Trump Administration Swats at Texas in Yucca Mountain Nuclear Repository Legal Fight

Citing its backing for the long-stalled Yucca Mountain permanent spent nuclear waste repository in Nevada, the Trump administration has asked a federal court to reject a petition filed by Texas in which the state sought a court-supervised process to take over administrative proceedings so as to guarantee licensing and eventual construction of project.

Texas filed its lawsuit with the Fifth Circuit on March 15 in an attempt to stop the Department of Energy (DOE) from spending tax dollars on consent-based siting activity, and to force the Nuclear Regulatory Commission (NRC) and other relevant federal agencies to complete licensing proceedings for Yucca Mountain.

The state also argued that the DOE’s failure to accept spent nuclear fuel by 1998, as required by the Nuclear Waste Policy Act of 1982, injured Texas because it was saddled with waste fuel that could potentially devastate public health and environment.

But in a petition filed on June 30 with the U.S. Court of Appeals for the Fifth Circuit, the departments of Energy and Treasury argued that Texas’ lawsuit is the “wrong method to achieve the result,” and that it is also “fatally flawed.” It also claims that Texas lacks standing, it fails to identify a reviewable agency final action, and it is “untimely moot in any event.”

Notably, the Trump administration’s petition also rejects Texas’ claims that temporary storage of spent nuclear fuel was injurious, saying that the state failed “to allege concrete or particularized injury because it offers no factual basis to support its assertion that the mere ‘existence’ of [spent nuclear fuel] in Texas ‘poses danger.’”

It added that the NRC—“the agency vested with both the responsibility and the expertise to evaluate such issues”—concluded that “spent fuel can be safely stored until a repository is available, or indefinitely should such storage become necessary.”

The Trump administration pointedly noted that the state had also failed to account for the federal government’s recently announced actions to back the contentious Yucca Mountain project’s licensing. Its petition notes the president’s budget requests, for the first time since 2010, that Congress appropriate $120 million for the DOE to conduct the Yucca Mountain license proceeding. It also declares that any “consent-based siting activities” undertaken by the Obama administration have “no legal effect.”

The DOE recently took down a website describing the Obama administration’s ambitions for consent-based siting, replacing it with a message that announces it is reevaluating the measure to reflect the agency’s priorities under President Trump and Energy Secretary Rick Perry (who served as a former governor of Texas).

In its petition last week, the Trump administration also says “it does not intend to take further policy action on the consent-based siting activities in question.”

Backing for the permanent waste repository many had thought was dead is also growing in Congress. On June 28, the House Energy and Commerce Committee voted 49–4 to advance a bill to advance the project. The legislation essentially sets a timeframe for the NRC to approve the project and allows the DOE to permit an interim nuclear waste storage site before licensing for the permanent repository is completed. Some Democrats who supported the measure cited efforts to remove spent nuclear fuel waste that has been stalled at nuclear power plants owing to the limbo surrounding a nuclear waste strategy.

However, the federal government’s petition sets new stakes in what is certain to be a bitter legal battle embroiling the controversial project.

The state of Nevada filed its own motion on April 12 in the 5th Circuit to intervene as a respondent in the Texas case, noting that it has for more than three decades “steadfastly opposed any attempt to dump the Nation’s nuclear waste within its borders.” Texas’ petition directly and adversely threatens the rights of Nevadans and its citizens, the state said.

“If successful, the end result of Texas’s Petition will be to short-circuit the legislative process currently pending in Congress, hamper Nevada’s ability to present its case at the licensing hearing, and rush a flawed project to completion at the direct expense of Nevada’s sovereign interests and the health, safety, and welfare of its citizens,” the state said.

—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)