Ignoring law on Yucca not a real solution


There were no surprises in the U.S. Court of Appeals for the D.C. Circuit’s ruling on Yucca Mountain, at least not for people who have followed this issue over the years.

Although Senate Majority Leader Harry Reid has robbed Yucca Mountain of funding, and although President Barack Obama has commissioned a blue-ribbon panel to look at other nuclear-waste alternatives, Yucca Mountain is still the law of the land.

Congress spoke in 1987, designating Yucca as the site where the nation’s nuclear waste would be buried. And while debate raged, lawsuits were argued, hearings held and research performed, the law behind Yucca Mountain has never been changed.

So when a couple of states where nuclear waste has been piling up for decades sued to force the federal government to get on with Yucca, the outcome was easy to predict.

“Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress,” the ruling reads. “Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process.”

It added: “As things stand, therefore, the commission is simply flouting the law. In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory Commission.”

This should be obvious. The executive branch of government is charged with faithfully executing the laws passed by Congress, so long as Congress provides the funding and there are no constitutional infirmities in the underlying legislation. But instead of following the Nuclear Waste Policy Act, presidents including Obama (and Bill Clinton before him) have delayed and ignored the law.

For many of us here in Las Vegas, that’s a good thing. Nevada was unfairly singled out in 1987, when it was selected as the waste repository site, the victim of a weak congressional delegation bullied by more powerful states. The science of the project is far from settled, and issues related to transportation remain.

But those are arguments against Yucca Mountain itself, not justifications to ignore the law. President Obama’s critics will rightly see in this ruling a familiar pattern: When confronted with a problem that requires a congressional compromise, the president resorts to executive action outside the legislative process. (Another example: the appointments of National Labor Relations Board members and a chairman of the Consumer Financial Protection Bureau using recess appointments, when the Senate was specifically not in recess. That case may soon produce a ruling from the U.S. Supreme Court.)

On the other hand, the Circuit Court’s ruling acknowledges a simple fact — money is a part of the process, too. “Of course, if Congress appropriates no money for a statutorily mandated program, the executive obviously cannot move forward,” it reads. And thanks primarily to Reid, Congress has appropriated no money. That’s why D.C. Circuit Chief Judge Merrick B. Garland wrote a dissent saying, because there is no money, forcing the Nuclear Regulatory Commission to resume a license application with what little funds remain amounts to a useless act.

That must have been what Reid meant when he responded to the court’s ruling, saying, “It really doesn’t mean much.”

“This, without being disrespectful to the court, means nothing,” Reid added.

So the executive branch ignores a law duly passed by the legislative branch, and is called on it by the judicial branch, which is subsequently dismissed by a leader of the legislative branch. But no disrespect intended.

Remember this, Nevada: While Reid and Obama may have stalled Yucca, the law is the law, and someday, somebody may come along and follow it. That’s why the right thing to do — and the only way to be sure — is to change the law and fix this problem for good.

Steve Sebelius is a Las Vegas Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or ssebelius@reviewjournal.com.