A top appeals court on Tuesday ordered the Nuclear Regulatory Commission to end the suspense and come to a decision on the controversial Yucca Mountain nuclear waste repository.
In a 2-1 decision that raises the political stakes, the U.S. Court of Appeals for the District of Columbia Circuit determined that the commission has “continued to violate the law” by refusing to act, one way or another, on the Yucca Mountain licensing application. The time for a decision, the court added, “has long since passed.”
"The commission is simply flouting the law," Judge Brett Kavanaugh wrote for the majority.
The Nuclear Waste Policy Act gives the Nuclear Regulatory Commission three years to accept or reject a license application for a nuclear waste storage site once it’s been filed. The Bush administration submitted the Yucca Mountain application in June 2008.
“By its own admission, the commission has no current intention of complying with the law,” Kavanaugh wrote. “Rather, the commission has simply shut down its review and consideration of the Department of Energy’s license application.”
The highly anticipated ruling is a victory for South Carolina, Washington and other states that want to use the remote Yucca Mountain site in Nevada as a resting spot for the nuclear waste that’s piled up with no permanent place to go. Federal law originally called for the nuclear waste repository to open by 1998.
The ruling is a defeat, though probably not a definitive one, for Senate Majority Leader Harry Reid, D-Nev., and other lawmakers who’ve fought to keep Yucca Mountain from opening.
Reid said Tuesday in Las Vegas, where he was at the National Clean Energy Summit, that the ruling was “not unexpected,” but he said it “means nothing” because Congress wouldn’t provide the money needed to finish the licensing work.
An NRC spokesman said the commission was reviewing the ruling.
Legal scholars, too, will be parsing the case, which Kavanaugh said raised “significant questions about the scope of the executive’s authority to disregard federal statutes.” While it’s unusual for a federal court to issue a so-called writ of mandamus like this to order a federal agency to take action, Kavanaugh and his fellow Republican appointee, Judge Arthur Randolph, called the dramatic step necessary.
“It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission,” Kavanaugh wrote.
The dissenter, Judge Merrick Garland, cautioned that a court ordering a federal agency to act is a “drastic and extraordinary remedy reserved for really extraordinary causes.” A Democratic appointee to the bench, Garland added that it’s unlikely that the commission has all the money it needs to complete the processing of the Yucca Mountain license application, which stalled several years ago.
“Given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again,” Garland predicted.
Located about 100 miles northwest of Las Vegas, the underground Yucca Mountain site was supposed to store safely for 10,000 years some of the most dangerous material known to man.
There’s a lot of it around.
The United States already has generated more than 80,000 tons of spent nuclear fuel and high-level nuclear waste, and the toxic materials are stored at some 80 sites in 35 states, according to the Government Accountability Office. The federal government already has spent nearly $15 billion on preparing the Yucca Mountain site.
“Consumers of electricity generated by America’s 100 reactors . . . deserve to know whether Yucca Mountain is a safe site for the permanent disposal of used nuclear fuel,” the Nuclear Energy Institute and the Nuclear Waste Strategy Coalition declared after the court ruling Tuesday.
While campaigning for president in 2008, Barack Obama pledged to oppose the Yucca Mountain repository. As president, he’s proposed budgets that eliminate funding for the project, prompting an unsuccessful effort by Sen. Patty Murray, D-Wash., the chairwoman of the Senate Budget Committee, to restore the money.
In 2010, Obama’s appointed NRC chairman, a former Reid staffer named Gregory Jaczko, ordered the commission’s staff to stop working on the Yucca Mountain license application. Two other commissioners and dozens of members of Congress erupted in opposition to the halt. The majority in the House of Representatives showed its continuing support for Yucca Mountain last month, when lawmakers rejected by 87-337 a proposal to direct Yucca Mountain funding elsewhere.
“I think the Congress on a bipartisan basis can agree that we ought to go ahead and finish the review of the Yucca Mountain site,”’ Rep. Joe Barton, R-Texas, said during the House debate. “We have spent billions – billions of dollars – on that site. Let’s spend another $25 million and finish the job.”
The NRC currently has about $11 million appropriated for the Yucca Mountain licensing work, Kavanaugh said.