Nuclear Waste Repository Siting: Expediting Procedures for Congressional Approval
Report for Congress
Nuclear Waste Repository Siting:
Expedited Procedures for
Updated July 5, 2002
Richard S. Beth
Specialist in the Legislative Process
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Nuclear Waste Repository Siting:
Expedited Procedures for Congressional Approval
The Nuclear Waste Policy Act of 1982 (NWPA), as amended, establishes a
process for the federal government to designate a site for a permanent repository for
civilian nuclear waste. In February 2002, this process culminated in a presidential
recommendation for a repository at Yucca Mountain, Nevada. On April 8, the State
of Nevada exercised its authority under NWPA to disapprove the site. As a result of
this state disapproval, the site may be approved only if a joint resolution of repository
siting approval becomes law after being passed by Congress during the first period
of 90 days of continuous session after the disapproval. This period appears likely to
terminate just after the August recess.
The Act establishes an expedited procedure for congressional consideration of
this approval resolution. Pursuant to this expedited procedure, approval resolutions
were introduced in both houses and referred to the respective committees of
jurisdiction, which had until the 60th day of continuous session after the state
disapproval to report or be discharged. The House committee reported on May 1, and
the Senate committee on June 10.
In the House, once an approval resolution has been on the calendar for 5
legislative days, a supporter may call it up if the Speaker recognizes him or her for
the purpose. After 2 hours of debate, the House then votes on the resolution without
amendment or other intervening motion. The House passed its resolution on May 8.
In the Senate, once such a resolution is on the calendar, any Senator may make a
nondebatable motion to proceed to consider it. Normally, such a motion would be
offered by the majority leader. If rejected, the motion may be repeated. If adopted,
the Senate debates the resolution for 10 hours (which may be reduced by
nondebatable motion), after which a final vote occurs. The statutory procedure
forestalls filibusters against the resolution by prohibiting most intervening motions
or other actions, but does not on its face preclude amendment of the resolution. An
attempt to consider the measure in the Senate was expected in early July.
After one house passes an approval resolution, the other takes up and debates
its own measure, but takes a final vote on the measure received from the first house.
This procedure facilitates clearing the resolution for presidential action. The Act
provides for this action to occur only if the two measures are identical, as the present
House and Senate measures are. If the Senate resolution were to be amended,
however, the terms of the Act would apparently make this clearance procedure
unavailable. An amended measure also would cease to have the form prescribed by
the NWPA for an approval resolution, and accordingly might fail to qualify for
further action under the expedited procedure.
Either house might overcome such difficulties by using its constitutional power
over its own rules to alter the procedure by which it considered an approval
resolution. If an approval resolution were enacted in a different form from that
prescribed by the NWPA, however, it might arguably fail to meet the requirements
of the Act for permitting construction of the repository.
Process for Approving a Nuclear Waste Repository Site...............1
General Purposes of Statutory Expedited Procedures..................2
Elements of the Expedited Procedure..................................2
Overall Schedule for Action.....................................3
Days of Continuous Session.................................3
Continuing Action in a New Session...........................3
Form of Approval Resolution....................................4
Introduction and Referral........................................4
In troduction ..............................................4
Requirement for Report or Discharge..........................5
Action May Be Limited to One Resolution......................6
Floor Action Under the Expedited Procedure and Its Alternatives........7
House Floor Action............................................7
Discretion of Speaker.......................................7
Terms of Debate...........................................7
Prohibition on Amendment and Motions........................8
Senate Floor Action............................................9
Control of Motion to Proceed................................9
Regulation of Motion to Proceed..............................9
Terms of Debate and Regulation of Motions....................10
Potential for Amendment...................................10
Resolution Received from Other House.......................11
Each House Must First Consider Own Measure.................11
Requirement for Identity...................................12
Congressional Power to Alter Statutory Procedures......................13
The Congressional Rulemaking Power............................13
Ways of Applying the Rulemaking Power..........................13
Amendment of Rules......................................13
Modification, Suspension or Waiver of Rules...................14
Interpreting Rules Through Application.......................15
Additional Statutory Requirements for Site Approval.....................16
Requirements of Form and Timing...............................16
Relation of Statutory Requirements to Expedited Procedure...........17
Nuclear Waste Repository Siting:
Expedited Procedures for
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” for
permanent storage of radioactive waste from civilian nuclear power plants. Pursuant
to the NWPA and subsequent amendments, consideration of a location for this
repository focused on a site at Yucca Mountain, Nevada. The Department of Energy
issued a preliminary recommendation of suitability for the Yucca Mountain site on
September 21, 2001, and on February 15, 2002, President Bush recommended the
site to Congress.2 These actions culminated a series of recent developments 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 may within 60 days submit to Congress a notice of
disapproval.4 The State of Nevada exercised this disapproval authority on April 8.
