Nuclear Waste Repository Siting: Expedited Procedures for Congressional Approval
Released: 2002-07-05T00:00:00

Background

Process for Approving a Nuclear Waste Repository Site

The Nuclear Waste Policy Act of 1982 (NWPA) (1) enacted a system for the federal government to establish a deep underground "geologic repository" forpermanent storage of radioactive waste from civilian nuclear power plants. Pursuant to the NWPA and subsequentamendments, consideration of a location forthis repository focused on a site at Yucca Mountain, Nevada. The Department of Energy issued a preliminaryrecommendation of suitability for the YuccaMountain site on September 21, 2001, and on February 15, 2002, President Bush recommended the site toCongress. (2) These actions culminated a series of recentdevelopments that have led to current congressional action on the subject. (3)

The NWPA provides that when the President recommends a repository site, the state in which it is located maywithin 60 days submit to Congress a notice ofdisapproval. (4) The State of Nevada exercised this disapproval authority onApril 8. Once this action occurs, the Act provides that the designation cannot becomeeffective unless a "resolution of repository siting approval," in effect overriding the state disapproval, is enacted intolaw within a specified period of time. (5) Asdetailed below, it appears that in the present instance this period will probably terminate just after Congressreconvenes from its August recess.

The Act establishes an expedited procedure for congressional consideration of this joint resolution. This report describes salient features of this expeditedprocedure and discusses some questions that may become significant in the course of its implementation. It alsonotes actions so far taken in Congress, pursuantto this statutory procedure, in relation to the Yucca Mountain site.

General Purposes of Statutory Expedited Procedures

In purpose and general form, the expedited procedure of the NWPA resembles the several dozen other expedited procedures contained in existing law relating tovarious policy areas. (6) Each of these expedited procedures is a set of statutoryprovisions governing congressional consideration of a specified kind of measure. Most regulate consideration of joint resolutions either (1) to disapprove some action that the statute authorizes thePresident, or an agency of the executive branch,to take only if Congress does not disapprove, or (2) to approve some action that a statute authorizes to be taken onlyif Congress approves a specific request to doso.

The purpose of an expedited procedure is to facilitate the ability of Congress to dispose of the matter specified in a timely and definitive way. To this end, itestablishes means for Congress to take up, and complete action on, the resolution of approval or disapproval withina limited period of time. For this reason,expedited procedures are also known as "fast track" procedures. They often include provisions for automaticintroduction of the resolution, fixed time periods forcommittee and floor action, automatic or privileged discharge of committees if they do not report, automatic orprivileged floor consideration, prohibitions onamendment, and automatic or expedited final action to send a measure to the President. The expedited procedureof the NWPA incorporates most of theseelements.

Elements of the Expedited Procedure

The expedited procedure for resolutions of repository siting approval, which appears at 42 U.S.C. 10135,generally conforms to the model just sketched. The Actsets forth procedures for the House and Senate separately, but the following discussion treats both together at eachstage of the legislative process. This treatmentpermits emphasis on possible relations between actions in each chamber. The only exception is the floorconsideration stage, where the procedures prescribed bystatute for House and Senate are adapted to the divergent general rules of the two chambers.

Overall Schedule for Action

The Act permits Congress to override a state notice of disapproval only if it passes a joint resolution of repository siting approval "during the first period of 90days of continuous session" after receiving the notice. (7) The notice is deemedreceived by Congress on the day the state transmits it to the Speaker of the Houseand President pro tempore of the Senate, and the 90-day period begins on that day. (8)

Days of Continuous Session. "Days of continuous session" include all calendar days except those on whicheither house is adjourned for more than three days. (9) Under this definition,the 90-day period will be the same for both chambers, even if the days on which eachis in recess differ. The Constitution mandates that neither house adjourn for more than 3 days without the consentof the other. (10) Pursuant to this mandate, eachhouse recesses its session for more than 3 days only under authority of an adjournment resolution, which is aconcurrent resolution adopted by both houses. As aresult, the days not counted in the 90-day period will be only and exactly those included in any session recess ofeither house that is authorized by an adjournmentresolution.

It is evident from this definition that actual days of continuous session can be counted with certainty only after the fact. Prospectively, the count can be only anestimate. Based on the recess periods that have occurred so far in 2002, and the announced congressional schedulefor the remainder of the year, however, itcurrently appears that 90 days of continuous session after April 8 will expire on or about Wednesday, September4. The Senate is scheduled to return from itsAugust recess the preceding Tuesday, and the House on the Wednesday.

