With no viable government alternative to the controversial Yucca Mountain nuclear waste disposal site, the nation’s nuclear utilities should not have to pay the annual fee to cover proposed disposal costs, ruled a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on Tuesday.
Nuclear utilities pay fees of roughly $750 million annually into a spent fuel waste disposal fund which now has a total of about $30 billion.
The appellate panel blamed the secretary of the Department of Energy for failure to conduct a legally adequate fee assessment as directed by the court in a decision last year. In its decision Tuesday in National Association of Regulatory Utility Commissioners v. U.S. Department of Energy, it ordered the secretary to submit to Congress a proposal to change the fee to zero until the secretary makes the required fee assessment, or until Congress enacts an alternative waste management plan.
“We made the argument to court that the fund is growing by a billion-and-a-half a year just from interest, and without showing they need more money, we should take a pause because we don’t have a (disposal) program,” said Jay Silberg of Pillsbury Winthrop Shaw Pittman, who argued the case for the National Association of Regulatory Utility Commissioners. “We think it’s the right result, fair and equitable to everyone involved.”
Long time spent fuel litigator Jerry Stouck of Greenberg Traurig agreed, adding, “This decision, more than any other victory the nuclear industry has won in litigation over spent fuel, has the potential to jump start the Yucca Mountain program. The D.C. Circuit is clearly fed up with DOE’s decades of inaction on Yucca Mountain."
Judge Laurence Silberman, writing for the panel which also included judges David Sentelle and Janice Rogers Brown, noted that the court last year rejected “the government’s argument that the Secretary was not obliged to determine the fee’s adequacy unless someone (a ‘deus ex machina’?) brought to the Secretary evidence that the fee was excessive or inadequate.”
On remand, the Energy department again declined to make the fee assessment, according to the court. “Instead, we are presented with an opinion of the Secretary that sets forth an enormous range of possible costs,” wrote Silberman. “According to the Secretary, the final balance of the fund to be used to pay the costs of disposal could be somewhere between a $2 trillion deficit and a $4.9 trillion surplus. This range is so large as to be absolutely useless as an analytical technique to be employed to determine – as the Secretary is obligated to do – the adequacy of the annual fees paid by petitioners, which would appear to be its purpose. (This presentation reminds us of the lawyer’s song in the musical, ‘Chicago,’ – ‘Give them the old razzle dazzle.’)”
The court rejected the government’s request that it remand the fee assessment again rather than suspend the fee. “As we noted, we are not unaware of the political dilemma in which the Department is placed,” said the panel. “But until the Department comes to some conclusion as to how nuclear wastes are to be deposited permanently, it seems quite unfair to force petitioners to pay fees for a hypothetical option, the costs of which might well – the government apparently has no idea – be already covered.”