Once this action occurs, the Act provides that the designation cannot become
effective unless a “resolution of repository siting approval,” in effect overriding the
state disapproval, is enacted into law within a specified period of time.5 As detailed
below, it appears that in the present instance this period will probably terminate just
after Congress reconvenes from its August recess.
1 P.L. 97-425, 96 Stat. 2201, codified at 42 U.S.C. sec. 10101 et seq.
2 For further detail on current action on the Yucca Mountain proposal, see CRS Issue Brief
IB92059, Civilian Nuclear Waste Disposal, by Mark E. Holt.
3 Present process is set forth chiefly at 42 U.S.C. sec. 10131-10136. Pertinent amendments
were enacted by P.L. 100-203 (budget reconciliation), title V, subtitle A, part A
(“Redirection of the Nuclear Waste Program”), 101 Stat. 1330 at 1330-227 through 1330-
255. The same provisions were also enacted by reference in P.L. 100-202 (omnibus
appropriations, FY1997), 101 Stat. 1329 at 1329-121. Amendments were also made by
legislative provisions of P.L. 104-206 (energy and water development appropriations,
FY1997), title III (“Department of Energy”), under “Nuclear Waste Disposal Fund,” 110
Stat. 2984 at 2995.
4 42 U.S.C. sec. 10136(b).
5 42 U.S.C. sec. 10135(b) and 10135(c).
The Act establishes an expedited procedure for congressional consideration of
this joint resolution. This report describes salient features of this expedited
procedure and discusses some questions that may become significant in the course
of its implementation. It also notes actions so far taken in Congress, pursuant to 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 to
various policy areas.6 Each of these expedited procedures is a set of statutory
provisions 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 the President, 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 only if Congress approves a specific request to do so.
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, it
establishes means for Congress to take up, and complete action on, the resolution of
approval or disapproval within a limited period of time. For this reason, expedited
procedures are also known as “fast track” procedures. They often include provisions
for automatic introduction of the resolution, fixed time periods for committee and
floor action, automatic or privileged discharge of committees if they do not report,
automatic or privileged floor consideration, prohibitions on amendment, and
automatic or expedited final action to send a measure to the President. The expedited
procedure of the NWPA incorporates most of these elements.
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 Act
sets forth procedures for the House and Senate separately, but the following
discussion treats both together at each stage of the legislative process. This treatment
permits emphasis on possible relations between actions in each chamber. The only
exception is the floor consideration stage, where the procedures prescribed by statute
for House and Senate are adapted to the divergent general rules of the two chambers.
6 On the rationale and provisions of expedited procedures generally, see CRS Report 98-888
GOV, “Fast-Track” or Expedited Procedures: Their Purposes, Elements, and Implications,
by Stanley Bach, and CRS Report RL30599, Expedited Procedures in the House:
Variations Enacted into Law, by Stanley Bach. For other expedited procedures, see U.S.
Congress, House, Constitution, Jefferson’s Manual, and Rules of the House of
Representatives of the United States, One Hundred Seventh Congress, H.Doc. 106-320,thnd
GPO, 2001), sec. 1130.
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 90
days of continuous session” after receiving the notice.7 The notice is deemed
received by Congress on the day the state transmits it to the Speaker of the House and
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 which either 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 each is in recess differ. The Constitution mandates that
neither house adjourn for more than 3 days without the consent of the other.10
Pursuant to this mandate, each house recesses its session for more than 3 days only
under authority of an adjournment resolution, which is a concurrent resolution
adopted by both houses. As a result, the days not counted in the 90-day period will
be only and exactly those included in any session recess of either house that is
authorized by an adjournment resolution.
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 an
estimate. Based on the recess periods that have occurred so far in 2002, and the
announced congressional schedule for the remainder of the year, however, it currently
appears that 90 days of continuous session after April 8 will expire on or about
Wednesday, September 4. The Senate is scheduled to return from its August 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 period expires, continuity of session is “broken,” meaning
that a new period of continuous session begins with the convening of the next
session.11 As a result, if a state notice 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 of continuous session in the following session to complete action
under the statute. Because Congress is not scheduled to conclude its current session
within 90 days of session from the April 8 notice, these provisions are unlikely to
come into play in the present instance.
7 42 U.S.C. sec. 10135(c).
8 42 U.S.C. sec. 10136(b)(2).
