A federal appeals court suggested today that challenges to the Obama administration's decision to withdraw from developing the Yucca Mountain, Nev., nuclear waste repository could be premature.
But the three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia also told the challengers that they could file a new petition when there is a final agency decision to dispute.
At least one judge appeared to question the administration's political maneuvers in attempting to circumvent the 1982 Nuclear Waste Policy Act, which outlines a limited procedure for choosing a permanent nuclear waste repository.
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 the Nuclear Regulatory Commission to construct the Yucca Mountain dump. The repository would have stored high-level nuclear waste and spent nuclear fuel.
The states maintain that the federal government's withdrawal of its application violates the very specific and prescriptive 1982 nuclear waste law, which Congress designed to be detailed and restrictive after two prior siting attempts crumbled under intense local political opposition. Senate Majority Leader Harry Reid (D-Nev.) ran his successful re-election bid in 2010 in part on his success in shutting down the project.
By changing course as it did, the government violated the Administrative Procedure Act and the National Environmental Policy Act (NEPA), the petitioners say.
But the three-judge panel today seemed to agree the petitions were filed too early, before the government had made a final decision that could be legally challenged.
NRC is currently deciding whether to allow DOE to withdrawal its application to develop the repository. The agency could decide at any time.
"We have to have finality," said Chief Judge David Sentelle.
While it is not clear whether DOE would comply with NRC's decision, Judge Brett Kavanaugh asked: "Why shouldn't we wait for the NRC to act?"
The petitioners argue the federal government never said why Yucca Mountain was scientifically unsuitable for use as a repository and that after spending more than 15 years and billions of dollars investigating the site, DOE has ended agreements with contractors, closed the site and abandoned any funding for the program.
Under the process laid out under the nuclear waste law, the federal government must move forward with the application process until NRC issues a decision on the merits of the application, the petitioners said.
The decision to withdraw the application violates NEPA because it constitutes a "major federal action" that must be supported by environmental analysis, which the government failed to conduct, they said. Even if the government did not violate NEPA, the decision is not supported by any administrative record and therefore violates the APA.
The Obama administration counters that Energy Secretary Steven Chu has broad authority under the Atomic Energy Act and the DOE Organizational Act and that he is authorized to make "discretionary policy decisions regarding disposal of nuclear waste and spent nuclear fuel."
Justice Department lawyer Ellen Durkee did not dwell on the merits of the decision, preferring instead to focus on the premature filing of the petition.
"Judicial review ... is neither appropriate nor available," Durkee said.
That prompted Sentelle to ask what would happen if NRC never acts. Durkee responded that the challengers would be required to file a new petition. She also pledged to the court that the government would comply with NRC's decision after the appeals process is complete.
Of the three judges, Kavanaugh seemed most skeptical of the government's motives.
"It does seem that DOE has made a considered decision not to comply with the law passed by Congress," he said.
Reporter Lawrence Hurley contributed.
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