Why the Appeals Court Can’t Jump-Start Yucca Mountain

By Kennedy Maize

Washington, D.C., August 16, 2013 – Will this week’s D.C. Circuit Court decision put Yucca Mountain on a final path toward becoming the nation’s dump for spent nuclear fuel? Unlikely.

Here’s why, in two words: Harry Reid. The tenacious Senate majority leader from Nevada (yes, that’s right, Nevada, where Yucca Mountain is located on federal land) simply won’t let it happen. As long as he’s the leader of the Senate – and even if he were to become minority leader if the GOP takes the Senate in 2014 – Reid has tools to stop the project.

Assuming he continues to have a majority in the Senate, Reid controls the most important factor in the development of a final retirement home for spent nuclear fuel: money. The chair of the Senate Appropriations Committee is Maryland Democrat Barbara Mikulski. How did she become the most important signer of checks in the Senate? Harry Reid.

Who chairs the Senate appropriations subcommittee that funds the Department of Energy (and its Yucca Mountain project)? California’s Diane Feinstein, a close Reid ally and no fan of nuclear energy.

So Reid controls the game at least until the 2014 national elections that could put Republicans in control of the Senate. That means that for the next several years, it’s unlikely that Congress will appropriate money for Yucca Mountain. The House of Representatives, under Republican control, is likely to include money for Yucca Mountain in its money bill, but when it comes to dealing with the Senate in a conference committee, if it ever gets that far, the House is likely to cave in on nuclear waste. It’s not an issue that touches many House members, but is more important to the senators who represent entire states, not just congressional districts.

That ties into the appeals court decision. The opinion by Judge Brett Kavanaugh, clearly trashing the Obama administration’s recalcitrance on the Yucca Mountain project (see my book “Too Dumb to Meter” for a discussion of the politics of Obama and Reid over Yucca Mountain), lays out the scenario for the Obama administration to continue dragging its feet, arms, legs, and other anatomical appendages on the Nevada project.

In his opinion, Kavanaugh describes how Reid and the Obama administration will continue to prevent additional work at Yucca Mountain. First, Kavanaugh noted, “Of course, if Congress appropriates no money for a statutorily mandated program, the executive obviously cannot move forward.”

The NRC has about $11 million in unexpended balances in the Yucca Mountain account, but Congress hasn’t given the agency any new money in years, thanks to Reid. The $11 million amounts to a rounding error in the size of the nuke waste program. Judge Merrick Garland noted in dissent, “No one disputes that $11 million is wholly sufficient to complete the processing of the application” for an NRC license. No more funds are likely to flow to the NRC for the project in the next few years.

Beyond that, Kavanaugh says, in “Section 3” of his opinion, just how the administration can justify its refusal to move ahead on Yucca Mountain and still be in compliance with the law and the U.S. Constitution. In what some lawyers might describe as a convoluted and tortured analysis, Kavanaugh describes just how the administration could justify its actions, citing the “Take Care Clause of Article II” of the Constitution. He then lays down a road map for how the administration can use that approach to meet his objections about the constitutionality of its Yucca Mountain actions.

Kavanaugh’s discussion (which amounts to dicta in that neither of the other judges on the panel agreed to it) may be why Judge A. Raymond Randolph refused to sign on to that section of Kavanaugh’s opinion. He tossed it aside as “unnecessary to decide this case.”

Ultimately, as a practical matter, Garland’s dissent is likely to be the best prediction of what will happen. “In short,” Garland wrote, “given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again.”

As for the person who likely will really determine the fate of the Yucca Mountain project, Harry Reid was dismissive, according to the New York Times. Reid said, “With no disrespect to the court, this decision means nothing. Yucca Mountain is an afterthought.”