IN RE AIKEN COUNTYNos. 10-1050, 10-1052, 10-1069, 10-1082.
645 F.3d 428 (2011)
In re AIKEN COUNTY, Petitioner.
United States Court of Appeals, District of Columbia Circuit.
Argued March 22, 2011.
Decided July 1, 2011.
Andrew A. Fitz, Assistant Attorney General, Office of the Attorney General for the State of Washington, and Barry M. Hartman argued the cause for petitioners. With them on the briefs were Thomas R. Gottshall, Alexander Shissias, S. Ross Shealy, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Robert M. McKenna, Attorney General, Office of the Attorney General for the State of Washington, Todd R. Bowers, Assistant Attorney General for the State of Washington, Christopher R. Nestor, William Henry Davidson II, Kenneth Paul Woodington, James Bradford Ramsay and Robin J. Lunt. Michael A. Bauser and Anne W. Cottingham were on the brief for amicus curiae Nuclear Energy Institute in support of petitioners. Ellen J. Durkee, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Robert Dreher, Principal Deputy Assistant Attorney General, Lisa E. Jones, Aaron P. Avila, and Allen Brabender, Attorneys, U.S. Department of Justice, John F. Cordes Jr., Solicitor, Nuclear Regulatory Commission, Charles E. Mullins, Senior Attorney, Nuclear Regulatory Commission, and Jeremy M. Suttenberg, Attorney, Nuclear Regulatory Commission. Martin G. Malsch, Charles J. Fitzpatrick, and John W. Lawrence were on the brief for intervenor State of Nevada in support of respondents.
Before: SENTELLE, Chief Judge, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
Concurring opinion filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge KAVANAUGH.
SENTELLE, Chief Judge:
Three state and local governmental units, along with individual citizens, petition this court for review of and other relief from two "determinations" made by the Department of Energy ("DOE") and the other respondents: the DOE's attempt to withdraw the application it submitted to the Nuclear Regulatory Commission ("NRC" or the "Commission") for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and the DOE's apparent decision to abandon development of the Yucca Mountain nuclear waste repository. Because we believe that Petitioners' two claims are, respectively, not ripe for judicial determination and not justiciable by this court, we dismiss the petitions for lack of jurisdiction.
This case once again brings before this court the federal government's controversial ongoing attempt to devise a permanent solution to the problems of civilian radioactive waste disposal. See, e.g., Nevada v. DOE,
Congress imposed that responsibility upon the federal government in 1983 when it enacted the NWPA, Pub.L. No. 97-425, 96 Stat. 2201 (1983) (codified as amended at 42 U.S.C. §§ 10101-270). Recognizing that "Federal efforts during the past 30 years to devise a permanent solution to the problems of civilian radioactive waste disposal [had] not been adequate," 42 U.S.C. § 10131(a)(3), Congress passed the NWPA "to establish a schedule for the siting, construction, and operation of repositories" for the disposal of spent nuclear fuel and high-level radioactive waste. 42 U.S.C. § 10131(b)(1). As originally enacted, the NWPA set forth a process by which the DOE would first identify five repositories "determine[d] suitable for site characterization for selection of the first repository site." 42 U.S.C. § 10132(b)(1)(A). After performing environmental assessments of each of those first five potential sites, the NWPA required the DOE to recommend three of the sites to the President for characterization as candidate sites no later than January 1, 1985. 42 U.S.C. § 10132(b)(1)(B), (E). In 1987, after the DOE had recommended the Yucca Mountain site as well as sites in Washington and Texas to the President, Congress short-circuited the original process and amended the NWPA to designate Yucca Mountain as the only site for possible development as a repository. Congress ordered the DOE to "provide for an orderly phase-out of site specific activities at all candidate sites other than the Yucca Mountain site." 42 U.S.C. § 10172(a)(1).
