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.
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