D.C. Circuit sits on Yucca Mountain ruling, awaits FY 2013 budget

A divided U.S. Court of Appeals for the District of Columbia Circuit has decided to wait a few months before deciding whether to order the U.S. Nuclear Regulatory Commission (NRC) to restart license review of the Department of Energy (DOE) application to develop a nuclear waste repository at Nevada’s Yucca Mountain.

In an order issued Aug. 3, the three-judge panel for the court decided to put its ruling on hold in hopes Congress might address funding for the NRC license review as part of its Fiscal Year 2013 budget package.

The court said that it would hold the case “in abeyance” for now and asked the parties to file, no later than Dec. 14, updates on FY 2013 appropriations with regard to the Yucca Mountain license.

In May, attorneys for the National Association of Regulatory Utility Commissioners (NARUC) and plaintiffs from various state and local governments argued that NRC defied a congressional mandate by electing to stop the license process.

NARUC and the states alleged that the NRC, and in particular former Chairman Greg Jaczko, acted politically instead of scientifically after DOE, which filed the Yucca Mountain license application in June 2008, asked to withdraw its application in March 2010, claiming that the Nevada venue is no longer an option.

The NRC has argued that it was not pouring good money after bad, because the $10m it had available for the Yucca license review would not be enough to finish the job.

The Obama Administration has opposed the Yucca Mountain project, eventually impaneling the Blue Ribbon Commission on America’s Nuclear Future to evaluate options for the back end of the nuclear cycle.

Dissenting judge: No need to wait when NRC has defied Congress

Senior Judge Raymond Randolph dissented, saying there was no need to wait before ordering NRC to act.

“Whether mandamus should issue when an agency is willfully defying an earlier Congress’s command has never depended on the possibility that a later Congress might do something to excuse the violation,” Randolph wrote. “Here, the Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward. There is no reason to delay issuing a writ of mandamus to correct this transparent violation of the law.”

The Nuclear Waste Policy Act states that the NRC shall consider the Yucca Mountain license application and issue a final decision approving or disapproving the project within three years of its submission, Randolph said.

In his dissenting statement, Randolph said there is no reason for the appeals court to wait in hopes that Congress will issue funds ordering NRC to restart the license review. Congress might come down on one side or the other of the Yucca Mountain dispute. “Or it might do nothing at all,” Randolph said. “Whatever might happen in the future, the fact remains that Congress has already spoken. We should not wait for further instructions.”

But Judge Brett Kavanaugh issued a statement concurring with the order. “It behooves us to wait for Congress. If Congress provides no additional clarity on the matter, however, we will be compelled to act on the petition for mandamus.”

Judge Merrick Garland is the third member of the appeals court panel that is considering the case.

The Nuclear Energy Institute (NEI) issued a statement saying while it was disappointed that the court did not go ahead and take action, that it believes NRC will eventually be forced to continue its review. NARUC issued a statement saying it appears that revival of the license review is inevitable.

The D.C. Circuit case is No. 11-1271: Aiken County, et al., versus NRC.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.