Continuing Action in a New Session. If Congress adjourns its session sine die before the 90-day periodexpires, continuity of session is "broken," meaning that a new period of continuous session begins with theconvening of the next session. (11) As a result, if a statenotice of disapproval were to be received less than 90 days of continuous session before a sine die adjournment, Congress would have until the 90th day ofcontinuous session in the following session to complete action under the statute. Because Congress is not scheduledto conclude its current session within 90 daysof session from the April 8 notice, these provisions are unlikely to come into play in the present instance.

These provisions could come into play if Congress were to receive a disapproval notice late in a session of a Congress. If the notice were received late in a firstsession, and if Congress did not complete action on an approval resolution during that session, the same resolutionwould remain available for further actionduring the full renewed 90-day period in the second session. By contrast, if the notice were received late in a secondsession, the following session would be thefirst session of the next Congress. For this reason, if Congress did not complete action on an approval resolutionduring the earlier session, the legislation wouldhave to be introduced anew in the new Congress, and proceed through the full legislative process denovo during the first 90 days of continuous session of thatnew Congress.

Enactment. To become effective, the jointresolution of approval must become law after Congress passes it. Inother words, the site is approved only if either (1) the President signs the approval resolution (or allows it to becomelaw without his signature), or (2) Congressoverrides his veto. These actions, however, do not have to occur within the 90-day period, but can be completedafter its expiration. (12)

Form of Approval Resolution

The NWPA narrowly specifies the form a resolution of repository siting approval must take. The measure must be a joint resolution, and the statute prescribes allthe wording except for (1) the identification of the site, (2) the name of the disapproving state, and (3) the date ofdisapproval. (13) These requirements doubtlesssuffice to ensure that any companion House and Senate measures relating to the same site would be substantiallysimilar, though not necessarily entirely identical. Any resolution that did not meet these statutory requirements would not be eligible for the expedited considerationprescribed by the Act. In the present instance,only one resolution was introduced in each house ( H.J.Res. 87 and S.J.Res. 34 ), and the two areidentical in wording.

The terms of the NWPA also specify that a state disapproval of a site designation can be overridden only by enactment of a resolution of repository sitingapproval, having the form prescribed by the Act and considered under the expedited procedure. (14) (In principle, of course, Congress could also enact legislationsuperseding the NWPA and directing construction of the repository, under its regular legislative procedures.)

Introduction and Referral

Introduction. The statutory procedures for introduction of resolutions of repository siting approval differbetween the House and Senate. For the Senate, the Act mandates that the chair of the committee of jurisdiction, orhis designee, introduce an approval resolutionby the next day of session after Congress receives the disapproval notice. (15) The corresponding House provision contains no requirement that an approvalresolution be introduced (although other provisions assume that one will be). (16) As a result, it is possible for an approval resolution not to be introduced in theHouse at all, or to be introduced only at a later date.

The current process realizes this last possibility. In the Senate, the Chair of the Committee on Energy and Natural Resources introduced S.J.Res. 34 by request on April 9, consistent with the statutory directive. In the House, the Chair of the Subcommittee onEnergy and Air Quality of the Committee on Energyand Commerce introduced H.J.Res. 87 on April 11.

For each chamber, the language of the Act presupposes that several approval resolutions might be introduced in relation to a single site disapproval, even thoughall such measures would have to be either identical, or substantially so. No such additional resolutions have beenintroduced in relation to the Yucca Mountainsite.

Referral. For each chamber, the Act requires approval resolutions to be referred "upon introduction" to "theappropriate committee or committees." (17) S.J.Res. 34 was referredto the Senate Committee on Energy and Natural Resources, and H.J.Res. 87 to the Committee on Energy and Commerce. Like most, if not all, expedited procedure statutes,the Act leaves the question ofsubcommittee referral to the practices of the respective committees. H.J.Res. 87 was referred to theSubcommittee on Energy and Air Quality; S.J.Res. 34 received no subcommittee referral.

Committee Action

Requirement for Report or Discharge. Although the language governing committee consideration ofresolutions of repository siting approval differs between the House and Senate, the effects are similar. The committee (or committees) of referral have 60 days ofcontinuous session (defined in the same way as for the 90-day period) to report an approval resolution. If acommittee did not report by the end of the 60-dayperiod, it would automatically be discharged and the resolution placed on the appropriate calendar of its house. (18)

The statutory 60-day period, by the end of which the committee must report or be discharged, begins, in each chamber, with the introduction of the first approvalresolution. In the House, this point would have been reached on or about June 18, but the Committee on Energyand Commerce reported H.J.Res. 87 on April 25. In the Senate, the automatic discharge date would have been reached on or about June 16, but theCommittee on Energy and Natural Resourcesreported S.J.Res. 34 on June 10.

