Administrative Court Upholds Yucca Mountain; Obama's End Run Around Congress Foiled For Now

Months ago, I highlighted President Obama's tendency to grab power by ignoring Congress' wishes and expanding the scope of executive branch duties. For example, he can't get net neutrality through Congress, but he can through FCC rulemaking now that his appointees are on the commission (the court case on this a few months ago was only about agency rulings, not rulemaking). He can't get cap & tax through Congress, so his EPA is going to issue its own rules on carbon emissions. He can't get gay rights bills past Congress, so the Labor Department is issuing new rules for businesses.

In March, Obama's Secretary of Energy Steven Chu (Nobel Prize winner) sought to withdraw the DOE's long-standing 8,600 page application to store nuclear waste at Yucca Mountain. If accepted by the Nuclear Regulatory Commission, this would set the nuclear waste project back at square one. Actually, it would be worse than square one because DOE wants to withdraw the application "with prejudice", which means it can never be re-filed. Yucca Mountain would no longer be an option for nuclear waste storage.

Briefly, the facts on Yucca Mountain. Congress designated it the national nuclear waste storage site in 1987. The original deadline for accepting waste was 1998. The current deadline for accepting waste is 2017. $10 billion has been spent on the project so far, and $32 billion has been collected from nuclear utilities surcharges levied to pay for the project.

Congress has been steadfast that this project go forward. So when Obama's DOE moved to end it, some states and nuclear utilities groups filed papers to intervene. The judges could not have been more clear (PDF):

[W]e deny DOE’s motion to withdraw the Application. We do so because the Nuclear Waste Policy Act of 1982, as amended (NWPA), does not permit the Secretary to withdraw the Application that the NWPA mandates the Secretary file. Specifically, the NWPA does not give the Secretary the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit.

[...]

In moving to withdraw the Application with prejudice, DOE makes clear that “the Secretary’s judgment here is not that Yucca Mountain is unsafe or that there are flaws in the [Application], but rather that it is not a workable option and that alternatives will better serve the public interest.” DOE also acknowledges, however, that it cannot withdraw the Application if that would be contrary to the statutes passed by Congress.

For the reasons explained below, we conclude that Congress directed both that DOE file the Application (as DOE concedes) and that the NRC consider the Application and issue a final, merits-based decision approving or disapproving the construction authorization application. Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decisionmaking process by withdrawing the Application. DOE’s motion must therefore be denied.

The Obama Administration has already appealed the decision to the full Nuclear Regulatory Commission and they set an expedited briefing schedule.

BTW, the Nuclear Regulatory Commission has perhaps the worst website ever. I poked around forever, but couldn't find this ruling. Fortunately, the Las Vegas Sun had it.

posted by Gabriel Malor at 02:55 PM

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