9 42 U.S.C. sec. 10135(f)
10 Constitution, Article I, sec. 5. In U.S. Congress, Senate, The Constitution of the United
States of America: Analysis and Interpretation, S.Doc. 103-6, 103rd Cong., 1st sess.,
prepared by the Congressional Research Service, Johnny H. Killian [and] George A.
Costello, Co-Editors (Washington: GPO, 1996), pp. 121-122. Hereafter cited as
11 42 U.S.C. sec. 10135(f).
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 first
session, and if Congress did not complete action on an approval resolution during
that session, the same resolution would remain available for further action during the
full renewed 90-day period in the second session. By contrast, if the notice were
received late in a second session, the following session would be the first session of
the next Congress. For this reason, if Congress did not complete action on an
approval resolution during the earlier session, the legislation would have to be
introduced anew in the new Congress, and proceed through the full legislative
process de novo during the first 90 days of continuous session of that new Congress.
Enactment. To become effective, the joint resolution of approval must
become law after Congress passes it. In other words, the site is approved only if
either (1) the President signs the approval resolution (or allows it to become law
without his signature), or (2) Congress overrides his veto. These actions, however,
do not have to occur within the 90-day period, but can be completed after its12
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 all the wording except for (1) the identification of the site, (2) the name13
of the disapproving state, and (3) the date of disapproval. These requirements
doubtless suffice to ensure that any companion House and Senate measures relating
to the same site would be substantially similar, though not necessarily entirely
identical. Any resolution that did not meet these statutory requirements would not
be eligible for the expedited consideration prescribed by the Act. In the present
instance, only one resolution was introduced in each house (H.J.Res. 87 and S.J.Res.
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 siting
approval, having the form prescribed by the Act and considered under the expedited
procedure.14 (In principle, of course, Congress could also enact legislation
superseding the NWPA and directing construction of the repository, under its regular
Introduction and Referral
Introduction. The statutory procedures for introduction of resolutions of
repository siting approval differ between the House and Senate. For the Senate, the
Act mandates that the chair of the committee of jurisdiction, or his designee,
introduce an approval resolution by the next day of session after Congress receives
12 42 U.S.C. sec. 10135(c).
13 42 U.S.C. sec. 10135(a).
14 42 U.S.C. sec. 10135(b) and 10135(c).
the disapproval notice.15 The corresponding House provision contains no
requirement that an approval resolution 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 the House 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 on Energy and Air Quality of the Committee on Energy and
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 though
all such measures would have to be either identical, or substantially so. No such
additional resolutions have been introduced in relation to the Yucca Mountain site.
Referral. For each chamber, the Act requires approval resolutions to be
referred “upon introduction” to “the appropriate committee or committees.”17
S.J.Res. 34 was referred to 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 of subcommittee referral to
the practices of the respective committees. H.J.Res. 87 was referred to the
Subcommittee on Energy and Air Quality; S.J.Res. 34 received no subcommittee
Requirement for Report or Discharge. Although the language governing
committee consideration of resolutions of repository siting approval differs between
the House and Senate, the effects are similar. The committee (or committees) of
referral have 60 days of continuous session (defined in the same way as for the 90-
day period) to report an approval resolution. If a committee did not report by the end
of the 60-day period, it would automatically be discharged and the resolution placed18
on the appropriate calendar of its house.
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 approval
resolution. In the House, this point would have been reached on or about June 18,
but the Committee on Energy and Commerce reported H.J.Res. 87 on April 25. In
the Senate, the automatic discharge date would have been reached on or about June
15 42 U.S.C. sec. 10135(d)(2)(A).
16 42 U.S.C. sec. 10135(e)(2).
17 42 U.S.C. sec. 10135(d)(2)(B) and 10135(e)(2). The Senate language additionally
specifies that all “resolutions with respect to the same ... site ... be referred to the same”
committee(s); the House language makes explicit that the referral is to occur “immediately.”
18 42 U.S.C. sec. 10135(e)(3) (House); 42 U.S.C. sec. 10135(d)(2)(B) and 10135(d)(3)
16, but the Committee on Energy and Natural Resources reported S.J.Res. 34 on June
Although the House committee reported the measure favorably, the statute does
not require a favorable report. Under contemporary practice, a measure (in the
Senate) or privileged measure (in the House) reported adversely or without
recommendation is still placed on the calendar as eligible for consideration.19 A
resolution of repository siting approval is a privileged measure in the House, in that
it is to be considered under an expedited procedure.