Although the House committee reported the measure favorably, the statute does not require a favorable report. Under contemporary practice, a measure (in theSenate) or privileged measure (in the House) reported adversely or without recommendation is still placed on thecalendar as eligible for consideration. (19) Aresolution of repository siting approval is a privileged measure in the House, in that it is to be considered under anexpedited procedure.

Action May Be Limited to One Resolution. For each chamber, the expedited procedure includes a mechanismto ensure that even if more than one repository siting resolution is introduced, only one will reach the calendar. Inasmuch as only one resolution relative to theYucca Mountain site appeared in each house, these procedures have not come into play during the present process.

For the House, the statute specifies that the committee may be discharged only from the first approval resolution introduced, and the committee can avoid thisoccurrence by reporting either that resolution "or an identical resolution." (20) If several identical resolutions are submitted, and the committee reports any one ofthem, it is not discharged from any of the others. (21) If several resolutionsare introduced approving the same site, and the committee reports none of them, it isapparently discharged from only the first one introduced, even if the others are not "identical." On the other hand,if the committee reports a resolution that is notidentical to the first one introduced, it apparently will also be discharged from that first one, so that in this case bothmeasures would reach the calendar.

For the Senate, the statute specifies that the resolution from which the committee is to be discharged is the one that was automatically introduced when notice ofthe state disapproval was received. However, the Act also provides for discharge to occur "in the absence of" theautomatically introduced resolution. (22) Thisprovision might come into play only in a renewed 90-day period in a new Congress, when the automaticallyintroduced resolution would have died with the sinedie adjournment of the old Congress. In that situation, if a committee does not report an approval resolutionby the 60th day of continuous session in the newCongress, it will be discharged from all approval resolutions introduced in that house in the new Congress.

In a new Congress, discharge (and other components of the expedited procedure) presumably could occur in each chamber only if a new approval resolution hasbeen introduced.

Floor Action Under the Expedited Procedure and Its Alternatives

The expedited procedure of the NWPA establishes terms for floor consideration of resolutions of repository siting approval in each chamber. Like other statutesestablishing expedited procedures, however, the Act also reserves the right of each house to alter or amend thoseprocedures through the application of its generalpower under the constitution over its own rules. As a result, it always remains possible that either house couldconsider any particular siting approval resolutionunder other terms than those provided by the statute.

The ways in which each house may make such alterations, and some possible implications and alternatives of its doing so, are discussed in a later section of thisreport. The House, in particular, has not infrequently taken up measures eligible for expedited consideration notunder the statutory procedures, but insteadpursuant to a special rule or a motion to suspend the rules. In the present instance, however, the House took up andpassed H.J.Res. 87 pursuant tothe statutory procedure on May 8.

House Floor Action

Discretion of Speaker. Many expedited procedure statutes protect the ability of Members to call up themeasures whose consideration they govern once they reach the calendar. The expedited procedure of the NWPA,by contrast, leaves control over when andwhether the House will consider an approval resolution in the hands of the majority party leadership. This situationis more in harmony with House schedulingpractices generally.

Once the resolution has been on the calendar for 5 legislative days, the Speaker may recognize a Member to call it up. (23) Because the Act accords the Speakerdiscretion over whether to recognize for this purpose, he would be able to keep a siting approval resolution fromthe floor by declining to do so. Conversely, theAct provides that when an approval resolution is called up, the House proceeds immediately to consider it. Thisprovision tends to ensure that, as long as theSpeaker does choose to recognize a Member to call the resolution up, consideration will occur.

Terms of Debate. When the House takes up an approval resolution, the Speaker recognizes the Member callingit up and an opponent for 2 hours of debate, equally divided and controlled. (24) The Act requires the Member calling up the resolution to be a supporter of it, andthe opposing manager to be an opponent. Under the general practice of the House, the managers of a measure wouldtypically be the chair and ranking minoritymember of the reporting committee (or their designees). These Members would normally be the ones recognizedto manage an approval resolution, as long asthey qualified as supporting and opposing it, respectively.

It would be consistent with the customary practice of the House for the Speaker to ask each prospective manager, at the outset of consideration, if he or shesupported or opposed the resolution. If either could not answer appropriately, the Speaker would most likelyrecognize another senior member of the reportingcommittee who did take the appropriate position. For example, if the resolution was not reported, but reached thecalendar by discharge, the committee chairmight well oppose it. The chair then would not be entitled to recognition to call the measure up, but would mostlikely be accorded the time in opposition if hesought it.

In the present instance, the Chair of the Committee on Energy and Commerce managed H.J.Res. 87 , and the ranking minority member of one of itssubcommittees managed the measure for opponents.

