NUCLEAR POLICY:

Yucca lawsuits must wait until NRC acts, D.C. Circuit rules

A federal appeals court ruled today that challenges to the Obama administration's decision to withdraw from developing the Yucca Mountain, Nev., nuclear waste repository were premature.

The three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia held that there is no final decision to challenge until the Nuclear Regulatory Commission acts on the recommendations made by the Department of Energy.

South Carolina, Washington and other petitioners challenged the federal government's Jan. 29, 2010, decision to withdraw "with prejudice" an application the Department of Energy had submitted to NRC to construct the Yucca Mountain dump. The repository would have stored high-level nuclear waste and spent nuclear fuel about 100 miles northwest of Las Vegas.

The Obama administration moved to pull its application before the NRC last year, but the commission's Atomic Safety and Licensing Board ruled that only Congress has the authority to withdraw the application. DOE appealed the board's ruling to the full commission.

One NRC commissioner, George Apostolakis, has recused himself from the case because of previous work on the application, and the other four commissioners are apparently split 2-2 on affirming the board's action, although the commissioners have declined to disclose their votes (ClimateWire, May 5).

The states argued that the federal government's actions violated the specific and prescriptive 1982 Nuclear Waste Policy Act, which Congress designed to be detailed and restrictive after two prior siting attempts crumbled under intense local political opposition.

By changing course as it did, the government violated the Administrative Procedure Act and the National Environmental Policy Act, the petitioners had argued.

Without reaching those questions, the court ruled that the petitions were filed too early, before the government had made a final decision that could be legally challenged.

Chief Judge David Sentelle wrote in the majority opinion that until NRC makes a determination "there is, at least, a lack of finality and ripeness."

He offered some words of sympathy for the petitioners, noting that their fear that the federal government might never find somewhere to put the nuclear waste temporarily stored at various sites "is not unreasonable."

In a separate opinion, Judge Janice Rogers Brown appeared to offer some advice to petitioners -- and a warning to NRC -- by noting that the challengers had failed to focus on the commission's role.

She noted that petitioners may have an argument that NRC may have violated the National Environmental Policy Act by failing to act quickly enough.

The third member of the panel, Judge Brett Kavanaugh, also wrote separately to point out how the case is "a mess" because DOE and NRC have "overlapping statutory responsibilities with respect to the Yucca Mountain project."

Reaction

The decision was not unexpected based on the views expressed by the judges during the oral argument in March (Greenwire, March 22).

The National Association of Regulatory Utility Commissioners -- a group of state utility regulators that was supporting the petitioners -- said the court's decision was a disappointment but that the onus is squarely on the NRC to act expeditiously and decide whether or not the government can pull its application to develop the Yucca repository.

"The NRC owes it to the consumers of nuclear power who have contributed more than $30 billion for the development of a nuclear-waste repository to make a decision, preferably one that will uphold their own staff review which would deny DOE's request," said Rob Thormeyer, a NARUC spokesman.

The Nuclear Energy Institute, the nuclear industry's lobbying arm that was also supporting the petitioners, agreed that focus will now turn to the commission and its policy decision on how the Yucca Mountain project must proceed.

"The licensing board's petition is before the commission and the commission hasn't acted," John Keeley said. "That's what we see the next step as being."

The petitioners and officials from NRC and DOE were not immediately available for comment.

Click here to read the opinion.

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