition.(33) By the end of the nineteenth century, however, Congress began to make withdrawals for its own purposes.(34) Congress also enacted several statutes which delegated power to the President to withdraw lands and reserve them for specific public purposes.(35)

In addition to delegated powers, the executive branch claimed an inherent power to withdraw the lands.(36) Presidents routinely set aside Indian, military, and bird reservations on the public lands by executive orders without any statutory authority.(37) The validity of these withdrawals went unchallenged until the early twentieth century.(38) Then, in 1909, President Taft withdrew approximately three million acres of valuable oil land in Wyoming and California "in aid of proposed legislation" to protect the lands.(39) In United States v. Midwest Oil Co,(40) the Supreme Court upheld the validity of President Taft's withdrawal because the long history of executive withdrawals, "known to and acquiesced in by Congress," raised the presumption that Congress either consented to the withdrawal or recognized an inherent withdrawal power in the executive branch.(41)

After the 1909 withdrawals, but before the Midwest Oil decision, President Taft asked Congress to pass legislation clarifying his withdrawal power.(42) Congress responded by enacting the Pickett Act of 1910,(43) which allowed the President to temporarily withdraw and reserve all public lands.(44) These "temporary" withdrawals were to remain in effect only until revoked by the President or an act of Congress.(45) Thus, Congress only allowed the President to make withdrawals which were subject to legislative termination.(46) Controversy remained, however, over executive authority to make "permanent" withdrawals of land.(47)

B. FLPMA: Congress Takes Control

In an effort to harmonize the nation's myriad public land laws, Congress established the Public Land Law Review Commission (PLLRC) in 1964.(48) Among its many inquiries, the PLLRC reviewed the ambiguities surrounding executive withdmwal authority after the Pickett Act. Six years later, in its report, One Third of the Nation's Land, the PLLRC recommended that Congress definitively set standards governing the exercise of the executive withdrawal power.(49) Congress eventualy incorporated "6 recommendation into FLPMA,(50) stating its intention to "exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and [to] delineate the extent to which the Executive may withdraw lands without legislative action."(51)

In pursuit of this policy, FLPMA authorizes the Secretary of Interior(52) "to make, modify and extend, or revoke withdrawals" as long as the procedures outlined in FLPMA are followed.(53) FLPMA provides an expansive definition of withdrawals,(54) and its provisions "clearly cover any implied or inherent executive withdrawal authority."(55) Moreover, the Act also expressly repealed "the implied authority of the President to make withdrawals and reservations resulting from acquiescence of the Congress."(56) FLPMA clearly indicates Congress' attempt to exercise exclusive control over land withdrawals.(57)

While granting the Secretary broad discretion over smaller withdrawals,(58) FLPMA limits the Secretary's power to make large administrative withdrawals.(59) In addition, FLPMA requires the Secretary to report to Congress in advance of any withdrawal,(60) publish notice of the withdrawal in the Federal Register,(61) and hold public hearings.(62) The Secretary's report to Congress must contain detailed information on the proposed use of the land and the effects of that use(63) so that Congress can make an informed decision whether to allow the withdrawal.(64) FLPMA also requires the Secretary of Interior to periodically reconsider withdrawals, allowing Congress the opportunity to revisit its withdrawal decisions.(65)

Congress placed few substantive restrictions on executive public land management decisionmaking.(66) However, Congress has not abrogated substantive review of agency action. The procedural reporting requirements for withdrawals are a fundamental aspect of FLPMA's congressional oversight scheme, designed to inform Congress about the substantive effects of executive action and to provide an opportunity to terminate or modify that action.(67) The WIPP controversy arose when DOE tried to circumvent that scheme.

III. THE HISTORY OF WIPP

The WIPP project demonstrates the potency of congressional oversight in public land decisionmaking. DOE spent a large amount of money building a facility that could not be used without congressional authorization. However, after the facility was completed, congressional action stalled over issues such as environmental oversight and state compensation payments. Frustrated in the legislative arena, DOE attempted to bypass Congress and the procedural provisions of FLPMA. The conflict over the scope of executive power to manage the public lands had begun anew.

A. Congressional Authorization and Initial Withdrawal

The Waste Isolation Pilot Plant (WIPP) is located on roughly 9000 acres(68) twenty-six miles southeast of Carlsbad, New Mexico.(69) Due to its geologic characteristics, the site had been considered as a potential nuclear depository since at least 1974.(70) In 1979, Congress authorized DOE to build a facility on the site which would demonstrate the safe disposal of defense-related radioactive wastes.(71) Congress also required DOE to consult with the state of New Mexico over health and safety issues related to the project.(72)

From the beginning, controversy surrounded the project. Three months after Congress authorized construction, President Carter announced that the project would be canceled.(73) Nevertheless, Congress continued to appropriate funds for WIPP.(74) After President Carter left office in 1981, DOE announced plans to proceed with construction of WIPP,(75) but pursuant to an agreement with New Mexico, the agency promised to limit deposits at the facility to defense-related transuranic waste.(76) Transuranic wastes are low-level radioactive wastes which yield less heat and are less radioactive than "high-level" radioactive wastes.(77)

Since the WIPP site was located on public land,(78) a FLPMA withdrawal was required before DOE could assume jurisdiction over the area.(79) Consequently, on March 30, 1982, the Secretary of Interior issued Public Land Order (PLO) 6232.(80) The order administratively withdrew the WIPP lands for eight years to allow DOE to perform a site evaluation program.(81) A year later, DOE requested another withdrawal from Interior to begin actual construction of the WIPP facility.(82)

B. Public Land Order 6403

Before issuing the withdrawal order that DOE requested, the Secretary of Interior had to comply with FLPMA [sections] 204(c)(1),(83) which requires a report to Congress. The Secretary's report promised that the withdrawal would authorize only WIPP construction and not disposal or experimentation with nuclear waste.(84) At that time, both DOE and the Bureau of Land Management (BLM) believed that a decision to allow disposal or experimentation at the site should be made by Congress for three reasons. First, an administrative withdrawal would last for only twenty years,(85) and any waste deposited in the facility would have to be removed after that time. A long-term legislative withdrawal would eliminate the need for this potentially difficult and time-consuming process.(86) Second, DOE planned to actively operate WIPP for twenty-five years, with continued "institutional controls" after the operational phase to ensure long term safety.(87) Therefore, DOE could not begin the operational aspect of the project without a statutory withdrawal. Third, the agencies realized the controversial nature of the subject matter and felt Congress should make the final decision regarding nuclear waste storage.(88)

After making his report to Congress, the Secretary acceded to DOE's request and withdrew the WIPP lands again. PLO 6403, without revoking PLO 6232, withdrew the WIPP lands until 1991 to allow construction of the WIPP facility.(89) The second order, in essence, modified the first order to allow for construction and extended the first order for another year.

The W]PP facility was designed to entomb nuclear wastes 2150 feet below ground in the middle of the Delaware Salt Basin.(90) Two years after construction began, the EPA released its "no migration" rules for disposal of transuranic waste.(91) Directly applicable to WIPP, these rules require DOE to reasonably assure that radiation escaping from the facility would not exceed specified levels for 10,000 years.(92) In response, DOE determined that a test phase was needed to assess WIPP's performance.(93) During this test phase, DOE planned to place sealed bins of transuranic waste in one of the excavated rooms.(94) Since storage of waste in the facility was not authorized by PLO 6403, DOE submitted a draft bill to Congress in 1987 to authorize the waste deposit testing.(95)

Prior to 1989, DOE paid little attention to environmental compliance issues related to the WIPP project.(96) In 1989, DOE proposed tests to resolve these issues, but the tests have been repeatedly revised and delayed.(97) Further, the Sandia National Laboratory and others raised questions about whether a short-term test phase would actually provide meaningful insight into the facility's long-term stability.(98) Meanwhile, legislative authorization stalled because of disagreements over site suitability, the utility of in-place testing, state economic assistance payments, and DOE's compliance with environmental laws.(99)

When the chances for a timely legislative withdrawal waned, DOE applied for a modification and extension of PLO 6403 to allow the test phase to begin.(100) Although the application may have been a purely tactical move to force Congress' hand,(101) DOE claimed that Interior had the administrative power to modify and extend the withdrawal, regardless of the legislative outcome.(102) Instead of asking for a new withdrawal which would have required a Congressional report, DOE asked interior to change the purpose of the land withdrawal to allow for the storage of radioactive waste at the site, to delete the provision of PLO 6403 which prohibited the use of radioactive waste, and to extend the withdrawal through June 1997.(103)

C. Public Land Order 6826

On January 28, 1991, the Secretary responded to DOE'S request by issuing Public Land Order 6826.(104) The order modified PLO 6403 to "[e]xpand the stated purpose of the order to include conducting the test phase of the project using retrievable, transuranic radioactive nuclear waste at the site" and to "extend the term of the withdrawal through June 19, 1997, . . . so as to provide sufficient time to conduct the experimental test phase."(105) The order also transferred all of the WIPP lands from BLM to DOE management.(106) Congress responded quickly.(107) On March 6, 1991, the House Committee on Interior and Insular Affairs passed a resolution intended to delay placement of transuranic waste at WIPP until Congress acted.(108)

Before a withdrawal may be extended under FLPMA, the Secretary of Interior must determine "that the purpose for which the withdrawal was first made requires the extension. . . ."(109) The Secretary must report thism finding to the House and Senate Committees on the Interior and Insular Affairs.(110) However, in this case, the Secretary of Interior never consulted with the House Committee.(111) The House Committee was concerned that the administrative withdrawal left many unresolved questions about environmental standards, waste storage capacity, and safety.(112) Although Interior contended that only a resolution passed by both houses of Congress could override the withdrawal,(113) the Secretary agreed to postpone waste disposal at WIPP until June 30, 1991.(114)

For six months, Congress and DOE negotiated several pieces of proposed withdrawal legislation.(115) But on October 3, 1991, DOE announced that it would begin shipping waste to WIPP on October 10, 1991.(116) Six days later, New Mexico's Attorney General filed suit in the United States District Court for the District of Columbia seeking a temporary restraining order barring the shipment.(117) New Mexico claimed that the attempt to extend and modify the withdrawal violated FLPMA's procedural requirements and that the Secretary's actions constituted a permanent withdrawal--a power reserved exclusively to Congress.(118) The Environmental Defense Fund (EDF) also filed suit, claiming that DOE could not proceed with the test phase because it failed to comply with RCRA's new-source permitting requirements.(119)

IV. NEW MEXICO V. WATKINS(120)

The tension between the executive and legislative branches over control of the public lands erupted once again into a legal battle. Congress was negotiating a bill which would give environmental oversight authority to EPA and provide economic compensation to the host state of New Mexico. But when the Secretary of Interior and DOE attempted to bypass these Congressional negotiations, New Mexico and several environmental organizations sued under RCRA and FLPMA to prevent this usurpation of power. Although unsuccessful on the RCRA claim, the plaintiffs ultimately prevailed on the strength of FLPMA's procedural protections.

