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The D.C. Circuit Goes Nuclear

10:01 AM, Aug 23, 2013 • By ADAM J. WHITE
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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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