Opinion
No. 07-1212.
Filed On: October 9, 2007.
BEFORE: Henderson, Tatel, and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of the motion to dismiss, the opposition thereto, and the reply, it is.
ORDERED that the motion to dismiss be granted. The Nuclear Regulatory Commission's ("NRC") denial of the petition filed pursuant to 10 C.F.R. § 2.206 is presumptively unreviewable. Safe Energy Coal. of Mich. v. United States Nuclear Regulatory Comm'n, 866 F.2d 1473, 1477 (D.C. Cir. 1989); Arnow v. United States Nuclear Regulatory Comm'n, 868 F.2d 223, 235-36 (7th Cir. 1989);Massachusetts Public Interest Research Group, Inc. v. U.S. Nuclear Regulatory Comm'n, 852 F.2d 9 (1st Cir. 1988). Petitioners have not demonstrated that the NRC, by denying petitioners' § 2.206 petition, "has `consciously and expressly adopted a general policy [of non-enforcement] that is so extreme as to amount to an abdication of its statutory responsibilities.'" Safe Energy Coal., 866 F.2d at 1477 (quoting Heckler v. Chaney, 470 U.S. 821, 833 n. 4 (1985)). Nor have they rebutted the presumption of unreviewability by establishing that "`the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,'" Safe Energy Coal., 866 F.2d at 1477-78 (quoting Chaney, 470 U.S. at 833).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.