OLYMPIA – Although stopping short of ordering action for the time being, the United States Court of Appeals today agreed with Washington state and seven other petitioners that the law requires the Nuclear Regulatory Commission to act on a license application to build a nuclear waste repository at Yucca Mountain, Nevada.
Although the court put further action on hold while Congress makes upcoming appropriations decisions, two judges acknowledged a point that lawyers working to safely dispose of nuclear waste stored in Washington state and elsewhere have made all along.
“Today’s order confirms that the Nuclear Regulatory Commission violated the law in dismantling the process for licensing Yucca Mountain,” said Washington State Attorney General Rob McKenna. “While we are disappointed that the NRC was today not ordered to take action, we are pleased that two judges recognized that the NRC has a legal duty to move forward with the licensing process. We will work with our fellow petitioners to monitor the status of congressional action and determine our next steps.”
Washington state is engaged in a longstanding fight to ensure timely cleanup of 56 million gallons of nuclear waste stored in Hanford’s leaky underground tanks and continue the process of licensing Yucca Mountain as a deep geologic disposal site. In 2002, Congress designated Yucca Mountain as the nation’s sole current repository site for deep geologic disposal of high-level radioactive waste and spent nuclear fuel. At the direction of Congress, the U.S. Department of Energy (DOE) filed an application with the Nuclear Regulatory Commission (NRC) in 2008 for a license to construct the repository. But in January 2010, President Obama and DOE announced they would withdraw the application. Washington state and other plaintiffs have long said that decision violated the law.
Last year Washington and seven other petitioners filed a petition for a “writ of mandamus” – the legal process to force a certain action – against the NRC. The petition alleges that the NRC is “unreasonably withholding agency action” and that it has a legal duty to move forward with the Yucca Mountain license application.
In a concurring opinion issued today, Judge Brett M. Kavanaugh said the court “will likely have to grant mandamus” if congressional budget action this year does not provide any additional clarity. A dissenting opinion on the matter used even stronger language.
“Whether mandamus should issue when an agency is willfully defying an earlier Congress’s command has never depended on the possibility that a later Congress might do something to excuse the violation,” wrote Judge Arthur Raymond Randolph. “Here, the Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward. There is no reason to delay issuing a writ of mandamus to correct this transparent violation of the law.”
Janelle Guthrie, Director of Communications, (360) 586-0725