National Association Regional Utility Commissioners v. U.S. DOE

Jun 1: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1066 & 11-1068. On Petitions for Review of Final Actions of the Department of Energy (DOE). The Appeals Court explains that petitioners, the National Association Regional Utility Commissioners nuclear power plant owners and operators, ask the court to review a November 2010 determination by the Secretary of Energy finding that there was no basis for suspending, or otherwise adjusting, annual fees collected from them totaling some $750 million a year. Those fees are intended to cover the full costs of the government's long-term disposal of civilian nuclear waste. But the Administration has discontinued development of Yucca Mountain, which was the designated location for the disposal of the waste.

 

    According to petitioners, the Secretary's 2010 determination, made subsequent to that decision, failed to examine (or even mention) the anticipated costs of disposal, or compare them to expected revenues from the fees (and associated interest and investment income). The Secretary's determination is claimed, thereby, to have violated the 1982 Nuclear Waste Policy Act (the Act), which obliges the Secretary to annually "evaluate whether collection of the fee will provide sufficient revenues" to offset program costs. In the absence of such evaluation, it is argued, the determination was invalid, and because no future program has replaced Yucca Mountain, petitioners contend that the Secretary is obliged to suspend the fees and report his action to Congress.

 

    The Appeals Court ruled, "We conclude that the Secretary has failed to perform a valid evaluation, as he is obliged to do under the Act, but we do not think it appropriate to order the suspension of the fee at this time. Instead, we remand to the Secretary with directions to comply with the statute within six months. The panel will retain jurisdiction over this case so that any further review would be expedited."

 

    NARUC President David Wright of South Carolina issued a statement saying, "Today's decision by the court is an important victory for nuclear-power consumers. The court made clear that the Energy Department has not justified continued payments into the Nuclear Waste Fund. Although the court did not suspend these payments, the Energy Department is on notice that they must do a thorough and complete assessment within six months as to whether the fees -- charged to nuclear utilities and passed through to their consumers -- are necessary. If the Department does not, the court stated that they have the authority to suspend the payments into the Fund. Nuclear-power utilities and their consumers have paid more than $30 billion into the Nuclear Waste Fund for nearly 30 years. To date they have nothing to show for their investment except political delays, bureaucratic red tape, and a hole in the Nevada desert. Today's decision will force the Energy Department to do its job and prove why it should continue fees for a nuclear-waste program that it says no longer exists. We believe the evidence demonstrates that until and unless a new nuclear-waste policy is developed, consumers should be given a break."

 

   Access the complete opinion (click here). Access the NARUC statement (click here). [#Energy/Nuclear, #Haz/Nuclear, #CADC]

 

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