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Leboeuf, Lamb, Greene & Macrae, LLP v. Abraham

May 17, 2001

LEBOEUF, LAMB, GREENE & MACRAE, LLP, PLAINTIFF,
v.
SPENCER ABRAHAM, SECRETARY OF ENERGY, AND UNITED STATES DEPARTMENT OF ENERGY, DOCUMENT NO.: 18 DEFENDANTS, AND WINSTON & STRAWN, INTERVENOR DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

MEMORANDUM OPINION

Denying the State of Nevada's Motion to Intervene;

Granting the State of Nevada Permission to Participate as Amicus Curiae

I. INTRODUCTION

Ninety miles northwest of Las Vegas, extending six miles north to south, Yucca Mountain rises over the Amargosa Desert like an ocean crest. Formed by ancient volcanic eruptions, Yucca Mountain resembles a ridge more than a mountain, reaching heights of just 1,200 feet above sea level. This barren volcanic ridge straddles the southwestern perimeter of the Nevada Test Site, where the United States has detonated more than 900 bombs since 1950, when President Truman designated Nevada as the nation's continental site for testing nuclear weapons. Now, more than fifty years after the detonation of the first bomb, the United States is poised to recreate a nuclear landscape in Nevada. In one of the largest government projects in the history of the United States, Congress has selected Yucca Mountain as the burial site for thousands of tons of high-level radioactive waste and spent nuclear fuel.

This litigation does not deal with the suitability of burying nuclear waste in Yucca Mountain per se. Rather, it involves allegations of bias and conflicts-of-interest between the reviewing law firm of the Yucca Mountain Project and a subcontractor creating scientific studies about the Project. The plaintiff, the law firm of LeBoeuf, Lamb, Greene & MacRae, LLP ("LeBoeuf"), alleges that the Department of Energy ("DOE") acted in an arbitrary, capricious, and illegal manner by awarding a legal-services contract to the law firm of Winston & Strawn ("Winston"). See Mot. for Prelim. Inj. at 1. According to LeBoeuf, Winston's representation of two DOE contractors, including DOE's prime contractor, TRW Environmental Safety Systems, Inc. ("TRW"), created an impermissible conflict of interest that should have disqualified Winston from the bidding. See id. LeBoeuf and Winston were the only bidders for this work, and both received a perfect score from DOE. See id.

LeBoeuf began this litigation on March 27, 2000 in the District of Nevada, seeking to preliminarily enjoin Winston's performance of the contract. Thereafter, Winston moved to intervene in the matter, as did the State of Nevada, through its Agency for Nuclear Projects ("State" or "Nevada"). The Nevada court granted Winston's motion to intervene but, for reasons that are unclear, did not rule on Nevada's motion to intervene or on LeBoeuf's motion for a preliminary injunction. On February 3, 2001, more than ten months after the case was filed, the Nevada court transferred the case to this court, with Lebouef's motion for preliminary injunction and Nevada's motion to intervene still pending. The sole purpose of this opinion is to resolve Nevada's motion to intervene. For the reasons that follow, the court will deny Nevada's motion to intervene. The court, however, will allow Nevada to participate in this matter as an amicus curiae.

II. BACKGROUND

A. Nevada's Motion to Intervene

On May 9, 2000, the State of Nevada, through its Agency for Nuclear Projects, moved to intervene as a plaintiff in this case. Under its state law, Nevada has a statutory mandate to represent the people of Nevada in all matters related to the Yucca Mountain Project. See Nev. Revised Statutes ("NRS") §§ 459.0093-459.0098. Nevada also has federal statutory rights to participate in certain decisions relating to the repository. For example, Nevada has the right to veto any presidential decision to proceed with repository development, subject to congressional override. See 42 U.S.C. § 10135. Nevada also has the right to participate as an interested state in licensing proceedings before the Nuclear Regulatory Commission ("NRC"). See id. § 2021(1).

In support of its motion to intervene, Nevada argues that a conflict of interest between Winston and TRW could jeopardize objective, independent review of the Yucca Mountain Project before the NRC. See Mot. to Intervene at 3. According to Nevada, "[i]mproper siting, construction and operation of the repository pose undeniable threats to Nevada's fragile desert environment and its resources, its tourist-based economy, its tax base from loss of revenues and the general health and safety of its citizens for thousands of years." Id. at 4. Nevada further argues that because it will be "a key participant" in NRC licensing proceedings, and because it has federal rights to participate in decisions that relate to the repository, it has a significant public interest in the subject matter of this case, and therefore should be permitted to intervene. See id.

LeBoeuf agrees that Nevada needs to participate in this case to protect its interest in the conflict issues. See Pl.'s Response to Nevada Mot. to Intervene ¶ 4. By contrast, both DOE and Winston oppose Nevada's motion to intervene. They define the subject of this litigation narrowly--as a bid protest action--in which, they contend, Nevada has no significant protectable interest. For example, DOE argues that "the Yucca Mountain Project is not the subject of this lawsuit... LeBouef's complaint has nothing to do with the 'operation and construction' of the Yucca Mountain project, or the 'fairness of future licensing proceedings' before the [NRC]." DOE Opp'n to Mot. to Intervene at 2. For similar reasons, DOE and Winston contend that Nevada lacks Article III standing to intervene in this matter.

Although Nevada's motion to intervene is the only matter now before the court, an overview of the statutory and procedural framework of the Yucca Mountain Project may assist in understanding the current conflict. Accordingly, the court will begin with a brief discussion of the storage of nuclear waste, the Nuclear Waste Policy Act, and the procurement at issue. The court will then address whether Nevada has standing to intervene in this action and whether Nevada meets the requirements for intervention under Federal Rules of Civil Procedure 24(a) and (b).

B. THE YUCCA MOUNTAIN PROJECT

1. THE NUCLEAR WASTE POLICY ...


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