Court orders Yucca Mountain license review to continue
Tuesday, September 03, 2013 5:00 PM
WASHINGTON - The U.S. Court of Appeals for the D.C. Circuit delivered a rebuke to the Obama Administration, ordering it to restart work on the Yucca Mountain licensing process.
The Yucca Mountain license review has been stalled since 2010 when the chairman of the Nuclear Regulatory Commission (NRC) ordered agency staff to terminate their review and remove key findings from licensing reports documenting their safety review of Yucca Mountain.
Although the Nuclear Waste Policy Act mandated a four-year schedule to review the Yucca Mountain license, five years have elapsed, and the NRC has not issued a final decision on the project as required by law.
The Obama Administration attempted to withdraw the Yucca license application from review but was rebuked by a panel of administrative law judges overseeing the review as well as the Circuit Court.
Congress wrote and passed the Nuclear Waste Policy Act (NWPA) with a sense of urgency so that the process would move forward without delay. The NWPA originally designated Yucca Mountain as the nation's first geologic repository.
In keeping a campaign promise, the Obama Administration directed the Department of Energy (DOE) to withdraw the application to preclude any future consideration of the Yucca Mountain site.
Such an action by the Department of Energy (DOE) is a clear violation of the NWPA. The NWPA expressly mandates DOE to submit a license for review and for NRC to review the license and issue a decision whether the Yucca Mountain site is safe or not. The recent U.S. Appeals Court's decision further enforces that mandate.
Petitioners in the case before the Appeals Court included the states of South Carolina and Washington, as well as entities and individuals in those states.
Since 2010, petitioners have sought a writ of mandamus, a court order requiring the Nuclear Regulatory Commission to comply with the law and to resume processing the Department of Energy's pending license application for Yucca Mountain. Mandamus is an extraordinary remedy that takes account of equitable considerations.
Writing the majority opinion, Judge Brett M. Kavanaugh said, "It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this casse. This case raises significant questions about the scope of the executive's authority to disregard federal statutes."
The Appeals Court delayed their decision in hopes Congress would enact legislation establishing a new policy direction for the repository program. Congress has not acted.
The House remains solidly in support of moving ahead with Yucca Mountain. The House in July voted overwhelmingly, 335 to 81, to block Nevada Rep. Joe Heck's attempt to strip from an appropriations bill $25 million for Yucca Mountain.
A whopping 118 Democrats voted with Republicans, including Democratic Whip Steny Hoyer and Assistant Democratic Leader James Clyburn. The Senate, under the control of Majority Leader Harry Reid, is less supportive and continues to oppose the project.
House chairman suggests offering Nevada $5.6 billion for Yucca Mountain
At a recent hearing before the House Energy and Commerce Committee, Illinois Rep. John Shimkus suggested to Energy Secretary Ernest Moniz that Nevada should receive $5.6 billion for the repository site.
Shimkus, said the Department of Energy has estimated it will spend $5.6 billion over the next 10 years to pursue new strategy to locate and study potential storage sites for used nuclear reactor fuel.
"Why not offer this money to Nevada?" he said at a House hearing. "Part of the problem with the state of Nevada is that they say 'Show me the money,' and they don't believe we would follow through. Wouldn't $5.6 billion to a state that has a struggling economy ... don't you think that would be a good lure?"
However, such an offer does not ensure that a repository will be built at Yucca Mountain. The project must still undergo a thorough license review that offers the state of Nevada an opportunity demonstrate that the site is unsafe as required by the NWPA.
The Yucca Mountain site cannot be built unless it is safe regardless of how large the offer of compensation to Nevada might be. More than $15 billion has already been spent on studying Yucca Mountain in preparation of the NRC license application and review. This month, the U.S. Appeals Court ordered the Yucca Mountain review process to continue.
Rex Massey heads the Lander County Yucca Mountain Oversight Project.