NEXTERA ENERGY, INC., and Affiliated Subsidiaries f.k.a. FPL Group, Inc., FLORIDA POWER & LIGHT COMPANY, separately and as parent of Florida Power & Light Company and Affiliated Subsidiaries, Plaintiffs - Appellants,
UNITED STATES OF AMERICA, Defendant-Appellee.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 9:15-cv-80484-RLR
MARTIN, JULIE CARNES, and GILMAN, [*] Circuit Judges.
MARTIN, Circuit Judge
NextEra Energy, Inc., and its subsidiaries Florida Power
& Light Company and NextEra Energy Resources, LLC
(collectively "NextEra") operate five nuclear power
plants. NextEra seeks a sizeable tax refund for net operating
losses resulting from fees it paid to the Nuclear Waste Fund
for the disposal of radioactive waste. The District Court
denied NextEra's claims and granted summary judgment in
favor of the United States. After careful review, and with
the benefit of oral argument, we affirm.
operates two nuclear power plants in Florida and one each in
Iowa, New Hampshire, and Wisconsin. All five plants are now
reactors are generally powered by hundreds of "fuel
assemblies" that contain rods of enriched uranium. In
the core of the reactor, these rods undergo a sustained
nuclear fission reaction. This fission reaction produces
heat, which creates steam to rotate turbines. The rotation of
the turbines generates electricity. Over time, fuel
assemblies become less efficient in producing energy, so they
need to be replaced. Used fuel assemblies continue to emit
dangerous radiation for thousands of years.
nuclear fuel can be stored on-site for years, but ultimately
needs to be transferred to a permanent storage site. See
Pac. Gas & Elec. Co. v. State Energy Res. Conservation
& Dev. Comm'n, 461 U.S. 190, 195-96, 103 S.Ct.
1713, 1717- 18 (1983) (detailing pileup of temporarily stored
spent nuclear fuel and possibility that reactors will shut
down due to lack of on-site storage space); New York v.
Nuclear Regulatory Comm'n, 681 F.3d 471, 474 (D.C.
Cir. 2012) ("[On-site] storage, optimistically labeled
'temporary storage,' has been used for decades longer
than originally anticipated.").
GOVERNING STATUTES AND REGULATIONS
Commissioning and Decommissioning a Nuclear Power
Atomic Energy Act authorizes the Nuclear Regulatory
Commission ("NRC") to issue licenses for the
operation of nuclear power plants. 42 U.S.C. § 2131.
Those licensed to run nuclear power plants must adhere to
strict regulatory guidelines promulgated by the NRC. See
id. § 2133(a), (b). For example, the NRC will not
terminate a license until a nuclear facility is free of
radioactive contamination. See 10 C.F.R. § 50.2
("Decommission means to remove a facility or site safely
from service and reduce residual radioactivity to a level
that permits . . . [r]elease of the property . . . and
termination of the license.").
time, our nation began to see a buildup of spent nuclear
fuel. In response, Congress enacted the Nuclear Waste Policy
Act of 1982 ("NWPA"), Pub. L. No. 97-425, 96 Stat.
2201 (1983), to provide for permanent disposal of the spent
fuel. See 42 U.S.C. § 10131(b)(1). Under the
NWPA, the Department of Energy ("DOE") is
responsible for depositing spent nuclear fuel in a permanent
disposal site. See Nat'l Ass'n of Regulatory
Util. Comm'rs v. Dep't of Energy, 680 F.3d 819,
821 (D.C. Cir. 2012). However, even now, no such storage site
exists in the United States. Id.
its disposal of spent nuclear fuel, the DOE enters into
contracts with nuclear facilities that obligate the
facilities to pay a fee of 1.0 mil per kilowatt-hour of
electricity generated. 42 U.S.C. § 10222(a)(1)-(2); see
also 10 C.F.R. § 961.11 (codifying standard NWPA
contract). These fees do not go directly to the DOE, but
instead are paid to the Treasury and placed into the Nuclear
U.S.C. § 10222(a)(3), (c). The DOE is then authorized to
pay from the Nuclear Waste Fund for the disposal of
radioactive waste. Id. § 10222(d). "In
paying such a fee, the person delivering spent fuel . . . to
the Federal Government shall have no further financial
obligation to the Federal Government for the long-term
storage and permanent disposal of such spent fuel . . .
." Id. § 10222(a)(3).
entered into NWPA contracts with the DOE. It paid
approximately $200 million in contract fees to the Nuclear