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The D.C. Circuit Goes Nuclear

10:01 AM, Aug 23, 2013 • By ADAM J. WHITE
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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. Jonathan Adler recently wrote about the court at Volokh.com, expanding upon a piece he wrote for the Environmental Law Institute's Environmental Forum. Michael Greve has posted a series of essays about the court on the Liberty Law Blog. And a team of former D.C. Circuit clerks offers a fascinating analysis of the D.C. Circuit's jurisdiction in a new law review article.

Isabel Kret

weekly standard photo illustration / isabel kret

But amid all of this, the best explanation of the court's authority and responsibility comes from the court itself, in its latest decision in the ongoing litigation over Yucca Mountain. 

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."

The 1987 act specified the repository's site, but not the technical specifications of the repository itself. That was to be decided by the president (via the Energy Department) and the Nuclear Regulatory Commission, an "independent" agency long responsible for regulating civilian nuclear infrastructure.

The Energy Department belatedly completed its Yucca project proposal in 2002, and its was formally submitted to the NRC for review in 2008.

As this was happening, another important development was occurring far from Washington: The Nevada presidential primary of 2008, in which Senators Obama and Clinton competed for voters’ affections by denouncing the Yucca project as loudly as possible. In 2007, then-senator Obama wrote a letter to the Las Vegas Review-Journal: “I want every Nevadan to know that I have always opposed using Yucca Mountain as a nuclear waste repository,” he wrote. “I believe all spending on Yucca Mountain should be redirected to other uses.” Later in the campaign, he reiterated, “You’ve got the [Hillary] Clinton camp out there saying, ‘He’s for Yucca.’ What part of ‘I’m not for Yucca’ do you not understand?”

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.

The Energy Department's decision in 2009 and 2010 to cancel its application led a number of affected parties—including the states of Washington and South Carolina—to file a lawsuit in the D.C. Circuit, requesting a court order forcing the Energy Department to proceed with the project. The court grappled with the issue, but ultimately declined to grant the plaintiffs "mandamus" relief, because the NRC's deadline for decision had not yet expired. But the court expressly warned that if the NRC did eventually fail to satisfy the 2012 deadline, then mandamus relief could be appropriate. The court had effectively put the NRC and Energy Department on notice: comply with your statutory obligations, or else.

As soon as the deadline passed, the parties returned to court. Once again, the NRC and DOE defended their refusals to go forward with the process. They argued, before a different panel of three judges, that the NRC simply lacked funding the complete the process.

And once again, the D.C. Circuit exhibited patience. In summer 2012, they announced that the case would be held in abeyance, to see whether Congress's next round of appropriations would relieve the agencies of their obligations.

Congress ultimately did nothing; the next round of appropriations included no instructions prohibiting the NRC from spending its previously appropriated funds (of which approximately $11 million remained) to process the Yucca project application.

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":

Since we issued that [abeyance] order more than a year ago ... the Commission has not acted, and Congress has not altered the legal landscape. As things stand, therefore, the Commission is simply flouting the law. In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory Commission.

... [T]he record suggests that the Commission, as a policy matter, simply may not want to pursue Yucca Mountain as a possible site for storage of nuclear waste. But Congress sets the policy, not the Commission. And policy disagreement with Congress’s decision about nuclear waste storage is not a lawful ground for the Commission to decline to continue the congressionally mandated licensing process. To reiterate, the President and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.

It is a straightforward opinion, enforcing the plain text of the federal statute's unambiguous command—no more, no less. 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.

In all of this, the D.C. Circuit deserves great credit for what it did, and what it declined to do. No one can accuse the court of "activism," after the court spent years bending over backwards, giving the NRC, Energy Department, president, and Congress every opportunity to resolve the conflict. The judges' opinions are replete with thoughtful discussion of the proper allocation of constitutional authority—and responsibility—among the three branches of government. (Judge Kavanaugh, in particular, has gone out of his way to write solo opinions each of the three iterations of the litigation, meditating on the separation-of-powers questions at hand.)

This is not a case that the judges sought. The case found them, just as so many difficult regulatory disputes find them every year, due to the statutes that Congress and the president have enacted. The nation's nuclear waste policy may or may not be a mess, but any fault ultimately rests with our elected leaders and the regulators they've appointed.

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