Prohibition on Amendment and Motions. The Act directs that at the end of the 2 hours' debate in the House,the previous question be automatically ordered, and the House proceed to vote on adopting the resolution. It alsoprohibits the intervention of any motion betweenthe conclusion of debate and the vote on adoption. Finally, it explicitly prohibits amendment of an approvalresolution. (25)

These procedures are clearly designed to insure that the House vote on adoption will be on the resolution in its original form, without amendment. In theirabsence,

an amendment might be offered (1) during the two hours' debate, but only if one of the managers yielded forthe purpose; (2) if the House voted not to order theprevious question; or (3) through amendatory instructions in a motion to recommit. (26) A motion to recommit is normally in order at the conclusion ofconsideration, but under the expedited procedure of the NWPA, as just mentioned, an intervening motion at thatpoint is prohibited.

Finally, the Act also prohibits a motion to reconsider the vote on an approval resolution. Like the provisions to bring about the report or discharge of only oneapproval resolution, this prohibition helps to ensure that the expedited procedure will normally give the House one,and only one, opportunity to act on aresolution to approve any given repository site. (27)

Senate Floor Action

Control of Motion to Proceed. In the Senate, the expedited procedure provides that once an approval resolutionis on the calendar, any Senator may move to proceed to its consideration. (28) If the Senate disagrees to this motion, the Act provides that it may be repeated (and ifmore than one approval resolution reaches the calendar, the motion also might be offered with respect to each).

By early July, it was expected that supporters of S.J.Res. 34 might offer a motion to proceed to its consideration before the middle of the month, inthe absence of earlier action by the majority leader. Some discussion has occurred over whether it would beinappropriate for any Senator other than the majorityleader or his designee to offer a motion to proceed to consider the resolution pursuant to the statute. In practice, theSenate normally concedes to its majorityleader the prerogative of making motions to proceed to consider pursuant to the Standing Rules. Although theStanding Rules in principle permit any Senator tooffer this motion, the Senate accords the majority leader the function of managing the floor agenda, and considerscontrol of the motion to proceed a key tool inthe discharge of that function. Some accordingly argue that the same prerogative should be extended to a motionto proceed to consider offered pursuant to thestatute. Others contend that the statutory provision is evidently intended to insure that the measure can reach thefloor whether or not the leadership determines tocall it up. (29)

Regulation of Motion to Proceed. Normally, a motion to proceed to consider in the Senate is debatable, but theAct provides that on a resolution of repository siting approval it is nondebatable. The Act provides as well that thismotion may neither be amended, norsuperseded by a motion to consider something else, and its consideration may not be postponed. (30) These provisions help ensure that an attempt to take up anapproval resolution could not be blocked by filibustering (that is, protracted debate or other actions with dilatoryor obstructive intent).

Also, if the Senate votes to consider the resolution, it is to "remain the unfinished business until disposed of." (31) This provision is designed to help ensure thatonce the Senate takes up an approval resolution, it will be able to reach a final vote. All of these provisions arecommon features of expedited proceduresgoverning Senate floor consideration.

Terms of Debate and Regulation of Motions. Provisions for floor consideration also include many features,common among Senate expedited procedures, designed to prevent the approval resolution from being blocked byfilibuster. In particular, total debate on theresolution is limited to 10 hours. (32) Such a time limitation is requisite forprecluding filibusters, for Senate rules establish neither a general time limit on debatenor any procedure, other than cloture, to impose such a limit. The time is to be equally divided between supportersand opponents; normally, the Senateaccomplishes this end by placing the equally divided time under the control of managers. The managers wouldtypically be the chair and ranking minoritymember of the committee of jurisdiction, if they take opposed positions on the resolution. At the conclusion ofdebate, the vote on the resolution must occur. Aquorum call, but no other action, may intervene. (33) As with the House, theexpedited procedure also prohibits a motion to reconsider the vote. (34)

The Act specifies that the 10-hour limit includes any debate on debatable motions offered during consideration of the resolution. It also specifies that any appealof a ruling of the chair in connection with consideration shall not be debatable. (35) The Act permits as well a nondebatable motion to reduce the time available fordebate, and this motion, like the motion to proceed to consider, may neither be superseded by a motion to considersomething else nor amended, nor may itsconsideration be postponed. (36)

Potential for Amendment. Although the statutory procedure prohibits amendment of the motion to proceed toconsider an approval resolution, and of the motion to reduce the time for debating one, it contains no provisionprecluding amendment of the approval resolutionitself. The Act does forbid a motion to recommit the resolution, which might have included amendatoryinstructions, (37) but does not explicitly prohibit theoffering of an amendment by other means, either from the floor or by recommendation of the reporting committee. It is unclear whether this omission wasdeliberate, though it may be noteworthy that Congress found it appropriate to include an explicit prohibition againstamendment for the House, but not for theSenate.