Action May Be Limited to One Resolution. For each chamber, the
expedited procedure includes a mechanism to 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 the Yucca 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 this20
occurrence by reporting either that resolution “or an identical resolution.” If several
identical resolutions are submitted, and the committee reports any one of them, it is21
not discharged from any of the others. If several resolutions are introduced
approving the same site, and the committee reports none of them, it is apparently
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 not identical to the
first one introduced, it apparently will also be discharged from that first one, so that
in this case both measures 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 of the state disapproval was received. However, the Act also provides for22
discharge to occur “in the absence of” the automatically introduced resolution. This
provision might come into play only in a renewed 90-day period in a new Congress,
when the automatically introduced resolution would have died with the sine die
adjournment of the old Congress. In that situation, if a committee does not report anth
approval resolution by the 60 day of continuous session in the new Congress, it will
be discharged from all approval resolutions introduced in that house in the new
19 For the House, see sec. 2 of “Calendars” in W[illia]m. Holmes Brown, House Practice:
A Guide to the Rules, Precedents, and Procedures of the House (Washington: GPO, 1996),
p. 208. For the Senate, see “Reports” in Floyd M. Riddick and Alan S. Frumin, Riddick’s
Senate Procedure: Precedents and Practices (Washington: GPO, 1992), p. 1183.
20 42 U.S.C. sec. 10135(e)(3).
21 As noted earlier, it is possible that resolutions approving the same site may not be
completely identical in text. The wording of the Act does not explicitly preclude discharge
of an approval resolution that is substantively equivalent, but not identical, to one that has
22 42 U.S.C. sec. 10135(d)(3).
In a new Congress, discharge (and other components of the expedited
procedure) presumably could occur in each chamber only if a new approval
resolution has been introduced.
Floor Action Under the Expedited Procedure and Its
The expedited procedure of the NWPA establishes terms for floor consideration
of resolutions of repository siting approval in each chamber. Like other statutes
establishing expedited procedures, however, the Act also reserves the right of each
house to alter or amend those procedures through the application of its general power
under the constitution over its own rules. As a result, it always remains possible that
either house could consider any particular siting approval resolution under 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 this
report. The House, in particular, has not infrequently taken up measures eligible for
expedited consideration not under the statutory procedures, but instead pursuant to
a special rule or a motion to suspend the rules. In the present instance, however, the
House took up and passed H.J.Res. 87 pursuant to the statutory procedure on May 8.
House Floor Action
Discretion of Speaker. Many expedited procedure statutes protect the ability
of Members to call up the measures whose consideration they govern once they reach
the calendar. The expedited procedure of the NWPA, by contrast, leaves control over
when and whether the House will consider an approval resolution in the hands of the
majority party leadership. This situation is more in harmony with House scheduling
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 Speaker
discretion over whether to recognize for this purpose, he would be able to keep a
siting approval resolution from the floor by declining to do so. Conversely, the Act
provides that when an approval resolution is called up, the House proceeds
immediately to consider it. This provision tends to ensure that, as long as the
Speaker does choose to recognize a Member to call the resolution up, consideration
Terms of Debate. When the House takes up an approval resolution, the
Speaker recognizes the Member calling it up and an opponent for 2 hours of debate,
23 42 U.S.C. sec. 10135(e)(4). A legislative day begins each time the House convenes after
adjourning. Because the House normally adjourns at the end of each day’s session,
legislative days are normally equal to days of session.
equally divided and controlled.24 The Act requires the Member calling up the
resolution to be a supporter of it, and the opposing manager to be an opponent.
Under the general practice of the House, the managers of a measure would typically
be the chair and ranking minority member of the reporting committee (or their
designees). These Members would normally be the ones recognized to manage an
approval resolution, as long as they qualified as supporting and opposing it,
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 she supported
or opposed the resolution. If either could not answer appropriately, the Speaker
would most likely recognize another senior member of the reporting committee who
did take the appropriate position. For example, if the resolution was not reported, but
reached the calendar by discharge, the committee chair might well oppose it. The
chair then would not be entitled to recognition to call the measure up, but would most
likely be accorded the time in opposition if he sought 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 its subcommittees
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 also prohibits the
intervention of any motion between the conclusion of debate and the vote on
adoption. Finally, it explicitly prohibits amendment of an approval resolution.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 their absence,
an amendment might be offered (1) during the two hours’ debate, but only if one of
the managers yielded for the purpose; (2) if the House voted not to order the previous
question; or (3) through amendatory instructions in a motion to recommit.26 A
motion to recommit is normally in order at the conclusion of consideration, but under
the expedited procedure of the NWPA, as just mentioned, an intervening motion at
that point 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 one
approval resolution, this prohibition helps to ensure that the expedited procedure will
24 42 U.S.C. sec. 10135(e)(4).
