DC Court Orders NRC to Resume Yucca Mtn

By Kennedy Maize

A divided federal appeals court today ordered the U.S. Nuclear Regulatory Commission to resume action on licensing the Yucca Mountain nuclear waste project in Nevada.

in a 2-1 ruling, the U.S. Court of Appeals for the D.C. Circuit said inaction by the commission at the direction of the Obama administration early in its first year in office “is simply flouting the law.” The court took the unusual step of  issuing a writ of mandamus to the NRC, as the court threatened a year ago.

In an opinion written by Judge Brett Kavanaugh, the court said that a president “may not decline to follow a statutory mandate or prohibition simply because of policy objections” unless Congress refuses to appropriate funds to implement the law.

“In this case, however,” wrote Kavanaugh, “the Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process.” He noted that the states of South Carolina and Washington have been seeking a writ of mandamus (an order to an agency to take action) since 2010. On August 3, 2012 the court delayed issuing the writ, saying it wanted to see if Congress would come up with money for the project or vote to kill it. Since then, he wrote, “the commission has not acted and Congress has not altered the legal landscape. As things stand, therefore, the commission is simply flouting the law.”

Kavanaugh’s opinion rejects arguments by the NRC. The commission said Congress hasn’t appropriate the full amount necessary to license the Nevada project. “But Congress often appropriates money on a step-by-step basis, especially for long-term projects,” said Kavanaugh. The NRC also argued that Congress is likely to kill the project anyhow. Kavanaugh scornfully said that “an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates.”

In a concurrence, Judge A. Raymond Randolph raked former NRC Chairman Greg Jaczko, over the coals. Randolph wrote that “Jaczko orchestrated a systematic campaign of noncompliance. Jaczko unilaterally ordered commission staff to terminate the review process in October 2010; instructed staff to remove key findings from reports evaluating the Yucca Mountain site; and ignored the will of his fellow commissioners.”

Judge Merrick Garland dissented. He said that issuing a mandamus order was too harsh and ultimately empty. “Unfortunately,” Garland said, “granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do ‘a useless thing.’ The NRC has not refused to proceed with the Yucca Mountain application. Rather, by unanimous votes of both the commission and its Atomic Safety and Licensing Board, it has suspended the application proceeding until there are sufficient funds to make meaningful progress.” With only $11 million in hand and no prospects that Congress will come up with any additional funds, Garland said, it’s the commission’s judgment that it cannot make meaningful progress on the Department of Energy’s license application.

In a written statement following the decision, Philip Jones, president of the National Association of Regulatory Utility Commissioners and a member of the Washington Utilities and Transportation Commission, said, “At long last, this court decision will direct the Nuclear Regulatory Commission to comply with the law and continue its legally obligated review of the license for the proposed nuclear-waste repository in Yucca Mountain, Nevada. It is unfortunate it took litigation and this decision to require the NRC to comply with its responsibilities under the Nuclear Waste Policy Act, but this decision sends a message that federal agencies cannot ignore laws they do not like.”