On the other hand, it can be argued that the legislative history of the NWPA, as well as the overall purposes of expedited procedures generally, imply that theapproval resolution was intended not to be subject to amendment in either house. The close specification made bythe Act for the language of a resolution ofrepository siting approval might be cited in support of the same conclusion. If the Senate took such a view, manyof the questions raised in this section would notarise. (38)

If the Senate took the view that a siting approval resolution could be amended, the potential consequences of adopting an amendment to the resolution are alsounclear. It might be argued that if the resolution were amended, it would cease to meet the description required by42 U.S.C. sec. 10135(a) for a resolution ofrepository siting approval. It might thereby become ineligible for further consideration under the expeditedprocedure. For example, if the Senate adopted anamendment to an approval resolution, it might be possible for a Senator to raise a point of order that the amendedmeasure was no longer subject to the limits ondebate that the Act establishes as part of the expedited procedures for considering an approval resolution. If thechair sustained such a point of order, furtherconsideration would presumably have to occur under the general rules of the Senate, potentially making theresolution subject to dilatory action.

Final Action

Resolution Received from Other House. The expedited procedure for each house contains a provision,identical except for reversing the names of the chambers, to ensure that both will take final action on the samemeasure, and a single approval resolution will becleared for Presidential action. These provisions together direct that when either house passes an approvalresolution, the other house is not to refer it tocommittee, but is to hold it at the desk. This action maintains the resolution passed by the other house in aconvenient status for the receiving house to act on it. Floor consideration in the receiving house is to occur on its own approval resolution with respect to the same site,but the final vote is to occur on the one receivedfrom the other house. (39) In the present instance, after the Senate finishesconsidering S.J.Res. 34 , it will presumably vote on the House-passed H.J.Res. 87 , which it has already received (unless, perhaps, S.J.Res. 34 has by then been amended).

A mechanism like this is part of many expedited procedure statutes that provide for the resolutions consideredby each house to be substantively similar in effect. Under these conditions it is appropriate to substitute one for the other as a convenient means to expedite final action.

Each House Must First Consider Own Measure. Unlike some other expedited procedures, that of the NWPAprovides for floor consideration in each house to occur only on a resolution of that house. It affords no means bywhich either house might, instead, initially takeup and consider an approval resolution received from the other. Yet it does not require that any separate approvalresolution be introduced in the House (or ineither chamber during a renewed 90-day period in a new Congress). The consequence is that no approval resolutioncan be enacted under the expedited procedureunless some Member of the House (or, in a renewed 90-day period in a new Congress, Members of both houses)chooses to introduce one.

Requirement for Identity. The provision for final action contains two different phrases whose language seemscreate a conflict. The first phrase states that the provision applies to any situation in which both houses passapproval resolutions "with respect to the same site." The second phrase, however, permits the automatic substitution of one resolution for the other only "where the textis identical." The second phrase, unlike thefirst, appears to afford an automatic mechanism for final congressional action only if the approval resolutions ofboth houses are identical in text. The languageincludes no provision for automatic final action if the two resolutions are merely substantively similar in effect.

A strict interpretation of this language might be used to raise a point of order, in whichever house acts second, at the time of a final vote, if the text of its approvalresolution differed in any way from the one received from the other house. Such a point of order could assert thatthe Act did not permit the approval resolutionoriginating in that house to be automatically laid aside after debate, and final action to be taken on the one received,because the Act authorizes this proceedingonly if the two are "identical." If the chair sustained this interpretation, the house in question would presumablyhave to take its final vote instead on its ownresolution. The Act, however, establishes no further procedure by which either house could then clear forpresidential action an approval resolution received fromthe other. Instead, this final clearing action might have to occur under the general rules of each house, so that itmight become possible for opponents to subjectthis action to dilatory or obstructive tactics.

In the present situation, the texts of the only two resolutions of repository siting approval that have been introduced are identical. As long as that identity persists, the difference in language between the two phrases in the expedited procedure would presumably generate nodifficulties. A difference in text between the Houseand Senate measures might still arise, however, if the Senate amended its measure in the course of its proceedings,or possibly if an additional measure withslightly different wording were to be introduced, reported in lieu of S.J.Res. 34 , called up for consideration,and adopted in that form.