25 42 U.S.C. sec. 10135(e)(4).
26 Although the prohibition on amendment appears among the provisions on floor procedure,
it also implies that the committee would report no amendment, because any such committee
amendment would not be in order on the floor anyway.
normally give the House one, and only one, opportunity to act on a resolution 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 resolution is on the calendar, any Senator may move28
to proceed to its consideration. If the Senate disagrees to this motion, the Act
provides that it may be repeated (and if more 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, in the absence
of earlier action by the majority leader. Some discussion has occurred over whether
it would be inappropriate for any Senator other than the majority leader or his
designee to offer a motion to proceed to consider the resolution pursuant to the
statute. In practice, the Senate normally concedes to its majority leader the
prerogative of making motions to proceed to consider pursuant to the Standing Rules.
Although the Standing Rules in principle permit any Senator to offer this motion, the
Senate accords the majority leader the function of managing the floor agenda, and
considers control of the motion to proceed a key tool in the discharge of that
function. Some accordingly argue that the same prerogative should be extended to
a motion to proceed to consider offered pursuant to the statute. Others contend that
the statutory provision is evidently intended to insure that the measure can reach the
floor whether or not the leadership determines to call it up.29
Regulation of Motion to Proceed. Normally, a motion to proceed to
consider in the Senate is debatable, but the Act provides that on a resolution of
repository siting approval it is nondebatable. The Act provides as well that this
motion may neither be amended, nor superseded 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 an approval resolution could not be blocked by filibustering
(that is, protracted debate or other actions with dilatory or obstructive intent).
27 42 U.S.C. sec. 10135(e)(4).If more than one approval resolution were to reach the
calendar, however, the Speaker would apparently retain the discretion to secure
consideration of each. This authority might become significant if an approval resolution
were to be rejected by the House, or otherwise blocked at some later stage of proceedings.
28 42 U.S.C. sec. 10135(d)(4)(A).
29 For further information, see CRS report RS21255, Motions to Proceed to Consider in the
Senate: Who Offers Them? by Richard S. Beth, and congressional distribution memoranda,
Statutory Provisions for Calling Up Measures Subject to Expedited Procedures in the
Senate and Measures Subject to Statutory Expedited Procedures that Became Available for
Senate Floor Consideration, 1987-2000, by Richard S. Beth.
30 42 U.S.C. sec. 10135(d)(4)(A).
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
that once the Senate takes up an approval resolution, it will be able to reach a final
vote. All of these provisions are common features of expedited procedures governing
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 by
filibuster. In particular, total debate on the resolution is limited to 10 hours.32 Such
a time limitation is requisite for precluding filibusters, for Senate rules establish
neither a general time limit on debate nor any procedure, other than cloture, to
impose such a limit. The time is to be equally divided between supporters and
opponents; normally, the Senate accomplishes this end by placing the equally divided
time under the control of managers. The managers would typically be the chair and
ranking minority member of the committee of jurisdiction, if they take opposed
positions on the resolution. At the conclusion of debate, the vote on the resolution
must occur. A quorum call, but no other action, may intervene.33 As with the House,34
the expedited procedure also prohibits a motion to reconsider the vote.
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
appeal of 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 for debate, and this motion, like the motion to proceed to consider, may
neither be superseded by a motion to consider something else nor amended, nor may36
its consideration be postponed.
Potential for Amendment. Although the statutory procedure prohibits
amendment of the motion to proceed to consider an approval resolution, and of the
motion to reduce the time for debating one, it contains no provision precluding
amendment of the approval resolution itself. The Act does forbid a motion to
recommit the resolution, which might have included amendatory instructions,37 but
does not explicitly prohibit the offering of an amendment by other means, either from
the floor or by recommendation of the reporting committee. It is unclear whether this
omission was deliberate, though it may be noteworthy that Congress found it
appropriate to include an explicit prohibition against amendment for the House, but
not for the Senate.
31 42 U.S.C. sec. 10135(d)(4)(A).
32 42 U.S.C. sec. 10135(d)(4)(B).
33 42 U.S.C. sec. 10135(d)(4)(C).
34 42 U.S.C. sec. 10135(d)(4)(B).
35 42 U.S.C. sec. 10135(d)(4)(B) and 10135(d)(4)(D).
36 42 U.S.C. sec. 10135(d)(4)(B).
37 42 U.S.C. sec. 10135(d)(4)(B).
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 the
approval resolution was intended not to be subject to amendment in either house.