A. Radioactive Mixed Waste and Interim Status Under RCRA

RCRA requires all hazardous waste disposal facilities to have a permit.(121) However, a facility may operate under "interim status"(122) until a permit is received if the facility was either in existence on November 19, 1980 (the effective date of RCRA's regulations) or was in existence on the effective date of any statutory or regulatory change bringing the facility under the purview of RCRA.(123) Despite plans to store a mixture of hazardous and radioactive waste at the WIPP facility, DOE had not yet received a RCRA permit from the state of New Mexico.(124) Thus, EDF argued that WIPP was not eligible for interim status since the facility was not in existence when radioactive mixed waste became subject to RCRA regulation.(125) Consequently, storage of waste could not occur until DOE received a RCRA permit.

1. Clear Congressional Intent

To determine whether EDF was correct, the D.C. Circuit first had to decide if Congress clearly indicated an intent to regulate radioactive mixed wastes under RCRA.(126) Congress explicitly excluded materials regulated under the Atomic Energy Act (AEA) from RCRA's definition of solid waste.(127) Because hazardous wastes are a subset of solid wastes, pure AEA materials were also not regulated as hazardous wastes under RCRA.(128) However, Congress did not clearly state whether RCRA or AEA would govern mixtures of hazardous wastes and AEA materials.(129)

DOE addressed this issue in 1987, determining that Congress intended to "provide for the regulation under RCRA of all hazardous waste including waste that is also radioactive."(130) DOE believed that Congress structured RCRA like the Federal Water Pollution Control Act (Clean Water Act),(131) which allowed concurrent regulation of mixed radioactive pollution by both the state and the Nuclear Regulatory Commission (NRC).(132) The D.C. Circuit was not persuaded by DOE'S 1987 analysis, however.(133) Although Congress contemplated some type of "joint regulation under both RCRA and the AEA in certain circumstances,"(134) the court found that RCRA did not "indicate how Congress intended the two regulatory regimes to coexist."(135) Given the apparent contradiction in forcing some type of joint regulation but excluding AEA materials from regulation, the D.C. Circuit deferred to "EPA's reasonable interpretation" of RCFA.(136)

2. Determining EPA's "Reasonable Interpretation"

In 1980, EPA promulgated regulations defining as hazardous waste any solid wastes "mixed with" or "derived from" hazardous wastes; these materials were subject to regulation under RCRA.(137) Since these principles also apply when hazardous wastes are mixed with non-solid wastes,(138) the district court held that these regulations should apply to mixtures of hazardous and radioactive nuclear waste.(139) Thus, because the hazardous components of the WIPP waste(140) had been subject to EPA regulation under RCRA since 1980,(141) mixtures of these regulated hazardous constituents and transuranic radioactive wastes were also regulated by RCRA in 1980, well before the WIPP facility was even constructed.(142) Based on these EPA regulations, the district court held that the WIPP facility was ineligible for interim status.(143) DOE would have to acquire a RCRA permit before depositing any radioactive mixed waste at the WIPP facility.

On appeal, the D.C. Circuit disagreed with the district court and found that EPA had not regulated radioactive mixed waste under RCRA until 1986.(144) Prior to that date, the court stated, EPA had never specifically applied the mixture rule to AEA-covered radioactive mixed waste.(145) Moreover, EPA in 1986 issued a notice requiring authorized state RCRA programs to take regulatory authority over "the hazardous components of ~radioactive mixed wastes'."(146) In this notice, EPA stated that it had not previously required states to possess this specific regulatory authority because of the ambiguity surrounding the status of radioactive mixed waste under RCRA.(147) EPA decided in 1986 that state regulatory authority was necessary because "EPA has now determined that [radioactive mixed wastes] are subject to the RCRA regulation."(148)

One year later, EPA issued a second notice to clarify the first notice.(149) In this clarification, the agency expressed its intention to treat the first notice as a regulatory change for purposes of qualifying for interim status under RCRA(150) because the "1986 notice was EPA's first official pronouncement to the general public that RCRA permitting requirements are applicable to radioactive mixed waste."(151) Further, in states with authorized programs--such as New Mexico--the date on which the state program was revised to include radioactive mixed waste would become the effective date of the regulatory change.(152)

The district court rejected EPA's interpretation, observing that the notice and clarification had not been formally promulgated as a new regulation following the requirements of the Administrative Procedure Act (APA).(153) Since the notice and clarification did not "create or change RCRA regulations," the district court found that they could not serve as a regulatory change.(154) Thus, WIPP was not eligible for interim status under RCRA.(155)

On appeal, the D.C. Circuit reached a different conclusion. The court initially noted that neither the statute nor the legislative history defined a regulatory change.(156) The court then examined EPA's interpretation of regulatory change to determine if it was reasonable and entitled to deference.(157) Ultimately, the D.C. Circuit deferred to EPA's explanation that the 1988 clarification was not merely a decision to enforce RCRA, it was an agency "interpretation" that the regulatory change provision included "official pronouncements."(158) Under this analysis, the distinction between an EPA "interpretation" and an EPA enforcement decision appears semantic at best. Neither RCRA nor the regulations had changed. The only change that occurred was in EPA's decision to enforce RCRA's permitting provisions. While an enforcement decision may be within EPA's prosecutorial discretion, it should not serve as the basis for granting interim status under RCRA.

The D.C. Circuit claimed, however, that an interpretation of "statutory or regulatory change" which included only formal amendments to the statute or regulations would be inconsistent with the "fair notice and opportunity-to-adjust purpose" of RCRA.(159) Other than the existence of the interim status provision itself, the court could find no basis for this alleged "purpose."(160) Even if EPA had determined in 1986 that RCRA had always applied to radioactive mixed waste,(161) EPA still would have had to allow WIPP interim status. This would be necessary to give the facility "fair notice" and an "opportunity-to-adjust."(162) Nonetheless, the appeals court determined that EPA's interpretation was reasonable and entitled to deference. EPA's 1986 "notice" was deemed a regulatory change which allowed facilities in existence on that date to qualify for interim status and dispose of mixed radioactive waste without a RCRA permit.(163)

The plaintiffs had lost the initial RCRA battle, but they may still have been able to ultimately prevail on that issue. Had they not succeeded on their FLPMA claim, the D.C. Circuit would have remanded the case to the district court to determine the date WIPP came into existence and the precise date of the regulatory change for facilities operating under the New Mexico program. This entire inquiry was postponed by the court's FLPMA decision, however.

B. Violation of FLPMA Withdrawal Provisions

The Watkins plaintiffs were interested in more than procedural compliance. They wanted to force accountability on DOE by giving EPA and the state some measure of environmental oversight on the WIPP project. The failed RCRA claim, which would have allowed the state to place conditions on the disposal of transuranic waste at the site, was merely a sideshow. The main objective of the lawsuit was to give Congress a meaningful opportunity to impose environmental controls on the project and to compensate New Mexico for its risk and expense as the host state. FLPMA's procedural requirements proved to be the proper tool for the task.

1. The District Court Opinion

Before the district court, DOE argued that the administrative withdrawal in PLO 6826 was well within the Secretary of Interior's authority to "make, modify and extend or revoke withdrawals" under FLPMA.(164) But the district court found that the Secretary's discretion under FLPMA [sections] 204(a) could only be exercised in accordance with the statute's other provisions,(165) Specifically section 204(f).(166) Under this provision, a withdrawal may be extended "only if the Secretary determines that the purpose for which the withdrawal was first made requires the extension, and then only for a period no longer than the length of the original withdrawal period."(167) According to the district court, these provisions demonstrated congressional intent to limit the Secretary's discretion to extend withdrawals.(168)

DOE claimed that the Secretary of Interior could both modify and extend a withdrawal at the same time.(169) Indeed, as long as the original purpose requires the extension, FLPMA does not explicitly prevent such a concurrent modification.(170) The district court found, however, that the limitation in section 204(f) would be rendered meaningless if the modification could contravene the original purpose of the withdrawal.(171)

In its analysis, the district court focused on the purposes of the original withdrawals. The 1982 land order withdrew the WIPP lands until 1990 to conduct site and design tests and to protect the lands in case a legislative withdrawal was later deemed appropriate.(172) Without revoking the prior order, the 1983 land order withdrew the same lands until 1991 to construct the WIPP facility and, again, to protect the lands for possible legislative withdrawal.(173) Paragraph five of the 1983 order explicitly did not authorize transportation, storage, or burial of radioactive materials.(174) The district court interpreted this provision as a limitation on the stated purpose, effecting a general ban on the presence of radioactive materials at the site.(175) Thus, the Secretary of Interior could not have determined, under section 204(f), that the original purpose required the extension to test the in-place storage of radioactive waste because the original purpose explicitly precluded such storage.(176)