If the Senate were ultimately to adopt a repository siting resolution measure with a text different from that of H.J.Res. 87 as passed by the House, aSenator might conceivably be able to raise a point of order against invoking the statutory procedure for clearing themeasure for presidential action. If this point oforder were sustained, action to clear the measure would have to take place under the general rules of the Senate,which could entail debatable motions consideredwithout statutory time limitations. These proceedings could delay final action.

Congressional Power to Alter Statutory Procedures

The preceding discussion identifies a number of difficulties that might arise in the course of consideration ofa resolution of repository siting approval under theexpedited procedure of the NWPA. In particular, the Senate might amend its approval resolution in such a way thatits text no longer met the statutoryrequirements for a resolution of repository siting approval. The amended measure might accordingly be heldineligible for further consideration under theexpedited procedure. Also, because of such amendment or for other reasons, the texts of the approval resolutionsoriginating in the House and the Senate mightdiffer. This situation might make the automatic procedure to clear an approval resolution for the Presidentunavailable in either chamber.

The Congressional Rulemaking Power

The constitutional power of each house to make its own rules could afford means for dealing with such complications. It is well established that this powerextends to procedural provisions contained in statute as well as to the procedural rules each chamber establishes foritself. Further, the expedited procedure of theNWPA, like most, explicitly declares that the procedural provisions applicable to each house are enacted as anexercise of that constitutional power, and aresubject to change by action of that house alone as a further exercise of the same power. (40)

It is also well established in each house that this constitutional rulemaking power may be exercised in various ways. Rules may be adopted or altered on apermanent basis. They may also be waived, suspended, or modified in their application to a specific situation. Finally, the power to make rules is implicitlyunderstood to include the power to interpret them, or to decide what they mean in a specific situation.

By its own action pursuant to the rulemaking power, accordingly, either house could modify or alter provisions of the expedited procedure, either permanently andgenerally with respect to consideration of any future approval resolution, or for the purpose of considering a specificapproval resolution. Presumably, eitherhouse could provide either (1) that a resolution of siting approval, as defined by the Act, be considered other thanunder the expedited procedure, or that (2) someother form of measure to authorize construction of the repository be considered under procedures equivalent to thestatutory expedited procedure.

Ways of Applying the Rulemaking Power

Amendment of Rules. Each house establishes and amends its general rules by adopting resolutions. Becauseeach house retains authority over its own respective rules, such resolutions require adoption only in the houseaffected. In principle, either house could use such aresolution to effect a permanent change in a statutory expedited procedure as well. For example, the Senate couldsupplement the statutory procedure of theNWPA by adopting a resolution explicitly prohibiting amendment of a siting approval resolution. In the same way,either house could extend the mechanism forautomatic final action on an approval resolution received from the other chamber to all cases in which bothresolutions address the same site, even if their texts arenot identical.

In practice, this approach would likely be more feasible in the House than in the Senate. In the House, a resolution to change the rules would normally be reportedby the Committee on Rules, which typically operates in cooperation with the majority party leadership on suchmatters. Such resolutions are considered underprocedures that permit the House, by vote, to terminate debate after one hour, and to prohibit amendment. In theSenate, such a resolution either would bereported by the Committee on Rules and Administration or, in the absence of objection, could be brought directlyto the floor by the majority leader. However, itwould be considered under the general rules of the Senate, meaning that it could be subjected to extended debate,amendment, and other potentially dilatoryactions.

Modification, Suspension or Waiver of Rules. Each house possesses various established procedures permittingit to alter the application of its rules to a specific measure or in a specific situation. The House often does so byadopting a "special rule" for consideration of aspecified measure just before consideration begins. Like a permanent change in rules, a special rule takes the formof a resolution that the Committee on Ruleshas jurisdiction to report, and is considered under procedures that permit the House to vote to terminate debate, andpreclude amendment, after one hour. In thepast, the majority party leadership and Committee on Rules have often preferred that measures eligible for expeditedprocedures be considered instead underspecial rules. This form of consideration preserves to a greater degree the normal control of the leadership over flooraction.

A special rule for consideration of a siting approval resolution could provide that after consideration of the House measure, an automatic final vote occur on anySenate measure approving the same site that the House might already have received, or even on one that it mightlater receive. Alternatively, it also would bewithin the scope of normal practice for a special rule to provide that the approval resolution be considered underan entirely different procedure from that specifiedin the Act. A special rule might, for example, provide that the resolution be called up immediately or in thediscretion of the Speaker, provide for or prohibitamendment, shorten or lengthen the time for debate, alter the division and control of that time, or permit or waivethe application of certain points of order, as theleadership and the Committee found appropriate.