The close specification made by the Act for the language of a resolution of repository
siting approval might be cited in support of the same conclusion. If the Senate took
such a view, many of the questions raised in this section would not arise.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 also
unclear. It might be argued that if the resolution were amended, it would cease to
meet the description required by 42 U.S.C. sec. 10135(a) for a resolution of
repository siting approval. It might thereby become ineligible for further
consideration under the expedited procedure. For example, if the Senate adopted an
amendment to an approval resolution, it might be possible for a Senator to raise a
point of order that the amended measure was no longer subject to the limits on debate
that the Act establishes as part of the expedited procedures for considering an
approval resolution. If the chair sustained such a point of order, further consideration
would presumably have to occur under the general rules of the Senate, potentially
making the resolution subject to dilatory 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 same measure, and a single
approval resolution will be cleared for Presidential action. These provisions together
direct that when either house passes an approval resolution, the other house is not to
refer it to committee, but is to hold it at the desk. This action maintains the
resolution passed by the other house in a convenient 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 the39
one received from the other house. In the present instance, after the Senate finishes
considering 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
A mechanism like this is part of many expedited procedure statutes that provide
for the resolutions considered by 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 NWPA provides for floor consideration in each
38 For further analysis, see CRS Congressional Distribution Memoranda, Legislative History
of Provision Permitting Senate Amendment to Approval Resolution Under Expedited
Procedure of Nuclear Waste Policy Act and How the Nuclear Waste Policy Act and Other
Expedited Procedures Regulate Amendment in the Senate, by Richard S. Beth.
39 42 U.S.C. sec. 10135(d)(5) (Senate) and 10135(e)(5) (House).
house to occur only on a resolution of that house. It affords no means by which
either house might, instead, initially take up and consider an approval resolution
received from the other. Yet it does not require that any separate approval resolution
be introduced in the House (or in either chamber during a renewed 90-day period in
a new Congress). The consequence is that no approval resolution can be enacted
under the expedited procedure unless some Member of the House (or, in a renewed
Requirement for Identity. The provision for final action contains two
different phrases whose language seems create a conflict. The first phrase states that
the provision applies to any situation in which both houses pass approval resolutions
“with respect to the same site.” The second phrase, however, permits the automatic
substitution of one resolution for the other only “where the text is identical.” The
second phrase, unlike the first, appears to afford an automatic mechanism for final
congressional action only if the approval resolutions of both houses are identical in
text. The language includes 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 approval
resolution differed in any way from the one received from the other house. Such a
point of order could assert that the Act did not permit the approval resolution
originating 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 proceeding only if
the two are “identical.” If the chair sustained this interpretation, the house in
question would presumably have to take its final vote instead on its own resolution.
The Act, however, establishes no further procedure by which either house could then
clear for presidential action an approval resolution received from the other. Instead,
this final clearing action might have to occur under the general rules of each house,
so that it might become possible for opponents to subject this action to dilatory or
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 no difficulties. A difference in text between the House and
Senate measures might still arise, however, if the Senate amended its measure in the
course of its proceedings, or possibly if an additional measure with slightly 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, a Senator might
conceivably be able to raise a point of order against invoking the statutory procedure
for clearing the measure for presidential action. If this point of order were sustained,
action to clear the measure would have to take place under the general rules of the
Senate, which could entail debatable motions considered without statutory time
limitations. These proceedings could delay final action.
Congressional Power to Alter
The preceding discussion identifies a number of difficulties that might arise in
the course of consideration of a resolution of repository siting approval under the
expedited procedure of the NWPA. In particular, the Senate might amend its
approval resolution in such a way that its text no longer met the statutory
requirements for a resolution of repository siting approval. The amended measure
might accordingly be held ineligible for further consideration under the expedited
procedure. Also, because of such amendment or for other reasons, the texts of the
approval resolutions originating in the House and the Senate might differ. This
situation might make the automatic procedure to clear an approval resolution for the
President unavailable 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 power
extends to procedural provisions contained in statute as well as to the procedural
rules each chamber establishes for itself. Further, the expedited procedure of the
NWPA, like most, explicitly declares that the procedural provisions applicable to
each house are enacted as an exercise of that constitutional power, and are subject 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 a
permanent basis. They may also be waived, suspended, or modified in their
application to a specific situation. Finally, the power to make rules is implicitly
understood to include the power to interpret them, or to decide what they mean in a
By its own action pursuant to the rulemaking power, accordingly, either house
could modify or alter provisions of the expedited procedure, either permanently and
generally with respect to consideration of any future approval resolution, or for the
purpose of considering a specific approval resolution. Presumably, either house
could provide either (1) that a resolution of siting approval, as defined by the Act, be
considered other than under the expedited procedure, or that (2) some other form of
measure to authorize construction of the repository be considered under procedures
equivalent to the statutory expedited procedure.
