Pending Litigation (2020 Presidential transition)
| Book 1 - Corporate overview
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| Entire 2020 Transition book As of October 2020 |
The Office of General Counsel provides comprehensive legal services to the Secretary, Deputy Secretary, and all Departmental elements, representing the Department as counsel before Federal, State, and other governmental agencies and courts. The following provides a summary list of significant matters currently in litigation involving the Department that are likely to continue into the next Presidential term.
State of Washington Consent Decree Negotiations
In State of Washington v. Brouillette and U.S. Department of Energy (E.D. Wash.), the parties are engaged in mediation regarding a September 4, 2019, letter from DOE informing the State there is a “serious risk” that certain milestones in the amended consent decree may not be met. This case involves an ongoing 2010 consent decree governing the construction and initial operations of the Waste Treatment Plant (“WTP”) at the Hanford Site and the retrieval of mixed waste from 19 single-shell storage tanks at the site, which was entered into to resolve a complaint by the State of Washington against DOE under the Resource Conservation and Recovery Act (“RCRA”) related to missed milestones under the Tri-Party Agreement (“TPA”) that more broadly governs environmental remediation at the Hanford Site.
Washington State Workers’ Compensation Act Challenge
United States v. State of Washington (9th Cir) is a case in which we continue to work with the Department of Justice in challenging the constitutionality of a Washington State workers’ compensation law that is targeted exclusively at Hanford, and which we assert violates the doctrine of intergovernmental immunity under the Supremacy Clause because it discriminates against the Federal Government and those with whom it deals, and directly regulates the Federal Government.
Piketon Litigation
A series of four putative class action lawsuits have been filed, principally against several current and former DOE contractors at the Portsmouth Site for alleged property damage and, in some cases, personal injury, due to purported contamination from radioactive and hazardous materials. The fourth case in this series of lawsuits adds claims against individuals, including two former DOE officials in their individual capacities.
Los Alamos Hazardous Waste Case
Nuclear Watch New Mexico v. U.S. Department of Energy & Los Alamos National Security, LLC (D.N.M.), is an action in which the plaintiff Nuclear Watch New Mexico filed a complaint under the citizen suit provisions of the Resource Conservation and Recovery Act (“RCRA”), alleging that DOE and Los Alamos National Security, LLC (“LANS”), the operator of Los Alamos National Laboratory have failed to comply with various deadlines required by a 2005 Compliance Order on Consent entered into with the New Mexico state regulator. The district court has granted the Government’s motion to dismiss the plaintiff’s claims seeking declaratory and injunctive relief, but denied the motion to dismiss as to those claims seeking monetary penalties for alleged past violations.
Spent Nuclear Fuel Litigation
In accordance with the Nuclear Waste Policy Act, the Department entered into more than 68 Standard Contracts with utilities in which, in return for payment of fees into the Nuclear Waste Fund, the Department agreed to begin disposal of Spent Nuclear Fuel (SNF) by January 31, 1998. Because the Department has no facility available to receive SNF under the NWPA, it has been unable to begin disposal of the utilities’ SNF as required by the contracts. A significant amount of litigation claiming damages for partial breach of contract ensued, and continues, as a result of this delay.
USEC Pension Case
United States Enrichment Corporation v. United States (Fed. Cl.). In this action, USEC filed a complaint alleging breach of contract for the failure to reimburse pension and postretirement benefits costs that USEC incurred performing work for DOE in the amount of $42,805,965 ($35.7 M for pensions and $7.1 M for PRBs).
General Service Incandescent Lamp (GSIL) and General Service Lamp (GSL) litigation
This case concerns the definitions of general service incandescent lamp (GSIL) and general service lamp (GSL) under the Energy Policy and Conservation Act (EPCA). Congress defined the terms in the statute and expressly excluded from their scope a number of specialty lighting applications and bulb shapes. On January 19, 2017, DOE issued two rules amending the definitions of these terms to expand the scope of lamps considered to be GSLs. On September 5, 2019, DOE published a withdrawal of the two 2017 regulations, which reverted the definitions of GSL and GSIL back to their statutory definitions, and in which DOE further explained that the 45 lumen-per-watt backstop has not been triggered. Lawsuits were filed challenging DOE’s 2019 withdrawal rule. Those lawsuits are pending before the U.S. Court of Appeals for the Second Circuit.
Process Rule litigation
On February 14, 2020, DOE published a final rule in the Federal Register to modernize the so-called “Process Rule”, the methodology and interpretations DOE applies in its administration of the Appliance Standards Program. The revised Process Rule was designed to increase transparency and consistency, with highlights including: setting a “significant energy savings” threshold, making the Process Rule provisions binding on DOE, establishing an early assessment process, and extending its scope to commercial equipment and test procedures. A number of state attorneys general and public interest groups filed Petitions for Review with the U.S. Court of Appeals for the Ninth Circuit on April 14, 2020, challenging the Process Rule final rule, and three industry trade associations subsequently filed a motion to intervene in support of the Department on May 14, 2020 (see Case No. 20-71068).
Boiler energy conservation standards litigation
On March 9 and 10, 2020, three parties filed suit in different Federal circuit courts of appeal challenging a final rule published by DOE on January 10, 2020, amending energy conservation standards applicable to commercial packaged boilers. The three suits were consolidated into one proceeding currently pending in the U.S. Court of Appeals for the D.C. Circuit. The challenges alleged both statutory issues, concerning the applicability of a statutory “clear and convincing evidence” standard to DOE’s decision in this rulemaking, and record issues, alleging failings in DOE’s analysis in support of the rule.