2. The D. C Circuit Opinion

DOE appealed the district court's decision regarding the purposes of the original withdrawals. DOE argued that in 1979 Congress authorized DOE to build a facility which would demonstrate the safe disposal of defense-related radioactive waste.(177) In order to perform this demonstration, DOE had requested that the Secretary of Interior withdraw the WIPP lands "for the purpose of the construction of the full facilities" for the WIPP project.(178) Thus, on appeal to the D.C. Circuit, DOE claimed that the term "construction" in the 1983 land order necessarily included a test phase to demonstrate the feasibility of radioactive waste disposal.(179)

DOE claimed also that testing was required to meet EPA regulations.(180) When Congress passed the Nuclear Waste Policy Act of 1982, EPA became responsible for setting regulations on the escape of radioactive materials from nuclear repositories.(181) Three years later, EPA issued the "no migration" rule, placing more stringent requirements on DOE's nuclear waste storage facilities.(182) In order to demonstrate the safe disposal of transuranic wastes, DOE was forced to construct WIPP to meet the "no migration" rule. DOE therefore determined that in-place testing of transuranic wastes was now necessary to accomplish construction of a WIPP facility capable of demonstrating safe disposal.(183)

Essentially, DOE argued that the scope of activities authorized by the "construction" purpose included actions necessary to ensure that WIPP could satisfy the congressional directive of demonstrating the safe disposal of radioactive waste.(184) The D.C. Circuit, like the district court, refused to determine what was encompassed by the term "construction."(185) Instead, the court examined paragraph five of PLO 6403 and the circumstances surrounding the order's issuance(186) as evidence that the original "construction" purpose of the order did not encompass storage of nuclear waste, even on a trial basis.(187) Accordingly, the D.C. Circuit refused to defer to DOE'S interpretation of the administrative order because it was unreasonable and contrary to the original intent behind the withdrawal.(188)

DOE next argued that, under the broad discretionary powers of FLPMA [sections] 204(a),(189) the 1983 land order could be modified to include a test phase, even if that use was not contemplated by the original order.(190) The D.C. Circuit refused to decide whether the Secretary of Interior could modify a withdrawal to include a use which contravenes the purpose of the original withdrawal.(191) Because the 1983 land order expired on June 29, 1991, the Secretary would have needed an extension if any testing was to occur after that date.(192) Thus, even if the Secretary could have lawfully modified the land order to include testing, he was still bound by the limits section 204(f)(193) places on extensions.(194) Section 204(f) allows extensions only to accomplish the purpose of the original withdrawal;(195) therefore, extensions "cannot be granted to accomplish he purpose of a modification."(196)

Both of the early WIPP withdrawals protected the withdrawn land from the operation of the various laws covering the disposition of the public lands.(197) DOE claimed that the 1991 extension of these withdrawals was necessary to continue this protection,(198) and therefore to carry out the purpose of the original withdrawal. Under FLPMA section 103(j), a withdrawal can include both a withholding of land from the operation of the land laws and a reservation of land for a particular purpose.(199) DOE's argument would have allowed the Secretary of Interior to satisfy section 204(f) by simply showing that the withholding portion of the withdrawal required the extension, without any showing that the reservation portion of the withdrawal required the extension.

The D.C. Circuit, however, held that the "purpose" of a withdrawal under FLPMA "necessarily includes" the use for which the land is reserved.(200) If the "purpose" requirement could be satisfied based solely on withholding, "Congress' restrictive prescription in subsection 204(f) would be reduced to insignificance."(201) Further, the reporting provisions in subsection 204(c)(2) require the Secretary of Interior to include both "a clear explanation of the proposed use of the land"(202) and an evaluation of how the natural resources of the site "will be affected by the proposed use."(203) These specific references to proposed uses indicate that Congress was more concerned with the reservation aspect of withdrawals than with the withholding aspect.(204)

Additionally, the court placed great emphasis on the dichotomy between the reporting requirements of an original withdrawal and the requirements for an extension.(205) To make an original withdrawal, the Secretary of Interior must notify Congress(206) and submit a detailed report addressing twelve specific issues.(207) An extension, on the other hand, requires only congressional notification.(208) The court noted that "[s]o long as the extension is granted for the original purpose, Congress does not need an additional report."(209) These dual procedural tracks are "a fundamental part of the scheme by which Congress has reserved the right to disapprove of administative withdrawals."(210) Because DOE never submitted a report to Congress on the effects of storing radioactive waste at the WIPP site,(211) Congress never had the opportunity to exercise its role as overseer of public land management decisions. The only issue remaining was the appropriate remedy for a FLPMA violation.

C. The Proper Remedy

Finding violations of FLPMA, the district court permanently enjoined DOE and Interior from proceeding with the extension and modification order.(212) On appeal, DOE and Interior claimed the injunction remedy was too harsh for a mere "technical" violation of FLPMA.(213) As authority for this position, appellants relied upon Weinberger v. Romero-Barcelo,(214) where the Supreme Court refused to enjoin the U.S. Navy's discharge of a pollutant while the Navy applied for a permit under the Clean Water Act.(215) The Court said that the "Purpose and language of the statute ... not the bare fact of a statutory violation" determines whether an injunction should issue.(216) The Weinberger court contrasted the Navy's violation of Clean Water Act with the violation of the Endangered Species Act (ESA)(217) in Tennessee Valley Auth. v. Hill.(218) The Court reasoned that the injunction issued in Hill because it was the only remedy provided by Congress to "vindicate the objectives of the [Endangered Species) Act."(219) By contrast, the Clean Water Act contains provisions allowing for other methods of enforcement.(220) More importantly, the illegal activity in Hill went directly to the purpose of the Endangered Species Act,(221) violating the statute's explicit provisions. The permitting violation in Weinberger, on the other hand, did not violate the purpose of Clean Water Act because the Navy's "pollution" did not affect the integrity of the Nation's waters.(222)

The D.C. Circuit found that DOE'S violation of FLPMA's procedural provisions is more closely analogous to the ESA violation in Hill than to the Clean Water Act violation in Weinberger.(223) Congress enacted FLPMA to protect its constitutional authority to oversee public land withdrawals.(224) As the court noted, the limitations on extensions in section 204(f) of FLPMA are a fundamental part of the congressional oversight scheme.(225) By extending and modifying the 1983 land order instead of issuing a new withdrawal, DOE avoided reporting to Congress on the effects of storing radioactive mixed waste at the WIPP facility.(226) Therefore, the FLPMA violation directly affected the integrity of congressional oversight.(227)

The court found that an injunction was the only method of protecting FLPMA's central purpose of congressional oversight.(228) Congress did not include a statutory remedy in FLPMA for violations of the notification and reporting procedures. While FLPMA does include provisions which allow Congress to terminate a withdrawal,(229) this termination power does not address the basic problem. Congress wants to be informed of the effects of a withdrawal before it makes a decision to terminate the withdrawal. Only injunctive relief, which prevents extension of the withdrawal until the Secretary of Interior complies with FLPMA's notification and reporting requirements can protect the oversight scheme envisioned by Congress.

Finally, the court found that DOE and Interior would not suffer irreparable injury from issuance of the injunction.(230) DOE claimed the injunction was costing millions of dollars and had "disrupted" a project of "critical national importance."(231) The D.C. Circuit dismissed DOE's cost argument noting that DOE was not idle; the Department was still conducting site evaluation tests which did not involve storage of transuranic wastes.(232) Further, any "disruption" that occurred was due to the congressional delineation of "the extent to which the Executive may withdraw lands without legislative action."(133) The injunction merely barred DOE and Interior from "taking an unauthorized shortcut."(234) For these reasons, the D.C. Circuit upheld the district court's injunction.

V. THE WIPP LAND WITHDRAWAL ACT OF 1991

In January, 1991, the Secretary of Interior modified and extended the 1983 administrative withdrawal of the WIPP lands because Congress had not enacted a legislative withdrawal.(235) Nine months after the modification and extension, DOE announced that it would begin shipping wastes to WIPP under the new land order, and New Mexico v. Watkins began.(236) A month after these waste shipments were scheduled to begin, the Senate passed its version of a WIPP withdrawal bill.(237) The House, however, could not resolve conflicts between three different bills, each originating in a different committee.(238) Eleven days after the New Mexico v. Watkins decision was handed down, however, the House finally managed to reconcile the committee versions and pass a unified bill.(239)

One major issue in the debates over WIPP legislation was the amount of money New Mexico would receive as the host state. Indeed, New Mexico initially brought its suit because the state was concerned about the amount of financial compensation it would receive under the modified withdrawal.(240) Under DOE'S plan, New Mexico would have immediately received $20 million in economic aid and $42 million for highway improvements.(241) The final House bill would have given the state only $40 million in compensation.(242) Meanwhile, the Senate bill would have given New Mexico $250 million for lost mineral royalties and $600 million for road improvements over a twenty-five year period.(243) Under the compromise bill, which became a law on October 29, 1992,(244) New Mexico will receive $300 million over a fifteen year period with the possibility of later appropriations.(245) Thus, as a result of its lawsuit, the state gained $238 million more in compensation funds than DOE was originally willing to provide.

