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.
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.