Court tells NRC to revive Yucca Mountain review
Published: Tue, 08/13/13
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Court tells NRC to revive Yucca Mountain review
Darius Dixon, Politico
August 13, 2013
Darius Dixon, Politico
August 13, 2013
The D.C. Circuit Court of Appeals said today that the Nuclear Regulatory Commission must resume its long-slumbering review of the Yucca Mountain nuclear waste storage project, which the Obama administration and Senate Majority Harry Reid have labored for years to kill.
"[U]nless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process," Circuit Judge Brett Kavanaugh wrote for the majority in the 2-1 decision.
"[U]nless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process," Circuit Judge Brett Kavanaugh wrote for the majority in the 2-1 decision.
Reid quickly dismissed the ruling.
"Without any disrespect to the court, it means nothing," Reid told reporters at the beginning of an annual energy summit he's hosting in Las Vegas.
"The fact is, they have no money. The place is locked up, it's padlocked. Nothing is happening with Yucca Mountain," he said. "Yucca Mountain is an afterthought."
The long-awaited decision is a mixed blessing for the project and its supporters, yet it's also not a surprise.
Money the agency has set aside from previous years isn't enough to completely reconstitute the NRC's review of the Yucca Mountain project. And while the court can force the agency to continue reviewing the project with the cash it already has, it can't force Congress to approve additional funding at the Energy Department needed to complete the program.
"To be sure, if Congress determines in the wake of our decision that it will never fund the commission's licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money," Kavanaugh wrote.
Chief Judge Merrick Garland chided the majority in his dissent, saying it misused the writ of mandamus to force the NRC's hand without an end game in sight.
Citing a case from 1936 as "the most relevant," Garland highlights a passage that reads: "[c]ourts will not issue the writ to do a useless thing, even though technically to uphold a legal right." He then added: "Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do 'a useless thing.'"
"Without any disrespect to the court, it means nothing," Reid told reporters at the beginning of an annual energy summit he's hosting in Las Vegas.
"The fact is, they have no money. The place is locked up, it's padlocked. Nothing is happening with Yucca Mountain," he said. "Yucca Mountain is an afterthought."
The long-awaited decision is a mixed blessing for the project and its supporters, yet it's also not a surprise.
Money the agency has set aside from previous years isn't enough to completely reconstitute the NRC's review of the Yucca Mountain project. And while the court can force the agency to continue reviewing the project with the cash it already has, it can't force Congress to approve additional funding at the Energy Department needed to complete the program.
"To be sure, if Congress determines in the wake of our decision that it will never fund the commission's licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money," Kavanaugh wrote.
Chief Judge Merrick Garland chided the majority in his dissent, saying it misused the writ of mandamus to force the NRC's hand without an end game in sight.
Citing a case from 1936 as "the most relevant," Garland highlights a passage that reads: "[c]ourts will not issue the writ to do a useless thing, even though technically to uphold a legal right." He then added: "Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do 'a useless thing.'"
U.S. court demands decision on Nevada nuclear waste project
Lawrence Hurley and David Ingram, Reuters
August 13, 2013
(Reuters) - A federal appeals court said on Tuesday that the U.S. Nuclear Regulatory Commission can no longer delay a decision on whether to issue a permit for the long-stalled nuclear waste project at Yucca Mountain, Nevada.
On a 2-1 vote, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ordered the commission to promptly decide to license the project or reject the application.
The Obama administration, which picks the Senate-confirmed commissioners, wants to abandon the project.
Judge Brett Kavanaugh said the commission "has continued to violate the law governing the Yucca Mountain licensing process."
The ruling was not unexpected, for the court signaled in a decision last year that it would likely rule against the commission unless Congress specifically voted to terminate the project. Congress has not taken any action.
The states of Washington and South Carolina, the National Association of Regulatory Utility Commissioners (NARUC) and other parties have sued the NRC, saying the commission must continue to work on the Energy Department's Yucca application even though the Obama administration has said it wants to abandon the project and Congress has not appropriated enough funds.
Philip Jones, president of NARUC, said in a statement that the ruling would direct the commission "to comply with the law and continue its legally obligated review of the license."
The commission had said in May 2012 that it only had just over $10 million left to spend on the project.
In a dissenting opinion, Chief Judge Merrick Garland said the lack of funds makes the court's ruling limited in impact because it amounts to "little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again."
The five NRC commissioners were split 2-2, with one recused, when they voted in September 2011 on whether to reverse an Atomic Safety and Licensing Board decision that said DOE could not withdraw its application. Despite there being no majority, the commission said that no action would be taken to restart the project.
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