An additional reason for the lawsuit was the state's general distrust of DOE'S environmental management.(246) Under its administrative plan, DOE agreed to limited oversight by EPA.(247) The WIPP Act established a much larger regulatory role for both EPA and New Mexico.(248) DOE must now submit for EPA approval a test phase plan, justifying the specific activities which will occur during the test phase, and a retrieval plan, describing how DOE will remove the waste if necessary.(249) DOE may not place any waste in the WIPP facility until these plans are approved.(250) Further, DOE must periodically submit documentation of compliance with applicable environmental laws to EPA and New Mexico during the entire period of WIPP's operation.(251) Should EPA determine that WIPP is not in compliance, DOE must then formulate and comply with a remedial plan or retrieve the waste and decommission the facility in accordance with the retrieval plan.(252) New Mexico, for its part, can force conflict resolution under the Act if the state disagrees with EPA's application of its radioactive waste disposal regulations(253) or with the Secretary of Energy's determination that it will be able to retrieve any warn stored in the facility should the test phase prove that safe waste disposal is not feasible.(254) In addition, New Mexico's regulatory authority under RCRA and the Clean Air Act(255) was explicitly unaffected by the WIPP Act.(256)

Congress faced two main problems in establishing these environmental oversight provisions for the WIPP facility. First, portions of EPA's regulations governing the disposal of transuranic waste and other radioactive materials(257) had been remanded to the agency for repromulgation in 1987.(258) By 1992, the agency still had not reissued the disposal regulations. Since Congress authorized the WIPP project for the purpose of allowing DOE to demonstrate the safe disposal of transuranic waste,(259) the House insisted that EPA issue the disposal standards before the start of the test phase.(260) This would allow DOE to determine the type of tests necessary to meet these requirements.(261)

EPA estimated, however, that promulgation of the disposal standards would take at least two more years.22 The Senate and DOE believed the project might not be financially viable if forced into a two-year hiatus.(263) To prevent this delay, the WIPP Act reinstated all of EPA's radioactive waste treatment regulations except those that were the subject of the prior remand.(264) In addition, EPA was given six months from the date of passage of the WIPP Act to issue new regulations resolving the problems identified in the remand.(265) Thus, Congress used the legislative withdrawal to force EPA to repromulgate the disposal regulations.

The second environmental concern was the manner in which EPA would exercise regulatory oversight of environmental compliance at the WIPP facility. Under the Senate bill, EPA review of test phase activities would occur though an "informal and iterative process."(266) The House wanted EPA to approve DOE's test phase plan through rulemaking.(267) The final WIPP Act was a compromise requiring completion of an expedited rulemaking within ten months.(268) In another effort to expedite the WIPP test phase, the Act exempted EPA's determination of compliance with its 1985 "no-migration" rule from rulemaking or judicial review.(269)

VI. CONCLUSION

Despite DOE Secretary Watkins' predictions,(270) the plaintiffs in New Mexico v. Watkins were not suing to stop the WIPP project. Rather, the plaintiffs wanted to give New Mexico and EPA a larger role in environmental oversight of the project and to increase the compensation New Mexico would receive as host state. These objectives were achieved through forcing compliance with the procedural provisions of FLPMA.

Under the Property Clause,(271) Congress has the authority to make all substantive management decisions on the public lands, including decisions to withdraw land. In FLPMA, Congress delegated the withdrawal power to the executive, but placed strict procedural mechanisms on the exercise of that power to ensure opportunity for substantive congressional review of executive withdrawal decisions. The D.C. Circuit properly held that DOE, by attempting to avoid these procedural requirements, violated a "fundamental part of the scheme by which Congress has reserved the right to disaprove administrative withdrawals."(272) The ensuring injunction allowed Congress to place the desired regulatory controls over radioactive waste disposal at WIPP before any wastes actually arrived.

The resulting WIPP Act increased the compensation New Mexico would receive for hosting the WIPP faculty.(273) More importantly, Congress gave EPA and New Mexico significant environmental oversight responsibilities.(274) In sum, due to the procedural provisions of FLPMA, Congress prevailed in its latest skirmish with the executive branch in the continuing struggle over public land management decisionmaking. (1.) James Watkins, Secretary of Energy, 1991, quoted in Gregg Easterbrook, James Watkins For the Energy Department, a Man Willing to Call Them as He Sees Them, L.A. Times, Aug. 11, 1991, at M3. (2.) "The term ~public lands' refers to any land and interest in land owned by the United States within the several States and administered by the Secretary of Interior through the Bureau of Land Management, without regard to how the United States acquired ownership, . . . ." Federal Land Policy and Management Act of 1976 [sections] 103(e), 43 U.S.C. [sections] 1702(e) (1988). (3.) U.S. Const. art. IV, [sections] 3, cl. 2 (the Property Clause). (4.) See, eg., United States v. Midwest Oil Co., 236 U.S. 459 (1915). For a more thorough discussion, see George C. Coggins, Public Natural Resources Law [subsections] 3.05, 9.03 (1990). (5.) 43 U.S.C. [subsections] 1701-1784 (1988). (6.) Id. [sections] 1701(a)(4). Congress' action was prompted by a report from the Public Land Law Review Common (PLLRC). See infra notes 48-67 and accompanying text. (7.) The WIPP project is a facility constructed on federal land in New Mexico, authorized by Congress "for the express purpose of providing a research and development facility to demonstrate the safe disposal of radioactive wastes from defense activities." Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1980 (WIPP Authorization Act), Pub. L. No. 96-164, [sections] 213(a), 93 Stat. 1259, 1265 (1979). (8.) Section 103(j) of FLPMA defines a withdrawal as:

withholding an area of Federal land from settlement, sale, location, or

entry, under some or all of the general land laws, for the purpose of

limiting activities under those laws in order to maintain other public

values in the area or reserving the area for a particular public purpose

or program; or transferring jurisdiction over an area of Federal land . . .

from one department, bureau or agency to another department bureau or

agency. Id. [sections] 1702(j). (9.) Public Land Order (PLO) 6403, 48 Fed. Reg. 31,038 (1983). The land had originally been withdrawn for eight years to perform a site evaluation program. Public Land Order 6232, 47 Fed. Reg. 13,340 (1982). One year later, PLO 6403, without revoking PLO 6232, withdrew the same land for eight years to construct the WIPP facility. The second order, in essence modified the first order to allow for construction and extended the first order for another year. (10.) 43 U.S.C. [sections] 1714(b)-(c). (11.) New Mexico v. Watkins, 969 F.2d 1122, 1125 (D.C. Cir. 1992). The Bureau of Land Management (Bud) and the DOE did not want to authorize the storage of nuclear waste at WIPP administratively for two reasons. First the agencies desired a permanent nuclear repository, and an administrative withdrawal can only last twenty years. 43 U.S.C. [sections] 1714(c)(1) (1988). Second, the agencies believed an Congress should make the final decision on such a controversial issue as the storage of nuclear waste. Watkins, 969 F.2d at 1125. (12.) Public Land Order 6826, 56 Fed. Reg. 3,038 (1991). (13.) 43 U.S.C. [sections] 1714(f). (14.) New Mexico was joined by Texas, three members of Congress, and four environmental groups. Watkins, 969 F.2d at 1124. (15.) 43 U.S.C. [sections] 1714. (16.) Watkins, 969 F.2d at 1124. (17.) Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 [sections] 3005(a), 42 U.S.C. [sections] 6925(a) (1988). (18.) A facility can operate under interim status if it was in existence on the effective date of a statutory or regulatory change which brings the facility under the purview of RCRA. 42 U.S.C. [sections] 6925(e)(1); 40 C.F.R. [sections] 270.70 (1992). (19.) New Mexico ex rel. Udall v. Watkins, 783 F.Supp. 633, 636-37 (D. D.C. 1992) (Udall II). (20.) Watkins, 969 F.2d at 1131. (21.) State Authorizations to Regulate the Hazardous Components of Radioactive Mixed Wastes Under the Resource Conservation and Recovery Act, 51 Fed. Reg. 24,504 (1986). (22.) New Mexico v. Watkins, 969 F.2d 1122, 1133 (D.C. Cir. 1992). (23.) Id. The district court did not determine when WIPP came into existence. Thus, the D.C. Circuit ended its RCRA analysis without deciding whether WIPP qualified for interim status. Id. (24.) Id. at 1138. (25.) Id. at 1134-35. (26.) Id. at 1136. (27.) New Mexico v. Watkins, 969 F.2d 1122, 1136 (D.C. Cir. 1992). (28.) Id. at 1137-38. (29.) Pub. L. No. 102-579, 106 Stat. 4777 (Oct. 30, 1992). (30.) Id. [subsections] 5-10; see infra notes 246-269 and accompanying text. (31.) See infra notes 240-245 and accompanying text. This additional compensation may have been the main motivation of New Mexico's suit. (32.) U.S. Const. art, IV, [sections] 3, cl. 2 (Property Clause). (33.) During this period, Congress passed many public land disposition laws, including the General Preemption Act of 1841, 5 Stat. 453 (repealed 1891); the Homestead Act of 1862, 43 U.S.C. [subsections] 161-302 (repealed 1976); the Desert Lands Act of 1877, 43 U.S.C. [subsections] 321-39 (1988); and the General Mining Law of 1872, 30 U.S.C. [subsections] 21,54 (1988). (34.) Charles F. Wheatley, Jr., Study of Withdrawals and Reservations of Public Domain Lands 2 (1969). [hereinafter Wheatley I]. See also United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668 (1896) (discussing withdrawal of public land for creation of Gettysburg National Monument). (35.) Congress authorized the President to establish military reservations, Indian trading posts, lighthouses, and townsites. Wheatley I, supra note 34, at 2. At the turn of the century, Congress gave the President broader withdrawal power in acts such as the Act of Mar. 3, 1891, ch. 561, [sections] 24, 26 Stat. 1103 (1891) (authorizing forest reservations), the Reclamation Act of 1902, 43 U.S.C. [sections] 371431 (1988), and the Antiquities Act of 1906, 16 U.S.C. [sections] 431-33 (1988). Richard M. Johannsen, Comment, Public Land Withdrawal Policy and the Antiquities Act, 56 Wash. L. Rev. 439, 441 (1981). (36.) See, eg., Midwest Oil, 236 U.S. 459, 468 (1915). President Taft claimed: [T]he President, charged with the care of the public domain, could by virtue of the executive power vested in him by the Constitution (Art 2, [sections] 1), and also in conformity with the tacit consent of Congress, withdraw, in the public interest, any public land from entry or location by private parties. Id. (37.) Id. at 469-71. But see David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, 22 Nat. Resources J. 279, 291 (1982) (claiming that many of the withdrawals were nonetheless directly or indirectly authorized by statute). (38.) Charles F. Wheatley, Jr., Withdrawals Under the Federal Land Policy Management Act of 1976, 21 Ariz. L Rev. 311, 314 [hereinafter Wheatley II]. (39.) Id (40.) 236 U.S. 459 (1915). (41.) Id. at 474. (42.) Wheatley II, supra note 38, at 315. (43.) Pickett Act of 1910, ch. 421, [sections] 1, 36 Stat. 847 (1910) (repealed 1976). (44.) Id. [sections] 141. The lands had to be left open to hardrock mineral entry, however. Id. [sections] 142. (45.) The statute provided: "The President may, at any time in his discretion, temporarily withdraw . . . any of the public lands ... and reserve the same ... and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress." Id. [sections] 141. (46.) Most of the withdrawals made through the 1930s were made pursuant to the Pickett Act, including the general withdrawals of all "vacant unappropriated" public lands for clarification under the Taylor Grazing Act of 1934, 43 U.S.C. [sections] 315-315r (1988). Wheatley II, supra note 38, at 315. (47.) Wheatley I, supra note 34, at 5; See 40 Op. Att'y Gen. 73 (1941) (concluding that the President had "nonstatutory authority" to make permanent withdrawals); Portland Gen. Elec. Co. v. Kleppe, 441 F. Supp. 859, 862 (D. Wyo. 1977) (holding that even if "the Pickett Act did supersede the implied authority of the President to make withdrawals, Congress has, by its acquiescence, restored that power."). (48.) Public Land Law Review Commission Organic Act, Pub. L No. 88-M, [sections]4, 78 Stat 983 (1964). (49.) Public Land Law Review Commission, One Third of the Nation's Land 2 (1970). The Commission recommended that:

