Judges order Yucca licensing reboot

WASHINGTON — The decades-long controversy over burying high-level nuclear waste in Nevada was thrown back up in the air on Tuesday when a federal court ordered authorities to resume licensing for the once-proposed disposal site at Yucca Mountain.

The U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the Nuclear Regulatory Commission acted illegally when it shelved license hearings for the multi-billion dollar nuclear waste repository that was selected by Congress in 2002 but fell out of favor with President Barack Obama after he was elected in 2008.

“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,” Circuit Judge Brett Kavanaugh wrote in a 2-1 decision.

The court’s ruling moves back to the front burner the debate over the Yucca site, 100 miles northwest of Las Vegas in Nye County, that was closed off after Obama halted the program in 2009. It likely will provoke new rounds of political and legal maneuvers among supporters and critics of the project that — until Obama was elected — pitted the federal government and the nuclear industry against the state of Nevada that fought furiously to keep high-level waste from its borders.

An NRC spokesman said the agency was reviewing the decision and had no immediate comment.

Pressed about Yucca Mountain at a Senate hearing in May, NRC chairman Allison Macfarlane said the agency would “follow the law” under whatever ruling the court issued.

But NRC officials also have pointed out there is only $11.1 million left over in the agency’s nuclear waste licensing account, meaning money could run out soon. At the same time it is questionable whether Congress would replenish it.

There is still support for the Nevada site in the U.S. House, but the Department of Energy under the Obama administration closed project offices, fenced off the site and zeroed out ongoing funding. The U.S. Senate, led by chief Yucca critic Majority Leader Harry Reid of Nevada, has kept the funding at zero.

Asked about the court action on Tuesday at the start of his day-long National Clean Energy Summit at Mandalay Bay in Las Vegas, Reid said the ruling was “not unexpected, but it really doesn’t mean much.”

Though the law still designates Yucca Mountain as the nation’s nuclear waste dump and there is little chance of changing that in what Reid called an “obstructionist” Congress, the project has been completely stripped of funding and the site “padlocked,” he said.

“With no disrespect to the court, this decision means nothing,” Reid said. “Yucca Mountain is an afterthought.”

Other elected Nevadans said they were ready for a new Yucca Mountain fight if necessary. Democrat Rep. Dina Titus said she planned to write to the NRC with reasons the site should not be licensed. Republican Sen. Dean Heller said rulings like this one “serve as an example why Yucca Mountain needs to be taken off the table once and for all.”

The Department of Energy once argued Yucca Mountain would be suitable, and submitted its case in a 2008 license application to the NRC. But critics of the Yucca project argue the site is unsafe to hold nuclear waste without radioactive material seeping into groundwater once protective canisters corrode after thousands of years. They also attacked plans to transport the waste from nuclear reactor states to the Nevada site.

Gov. Brian Sandoval declared himself “very disappointed” with the ruling.

“Forcing the NRC to revive the effort is an exercise in futility, a waste of money, and an unproductive distraction from promising new efforts to real, workable solutions,” he said.

Bob Halstead, director of Nevada’s Agency for Nuclear Projects, said parties to the lawsuit have 45 days to determine their next moves in court.

“If the licensing proceeding resumes, Nevada will demonstrate that the site is unsuitable, the repository design is unsafe, and the transportation plan is unworkable and unsafe,” Halstead said. “The proponents of Yucca Mountain are not going to prevail.”

“Regardless of what the courts say, and regardless of what laws have been passed, dumping nuclear waste at Yucca Mountain is not a good solution for the nationwide problem that we have with dangerous radioactive materials,” said Jane Feldman, energy chair of the Toiyabe Chapter of the Sierra Club in Nevada. “Today the court has not moved us closer to a good management plan. That work - that plan - is still in the future for scientists and advocates to develop.”

Appearing at the Las Vegas energy conference, Energy Secretary Ernest Moniz said while DOE is not a party to the lawsuit he will wait for the NRC to review the ruling.

“Once the NRC has clarified its position then we will get their guidance and act appropriately,” he said during a break in the conference.

Moniz noted that the licensing effort is “always subject to appropriations because, frankly, currently we do not have the funding to do any substantial amount of work.”

When asked if he thought Yucca Mountain is a suitable place for long-term storage of high-level waste, he said, “The science will be judged if and when the license process is completed.”

In place of Yucca Mountain, the administration is attempting to strike off in a new direction, after convening a blue ribbon commission that after a two-year study recommended new strategies to locate and open nuclear waste storage facilities.

But plaintiffs led by the states of Washington and South Carolina, home to major nuclear installations, sued the NRC after the agency at the direction of former chairman Gregory Jaczko followed administration signals and shelved its license review for the Yucca site. The government once envisioned shipping and burying more than 77,000 tons of highly radioactive spent nuclear fuel from utilities, and also waste from federal nuclear weapons factories and labs.

One of the plaintiffs in the lawsuit was Nye County, Nevada, where officials have been welcoming of the repository plan as a boost to the local economy.

Robert Andersen, the county’s nuclear waste attorney, said much can be accomplished with the money that NRC and DOE have on hand, including the release of key NRC science evaluation reports, or SERs, that are said to contain NRC staff conclusions whether the Yucca site could be safe. Those reports were shelved when the agency halted its work.

“There is a lot to be gained of great value to the nuclear community and to the nation by just getting the SERs issued unredacted,” Andersen said. “All they have to do is issue them.”

The appeals court decision backs the position Nye County officials have held for years, Commissioner Dan Schinhofen said.

“It is the law, and it can’t just be ignored,” Schinhofen said during an editorial board meeting with the Las Vegas Review-Journal. “If it can be constructed and operated safely, then we welcome it.”

Other plaintiffs declared victory on principle, even as the court did not order the NRC to see the licensing process through to a final decision, or to reprogram money among its accounts to extend its capability to conduct the review.

“This decision reaffirms a fundamental truth: the President is not above the law,” said South Carolina Attorney General Alan Wilson. “His administration cannot pick and choose which laws to follow and which to ignore.”

“This case is not so much about Yucca Mountain as it is about due process,” said Philip Jones, president of the National Association of Regulatory Utility Commissioners. He said much could be learned from continuing NRC review of the site “no matter what the eventual outcome will be.”

The judges in their ruling made clear they were not passing judgment on the suitability of the Nevada location, or how the Nuclear Regulatory Commission should handle its review, but only the extent to which they said the NRC exceeded its authority by halting the license review without permission from Capitol Hill.

Kavanaugh, an appointee of President George W. Bush, was joined by Circuit Judge A. Raymond Randolph in issuing a writ of mandamus, a court order instructing a government body to perform an act required by law when it has neglected to do so.

Randolph, an appointee of President George H.W. Bush, wrote a concurring opinion highly critical of Jaczko, who was a Reid aide that the Nevada senator fought to place on the NRC. Jaczko, a physicist who was made chairman when Obama was elected, “orchestrated a systematic campaign of noncompliance” on Yucca matters, the judge wrote. Jaczko resigned in July 2012.

Judge Merrick Garland, the chief judge of the circuit who was appointed to the court by President Bill Clinton, dissented from the ruling. He wrote mandamus was a “drastic and extraordinary remedy reserved for really extraordinary cases,” and this was not one of them.

Las Vegas Review-Journal reporters Henry Brean and Adam Causey contributed to this story.