After Congress specified Yucca Mountain as the sole potential location for the nation's nuclear waste repository, the DOE moved on to the site characterization, approval, review, and licensing phase of the process created by the NWPA. See 42 U.S.C. §§ 10133-38. Over the next fifteen years, the DOE performed site characterization activities at Yucca Mountain, and in 2002, the DOE recommended "that Yucca Mountain be developed as the site for an underground repository for spent fuel and other radioactive wastes." Recommendation by the Secretary of Energy Regarding the Suitability of the Yucca Mountain Site for a Repository Under the Nuclear Waste Policy Act of 1982 at 1 (Feb. 2002).
The NWPA next directed the DOE to "submit to the Commission an application for a construction authorization for a repository at such site." 42 U.S.C. § 10134(b). Although the NWPA required that the DOE submit this application within ninety days of the site designation becoming effective, id., the DOE did not submit the Yucca Mountain application for another six years. Finally, on June 17, 2008, the DOE submitted the application and the Commission docketed it for review by its Atomic Safety and Licensing Board ("Licensing Board"). See Department of Energy; Notice of Acceptance for Docketing of a License Application for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain, NV, 73 Fed.Reg. 53,284 (Sept. 15, 2008). The NRC's Licensing Board began its review of the Yucca Mountain application, but on March 3, 2010, the DOE filed a motion to withdraw its application with prejudice. See Dep't of Energy Motion to Withdraw, In re U.S. Dep't of Energy (High-Level Waste Repository), Docket No. 63-001, ASLBP No. 09-892-HLW-CAB04 (United States Nuclear Regulatory Commission) (Mar. 3, 2010). In its motion, the DOE stated that although it "reaffirms its obligation to take possession and dispose of the nation's spent nuclear fuel and high-level nuclear waste, the Secretary of Energy has decided that a geologic repository at Yucca Mountain is not a workable option for long-term disposition of these materials." Id. at 1. The DOE clarified that it sought to dismiss the application with prejudice "because it does not intend ever to refile an application to construct a permanent geologic repository . . . at Yucca Mountain." Id. at 3 & n. 3.
On June 29, 2010, the NRC Licensing Board denied the DOE's motion to withdraw. Order of Atomic Safety and Licensing Board, In re U.S. Dep't of Energy (High-Level Waste Repository), Docket No. 63-001, ASLBP No. 09-892-HLW-CAB04 (United States Nuclear Regulatory Commission) (June 29, 2010). Noting that the DOE conceded that the Yucca Mountain license application was not defective nor the site unsafe, the Licensing Board concluded that the NWPA "does not permit the Secretary [of the DOE] to withdraw the Application that the NWPA mandates the Secretary file." Id. at 3. In denying the DOE's motion, the Licensing Board held that "the NWPA does not give the Secretary the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit." Id. The next day, the Secretary of the Commission invited all of the participants before the Licensing Board to file briefs as to whether the Commission should review, reverse, or uphold the Licensing Board's decision to deny the DOE's motion to withdraw. Order, In re U.S. Dep't of Energy (High-Level Waste Repository), Docket No. 63-001-HLW (United States Nuclear Regulatory Commission) (June 30, 2010). At this time, both the NRC Licensing Board's review of the DOE Yucca Mountain license application and the Commission's review of
Petitioners identify the DOE's attempt to withdraw its Yucca Mountain license application from consideration by the NRC Licensing Board as the "determination" they seek to have us review. Petitioners argue that the DOE lacks the legal authority to withdraw its application and that the DOE's attempt to do so violates the NWPA. Petitioners' second claim challenges a different "determination:" the DOE's efforts outside of the NRC licensing context "to irrevocably abandon the Yucca Mountain process and terminate the entire Yucca Mountain project." Brief of Petitioners at 42. As evidence that the DOE is abandoning the Yucca Mountain site, Petitioners point to an array of DOE actions including announcing on January 29, 2010 that the DOE was abandoning the Yucca Mountain site and creating a Blue Ribbon Commission to find another way of disposing of high level nuclear waste; withdrawing its Yucca Mountain water permit applications from the State of Nevada; repurposing funds appropriated by Congress for Yucca Mountain; notifying employees supporting the Yucca Mountain license application that they may be separated; and drafting plans to shut down the Yucca Mountain site. Petitioners argue that the NWPA does not authorize the DOE to take actions to abandon Yucca Mountain, that abandoning Yucca Mountain without preparing an Environmental Impact Statement violates the National Environmental Policy Act, and that the action should be overturned as arbitrary and capricious agency action under the APA.
