The long and bitter fight over building a nuclear waste dump at Yucca Mountain, Nev., goes on after an appeals court ruled today that it's too soon to challenge the Obama Administration's decision to kill the project.
The states of Washington and South Carolina, which are both stuck storing large amounts of spent nuclear waste, led the bid to prevent the Department of Energy from halting development of Yucca Mountain in a petition to the U.S. Court of Appeals for the D.C. Circuit.
The court was sympathetic to their plight. “If the Yucca Mountain repository never opens, petitioners argue, the federal government will never remove the nuclear waste temporarily stored within their jurisdictions or near where they live, despite the federal government’s responsibility for doing so,” wrote Chief Judge David Sentelle for the unanimous panel, with judges Janice Rogers Brown and Brett Kavanaugh issuing separate concurrences. “This fear is not unreasonable.”
But the court said its hands - at least for now - are tied, calling one claim “not ripe for judicial determination,” and the other “not justiciable by this court.”
In 2008, DOE submitted a license application to build the Yucca Mountain repository to the Nuclear Regulatory Commission’s Atomic Safety and Licensing Board. But after Barack Obama was elected president, the agency asked to withdraw it, stating that “the Secretary of Energy has decided that a geologic repository at Yucca Mountain is not a workable option for long-term disposition of these materials.”
In their petition, the states asked the court to rule that the department lacks the legal authority to withdraw the application, and that doing so violates the Nuclear Waste Policy Act. Congress in 1987 amended the act to designate Yucca Mountain as the only site for possible development as a repository.
The problem is that the matter is still pending before the Nuclear Regulatory Commission, with a decision expected shortly. The licensing board refused to let DOE withdraw the application, but the commission as a whole has yet to rule. Also, the licensing board is still reviewing the actual application.
“There are two ongoing NRC administrative procedures...both of which have the potential to moot petitioners’ first claim entirely,” Sentelle wrote. The first claim is not fit for judicial decision because it rests upon “contingent future events that may not occur as anticipated, or indeed may not occur at all.”
As for the second claim, Sentelle found that it “challenges DOE actions which are simply not reviewable by this court.” The states objected to the administration’s public announcement that it would close Yucca Mountain. But the policy announcement “has no legal consequence,” Sentelle wrote. “Petitioners’ general complaints about the DOE’s new policy regarding Yucca Mountain are simply not justiciable.”
Brown in her concurrence offered what amounted to a legal tip for the states. “Petitioners all but ignore the [Nuclear Regulatory Commission]—a named party in this suit and the only agency with an existing obligation under the [Nuclear Waste Policy Act],” she wrote. “Despite months of extensive briefing and protracted questioning at oral argument, petitioners still see only the President and his administration obstructing their path to judicial review.”
As for Kavanaugh, he took a scholarly look at the power of independent agencies. “Given the importance and bitterness of the underlying dispute over Yucca Mountain, I think it worth exploring how we got here, constitutionally speaking,” he wrote. “This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project.”
He continued, “One would assume that the Nuclear Regulatory Commission would report to the President, not the President to the Nuclear Regulatory Commission. But that conception of the constitutional chain of command turns out to be inaccurate with respect to independent agencies such as the Nuclear Regulatory Commission – a consequence of the Supreme Court’s 1935 decision in Humphrey’s Executor.”
“Because of Humphrey’s Executor, the President to this day lacks day-to-day control over large swaths of regulatory policy and enforcement in the Executive Branch...independent agencies are democratically unaccountable – neither elected by the people nor supervised in their day-to-day activities by the elected President.”
Kavanaugh concluded, “The President may be forced to continue with the Yucca Mountain project simply because the Nuclear Regulatory Commission has told him so.”