Ways of Applying the Rulemaking Power
Amendment of Rules. Each house establishes and amends its general rules
by adopting resolutions. Because each house retains authority over its own respective
rules, such resolutions require adoption only in the house affected. In principle,
40 42 U.S.C. sec. 10135(d)(1) (Senate) and 10135(e)(1) (House). Constitution, Article I,
section 5, in Constitution Annotated, p. 123.
either house could use such a resolution to effect a permanent change in a statutory
expedited procedure as well. For example, the Senate could supplement the statutory
procedure of the NWPA by adopting a resolution explicitly prohibiting amendment
of a siting approval resolution. In the same way, either house could extend the
mechanism for automatic final action on an approval resolution received from the
other chamber to all cases in which both resolutions address the same site, even if
their texts are not 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 reported
by the Committee on Rules, which typically operates in cooperation with the majority
party leadership on such matters. Such resolutions are considered under procedures
that permit the House, by vote, to terminate debate after one hour, and to prohibit
amendment. In the Senate, such a resolution either would be reported by the
Committee on Rules and Administration or, in the absence of objection, could be
brought directly to the floor by the majority leader. However, it would be considered
under the general rules of the Senate, meaning that it could be subjected to extended
debate, amendment, and other potentially dilatory actions.
Modification, Suspension or Waiver of Rules. Each house possesses
various established procedures permitting it to alter the application of its rules to a
specific measure or in a specific situation. The House often does so by adopting a
“special rule” for consideration of a specified measure just before consideration
begins. Like a permanent change in rules, a special rule takes the form of a
resolution that the Committee on Rules has jurisdiction to report, and is considered
under procedures that permit the House to vote to terminate debate, and preclude
amendment, after one hour. In the past, the majority party leadership and Committee
on Rules have often preferred that measures eligible for expedited procedures be
considered instead under special rules. This form of consideration preserves to a
greater degree the normal control of the leadership over floor action.
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 any
Senate measure approving the same site that the House might already have received,
or even on one that it might later receive. Alternatively, it also would be within the
scope of normal practice for a special rule to provide that the approval resolution be
considered under an entirely different procedure from that specified in the Act. A
special rule might, for example, provide that the resolution be called up immediately
or in the discretion of the Speaker, provide for or prohibit amendment, shorten or
lengthen the time for debate, alter the division and control of that time, or permit or
waive the application of certain points of order, as the leadership and the Committee
The House also often supersedes the procedures otherwise applicable to the
consideration of a specific measure by considering the measure pursuant to a motion
to suspend the rules. A motion to suspend the rules and pass a measure is subject to
Finally, the House could consider an approval resolution by unanimous consent, and
the unanimous consent request might include a specification of terms of
The Senate normally establishes modified or altered procedures for the
consideration of a specific measure only by unanimous consent. It is normally
considered the prerogative of the majority leader to propound requests for unanimous
consent for such purposes. The Senate often uses unanimous consent agreements of
this kind to restrict or even prohibit amendments to a specified measure, and
sometimes to provide that final action on a companion measure received from the
House occur automatically. In contentious situations, such as may likely accompany
consideration of a siting approval resolution, however, unanimous consent to an
agreement 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
could presumably be used in relation to statutory provisions operating as rules, it
appears ill adapted for this purpose. Senate rules impose no time limit on
consideration of a motion to suspend the rules, so that it could be subjected to
filibuster, delaying or blocking the attempt to establish any modified procedure for
acting on the approval 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 to determine the intent and effect of its rules by voting
on procedural questions either submitted to it by the chair, or arising 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, that the statute implicitly forbade
such amendments. If an amendment to the resolution were adopted, the Senate might
in the same way decide that the amended statute still qualified for further
consideration under the 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 an
approval resolution be settled without debate. Action of the Senate in this form,
however, would not merely determine the application of the rule in the particular
situation in which the question was raised. Because the Senate possesses ultimate
authority to determine its own rules, its decision on a question such as this would
establish precedent. It would conclusively establish the general meaning of the
statutory provision, subject to revision only by subsequent action of the Senate 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 on procedural
questions. A point of order might be raised, for example, that the statutory procedure
for automatic final action on an approval resolution was intended to apply whenever
a received Senate companion would approve the same repository site as the House
measure, even if the text is not identical. If the Speaker sustained the point of order,
the House would in all probability accept such a ruling, or at least sustain it if it were
appealed. Subsequently, the House would no doubt accept this ruling as precedent
41 The Senate also permits a motion to waive certain procedural requirements by majority
(or, in some cases, three-fifths) vote, but this mechanism is applicable only to requirements
imposed by specified provisions of the Congressional Budget Act.