In response, the DOE both disputes the merits of Petitioners' claims and argues that this court lacks jurisdiction to hear their petitions. The DOE makes multiple threshold arguments, contending, inter alia, that Petitioners lack standing before this court, that Petitioners' first claim is unripe for judicial review, that Petitioners fail to state a claim upon which relief can be granted, and that there has been no final agency action which would be reviewable by this court. Any one of these arguments, if correct, would establish that this court lacks the authority to grant relief upon these petitions. Because we agree with the DOE that there is, at least, a lack of finality and ripeness until the Commission either acts on the DOE's motion to withdraw or rules on the license application, we hold that we lack jurisdiction and therefore cannot address either the merits of the petitions or the remaining threshold issues.
Ripeness is a justiciability doctrine "`drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.'" Nat'l Park Hospitality Ass'n v. Dep't of Interior,
When we apply the ripeness doctrine to review of agency actions, "`we balance the interests of the court and the agency in delaying review against the petitioner's interest in prompt consideration of allegedly unlawful agency action.'" Toca Producers, 411 F.3d at 265 (quoting Fed. Express Corp. v. Mineta,
In this case, Petitioners fear that the DOE will withdraw its Yucca Mountain license application, significantly delaying or perhaps permanently preventing the construction of the Yucca Mountain repository. If the Yucca Mountain repository never opens, Petitioners argue, the federal government will never remove the nuclear waste temporarily stored within their jurisdictions or near where they live, despite the federal government's responsibility for doing so. This fear is not unreasonable, considering that the NWPA ordered the DOE to "terminate all site specific activities (other than reclamation activities) at all candidate sites, other than the Yucca Mountain site." 42 U.S.C. § 10172(a)(2). But despite the reasonableness of Petitioners' fears, their petitions are premature.
Petitioners' first claim challenges the DOE's attempt to withdraw its Yucca Mountain construction license application from consideration by the Commission. At this stage of the administrative process, however, the DOE has no say in whether the Yucca Mountain license application will be reviewed and granted. That power lies exclusively with the Secretary of the Commission and the NRC Licensing Board, which already denied the DOE's motion to withdraw the license application and still has the responsibility and authority to review the merits of the Yucca Mountain
First, the Commission has not yet decided whether it will review the Licensing Board's denial of the DOE motion to withdraw. If the Commission declines to review the denial, the DOE will have failed in its attempt to withdraw the Yucca Mountain application and Petitioners' first claim will be moot. The same outcome will occur if the Commission chooses to review and then upholds the Licensing Board's denial of the DOE motion. The only way in which Petitioner's first claim will not become moot is if the Commission chooses to review and then reverses the Licensing Board's denial.
Second, independent of the Commission's review of the Licensing Board's denial order, the NRC Licensing Board's consideration of the DOE Yucca Mountain license application has not been completed. Although Petitioners point to evidence that the Commission has suspended the Licensing Board's review, we note that the NWPA requires the Commission to review the application, see 42 U.S.C. § 10134(d) ("The Commission shall consider an application for a construction authorization for all or part of a repository. . . ."), and therefore we must assume that the Commission will comply with its statutory mandate. If the Licensing Board denies the application, consideration of Yucca Mountain as a location for the federal nuclear waste repository will come to an end. Although this outcome will not remedy the harm that Petitioners potentially face—indefinite exposure to the nuclear waste temporarily stored at sites in Washington and South Carolina—the Licensing Board's disapproval of Yucca Mountain on technical and scientific grounds will be a final agency action that Petitioners may challenge under the APA. On the other hand, if the Licensing Board approves the application, the Commission will issue a construction license for Yucca Mountain, which would complete the process mandated in the NWPA and remove the legal basis of Petitioners' first claim (i.e. the failure of Respondents to comply with the process mandated by Congress).