Congress assert its constitutional authority by enacting legislation reserving

unto itself exclusive authority to withdraw or otherwise set aside

public lands for specified limited-purpose uses and delineating specific

delegation of authority to the Executive as to the types of withdrawals

and set asides that may be effected without legislative action. Id. (50.) Getches, supra note 37, at 317. (51.) Federal Land Policy and Management Act [sections] 102(a)(4), 43 U.S.C. [sections] 1701(a)(4) (1988). (52.) In 1952, the President delegated all of his withdrawal authority to the Secretary of Interior. Exec. Order No. 10,355, 17 Fed. Reg. 4831 (1952). (53.) 43 U.S.C. [sections] 1714(a). (54.) 43 U.S.C. [sections] 1702(j). See, e.g., Mountain States Legal Found. v. Andrus, 499 F. Supp. 383, 395 (D. Wyo. 1980) (holding that withholding actions on oil and gas leases fall within the plain meaning of withdrawal because Congress intended to limit the Secretary's discretion). (55.) Wheatley II, supra note 38, at 318. See also Robert L. Glicksman, Severability and the Realignment of the Balance of Power Over the Public Lands: The Federal Land Policy and Management Act of 1976 After the Legislative Veto Decisions, 36 Hastings L.J. 1, 72 (1984). (56.) 43 U.S.C. [sections] 1714. (57.) Wheatley II, supra note 38, at 319. (58.) 43 U.S.C. [sections] 1714(d). (59.) Withdrawals of greater than 5000 acres may be made "only for a period of not more than twenty years." Id. [sections] 1714(c)(1). Further, the withdrawal may be extended "only if the Secretary determines that the purpose for which the withdrawal was first made requires extension, and then only for a period no longer than the length of the original withdrawal period." Id. [sections] 1714(f). (60.) 43 U.S.C. [sections] 1714(c)(1) (1988). This section also allows Congress to nullify the withdrawal by concurrent resolution. (61.) Id. [sections] 1714(b)(1). (62.) Id. [sections] 1714(h). This section only applies to non-emergency withdrawals. (63.) Id. [sections] 1714(c)(2). (64.) See Wheatley II, supra note 38, at 323. (65.) Id. [sections] 1714(0; see Getches, supra note 37, at 324. (66.) Getches, supra note 37, at 318; see, eg., Natural Resources Defense Council v. Hodel, 624 F. Supp. 1045, 1059-60 (D. Nev. 1985) (holding that the policies and goals in [sections][sections] 1701(a) and 1732 are only broad expressions of concern and desire for improvement and that [sections] 1712 land use planning need not occur at the permitting stage); but see Wheatley II, supra note 38, at 326 (ex-planning that the Secretary might be bound by the land use guidelines in Section 202, 43 U.S.C. [sections] 1712). (67.) Federal Land Policy and Management Act, 43 U.S.C. [subsections] 1701(10), 1713-(c), 1714(c) (1988). (68.) New Mexico v. Watkins, 969 F.2d 1122, 1124 (D.C. Cir. 1992). The site is managed by the Bureau of Land Management (BLM). Id. (69.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 634 (D. D.C. 1992) (Udall II). (70.) Charles H. Montange, Federal Nuclear Waste Disposal Policy, 27 Nat. Resources J. 309, 391 (1987). (71.) WIPP Authorization Act, Pub. L No. 96-164, [sections] 213(a), 93 Stat. 1259, 1265-66 (1979). Section 213(a) simultaneously exempted the facility from regulation by the Nuclear Regulatory Commission (NRC). Id., 93 Stat. at 1265-66; see also Montange, supra note 70, at 391-95 (summarizing the WIPP authorization process). (72.) WIPP Authorization Act, [sections] 213(b)(1), 93 Stat. at 1265-66. (73.) Montange, supra note 70, at 391. President Carter wanted all radioactive waste repositories to be licensed by the NRC and WIPP was statutorily exempt from NRC licensing requirements. See supra note 71. (74.) Montange, supra note 70, at 391. (75.) Id. (76.) H.R. Rep. No. 241, 102d Cong., 1st Sess., pt. 2, at 13 (1991). New Mexico did not want the WIPP facility to become the final solution to the nations' radioactive waste problem. But cf. Montange, supra note 70, at 394 (suggesting that DOE may have relied on the WIPP facility as a backup depository if other plans for nuclear waste disposal fell through). (77.) New Mexico v. Watkins, 969 F.2d 1122, 1124 n.1 (D.C. Cir. 1992). Transuranic wastes contain "more than 100 nanocuries of alpha-emitting transuranic isotopes per grain of waste, with half-lives greater than 20 years . . ." Waste Isolation Pilot Plant Land Withdrawal Act (WIPP Act), Pub. L No. 102-579, [sections] 2(20), 106 Stat. 4777, 4779 (1992). (78.) Watkins, 969 F.2d at 1124. (79.) 43 U.S.C. [sections] 1702(j) (1988) ("The term ~withdrawal' means . . . transferring jurisdiction over an area of Federal land ... from one department, bureau or agency to another department, bureau or agency."). (80.) 47 Fed. Reg. 13,340 (1982). (81.) Id. Since the withdrawal was greater than 5,000 acres, the Secretary could withdraw the lands for a period of not more than twenty years, 43 U.S.C. [sections] 1714(c)(1), and was required to notify Congress of the expected length of the withdrawal, its purpose, and its impact. Id. [sections] 1714(c)(2). (82.) New Mexico ex rel. Udall v. Watkins (Udall I), 783 F. Supp. 628, 629 (D. D.C. 1991). (83.) 43 U.S.C. [sections] 1714(c)(1). (84.) New Mexico v. Watkins, 969 F.2d 1122, 1125 (D.C. Cir. 1992). The actual withdrawal order was not as clear as the congressional report in providing that "[t]his order does not authorize the use or occupancy of the lands . . . for the transportation, storage, or burial of any radioactive materials . . . ." PLO 6403, [paragraph] 5, 48 Fed. Reg. 31,038-39 (1983). Nevertheless, Interior consistently interpreted the order to preclude experimentation with nuclear waste. Watkins, 969 F.2d at 1125.

(85.) 43 U.S.C. [sections] 1714(c)(1) (1988). (86.) Watkins, 960 F.2d at 1125, 1138 n.16. (87.) H.R. Rep. No. 241, 102d Cong., 1st Sess., pt. 1, at 9 (1991). (88.) Watkins, 969 F.2d at 1125. (89.) 48 Fed. Reg. 31,038-39 (1983). (90.) 138 Cong. Rec. S17,965 (daily ed. Oct 8, 1992) (statement of Sen. Johnston). Theoretically, the surrounding salt will eventually collapse around the waste, isolating it from the external environment The low permeability of the salt formation will prevent leakage and the plasticity of the formation will allow fractures to heal faster. Watkins, 969 F.2d at 1125. (91.) Id. The EPA is responsible for setting requirements for the escape of radioactive materials from nuclear repositories under the Nuclear Waste Policy Act of 1982 (NWPA) [sections] 121(a), 42 U.S.C. [sections] 10141(a) (1988); the Atomic Energy Act of 1954 [sections] 161b, 42 U.S.C. [sections] 2140 (1988); and Reorganization Plan No. 3 of 1970 [sections] 2(a)(6), 42 U.S.C. [sections] 4321 (1988). See 40 C.F.R. [sections] 191.11-.18 (1992 though these standards were vacated in part, DOE and New Mexico agreed to proceed as if the regulations were in effect See Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1258 (1st Cir. 1987); Watkins, 969 F.2d at 1126 n.5. For a discussion of the effect of NWPA on WIPP, see Charles H. Montagne, supra note 70, at 391-395. (92.) New Mexico v. Watkins, 969 F.2d 1122, 1125 (D.C. Cir. 1992). (93.) Id. at 1126. EPA did not necessarily intend to force DOE to perform in-place testing. The regulations provide:

