The U.S. Court of Appeals for the D.C. Circuit has ordered the Nuclear Regulatory Commission to resume the license application process for the Yucca Mountain nuclear waste facility.
The ruling of a divided three-judge panel presents a setback for the Obama administration and Sen. Harry Reid (D-Nev.) both of whom worked aggressively to kill the facility.
The Department of Energy submitted its licensing application for Yucca Mountain to the commission in 2008. In January 2010, President Obama directed then U.S. Department of Energy Secretary Steven Chu to scuttle plans for the Yucca facility.
Soon thereafter, states and counties stuck storing the waste, as well as and individuals affected by the temporary storage facilities, filed multiple lawsuits to try and reignite the licensing process. Plaintiffs argued that the commission was bound by the Nuclear Waste Policy Act to consider the Yucca Mountain application. Among the objections of the commission was the lack of full funding, which it blamed on Congress. (The NRC has $11.1 million in its coffers specifically for the licensing process.)
The court had previously threatened the use of a writ of mandamus unless the commission restored the application process or Congress enacted a law to terminate the process. The lack of inactivity from both Congress and the commission pushed the hand of the court.
Writing for the majority, Judge Brett Kavanaugh admonished the commission for "flouting the law."
He was joined by Judge A. Raymond Randolph, while Judge Merrick Garland dissented.
"The Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process," Kavanaugh wrote. "Several justifications have been suggested in support of the Commission’s actions in this case. None is persuasive."
K&L Gates partners Barry Hartman and Tim Peckinpaugh represent three plaintiffs from Washington state who lived near the temporary sites.
"This case was clearly a policy dispute, and the commission walked away from the law because it was told to do so," Harman said in an interview. "If you don't like it, change the law."
Aside from the implications regarding licensing, Kavanaugh wrote that there are serious implications in the use of executive power.
Kavanaugh wrote: "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. Our decision today rests on the constitutional authority of Congress, and the respect that the Executive and the Judiciary properly owe to Congress in the circumstances here."
In response to the ruling, Reid today told reporters at an energy summit press conference in Las Vegas that since there is no money appropriated the Yucca Mountain facitily would not proceed, according to a transcript provided by Reid's office.
"There is no money, we’ve cut funding for many years now and there is none in the pipeline, so this is just a bump in the road, without being disrespectful to the Court it means nothing," Reid said.
The U.S. Chamber of Commerce's Institute for 21st Century Energy applauded the court's decision.
"The court's ruling reminds us that until the law is changed, Yucca Mountain is the nation's used fuel and nuclear waste repository," Christopher Guith, vice president of the institute, said in a written statement. "It's time for the NRC to implement the law of the land."