Between the Commission's possible review of the denial order and the Licensing Board's consideration of the Yucca Mountain license application, the only administrative outcome that will fail to resolve the issues presented in Petitioner's first claim would be if the Commission reviews and overturns the Licensing Board's denial, permitting the DOE to withdraw its license application. At that point, petitioners would have the opportunity to demonstrate whether the effects of the DOE action are "`felt in a concrete way by the challenging parties.'" See Devia, 492 F.3d at 424 (quoting Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507). Petitioners' first claim, therefore, is not fit for judicial decision because "it rests upon `contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Id. (quoting Texas v. United States, 523 U.S. at 300, 118 S.Ct. 1257 (internal citations and quotation marks omitted)).
Looking to the other aspect of the prudential ripeness analysis, delaying review of the issues in this case causes little harm to Petitioners' interest in prompt consideration of allegedly unlawful agency action. As we noted above, the NWPA requires the Commission to "issue a final decision approving or disapproving the issuance of a construction authorization not later than the expiration of 3
Having concluded that Petitioners' challenge of the DOE's motion to withdraw is unfit for judicial decision and that Petitioners' interest in prompt consideration of allegedly unlawful agency action will be only minimally harmed by delay, we further conclude that Petitioners' first claim is not ripe and is therefore outside of our jurisdiction.
Petitioners' second claim challenges DOE actions which are simply not reviewable by this court. Petitioners characterize the agency action challenged in their second claim as the "determination made on or about January 29, 2010, by Respondents President Obama, Secretary Chu and DOE to unilaterally and irrevocably terminate the Yucca Mountain repository process mandated by the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270." Agency actions are reviewable by courts of appeal under the terms of 5 U.S.C. § 704. That section delineates reviewable actions as "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court. . . ." Petitioners have failed to identify
The DOE's policy announcement, which has no legal consequence, is not a "final decision or action of the Secretary" or a "final agency action" as required by 42 U.S.C. § 10139(a)(1)(A) and 5 U.S.C. § 704. See Bennett v. Spear,
The NWPA set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE has submitted a construction license application for the Yucca Mountain repository and the Commission maintains a statutory duty to review that application. Despite the respondents' pronouncements and apparent intentions, unless and until Petitioners are able to demonstrate that one of the respondents
BROWN, Circuit Judge, concurring:
I fully concur with the court's opinion. I write separately only to note that after setting the President and his administration firmly in their sights, Petitioners all but ignore the NRC—a named party in this suit and the only agency with an existing obligation under the NWPA. "[O]ur jurisdiction . . . is not limited to situations in which `final action,' as it is commonly understood, has indeed been taken." Sierra Club v. Thomas,
Steve Tetreault, NRC Chairman Says Yucca Mountain Closeout to Include License Panel, LAS VEGAS REV. J., Feb. 2, 2011 (quoting Greg Jaczko). But Petitioners simply do not press this agency inaction claim. Despite months of extensive briefing and protracted questioning at oral argument, Petitioners still see only the President and his administration obstructing their path to judicial review. Nietzsche once remarked that "many are stubborn in pursuit of the path they have chosen, few in pursuit of the goal." Such stubbornness may snatch defeat from the jaws of victory.
KAVANAUGH, Circuit Judge, concurring:
Who in the Executive Branch is ultimately responsible and accountable for deciding whether to terminate the project for storing nuclear waste at Yucca Mountain? Under the text of the Constitution, the answer seems simple: the President of the United States. But it is not so simple. This case illustrates the point. Given the importance and bitterness of the underlying dispute over Yucca Mountain, I think it
The Department of Energy and the Nuclear Regulatory Commission are both agencies in the Executive Branch. See 5 U.S.C. § 105; 42 U.S.C. § 7131 (Department of Energy); 42 U.S.C. § 5841 (Nuclear Regulatory Commission). As a result of the Supreme Court's 1935 decision in Humphrey's Executor v. United States,
This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project. At the President's direction, the Department of Energy decided to withdraw the Yucca Mountain license application and terminate the Yucca Mountain nuclear storage project. A board within the Nuclear Regulatory Commission preliminarily rejected the decision of the Department of Energy (and thus of the President) to withdraw the Yucca Mountain license application. But the full Nuclear Regulatory Commission has yet to decide whether it will approve or reject the decision of the Department of Energy. Because the Commission has not yet acted on the Department of Energy's request, the Court's opinion today properly holds this case unripe under the existing legal framework.