The House also often supersedes the procedures otherwise applicable to the consideration of a specific measure by considering the measure pursuant to a motionto suspend the rules. A motion to suspend the rules and pass a measure is subject to 40 minutes' debate, precludesfloor amendment, and requires a two-thirds'vote. Finally, the House could consider an approval resolution by unanimous consent, and the unanimous consentrequest might include a specification of termsof consideration.

The Senate normally establishes modified or altered procedures for the consideration of a specific measure only by unanimous consent. It is normally consideredthe prerogative of the majority leader to propound requests for unanimous consent for such purposes. The Senateoften uses unanimous consent agreements of thiskind to restrict or even prohibit amendments to a specified measure, and sometimes to provide that final action ona companion measure received from the Houseoccur automatically. In contentious situations, such as may likely accompany consideration of a siting approvalresolution, however, unanimous consent to anagreement regulating consideration in such ways may be difficult to obtain.

Senate rules also include a procedure, little known today, for suspending specified rules in relation to action on a given measure. Although such a motion couldpresumably be used in relation to statutory provisions operating as rules, it appears ill adapted for this purpose. Senate rules impose no time limit on considerationof a motion to suspend the rules, so that it could be subjected to filibuster, delaying or blocking the attempt toestablish any modified procedure for acting on theapproval resolution. As in the House, suspension of the rules in the Senate requires a two-thirds' vote. (41)

Interpreting Rules Through Application. In recent times, the Senate has more often exercised its power todetermine the intent and effect of its rules by voting on procedural questions either submitted to it by the chair, orarising through appeals of rulings of the chair. If a floor amendment were offered to an approval resolution, for example, the Senate might decide, on appeal, thatthe statute implicitly forbade such amendments. If an amendment to the resolution were adopted, the Senate might in the same way decide that the amended statutestill qualified for further consideration underthe expedited procedure.

This course of action would presumably not be subject to filibuster, because the statute requires that all appeals on questions raised during consideration of anapproval resolution be settled without debate. Action of the Senate in this form, however, would not merelydetermine the application of the rule in the particularsituation in which the question was raised. Because the Senate possesses ultimate authority to determine its ownrules, its decision on a question such as thiswould establish precedent. It would conclusively establish the general meaning of the statutory provision, subjectto revision only by subsequent action of theSenate itself.

In principle, the House might engage in similar proceedings, but in practice that chamber has a strong tradition of deferring to the rulings of its Speaker onprocedural questions. A point of order might be raised, for example, that the statutory procedure for automatic finalaction on an approval resolution was intendedto apply whenever a received Senate companion would approve the same repository site as the House measure, evenif the text is not identical. If the Speakersustained the point of order, the House would in all probability accept such a ruling, or at least sustain it if it wereappealed. Subsequently, the House would nodoubt accept this ruling as precedent controlling the meaning of the provision for any future uses of the expeditedprocedure.

Additional Statutory Requirements for Site Approval

The previous section addresses whether, if an approval resolution were to be amended into a form other thanthat prescribed by the NWPA, it would continue tobe eligible for consideration under the expedited procedure of the Act. Certain provisions of the Act, however,suggest that if the measure were enacted in such aform, it might raise additional questions as well. Pursuant to this language, it might be argued that unless a measurehad the form prescribed for an approvalresolution, it might not suffice to authorize construction of the repository. Related passages could be used to arguethat even if the measure had the prescribedform, it might not achieve its purpose if Congress did not pass it during the prescribed 90-day period.

Requirements of Form and Timing

Expedited procedure statutes commonly permit Congress to approve (or disapprove) a specified action by using the expedited procedure to enact the measure forwhich the statute provides. They do not purport to require Congress to use, for this purpose, the means of approval(or disapproval) they provide. The language ofthe NWPA appears to reflect an intent to go farther, and prohibit construction of a civilian nuclear waste repository unless Congress enacts the resolution ofapproval in the prescribed form within the specified 90-day period.

Specifically, subsection (b) of 42 U.S.C. section 10135 states that once a state "notice of disapproval has been submitted, the designation of such site shall not beeffective except as provided under subsection (c) ...." Subsection (c) provides that under these conditions,the "site shall be disapproved unless , during the ... [prescribed 90-day] period ... the Congress passes a resolution of repository siting approval in accordance withthis subsection approving this site ...." (Italicsadded throughout). The text that a resolution of repository siting approval must possess is prescribed, as alreadynoted, by subsection (a).

By no statutory language, of course, could Congress vitiate its own capacity subsequently to pass any legislation within its constitutional power. It could hardly bequestioned that if, independent of the provisions of the NWPA, legislation were enacted specifically providing thata repository be constructed at a given site, theenactment would legally suffice for the purpose. Any conceivable uncertainty could be removed if the enablingstatute explicitly superseded or repealed pertinentprovisions of the NWPA.

