Split judicial panel orders NRC to resume license review

A federal appeals court today ordered the Nuclear Regulatory Commission to continue its review of the Energy Department's application to build a nuclear waste repository under Yucca Mountain, Nev., despite the Obama administration's desire to abandon the proposal.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2-1 to force NRC to "promptly" continue the licensing process. In an opinion for the court, Judge Brett Kavanaugh wrote that NRC has "continued to violate the law" by halting all consideration of the Yucca project three years ago.

"As things stand ... the Commission is simply flouting the law," Kavanaugh wrote. "In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory Commission."

At issue was whether NRC had violated the Nuclear Waste Policy Act by failing to complete the Yucca application process. The court sided with the claims filed by the states of Washington and South Carolina, a utility regulators' group and two counties, among others.

The ruling was expected; one year ago, the court signaled that unless Congress specifically said the project should not be funded, it would likely rule against the commission (Greenwire, Aug. 3, 2012). Although Senate Majority Leader Harry Reid (D-Nev.) is a vocal opponent of the project, a divisive Congress has been unable to pass legislation explicitly canceling it.


Instead, Congress has not funded the project in two years. NRC has argued that the lack of funds indicates congressional approval to halt the project, but Kavanaugh wrote in his opinion that the funding level "tells us nothing definitive about what a future Congress may do."

Congress, he wrote, "speaks through the laws it enacts. No law states that the Commission should decline to spend previously appropriated funds on the licensing process. No law states that the Commission should shut down the licensing process."

The ruling does not mean the Yucca application will be completed -- only that NRC must continue the process using the $11.1 million already in its coffers and earmarked for the task. President Obama and Reid have declared the project dead, and Congress is unlikely to provide any more funding in the near future.

Kavanaugh acknowledged that possibility in his opinion. But he wrote that the case has "serious implications for our constitutional structure" and the ruling was necessarily to keep intact the separation of powers.

"To be sure, if Congress determines in the wake of our decision that it will never fund the Commission's licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money," he wrote. "And Congress, of course, is under no obligation to appropriate additional money for the Yucca Mountain project."

The National Association of Regulatory Utility Commissioners issued a statement today acknowledging that, despite the ruling, the project "remains uncertain." But President Philip Jones argued that an NRC review is useful even if it doesn't lead to the use of Yucca Mountain for nuclear waste storage.

"[T]he NRC is the only agency with the authority and expertise to make the judgment that the facility will meet safety and other regulatory requirements. No matter what the eventual outcome will be, we can learn a great deal from their review, because geologic storage of nuclear-waste remains the most viable option going forward," Jones said. "Thankfully the courts recognized the clear disregard for the law the administration has shown in this proceeding. Now our government has a chance to get this program back on its feet."

The three-judge panel of the court voted along partisan lines. GOP appointees Kavanaugh and Senior Judge Arthur Randolph concurred that NRC is statutorily required to process the Yucca application, while Chief Judge Merrick Garland -- a Clinton appointee -- dissented.

In his dissenting opinion, Garland argued that Congress hasn't appropriated enough money for NRC to make any progress. He cited a 1936 case that found courts should not issue a writ of mandamus "to do a useless thing."

"Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do 'a useless thing,'" he wrote. "The NRC has not refused to proceed with the Yucca Mountain application. Rather, by unanimous votes of both the Commission and its Atomic Safety and Licensing Board, it has suspended the application proceeding until there are sufficient funds to make meaningful progress."

NRC's five commissioners were split 2-2, with one recusal, when they voted on whether to reverse an Atomic Safety and Licensing Board decision that said DOE could not withdraw its application, but the commission nevertheless concluded that no action would be taken to restart the project.

Nevada Sen. Dean Heller (R) said today's ruling should prompt Congress to definitively end the Yucca project.

"Today's decision serves as yet another example of why Yucca Mountain needs to be taken off the table once and for all. This ruling is an exercise in futility that will ultimately waste resources that could be better used elsewhere," Heller said. "Instead of continuing to try to force Yucca Mountain on the people of Nevada, my colleagues should focus on moving forward towards a new process that will allow for consent-based siting."

Republican leaders of the House Energy and Commerce Committee applauded the court’s decision with Chairman Fred Upton (R-Mich.) and Environment and the Economy Subcommittee Chairman John Shimkus (R-Ill.) calling it a “significant milestone for Yucca Mountain.”

“Ultimately, our goal continues to be the safe permanent storage of spent nuclear fuel, giving states and communities the certainty they need. This decision will help re-start the important work toward a resolution,” they said in a statement. “We will continue our oversight of the Commission to ensure the license review is swiftly resumed and the NRC’s independent, technical conclusions about the safety of Yucca Mountain are made available to the public. Let the science be the deciding factor on Yucca Mountain, not politics.”

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