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August 23, 2013
Yucca process must proceed, says court

In a 2 to 1 opinion, a panel of the D.C. Court of Appeals issued a rare writ of mandamus–basically an order to comply with the law–to a federal agency, in this case, the Nuclear Regulatory Commission (NRC), which, the court says, must continue processing the Department of Energy’s (DOE) application to license the nuclear waste storage facility at Yucca Mountain, Nevada (In re: Aiken County, et al.).

Even though the NRC has offered compelling reasons why it should not move forward with the application, the majority says the 1983 Nuclear Waste Policy Act (NWPA) clearly indicates that the NRC is overdue in issuing a decision, and the executive branch possesses no legal authority to postpone it. 

Under the NWPA, the NRC is required to issue a decision on DOE’s Yucca Mountain licensing application within 3 years of DOE’s submission of its application, with a 1-year extension allowed under certain conditions.  The DOE submitted its application in 2008, and the NRC apparently began to process it.  However, work on the application stopped, the NRC failed to meet the deadline, and the NRC “by its own admission … has no current intention of complying with the law,” according to the majority. 

States petition

Since 2010, the states of Washington and South Carolina have sought a writ of mandamus to require the NRC to comply with the law and continue processing.  In 2011, another panel of the D.C. Circuit declined to issue the writ, noting that Congress has not appropriated the funds needed to allow the NRC to complete the application.  The court said it would allow time for Congress to clarify the issue.  But the court also said that given the statutory language and the $11.1 million available to the NRC specifically to process the DOE application, the NRC was violating the NWPA by not proceeding with processing.

Appropriations absent

In its defense, the NRC stated that Congress has not appropriated the full amount necessary to complete the application review.  In its most recent request for annual funding in 2011, the NCR sought $99.1 million to move the Yucca Mountain process along; Congress did not approve the request.  The NRC also “speculates” that Congress will not in the future appropriate the additional funds necessary to process the application; in the last 3 years those appropriations have been relatively low or zero.  Furthermore, the record cited by the court indicates that as a policy matter, the NRC may not want to pursue Yucca Mountain as a possible site for storage of nuclear waste.

Speculating on the future

The majority shot down each of these arguments.  First, the majority said a federal agency may not ignore statutory mandates simply because Congress has not yet appropriated all the money needed to complete a project.  Second, an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates.  In addition, NRC’s “policy” not to pursue a Yucca Mountain license is irrelevant since Congress sets the policy, not the NRC.

The majority notes that Congress has every authority to step in and announce that it will no longer fund the Yucca process, but it has not done so.  Hence, the court concludes, the NRC is under a legal obligation to continue the licensing process, “and it has at least $11.1 million in appropriated funds – a significant amount of money – to do so.”

The majority also noted that the case has serious implications for our constitutional structure. “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 case by the Nuclear Regulatory Commission,” the majority stated. 


In his dissenting opinion, Chief Justice Garland argues that issuing the writ of mandamus will force the NRC to “do a useless thing.”  Garland notes that the NRC has already dismantled the computer systems it has used in the application process, put the information associated with the process into storage, and reassigned staff.

“In short, 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,” wrote Garland.  “This exercise will do nothing to safeguard the separation of powers, which my colleagues see as imperiled by the NRC’s conduct.”

In re: Aiken County, et al.

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