Because of the long time period involved and the nature of the events

and processes of interest, there will inevitably be substantial uncertainties

in projecting disposal system performance. Proof of the future performance

of a disposal system is not to be had in the ordinary sense of

the word in situations that deal with much shorter time frames. Instead,

what is required is a reasonable expectation, on the basis of the record

before the implementing agency, that compliance with [the regulations]

will be achieved. 40 C.F.R. [sections] 191.13(b) (1992). (94.) Watkins, 969 F.2d at 1126. (95.) Id. at 1125-26. (96.) H.R. Rep. No. 241, 102d Cong., 1st Sess., pt. 3, at 14 (1991). (97.) Id. (98.) Id. (99.) Id. (100.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 635 (D. D.C. 1992) (Udall II). (101.) See Distrust of DOE's Waste Management Widespread, Long-Lasting, Advisory Board Says, 24 Env't Rep. (BNA) 416-18 (July 9, 1993); Committee Passes Resolution to Delay Opening of Waste Isolation Pilot Plant, 21 Env't Rep. (BNA) 2,033-34 (Mar. 15, 1991). (102.) H.R. Rep. No. 241, 102d Cong., 1st Sess., pt. 3, at 14 (1991). (103.) New Mexico v. Watkins, 969 F.2d 1122, 1125-26 (D.C. Cir. 1992). (104.) 56 Fed. Reg. 3038 (1991). (105.) Id. (106.) Id. at 3039. (107.) Committee Passes Resolution to Delay Opening of Waste Isolation Pilot Plant, 21 Env't Rep. (BNA) 2033 (Mar. 15, 1991) (suggesting the withdrawal was only a DOE ploy to encourage a quicker legislative resolution). (108.) Id. FLPMA [sections] 204(c)(1) provides that any administrative withdrawal shall be terminated "if the Congress has adopted a concurrent resolution stating that such House does not approve the withdrawal." 43 U.S.C. [sections] 1714(c)(1) (1988). The Supreme Court has held similar legislative veto provisions to be unconstitutional in I.N.S. v. Chadha, 462 U.S. 919 (1983) and Alaska Airlines v. Brock, 480 U.S. 678 (1987). See Timothy R. Baker, Chadka and the Public Lands: Is FLPMA Affected?, 5 Pub. Land L. Rev. 55 (1984); Glicksman, supra note 53, at 4. (109.) 43 U.S.C. [sections] 1714(f). (110.) Id. (111.) Committee Passes Resolution to Delay Opening of Waste Isolation Pilot Plant, 21 Env't Rep. (BNA) 2033-34 (Mar. 15, 1991). (112.) Id. at 2034. Rep. George Miller, vice chairman of the committee, said that "[i]n its zeal to quickly open the WIPP facility, the Bush administration has run roughshod over the Interior Committee, the Congress, and the people of New Mexico." Id. (113.) Interior Proposes 90-day Prohibition on Shipping Nuclear Waste to WIPP Site, 21 Env't Rep. (BNA) 2,147 (April 5, 1991). See supra note 112. (114.) Proposed Modification, 56 Fed. Reg. 13,335 (1991). (115.) New Mexico Attorney General Announces Plan to Ask Court to Block DOE Shipment to WIPP, 22 Env't Rep. (BNA) 1540 (October 11, 1991). At one point, New Mexico senators succeeded in negotiating a bill in which DOE would give $600 million to the state in impact aid, allow the state to conduct safety reviews of the project, and give EPA, not DOE, authority to ensure environmental compliance. Thomas W. Lippman, Energy Dept. Set to Ship A-Waste to New Mexico -- Congress Is Bypassed -- Lawsuits Expected, Wash. POST, Oct. 4, 1991, at A3. (116.) New Mexico Attorney General Announces Plan to Ask Court to Block DOE Shipment to WIPP, 22 Env't Rep. (BNA) 1540 (October 11, 1991). DOE offered to give the state $63 million in economic aid in an effort to prevent a lawsuit. Lippman, supra note 115. In retrospect, DOE did not need to rush the withdrawal because the waste was not ready for shipping. Less Than One Load Of Waste Ready For WIPP, Rocky Mountain News, May 10, 1992, at 17. (117.) DOE Delays Shipments of Low-Level Waste to Waste Isolation Pilot Plant For a Month, 22 Env't Rep. (BNA) 1559-60 (Oct 18, 1991). (118.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 638 (D. D.C. 1992) (Udall II). (119.) Id at 636. See infra notes 124-25 and accompanying text. (120.) 969 F.2d 1122 (D.C. Cir. 1992). (121.) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, [sections] 3005(a), 42 U.S.C. [sections] 6925(a) (1988). Except that under some circumstances, the President may exempt federal facilities from the RCRA permitting requirements. Id, [sections] 6961. (122.) Id. [sections] 6925(e). (123.) Id. [sections] 6925(e)(1). (124.) Walkins, 969 F.2d at 1129. States are authorized to administer the permitting system under 42 U.S.C. [sections] 6926(b). DOE had applied for a permit and was in compliance with the deadlines set by the state of New Mexico. Watkins, 969 F.2d at 1129. (125.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 636 (D. D.C. 1992) (Udall II). DOE conceded that the facility was not in existence on November 19, 1980. Id. n.3. (126.) Cf. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984) (holding that when a court reviews an agency's construction of a statute which it administers, it must first determine whether Congress has directly spoken on the precise question at issue. If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's interpretation is based on a permissible construction of the statute.). (127.) Watkins, 969 F.2d at 1130-31. The provision that defines liquids as "solid wastes" explicitly excludes "source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954." 42 U.S.C. [sections] 6903(27) (1988). (128.) 42 U.S.C. [sections] 6903(5) 9"[H]azardous waste' means a solid waste, or combination of solid wastes . . . ."); see State Authorization to Regulate the Hazardous Components of Radioactive Mixed Wastes Under the Resource Conservation and Recovery Act, 51 Fed. Reg. 24,504 (1986). (129.) Walkins, 969 F.2d at 1131. (130.) DOE Final Rule, 52 Fed. Reg. 15,937, 15,940 (1987) (codified at 10 C.F.R. [sections] 962). DOE obviously took a different position at trial. (131.) 33 U.S.C. [subsections] 1251-1387 (1986). (132.) DOE Final Rule, 52 Fed. Reg. at 15,940. Under FWPCA, the NRC regulates the radioactive component of pollution and the states regulate the nonradioactive component. Train v. Colo. Pub. Interest Research Group, 426 U.S. 1 1976). (133.) Since RCRA is not DOE's enabling statute, the D.C. Circuit was not required to give the agency's interpretation any deference. Watkins, 969 F.2d at 1131. (134.) Id. at 1131. The Court based this analysis on RCRA [sections] 1006(a), which provides: "Nothing in this chapter shall be construed to apply to . . . any activity which is subject to . . . the Atomic Energy Act of 1954 . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts." 42 U.S.C. [sections] 6905(a) (1988). (135.) New Mexico v. Watkins, 969 F.2d 1122, 1131 (D.C. Cir. 1992). (136.) Id. at 1132; see Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1994). EPA was not officially a party to this litigation and, therefore, did not take a position. (137.) 40 C.F.R. [sections] 261.2(a)(3)(iv) (1991) (RCRA treats a "mixture of solid waste' and one or more [regulated] hazardous waste as a hazardous waste), vacated and remanded, Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991); 40 C.F.R. [sections] 261.3(c)(2)(i) (1991) ("any solid waste generated from the treatment, storage, or disposal of hazardous waste ... is a hazardous waste"). (138.) Chem. Waste Management v. EPA, 869 F.2d 1526 (D.C. Cir. 1989). The definition of "solid waste" explicitly includes 'solid, liquid, semisolid, or contained gaseous material . . . ." 42 U.S.C. [sections] 6903(27) (emphasis added). (139.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 637 (D. D.C. 1992) (Udall II) (holding that mixed hazardous and radioactive wastes "retain their "hazardous" character). (140.) Carbon tetrachloride, methylene chloride, tetrachloroethylene, 1,1,1-trichloroethane, trichloroethylene, mercury, xylene, and methyl alcohol. Id. (141.) Hazardous Waste Management System Identification and Listing of Hazardous Waste, 40 C.F.R. pt 261 (1980). (142.) Udall II, 783 F. Supp. at 637. (143.) Id. (144.) New Mexico v. Watkins, 969 F.2d 1122, 1132 (D.C. Cir. 1992). (145.) Id. at 1132; see supra note 141. (146.) State Authorization 51 Fed. Reg. 24,504 (1986). Section 3006(b) of RCRA, 42 U.S.C. [sections] 6926(b) (1987), allows states to administer and enforce a hazardous waste program. (147.) State Authorization, 51 Fed. Reg. 24,504 (1986). (148.) Id. (emphasis added). (149.) Clarification of Interim Status Qualification Requirements for the Hazardous Components of Radioactive Mixed Waste, 53 Fed. Reg. 37,045 (1988). (150.) 42 U.S.C. [sections] 6925(e)(1)(A)(ii). (151.) Clarification of Interim Status, 53 Fed. Reg. 37,045, 37,046 (1988). (152.) Id. (153.) New Mexico ex rd Udall v. Watkins, 783 F. Supp. 633, 636-37 (D. D.C. 1992) (Udall II). EPA could not disagree. In a 1986 notice, the agency specifically stated that it was not promulgating a regulation. State Authorization, 51 Fed. Reg. 24,504 n.2 (1986). (154.) Udall II, 783 F. Supp. at 636-37. (155.) Id. at 637. Since the District Court had already found that radioactive mixed waste was regulated under RCRA since 1980 (based on EPA's mixture rule), id., the court's interpretation of the regulatory change issue was dictum. (156.) New Mexico v. Watkins, 969 F.2d 1122, 1132-33 (D.C. Cir. 1992). The court apparently did not think Congress was referring only to regulations when it used the word "regulatory." Id. (157.) Id. at 1133; see Chevron, 467 U.S. at 845. In its 1988 clarification, EPA stated that regulatory changes encompass "official pronouncement[s] to the general public" that EPA would enforce the RCRA permitting requirements for specific types of waste. Clarification of Interim Status, 53 Fed. Reg. at 37,046. Such reasoning is seriously flawed, however. A regulatory change cannot be created by EPA's discretionary decision to enforce the statute. In order to accomplish a regulatory change, EPA must apply the RCRA permitting requirements to facilities which had not previously been covered by the statute.

