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As the court concedes, this leaves open a number of future questions: What will the Energy Department do next, as it continues to attempt to abandon its Yucca application? What if the NRC’s remaining $11 million fund runs out, and Congress fails to appropriate any more money? Furthermore, the NRC might decide to comply with its decision deadline by simply rejecting the Energy Department’s application

 

The D.C. Circuit Goes Nuclear  AUG 23, 2013 • BY ADAM J. WHITE To write about the D.C. Circuit this week is to join a much broader discussion about the court’s role in American law and policy…….In a case titled In re Aiken County, the court took the extraordinary step of ordering the Nuclear Regulatory Commission to continue reviewing the Energy Department’s proposal for a federal nuclear waste repository at Yucca Mountain, Nevada.

I say “extraordinary” not because the court overstepped its bounds, but because the case presents truly rare questions of the D.C. Circuit’s role at the intersection of congressional power, executive duty, agency discretion, and judicial responsibility.

The saga of Yucca Mountain dates back decades, with far too much detail to include in a single blog post. (I tried to summarize the controversy in a longer essay for The New Atlantis last year.)  Here are the basics: In 1987, after decades of wrangling over where to store the nation’s spent nuclear fuel, Congress decided that Nevada’s Yucca Mountain would be the site of the nation’s nuclear repository. This decision was welcomed by Texas and Washington (which had been studied as alternative sites under the 1983 Nuclear Waste Policy Act), but left a bitter taste in the mouths of others, including Senator Harry Reid, who called the 1987 act the “Screw Nevada Bill.”………

Once in office, President Obama promptly acted on his threats. His energy secretary attempted to permanently cancel the Yucca project proposal, and his NRC chairman led the push within NRC to end the Commission’s review of that proposal.

But all of this ran afoul of the plain text of the Nuclear Waste Policy Act, which required the Energy Department to file its Yucca application, and which further required that the NRC “shall consider” the application. The Act also sets a deadline for the NRC’s review: the Commission “shall issue a final decision approving or disapproving” the project within four years of receiving the Energy Department’s application—namely, by late 2012. And so, two weeks ago, the D.C. Circuit finally took action, issuing a decision ordering the NRC to comply with the Nuclear Waste Policy Act’s requirements”:……

As the court concedes, this leaves open a number of future questions: What will the Energy Department do next, as it continues to attempt to abandon its Yucca application? What if the NRC’s remaining $11 million fund runs out, and Congress fails to appropriate any more money? Furthermore, the NRC might decide to comply with its decision deadline by simply rejecting the Energy Department’s application……. http://www.weeklystandard.com/blogs/dc-circuit-goes-nuclear_750069.html