Taking a step back and reading the Constitution, however, it seems odd that the Nuclear Regulatory Commission has the final word within the Executive Branch on this important issue. One would think that the President of the United States controls the Executive Branch and would be able to direct the interpretation of law and exercise of discretion by all agencies in the Executive Branch. See U.S. CONST. art. II. The first 15 words of Article II state quite plainly that "[t]he executive Power shall be vested in a President of the United States of America"—not some of the executive power, but all of it. And Article II later says that the President alone has the authority and responsibility to "take Care that the Laws be faithfully executed." As Professor Amar has summarized, "What Article II did make emphatically clear from start to finish was that the president would be personally responsible for his branch." AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 197 (2005).
The Framers' decision to give the President responsibility for the executive power and to take care that the laws be faithfully executed was not just about the lines on the Executive Branch organizational chart. The Constitution's Framers sought a national government that would be more effective than under the Articles of Confederation (especially in maintaining national security, facilitating economic
The President is dependent on the people for election and re-election, but the officers of agencies in the Executive Branch are not. Presidential control of those agencies thus helps maintain democratic accountability and thereby ensure the people's liberty. See id; see also Bond v. United States, ___ U.S. ___,
Reading only the text of Article II, one would assume that the Nuclear Regulatory Commission would report to the President, not the President to the Nuclear Regulatory Commission. If two agencies in the Executive Branch were not on the same page (as may happen in this case if the Nuclear Regulatory Commission rejects the Department of Energy's withdrawal application), the President presumably would have the authority to resolve that disagreement. If an agency were departing from the President's preferred course (as the Nuclear Regulatory Commission may do), the President presumably would have the authority to prevent that. And if an agency were taking too long to make a critical legal or policy decision (as appears to be the case with the Nuclear Regulatory Commission), the President presumably would have the authority to fix that as well.
But that conception of the constitutional chain of command turns out to be inaccurate with respect to independent agencies such as the Nuclear Regulatory Commission—a consequence of the Supreme Court's 1935 decision in Humphrey's Executor. In that case, the Supreme Court, over the strenuous objection of President Franklin Roosevelt, upheld the constitutionality of independent agencies—that is, agencies whose heads are removable by the President only for cause, not at will, and that thus operate free of presidential direction and supervision.
President Roosevelt wanted to direct and supervise the Federal Trade Commission in the exercise of its statutorily assigned duties and discretion. In 1933, shortly after taking office, he therefore fired Commissioner William Humphrey, who disagreed with the President's views on antitrust and competition issues. Humphrey sued, arguing that under the FTC
Notwithstanding the text of Article II and Myers, the Supreme Court in Humphrey's Executor sided with Humphrey and ruled that President Roosevelt acted illegally when he fired Humphrey. The Humphrey's Executor Court determined that the President's "simple disagreement with the [independent agency's] policies or priorities" did not "constitute `good cause' for . . . removal." Free Enterprise, 130 S.Ct. at 3157.
Humphrey's Executor thus approved the creation of "independent" agencies— independent, that is, from presidential control and thus from democratic accountability. See Humphrey's Executor, 295 U.S. at 628, 55 S.Ct. 869 (independent agencies "cannot in any proper sense be characterized as an arm or an eye of the executive"); Buckley v. Valeo,
Humphrey's Executor is perhaps best explained by the fact that it was decided in 1935 on what became known as Roosevelt's "Black Monday." It was one in a line of decisions issued in 1935 and 1936—including two others on the same day as Humphrey's Executor—by a Supreme Court seemingly bent on resisting President Roosevelt and his New Deal policies. See Geoffrey P. Miller, Independent Agencies, 1986 SUP.CT. REV. 41, 93 ("Humphrey's Executor, as commentators have noted, is one of the more egregious opinions to be found on pages of the United States Supreme Court Reports."). The other cases in that
But Humphrey's Executor survived. And it lives on.