An argument might be raised, however, that outside the context of the statutory procedure, a measure containing the language prescribed for an approvalresolution would not suffice for this purpose. A resolution of repository siting approval is to state only that "therehereby is approved the site" specified. The Actrequires this approval in order for the site designation to become "effective." It gives meaning to this term bydirecting that when the site designation is effective,the Secretary of Energy is to apply to the Nuclear Regulatory Commission for authorization to construct the site. (42) On this basis, it might be argued that only incontext of the Act does "approval" have specific meaning in relation to establishment of the repository.

By this argument, if a resolution was couched in the terms required by the Act, but also had been amended to include other language, or was not passed within therequired 90-day period, it might not constitute statutory authorization to proceed with establishment of therepository. Instead, it might be contended, the processof establishing the repository cannot go forward unless Congress passes either (1) the approval resolution in the formand within the time required by the NWPA,or (2) legislation independent of the requirements of the Act and explicitly directing that the repository beconstructed (or, for example, that the Secretary apply forthe construction authorization).

A contrary interpretation of the language of the statute might hold that congressional "approval" of a site designation entails authorization to proceed with therepository, even independently of the statutory mechanism of the NWPA. To preclude such contentions altogether,however, any approval resolution passed eitherin amended form, or outside the statutory time frame (or both), might have to be amended also to contain languageexplicitly authorizing construction (orapplication for authorization to construct), and perhaps explicitly superseding the statutory process of the NWPAas well.

Relation of Statutory Requirements to Expedited Procedure

These questions of the potential force and effect of an approval resolution under the NWPA are separate from those that might be raised about the eligibility of theresolution for consideration under the expedited procedure of the Act. The NWPA attempts to require that anapproval resolution must be passed in a specifiedform, and within specified time constraints, in order to permit establishment of the repository to go forward. It doesnot require that the approval resolution beenacted in accordance with the expedited procedure itself. The provisions of section 10135 quoted earlier requireaction in accordance with subsections (b) and(c), but not with subsections (d) and (e), which set forth the expedited procedure.

It accordingly appears that, for example, the Senate might amend its approval resolution, then continue considering the measure without regard to the constraintsof the expedited procedure on debate and other procedural actions, and ultimately pass in lieu thereof an unamendedcompanion previously received from theHouse. This process would result in an approval resolution becoming law in the form prescribed by statute, but notin accordance with the expedited procedure. The language of the Act would not seem to cast any doubt on the force and effect of a resolution of siting approvalenacted under those conditions. Similarly, aslong as Congress passed an approval resolution having the prescribed form within the required 90 days ofcontinuous session, the measure would apparentlysuffice to approve the site designation even if Congress did not consider it in accordance with the expeditedprocedure.

It is, in any case, most doubtful that a statute could effectively require action pursuant to a specified expedited procedure as a condition of the effectiveness of anapproval resolution. If either house departed from the prescribed procedures in its consideration of the resolution,its action presumably would amount to animplicit exercise of the chamber's power to alter the expedited procedure in its application to the specific instance. Such alterations in statutory procedures areimplicitly understood as authorized by the rulemaking clause of the Constitution, even where not explicitlyauthorized by the rulemaking language of the statuteitself.

Conversely, however, it does not appear that Congress could in any way use the rulemaking power to establish the effectiveness of an approval resolution that didnot meet the statutory requirements of form and timing. The Act gives the status of congressional rules only to theprovisions of subsections (d) and (e) thatgovern congressional action on an approval resolution from introduction through final action. The provisions ofsubsections (a) through (c), which specify therequired wording and timing of an approval resolution and establish its effects, are not declared to have this status. Nor is it clear that they could be appropriatelyconstrued as having this status, for their effects go beyond procedural implications internal to Congress. Accordingly, if an approval resolution did not meet thestatutory requirements of form and timing, then Congress might prefer to include in the resolution an explicitstatement of its intended force and effect, in order toensure that it would have that force and effect.

Finally, if Congress determined to authorize construction of a nuclear waste repository by means of legislation that did not meet the requirements of form andtiming provided by the NWPA, that legislation would presumably be ineligible, under the statute, for considerationunder the expedited procedure. The Act makesthat procedure available only for measures meeting the statutory requirements of form for a resolution of repositorysiting approval. Presumably, as a result,approval legislation of any alternate kind would not be subject to the restrictions imposed by the statute oncommittee action, calling up, debate, amendment, andother procedural actions. It would instead have to be considered under the general procedures of each house. Itcould, accordingly, be considered underprocedures equivalent to the expedited procedure, but only if each house, using its general practices of makingprocedural decisions, so determined.