RCRA grants interim status to those facilities which were "in existence on the effective date of statutory or regulatory changes ... which render the facility subject to the requirement to have a permit." 42 U.S.C. [sections] 6925(e)(1)(A)(ii) (1988) (emphasis added). All facilities which treat, store, or dispose of hazardous waste must have a RCRA permit, id. [sections] 6925(a), regardless of whether or not EPA chooses to enforce that requirement. The regulations do provide a few explicit exemptions from the permitting requirements. See 40 C.F.R. [sections] 270.1 (c)(2) (1991). According to the EPA, the permitting requirement even applies to interim status facilities.

The district court cited an EPA memorandum entitled "EPA Guidelines re: Interim Status" (May 11, 1981) which stated that an EPA determination that a facility qualifies for interim status only reflects the agency's decision not to take enforcement action against the facility. Udall II, 783 F.supp. at 637 n.4. When EPA brings an enforcement action the agency implicitly makes a determination that RCRA requires facility to have a permit. Indeed, if EPA determines that RCRA does not cover the facility, the agency has no authority to require the permit. Thus, EPA cannot make an enforcement decision which will render a facility subject to the permitting requirement, the facility must already be subject to the permitting requirement under RCRA before the agency can bring the action. (158.) Watkins, 969 F.2d at 1133. (159.) Id. (160.) "The legislative history surrounding the amendment is scant, but presumably Congress sought to allow facilities to continue operations, instead of forcing their immediate shut down . . . ." Id. (emphasis added). (161.) DOE and the district court had interpreted RCRA as always applying to radioactive mixed wastes. See supra note 146 and accompanying text. (162.) This conclusion assumes that WIPP was in existence on the date the EPA made this determination. The D.C. Circuit expressly refused to decide when WIPP came into existence. New Mexico v. Watkins 969 F.2d 1122, 1130 (D.C. Cir. 1992). (163.) Id. at 1133. (164.) Udall II, 783 F. Supp. at 638; 43 U.S.C. [sections] 1714(a) (1988). (165.) FLPMA provides: "the Secretary is authorized to make, modify, extend or revoke withdrawals but only in accordance with the provisions and limitations of this section." 43 U.S.C. [sections] 1714(a) (emphasis added). (166.) Udall II, 783 F. Supp. at 638; 43 U.S.C. [sections] 1714(f). (167.) 43 U.S.C. [sections] 1714(f). (168.) Udall II, 783 F. Supp. at 638. (169.) Id. n.8. (170.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 638 (D. D.C. 1992) (Udall II). (171.) Id.; 43 U.S.C. [sections] 1714(f). (172.) PLO 6232, 47 Fed. Reg. at 13,340 (1982). (173.) PLO 6403, 48 Fed. Reg. at 31,038-39 (1983). Essentially, this order modified PLO 6232 to allow for construction and extended the withdrawal for another year. Hence, by issuing an overlapping withdrawal, the Secretary of Interior avoided the limitation on extensions in FLPMA. 43 U.S.C. [sections] 1714(f) (1988). (174.) Paragraph five provides: "This order does not authorize the use or occupancy of the lands hereby withdrawn for the transportation, storage, or burial of any radioactive materials, except as to radiological instruments normally used for nondestructive testing and geophysical logging." PLO 6403, 48 Fed. Reg. at 31,038-39 (1983). (175.) Udall II, 783 F. Supp. at 639. The court should simply have interpreted "construction" as not encompassing a test phase. No extension would be possible because the construction purpose did not require the extension. (176.) 43 U.S.C. [sections] 1714(f). (177.) WIPP Authorization Act, Pub. L. No. 96-164, [sections] 213(a), 93 Stat. 1259, 1265,66 (1979), codified at 42 U.S.C. [subsections] 7272-7273. (178.) PLO 6403, 48 Fed. Reg. 31,038 (1983). (179.) New Mexico v. Watkins, 969 F.2d 1122, 1134 (D.C. Cir. 1992). (180.) Id. at 1126. (181.) 42 U.S.C. [sections] 10141(a) (1988). For a discussion of the effect of NWPA on the WIPP facility, see Montange, supra note 70, at 391-95. (182.) See 40 C.F.R. [sections] 191.11-.18 (1992), supra notes 91-92 and accompanying text (183.) Watkins, 969 F.2d at 1134. (184.) Id. (185.) Id. at 1134-35. (186.) 48 Fed. Reg. 31,038-39 (1983). See supra notes 83-89 and accompanying text. (187.) New Mexico v. Watkins, 969 F.2d 1122, 1134-35 (D.C. Cir. 1992). DOE's argument was hopelessly circular. Before DOE could begin to demonstrate that the disposal of radioactive materials was feasible at WIPP, DOE would have to perform testing to show that the disposal of radioactive materials was feasible at WIPP. (188.) Id. The court did not mention Udall v. Tallman, 380 U.S. 1, 18 (1965), where the Supreme Court said it would uphold the Secretary of Interior's interpretation of his own order if not unreasonable, and "if the language of the orders bears his construction." Nonetheless, the D.C. Circuit concluded that DOE's interpretation was unreasonable and that the language would not bear such a construction. Further, the order DOE was attempting to interpret was not a DOE order, but an order of the Secretary of Interior. Consequently, DOE was not entitled to any interpretive deference. Watkins, 969 F.2d at 1134-35. (189.) 43 U.S.C. [sections] 1714(a) (1988). See supra notes 167-169 and accompanying text. (190.) Watkins, 969 F.2d at 1135. But see supra notes 173-174 and accompanying text. (191.) Id. (192.) Id. (193.) 43 U.S.C. [sections] 1714(f). See supra notes 168-171 and accompanying text. (194.) New Mexico v. Watkins, 969 F.2d 1122, 1135 (D.C. Cir. 1992). (195.) 43 U.S.C. [sections] 1714(f). (196.) Watkins, 969 F.2d at 1135. (197.) Such as the Desert Lands Act of 1877, 43 U.S.C. [subsections] 321-39 (1988). (198.) Watkins, 969 F.2d at 1135. (199.) 43 U.S.C. [sections] 1702(j). (200.) Watkins, 969 F.2d at 1136. (201.) Id. at 1135. Yet, if the court is correct, then section 204(f) only applies to those withdrawals that include reservations. It does not apply to the other types of withdmwals defined in section 103(j) such as those which merely limit activities on public lands or transfer jurisdiction between federal agencies. Other than the use of the word "purpose", section 204(f) provides no support for such a conclusion. See 43 U.S.C. [sections] 1714(f). (202.) 43 U.S.C. [sections] 1714(c)(2)(1) (1988). (203.) Id. [sections] 1714(c)(2)(2). (204.) New Mexico v. Watkins, 969 F.2d 1122, 1135 (D.C. Cir. 1992). (205.) Id. at 1136. (206.) 43 U.S.C. [sections] 1714(c)(1). (207.) Id. [sections] 1714(c)(2). (208.) Extensions may be made "only upon compliance with the provisions of subsection (c)(1) or (d)." Id. [sections] 1714(f). (209.) Watkins, 969 F.2d at 1136. The court observed that the Secretary was not required to file an additional report for modifications of a withdrawal. Because the original withdrawal had expired, the court did not reach the issue of whether such a report would be required if the modification contravened the original purpose. Id. at 1136 n. 15. (210.) Id. at 1136. (211.) Id. (212.) New Mexico ex rel. Udall v. Watkins, 783 F. Supp. 633, 639 (D. D.C. 1992) (Udall II). The court also granted EDF's motion for summary judgment on the RCRA interim status issue. Id. (213.) New Mexico v. Watkins, 969 F.2d 1122, 1136-37 (D.C. Cir. 1992). (214.) 456 U.S. 305 (1982). (215.) Id at 314. The Navy was dropping bombs near a small island off Puerto Rico. Id. at 309. The Federal Water Pollution Control Act (Clean Water Act) prohibits any discharge of a pollutant into the navigable waters of the United States. See 33 U.S.C. [sections] 1311(a) (1988). The district court found that the bombs were pollutants but refused to enjoin the Navy while it applied for a Clean Water Act permit because the Navy's "technical violations" of the Clean Water Act were not appreciably harming the environment Barcelo v Brown, 478 F. Supp. 646, 706 (D. P.R. (1979). The district court also found that restraining the Navy would cause "grievous, and perhaps irreparable harm" to the Navy and the general welfare of the Nation. Id at 707. Finally, the district court reasoned that an injunction was not necessary to ensure prompt compliance with the Clean Water Act. Id. (216.) Weinberger, 456 U.S. at 314. (217.) Endangered Species Act of 1973, 16 U.S.C. [sections] 1531-1544 (1988). (218.) 437 U.S. 153 (1978). TVA wanted to close the Tellico Dam, which allegedly would have destroyed the critical habitat of the snail darter, an endangered species. Id. at 161. (219.) Weinberger, 456 U.S. at 314. (220.) The court noted that fines and criminal penalties are provided for in the Clean Water Act. Id.; 33 U.S.C. [subsections] 1319(c)-(d). However, section 11 of the ESA also provides for fines and criminal penalties to any person who "knowingly violates . . . any provision of this chapter." 16 U.S.C. [sections]1540(a)-(b). Notably, Clean Water Act fines and criminal penalties cannot be assessed against the Navy because of sovereign immunity for past violations. See U.S. Dep't of Energy v. Ohio, 112 S.Ct 1627, 1631 (1992). Therefore, an injunction is the only method of enforcing the provisions of either statute against a government agency. (221.) Hill, 437 U.S. at 173. The ESA prohibits federal agencies from destroying the critical habitats of endangered species. ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2). (222.) Weinberger, 456 U.S. at 314-15. (223.) New Mexico v. Watkins, 969 F.2d 1122, 1137 (D.C. Cir. 1992). (224.) See 43 U.S.C. [sections] 1701(a)(4) (1988). (225.) Watkins, 969 F.2d at 1136. (226.) Id. (227.) "By reducing, without right, the notice and opportunity for Congress to intervene, the agencies have not violated FLPMA in a trivial way. Rather, they have disregarded clear legislative directions on a matter fundamental to the Act." Id. at 1137. But see Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760 (9th Cir. 1986). hi that case, the Secretary had said the lands would be congressionally withdrawn. When Congress failed to act, the Secretary withdrew them administratively for twenty years. The Ninth Circuit found that the two types of withdrawals would have resulted in the same public comments and that although this was a technical violation of FLPMA's notice requirement, it was a harmless error, since the public participation purpose of the section was fulfilled. Sagebrush Rebellion, 790 F.2d at 766. (228.) The court said that the oversight scheme is a separation of powers concern which cannot be remedied by money damages, assuming they were available. Watkins, 969 F.2d 1137. The court also said that money damages would not be responsive to the environmental concerns raised in this case, id., possibly referring to the unresolved environmental compliance questions with which Congress was dealing, see supra note 101 and accompanying text, or to the fact that the waste would be difficult to retrieve once it is deposited in the underground vaults. Watkins, 969 F.2d at 1138 n. 16. (229.) 43 U.S.C. [sections] 1714(c)(1) (1988). These "legislative veto" provisions may be unconstitutional. See I.N.S. v. Chadha, 462 U.S. 919 (1983). (230.) New Mexico v. Watkins, 969 F.2d 1122, 1137 (D.C. Cir. 1992). (231.) Id. (232.) Id. In fact, DOE did not even have a full shipment of waste ready to deliver to WIPP at the time of the decision. Less Than One Load Of Waste Ready For WIPP, Rocky Mountain News, May 10, 1992, at 17. (233.) 43 U.S.C. [sections] 1701(a)(4). (234.) Watkins, 969 F.2d at 1137. (235.) The new withdrawal occurred on January 28, 1991, six months before the 1983 withdrawal expired on July 6, 1991. However, when the House Committee on Interior and Insular Affairs threatened to veto the withdrawal, Interior agreed to postpone waste disposal until June 30, 1991 to allow for a legislative solution. The postponement lasted until October 3, 1991. See supra notes 107-19 and accompanying text. (236.) New Mexico Attorney General Announces Plan to Ask Court to Block DOE Shipment to WIPP, 22 Env't Rep. (BNA) 1540 (October 11, 1991). (237.) Senate bill S. 1671 was passed on Nov. 5, 1991. 137 Cong. Rec. S15,990 (daily ed. November 5, 1991); see also Senators Chosen For Conference Committee That Will Consider Legislation to Open WIPP, 23 Env't Rep. (BNA) 1114 (July 31, 1992). (238.) The three versions of House bill H.R 2637 originated in the House Committee on Interior and Insular Affairs (reported October 7, 1991), the House Committee on Armed Services (reported November 26, 1991), and the House Committee on Energy, and Commerce (reported November 27, 1991). The Committees differed as to whether the withdrawal should be temporary or permanent, whether DOE or Interior would be responsible for managing the surface lands, the deadlines for EPA re-promulgation of the TRU disposal regulations, state "impact-aid" payments, and the extent of regulatory authority given to EPA and New Mexico. Rewrites of Hazardous Waste, Water Pollution Laws Top 1992 Congressional Agenda, 22 Env't Rep. (BNA) 2192, 2198 (January 24, 1992). (239.) 138 Cong. Rec. H6328 (daily ed. July 21, 1992); see also House Passes Bill to Transfer Land at WIPP; Facilitates Shipments of Transuranic Waste, 23 Env't Rep. (BNA) 915 (July 24, 1992). (240.) New Mexico Attorney General Announces Plan to Ask Court to Block DOE Shipment to WIPP, 22 Env't Rep. (BNA) 1540 (Oct. 11, 1991). (241.) Id. The economic aid was aimed at compensating the state for emergency preparedness and response costs, and the highway funds would allow the states to build and improve the roads on which the waste shipments travelled. Id. (242.) H.R. 2637, 102d Cong., 1st Sess. [sections] 14(a)(1); see also 23 Env't Rep. (BNA) 915 (July 24, 1992). (243.) S. 1671, 102d Cong., 1st Sess. [sections] 11(a); see also 23 Env't Rep. (BNA) 915 (July 24, 1992). (244.) 138 Cong. Rec. S18,259, S18,269 (daily ed. October 29, 1992); Waste Isolation Pilot Plant Land Withdrawal Act (WIPP Act), Pub. L. No. 102-579, 106 Stat. 4777 (1992). (245.) Id. [sections] 15(a)-(b). (246.) Deborah S. Reames, one of the attorneys representing environmental and congressional plaintiffs in the lawsuit was pleased with the court's ruling because it placed several important decisions in the hands of Congress and EPA rather than DOE, "whose record of environmental protection is hardly reassuring." Ban on Shipments to WIPP Upheld by Court; Facility Found Eligible for RCRA Interim Status, 23 Env't Rep. (BNA) 887 (July 17, 1992). Distrust over DOE's radioactive waste management activities is not limited to the WIPP project but is pervasive across the country. See Distrust of DOE Waste Management Widespread, Long-Lasting, Advisory Board Says, 24 Env't Rep. (BNA) 416 (July 9, 1993). The attempt to bypass Congress with the WIPP administrative withdrawal has further eroded public trust in DOE. Id. (247.) New Mexico Attorney General Announces Plan to Ask Court to Block DOE Shipment to WIPP, 22 Env't Rep. (BNA) 1540 (Oct. 11, 1991). The Senate bill set up an iterative, informal process of EPA review and concurrence over test phase activities. 138 Cong. Rec. S17,956 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston). (248.) New Mexico v. Watkins, 969 F.2d 1122, 1129 (D.C. Cir. 1992). (249.) WIPP Act [sections] 5. Amy E. Newman, chief of the Policy and Emergency Response Branch of EPA's Office of Radiation and Indoor Air said that DOE was late in submitting relevant data on the test and retrieval plan. However, DOE promise to submit a final plan by August 20, 1993. Testing of Transuranic Waste at WIPP Delayed Until Summer of 1994 at Earliest, 24 Env't Rep. (BNA) 454 (July 16, 1993). (250.) WIPP Act [sections] 6(b)(3). (251.) Id. [sections] 9(a)(2). (252.) Id. [sections] 9(b). New Mexico cannot explicitly force a remedial plan but it can make a determination of noncompliance. Id. [sections] 9(a)(3). (253.) Id. [sections] 8(e). (254.) Id. [sections] 10(c). (255.) 40 U.S.C. [subsections] 7401-7671q (1988 and Supp. H 1990). (256.) WIPP Act [subsections] 9(d), 14. (257.) These regulations also cover disposal of spent nuclear fuel and high-level radioactive waste. (258.) Natural Resources Defense Council v. EPA, 824 F.2d 1258, 1293-94 (1st Cir. 1987). EPA's regulations on the treatment of radioactive waste are divided into two parts. See 42 U.S.C. [sections] 10141(a) (1988); 40 C.F.R. [sections] 191 (1992). The subpart A standards for management and storage of the wastes, which would apply to the test phase, have been in effect since 1985. The First Circuit vacated and remanded the subpart B standards governing the final disposal of the waste on procedural grounds and because the agency had not adequately explained inconsistencies between the regulations and EPA's safe drinking water standards. Natural Resources Defense Council v. EPA, 824 F.2d at 1293-94. The remand was not an issue in Watkins because all of the parties agreed to proceed as if the regulations were in effect New Mexico v. Watkins, 969 F.2d 1122, 1126, n.5 (D.C. Cir. 1992). (259.) WIPP Authorization Act [sections] 213(a). (260.) 138 Cong. Rec. S17,955, S17,957 (daily ed. Oct. 8, 1992) (statement of Sen. Domenici). (261.) H.R. Rep. No. 241, 102d Cong., 1st Sess., pt. 1, at 11 (1991). (262.) 138 Cong. Rec. S17,955, S17,957 (daily ed. Oct. 8, 1992) (statement of Sen. Domerici). (263.) 138 Cong. Rec. S17,965, S17,956 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston) and S17,957 (statement of Sen. Domenici). (264.) WIPP Act [sections] 8(a); see also 138 Cong. Rec. S17,955, S17,956 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston). (265.) WIPP Act [sections] 8(b)(1). EPA did not meet these deadlines. The agency issued proposed standards on February 10, 1993 and expected to publish final regulations by August, 1993, almost four months late. Environmental Radiation Protection Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes, 58 Fed. Reg. 7924 (1993) (to be codified at 40 C.F.R. pts. 144 and 191). However, DOE has also been tardy in meeting its rule making obligations under the statute. Testing of Transuranic Waste at WIPP Delayed Until Summer of 1994 at Earliest, 24 Env't Rep. (BNA) 454 (July 16, 1993). (266.) 138 Cong. Rec. S17,955, S17,956 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston). (267.) Id. (268.) Id.; WIPP Act [sections] 5(d)(1). (269.) WIPP Act [sections] 6(b)(2). (270.) See supra note 1. (271.) U.S. Const. art. IV, [sections] 3, cl. 2. (272.) New Mexico v. Watkins, 969 F.2d 1122, 1136 (D.C. Cir. 1992). (273.) See supra notes 24145 and accompanying text. (274.) See supra notes 248-56 and accompanying text.

Samuel D. Rauch, III, Student, Northwestern School of Law of Lewis and Clark College, J.D. expected 1994; M.S. in Forest Resources 1991, University of George B.A. in Chemistry and Environmental Science 1989, University of Virginia; Chief Law Clerk, U.S. Attorney's Office, District of Oregon. The author extends his to Professor Michael Blumm for his comments and suggestions.

This manuscript was written by Mr. Rauch in his private capacity, and no official support or endorsement by the U.S. Attorney's Office, or any person within the office, is intended or should be inferred.