Tuesday, July 5, 2011

In Re: Aiken County (Yucca Mountain Repository)

Jul 1: In the U.S. Court of Appeals, D.C. Dircuit, Case Nos. 10-1050, 10-1052, 10-1069 & 10-1082. On Petitions for Declaratory and Injunctive Relief, Petitions for Extraordinary Relief, and Petitions for Review. As the Appeals Court explained, three state and local governmental units, along with individual citizens, petitioned the court for review of and other relief from two "determinations" made by the Department of Energy (DOE") and the other respondents: (1) the DOE's attempt to withdraw the application it submitted to the Nuclear Regulatory Commission (NRC or the Commission) for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and (2) the DOE's apparent decision to abandon development of the Yucca Mountain nuclear waste repository. The Appeals Court ruled unanimously, with two concurring opinions, "Because we believe that Petitioners' two claims are, respectively, not ripe for judicial determination and not justiciable by this court, we dismiss the petitions for lack of jurisdiction."
    In explaining the petitioners and their claim, the Appeals Court said, "The present petitioners argue that recent actions taken by the DOE—which at the very least demonstrate the DOE's desire to abandon development of the Yucca Mountain nuclear waste repository -- violate the Nuclear Waste Policy Act (NWPA), the National Environmental Policy Act, and the Administrative Procedure Act (APA). Three of the petitioners -- Aiken County in South Carolina, the State of South Carolina, and the State of Washington -- are state or local governments of localities that are home to sites that temporarily store spent nuclear fuel and high-level radioactive waste pending the opening of a federal nuclear waste repository. The remaining petitioners are three private citizens who live and work near one of those sites. Put succinctly, Petitioners believe that if the federal government abandons the Yucca Mountain nuclear repository, the only congressionally-approved site for permanently disposing of the nation's spent nuclear waste will be lost and the federal government will fail to comply with its statutory responsibility to provide for the permanent disposal of all of the nation's high-level radioactive waste."
    The Appeals Court finds that, "First, the Commission has not yet decided whether it will review the Licensing Board's denial of the DOE motion to withdraw. If the Commission declines to review the denial, the DOE will have failed in its attempt to withdraw the Yucca Mountain application and Petitioners' first claim will be moot. The same outcome will occur if the Commission chooses to review and then upholds the Licensing Board's denial of the DOE motion. The only way in which Petitioner's first claim will not become moot is if the Commission chooses to review and then reverses the Licensing Board's denial. . ."
    Petitioners' second claim challenges DOE actions which are simply not reviewable by this court. Petitioners characterize the
agency action challenged in their second claim as the 'determination made on or about January 29, 2010, by Respondents President Obama, Secretary Chu and DOE to unilaterally and irrevocably terminate the Yucca Mountain repository process mandated by the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270.' Agency actions are reviewable by courts of appeal under the terms of 5 U.S.C. § 704. That section delineates reviewable actions as '[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . .' Petitioners have failed to identify any agency action coming within that delineation. Otherwise put, petitioners have set forth no discrete action mandated by the NWPA that the DOE has failed to perform or performed inadequately. . ."
    Finally, the Appeals Court concludes, "The NWPA set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE has submitted a construction license application for the Yucca Mountain repository and the Commission maintains a statutory duty to review that application. Despite the respondents' pronouncements and apparent intentions, unless and until Petitioners are able to demonstrate that one of the respondents has either violated a clear duty to act or otherwise affirmatively violated the law, Petitioners' challenges to the ongoing administrative process are premature. For the reasons set forth above, we conclude that we lack jurisdiction over Petitioners' claims. The petitions are dismissed."
    Among the two concurring opinions, Justice Kavanaugh wrote a lengthy opinion saying, "This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project. At the President's direction, the Department of Energy decided to withdraw the Yucca Mountain license application and terminate the Yucca Mountain nuclear storage project. A board within the Nuclear Regulatory Commission preliminarily rejected the decision of the Department of Energy (and thus of the President) to withdraw the Yucca Mountain license application. But the full Nuclear Regulatory Commission has yet to decide whether it will approve or reject the decision of the Department of Energy. Because the Commission has not yet acted on the Department of Energy's request, the Court's opinion today properly holds this case unripe under the existing legal framework. . ."
    He concludes, "This case is a dramatic illustration of the continuing significance and implications of Humphrey's Executor. As a result of Humphrey's Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission."
    In response to the court's decision, Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL), who have been holding hearings investigating the Yucca Mountain issue, released a statement, "The court's decision underscores the urgency for the NRC to complete action on the Yucca repository licensing application. With Commissioner Ostendorff set for another term, the NRC must now come together and finalize its vote on the Atomic Safety Licensing Board's ruling that DOE cannot withdraw Yucca's application. The Obama administration has already chosen to squander $15 billion; decades of scientific research and bipartisan collaboration hang in the balance, and taxpayers remain on the hook for billions of dollars more in future liability claims. Chairman Jaczko's politically motivated efforts to manipulate and steamroll this process, brought to light by the NRC Inspector General and career scientists, will no longer be tolerated. It's time for the NRC to get back to work and complete its job."
    Senate Majority Leader Harry Reid did not issue a release, but indicated in a Twitter posting, "Great day for Nevada. Court decision marks imp. win in battle 2 put Yucca Mtn. project 2 rest."
    Access the complete opinion and concurrences (click here). Access the statement from Reps. Upton and Shimkus (click here). Access Sen. Reid's Twitter posting (click here[*Haz/Nuclear, #CADC]

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