Court Considers Budget Issues
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," he said.
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.
Copyright © 1996-2012 by
CyberTech,
Inc.
All rights reserved.
To subscribe or visit go to:
http://www.energycentral.com
To subscribe or visit go to:
http://www.energybiz.com