Court of Appeals rebukes DOE on nuclear waste fund fee

The United States Court of Appeals for the District of Columbia ruled that the Department of Energy (DOE) failed to justify continued payments by consumers of electricity from nuclear power plants into the Nuclear Waste Fund.

Consumers since 1982 have paid more than $30 billion into the fund. The court ordered DOE to conduct a complete reassessment of this fee within six months. While the court did not order DOE to suspend the fee payments, the court rejected DOE’s bases for continuing to collect the fees. The Nuclear Energy Institute’s Ellen Ginsberg, vice president, general counsel and secretary, made the following remarks in reaction to today’s decision:

“The court is unequivocal in finding DOE’s interpretation of its legal obligation ‘unacceptable’ and rejecting DOE’s use of Yucca Mountain costs as a ‘proxy’ when the agency terminated the program. The industry’s priority continues to be realization of a fully functioning used fuel management program at DOE.

“Significantly, the court said that the plain language of the statute ‘utterly destroy[s] the Secretary’s claim that he can remain entirely passive and only act to meet DOE’s legal commitment if some [god from above] were to bring him information.’ The court highlighted DOE’s failure to provide an accurate estimate of the ultimate cost of the program, saying the government’s calculation ‘appears to be off by $30 billion.’ The agency must provide clear justification to continue to collect the Nuclear Waste Fund fee at the present level.

“Based on its finding that DOE has a ‘disposition to delay,’ the court appropriately ordered the Secretary of Energy to reassess the fee within six months. The industry is pleased that the court retained jurisdiction over this matter, and further, ruled that it has authority to direct the Secretary of Energy to suspend collection of the fee.”