The U.S. Nuclear Regulatory Commission must continue reviewing a license application for a nuclear-waste dump at Nevada’s Yucca Mountain, a federal appeals court ruled in a potential blow to the Obama administration’s efforts to shut the facility.
The NRC “is simply flouting the law” by declining to complete the review, U.S. Circuit Judge Brett Kavanaugh wrote for the majority of a three-judge panel in today’s decision.
While the court’s ruling revives the debate over building a repository at Yucca Mountain, about 100 miles (161 kilometers) northwest of Las Vegas, it doesn’t mean that the Energy Department project will be built. The NRC’s final decision is uncertain, and Senate Majority Leader Harry Reid, a Nevada Democrat, has led opposition in Congress.
The agency is reviewing the decision, NRC spokesman David McIntyre said in an e-mail.
The Obama administration in 2010 halted funding for the Yucca Mountain project, and the NRC stopped its review of the Energy Department’s application, citing a lack of funds.
Officials in states where nuclear waste is being stored, including South Carolina and Washington, petitioned the court to make the regulator to resume its consideration of the permit.
Advocates of Yucca Mountain viewed the ruling as a step toward completing the project, which has already cost taxpayers and industry about $15 billion, according to the Government Accountability Office.
“Today’s action by the court is a significant milestone for Yucca Mountain and a clear rebuke of the Nuclear Regulatory Commission’s failure to implement the Nuclear Waste Policy Act,” Republican Representatives Fred Upton of Michigan and John Shimkus of Illinois said in a statement. Upton is chairman of the House Energy and Commerce Committee and Shimkus leads its environment and economy panel.
The NRC has about $11.1 million to continue its review and should do so as required by the Nuclear Waste Policy Act, signed by President Ronald Reagan in 1983, the court ruled.
“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,” wrote Kavanaugh, who was appointed by President George W. Bush.
The Nuclear Energy Institute, a Washington-based industry group for reactor-owners including Exelon Corp. of Chicago and Southern Co. of Atlanta, and Nuclear Waste Strategy Coalition said the next step is up to the regulator.
“The nuclear energy industry fully expects the NRC to take all necessary steps to immediately resume its independent scientific evaluation of the Yucca Mountain license application, as directed by the court,” the two groups said in a statement.
The waste strategy coalition is an “ad hoc organization representing the collective interests” of groups including state regulators and utilities, according to its website.
U.S. Circuit Judge Merrick Garland dissented, writing that the NRC doesn’t have enough money left to process the application.
Directing the agency to evaluate the application “amounts to little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again,” said Garland.
“Instead of continuing to try to force Yucca Mountain on the people of Nevada, my colleagues should focus on moving forward toward a new process that will allow for consent-based siting,” Senator Dean Heller, a Nevada Republican, said in a statement. Adam Jentleson, a spokeman for Reid, didn’t immediately respond to a request for comment.
The case is In re Aiken County, 11-1271, U.S. Court of Appeals for the District of Columbia (Washington).