Because of Humphrey's Executor, the President cannot remove an independent agency's officers when the agency pursues policies or makes decisions the President disagrees with. Because the power to remove is the power to control, the President lacks control over an independent agency—that is, the President lacks the power to direct or supervise an agency such as the Nuclear Regulatory Commission. To be sure, the President has power to cajole. The President also has the power to periodically appoint independent agency heads when the terms of old independent agency heads expire. But the President's power to cajole or to appoint—when not accompanied by the power to remove—is not the power to direct, supervise, or control, as a President or one who has worked for a President could readily explain. As the Supreme Court has stated: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." Bowsher v. Synar,
Because of Humphrey's Executor, the President to this day lacks day-to-day control over large swaths of regulatory policy and enforcement in the Executive Branch—from communications regulation (the FCC) to labor regulation (the NLRB) to securities regulation (the SEC) to nuclear power regulation (the Nuclear Regulatory Commission). Those and many other independent agencies have huge policymaking and enforcement authority and greatly affect the lives and liberties of the American people. Yet those independent agencies are democratically unaccountable—neither elected by the people nor supervised in their day-to-day activities by the elected President.
Whether the President's Yucca Mountain decision, as implemented by his subordinates in the Department of Energy, is in fact consistent with federal statutory law is a hotly disputed question. If it is not consistent with the statutory law, the courts could so rule in an appropriate case. Cf., e.g., Hamdan v. Rumsfeld,
In so doing, the Free Enterprise Court repeatedly emphasized the central role of the President under Article II and the importance of that role to a government that remains accountable to the people. The Court's rhetoric and reasoning are notably in tension with Humphrey's Executor—and, indeed, in tension with the Nuclear Regulatory Commission's having the final word in the Executive Branch on this Yucca Mountain issue:
The Court's various statements in Free Enterprise may be of great significance— as Justice Breyer seemed to suggest in
In addition to Free Enterprise, another recent development has prompted greater attention to the Humphrey's Executor independent agency structure: the uneven effectiveness of some of those agencies. For example, the financial crisis of 2008 obviously caused widespread hardship, and some say that several independent agencies were in part responsible for the collapse. When one presidential candidate in 2008 contended in the midst of the crisis that the President should fire the chairman of the SEC, many responded—with apparent justification, given Humphrey's Executor—that the President had no such power under current law. See, e.g., Jeff Mason, McCain Says He Would Fire Republican SEC Chief Cox, REUTERS (Sept. 18, 2008). As that episode showed, in the Humphrey's Executor-style Executive Branch, the buck doesn't always stop with the President. Cf. THE FEDERALIST NO. 70 (Hamilton) ("A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.").
All of that said, Humphrey's Executor is an entrenched Supreme Court precedent, protected by stare decisis. The point of explaining its history and continuing repercussions here is not to suggest that the case should be overturned. But the fact that courts do and must accept the Humphrey's Executor precedent does not require ignoring the issues of accountability, liberty, and government effectiveness raised by independent agencies.
Various proposals have been advanced to enhance the accountability and effectiveness of independent agencies in a manner consistent with Humphrey's Executor.
For example, writing for four justices, Justice Breyer recently suggested that judicial review under the Administrative Procedure Act's arbitrary and capricious standard perhaps should be more intensive when courts review actions of independent agencies. Justice Breyer noted that the independent agency's "comparative freedom
Others have suggested, given the Article II backdrop, that an agency may be considered independent rather than executive only if Congress has expressly said as much, by placing for-cause limits on removal of the agency head. Indeed, Justice Breyer raised this issue in the Free Enterprise case. See Transcript of Oral Argument at 18, Free Enterprise Fund v. Public Co. Accounting Oversight Bd., ___ U.S. ___,
Moreover, as President Roosevelt suggested in the wake of Humphrey's Executor itself, Congress and the President remain free to craft legislation that would increase the accountability of these agencies by making the agency heads removable at will—accompanied, if Congress chooses, by more tightly drawn substantive statutes so as to prevent excessive delegations of power to the Executive Branch or perceived concentration of power
* * *
I end where I began. This case is a dramatic illustration of the continuing significance and implications of Humphrey's Executor. As a result of Humphrey's Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission.
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