controlling the meaning of the provision for any future uses of the expedited
Additional Statutory Requirements
for Site Approval
The previous section addresses whether, if an approval resolution were to be
amended into a form other than that prescribed by the NWPA, it would continue to
be 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 a
form, it might raise additional questions as well. Pursuant to this language, it might
be argued that unless a measure had the form prescribed for an approval resolution,
it might not suffice to authorize construction of the repository. Related passages
could be used to argue that even if the measure had the prescribed form, 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
for which 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 of
the NWPA appears to reflect an intent to go farther, and prohibit construction of a
civilian nuclear waste repository unless Congress enacts the resolution of approval
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 be
effective 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 with this subsection approving this site ....” (Italics added
throughout). The text that a resolution of repository siting approval must possess is
prescribed, as already noted, 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
be questioned that if, independent of the provisions of the NWPA, legislation were
enacted specifically providing that a repository be constructed at a given site, the
enactment would legally suffice for the purpose. Any conceivable uncertainty could
be removed if the enabling statute explicitly superseded or repealed pertinent
provisions 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 approval resolution
would not suffice for this purpose. A resolution of repository siting approval is to
state only that “there hereby is approved the site” specified. The Act requires this
approval in order for the site designation to become “effective.” It gives meaning to
this term by directing 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 in context 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 the
required 90-day period, it might not constitute statutory authorization to proceed with
establishment of the repository. Instead, it might be contended, the process of
establishing the repository cannot go forward unless Congress passes either (1) the
approval resolution in the form and within the time required by the NWPA, or (2)
legislation independent of the requirements of the Act and explicitly directing that
the repository be constructed (or, for example, that the Secretary apply for the
A contrary interpretation of the language of the statute might hold that
congressional “approval” of a site designation entails authorization to proceed with
the repository, even independently of the statutory mechanism of the NWPA. To
preclude such contentions altogether, however, any approval resolution passed either
in amended form, or outside the statutory time frame (or both), might have to be
amended also to contain language explicitly authorizing construction (or application
for authorization to construct), and perhaps explicitly superseding the statutory
process of the NWPA as 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 the
resolution for consideration under the expedited procedure of the Act. The NWPA
attempts to require that an approval resolution must be passed in a specified form,
and within specified time constraints, in order to permit establishment of the
repository to go forward. It does not require that the approval resolution be enacted
in accordance with the expedited procedure itself. The provisions of section 10135
quoted earlier require action 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 constraints
of the expedited procedure on debate and other procedural actions, and ultimately
pass in lieu thereof an unamended companion previously received from the House.
This process would result in an approval resolution becoming law in the form
prescribed by statute, but not in 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 approval enacted under those conditions. Similarly, as long as
Congress passed an approval resolution having the prescribed form within the
required 90 days of continuous session, the measure would apparently suffice to
42 42 U.S.C. sec. 10134(b).
approve the site designation even if Congress did not consider it in accordance with
the expedited procedure.
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 an
approval resolution. If either house departed from the prescribed procedures in its
consideration of the resolution, its action presumably would amount to an implicit
exercise of the chamber’s power to alter the expedited procedure in its application
to the specific instance. Such alterations in statutory procedures are implicitly
understood as authorized by the rulemaking clause of the Constitution, even where
not explicitly authorized by the rulemaking language of the statute itself.
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 did not
meet the statutory requirements of form and timing. The Act gives the status of
congressional rules only to the provisions of subsections (d) and (e) that govern
congressional action on an approval resolution from introduction through final
action. The provisions of subsections (a) through (c), which specify the required
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 appropriately construed
as having this status, for their effects go beyond procedural implications internal to
Congress. Accordingly, if an approval resolution did not meet the statutory
requirements of form and timing, then Congress might prefer to include in the
resolution an explicit statement of its intended force and effect, in order to ensure 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 and
timing provided by the NWPA, that legislation would presumably be ineligible,
under the statute, for consideration under the expedited procedure. The Act makes
that procedure available only for measures meeting the statutory requirements of
form for a resolution of repository siting approval. Presumably, as a result, approval
legislation of any alternate kind would not be subject to the restrictions imposed by
the statute on committee action, calling up, debate, amendment, and other procedural
actions. It would instead have to be considered under the general procedures of each
house. It could, accordingly, be considered under procedures equivalent to the
expedited procedure, but only if each house, using its general practices of making
procedural decisions, so determined.