Tuesday, August 13, 2013

In Re: Aiken County (Yucca Mountain Case)

Aug 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1271. On Petition for Writ of Mandamus. In this split decision, the Majority explains that this case raises significant questions about the scope of the Executive's authority to disregard Federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. Petitioners include the States of South Carolina and Washington, as well as entities and individuals in those States. Nuclear waste is currently stored in those States in the absence of a long-term storage site such as Yucca Mountain.
    The Majority says, "The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress. Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process. We therefore grant the petition for a writ of mandamus."
    The Majority reminds that the Nuclear Waste Policy Act, which was passed by Congress and then signed by President Reagan in 1983, provides that the Nuclear Regulatory Commission "shall consider" the Department of Energy's license application to store nuclear waste at Yucca Mountain and "shall issue a final decision approving or disapproving" the application within three years of its submission. 42  U.S.C. § 10134(d). The statute allows the Commission to extend the deadline by an additional year if it issues a written report explaining the reason for the delay and providing the estimated time for completion. Id. § 10134(d), (e)(2).
    The Majority indicates that, ". . .the statutory deadline for the Commission to complete the licensing process and approve or disapprove the Department of Energy's application has long since passed. Yet the Commission still has not issued the decision required by statute. Indeed, by its own admission, the Commission has no current intention of complying with the law. Rather, the Commission has simply shut down its review and consideration of the Department of Energy's license application."
    The Majority concludes, "At the behest of the Commission, we have repeatedly gone out of our way over the last several years to defer a mandamus order against the Commission and thereby give Congress time to pass new legislation that would clarify this matter if it so wished. In our decision in August 2012, the Court's majority made clear, however, that mandamus likely would have to be granted at some point if Congress took no further action. See Order, In re Aiken County, No. 11-1271 (D.C. Cir. Aug. 3, 2012). Since then, Congress has taken no further action on this matter. At this point, the Commission is simply defying a law enacted by Congress, and the Commission is doing so without any legal basis.
    "We therefore have no good choice but to grant the petition for a writ of mandamus against the Commission. This case has serious implications for our constitutional structure. It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission. Our decision today rests on the constitutional authority of Congress, and the respect that the Executive and the Judiciary properly owe to Congress in the circumstances here. To be sure, if Congress determines in the wake of our decision that it will never fund the Commission's licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money. And Congress, of course, is under no obligation to appropriate additional money for the Yucca Mountain project. Moreover, our decision here does not prejudge the merits of the Commission's consideration or decision on the Department of Energy's license application, or the Commission's consideration or decision on any Department of Energy attempt to withdraw the license application. But unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process. The petition for a writ of mandamus is granted."
    Chief Judge Garland issued a dissenting opinion stating in part, "Mandamus is a 'drastic and extraordinary remedy reserved for really extraordinary causes.' Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal quotation marks omitted). Even if a petitioner can show that it has a 'clear and indisputable' right to the writ, issuing the writ remains 'a matter vested in the discretion of the court.' Id. at 381, 391. Likewise, 'mandamus does not necessarily follow a finding of a [statutory] violation.' In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (second alteration in original) (quoting In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C.Cir. 1991)). To the contrary, this court has not hesitated to deny the writ even when an agency has missed a statutory deadline by far more than the two years that have passed in this case. See id. at 546, 551 (declining to issue the writ, notwithstanding that the agency missed an 'express' statutory deadline by 8 years in 'clear violation' of the statute). Finally, and most relevant here, '[c]ourts will not issue the writ to do a useless thing, even though technically to uphold a legal right.' United States ex rel. Sierra Land & Water Co. v. Ickes, 84 F.2d 228, 232 (D.C. Cir. 1936).
    "Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do 'a useless thing.' The NRC has not refused to proceed with the Yucca Mountain application. Rather, by unanimous votes of both the Commission and its Atomic Safety and Licensing Board, it has suspended the application proceeding until there are sufficient funds to make meaningful progress. . . " Judge Garland explains that Congress has refused to provide adequate funding to pursue the project and it has been packed up and dismantled. He concludes his dissent, "In short, given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again. This exercise will do nothing to safeguard the separation of powers, which my colleagues see as imperiled by the NRC's conduct. . . And because '[i]t is within our discretion not to order the doing of a useless act,' Sierra Land & Water, 84 F.2d at 232, I respectfully dissent."
       Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL) issued a statement welcoming the court's decision, which they said "affirms that the NRC has the statutory duty to complete the license review using the funds appropriated by Congress." They said, "We welcome this long-awaited decision. Today's action by the court is a significant milestone for Yucca Mountain and a clear rebuke of the Nuclear Regulatory Commission's failure to implement the Nuclear Waste Policy Act. The Obama administration rejected the law and prematurely terminated the Yucca Mountain repository program, but Congress and the courts have spoken out to prevent billions of taxpayer dollars and three decades of research from being squandered. Last month, 335 House members, including the majority of Democrats, voted to boost funding for the license review in the energy and water appropriations bill.

    "Our great system of checks and balances will ensure the law is carried out, and we will soon know once and for all whether Yucca Mountain is safe. Ultimately, our goal continues to be the safe permanent storage of spent nuclear fuel, giving states and communities the certainty they need. This decision will help re-start the important work toward a resolution. We will continue our oversight of the Commission to ensure the license review is swiftly resumed and the NRC's independent, technical conclusions about the safety of Yucca Mountain are made available to the public. Let the science be the deciding factor on Yucca Mountain, not politics."
    Christopher Guith, vice president of policy at the U.S. Chamber's Institute for 21st Century Energy, issued a statement saying, "Today's ruling by the D.C. Circuit Court has reaffirmed what Congress determined long ago, but that the Executive Branch has been attempting to undermine. The Nuclear Waste Policy Act explicitly set out the nation's nuclear waste plan nearly 30 years ago. The Court's ruling reminds us that until the law is changed, Yucca Mountain is the nation's used fuel and nuclear waste repository. It's time for the NRC to implement the law of the land."
    Access the complete opinion and dissent and a separate concurrence (click here). Access the statement from Reps. Upton & Shimkus (click here). Access the U.S. Chamber statement (click here). [#Haz/Nuclear, #CADC]