Appeals Court Rebuffs Obama Decision to Shutter Yucca Mountain

 A federal court put a gridlocked U.S. Congress, already wrestling with shrinking budgets, back in the debate over Yucca Mountain, the multibillion dollar nuclear waste site abandoned by the Obama administration.

The U.S. Court of Appeals in Washington ruled yesterday in a 2-1 split that the Nuclear Regulatory Commission must resume consideration of an Energy Department application for the site, killed by President Barack Obama. The agency has at least $11.1 million for the work, the court said.

“That will not be sufficient to finish processing that application, which means the ball is still in Congress’s court when it comes to deciding the direction of U.S. nuclear waste policy,” Keith Chu, a spokesman for Senator Ron Wyden, chairman of the Energy and Natural Resources Committee, said in a statement. “Judges aren’t going to solve this problem.”

While the split decision mandates the NRC resume its safety review, it doesn’t guarantee that the facility, which has cost taxpayers and industry at least $15 billion, will be built. Disagreement over a waste dump at Yucca Mountain, about 100 miles (161 kilometers) northwest of Las Vegas, has extended across decades, and the ruling means it will drag on longer.

“The court isn’t saying ‘approve Yucca Mountain,’” Victor Gilinsky, a former NRC member, said in a phone interview. The law requires the Energy Department, which would manage the site, to submit an application and the NRC as the regulator to review it, he said. If the Energy Department ultimately decides the Yucca Mountain site doesn’t meet the nation’s needs, “that’s the end of it,” he said.

Funding Withdrawn

The Obama administration halted design and development work for Yucca Mountain in 2009 and the next year cut funding, saying the site was “not a workable option.” Senate Majority Leader Harry Reid, a Nevada Democrat, has led opposition in Washington to the facility. The NRC ended its review of the application, citing lack of funds.

The Nuclear Policy Waste Act, signed by President Ronald Reagan in 1983, requires the NRC to consider the Energy Department’s application for the repository, U.S. Circuit Judge Brett Kavanaugh wrote in yesterday’s ruling. The commission “is simply flouting the law” by not acting, he said.

“This case has serious implications for our constitutional structure,” Kavanaugh wrote. “It is no overstatement to say that our 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.”

Under Review

It remains unclear what the NRC will do next. The agency’s Office of General Counsel, led by Margaret Doane, is reviewing the ruling.

“We will have no further statement at this time, but will be advising the commission on its options for a path forward,” Doane said in an e-mailed statement.

Congress in the 1980s designated Yucca Mountain as the repository’s site, and lawmakers would have to pass legislation to reverse the decision. Wyden has introduced a bipartisan nuclear-waste storage bill, which would set up a process to pick a site based on garnering a community’s consent. Republicans who control the U.S. House have said Yucca Mountain should be the waste site.

The court’s decision “is a significant milestone for Yucca Mountain and a clear rebuke of the Nuclear Regulatory Commission’s failure to implement” federal law, Republican Representatives Fred Upton of Michigan and John Shimkus of Illinois, said in a statement. Upton is chairman of the House Committee on Energy and Commerce, and Shimkus leads its panel on environment and the economy.

State Actions

Officials from states where nuclear waste is stored, including South Carolina and Washington, asked the court to force the NRC to act.

“Congress passed laws designating Yucca Mountain as America’s nuclear lock box,” South Carolina Attorney General Alan Wilson said in a statement. “The site work has already been done” and the project should be completed “as quickly as possible,” he said.

Yucca Mountain foes said the court’s action was insignificant because Congress hasn’t appropriated money for the repository.

“There is no money, we’ve cut funding for many years now and there is none in the pipeline,” Reid told reporters at a clean-energy summit in Nevada. “This is just a bump in the road, without being disrespectful to the court, it means nothing.”

Congress will be forced to revisit the waste-site funding, Katherine Fuchs, a nuclear subsidies campaigner for the environmental group Friends of the Earth, said in a statement.

New Laws

“The NRC will quickly spend the remaining funds and then Congress must go back to the drawing board to develop new laws on how highly radioactive spent fuel is managed,” Fuchs said.

About 65,000 tons of spent nuclear fuel are stored at 75 U.S. operating and closed U.S. reactor sites, and 2,000 tons are added each year, a panel formed by Obama to examine waste- storage options said in a January 2012 report.

The Energy Department collects about $750 million annually from the industry to pay for waste disposal. The Nuclear Energy Institute, a Washington-based industry group whose members include Exelon Corp. of Chicago and Southern Co. of Atlanta, has protested having to pay the fee without the establishment of a permanent repository.

The Energy Department has said it will work with Congress to develop a plan for nuclear-waste storage. The agency “will respond appropriately to whatever steps the NRC takes” in response to the court’s decision, department spokeswoman Niketa Kumar said in an e-mailed statement.

Even if Congress decides to continue with Yucca, the group working on the project at the Energy Department doesn’t exist. A new group would need to be assembled.

“The fact is, they’ve disbanded the team,” said Gilinsky, the former NRC commissioner. “They can’t put this thing back together again.”