Judges troubled by Yucca shutdown, uncertain on recourse

WASHINGTON - Federal appeals judges indicated Wednesday they were troubled over the licensing shutdown of Yucca Mountain, but they struggled with whether the nuclear waste project might be too dead to order it revived.

Both sides faced sharp questioning in the case pitting the Nuclear Regulatory Commission against plaintiffs that include South Carolina and Washington state, which hold millions of gallons of nuclear waste with no promise of a place to send it since the Nevada repository plan was terminated.

The case before a three-judge panel in the U.S. Court of Appeals for the District of Columbia is the only remaining legal challenge to the Obama administration's decision to start closing out the program in 2009 and to develop a new nuclear waste strategy.

In a courtroom crowded with lawyers, industry representatives and former Yucca Mountain managers, Washington state Assistant Attorney General Andrew Fitz argued that the Nuclear Regulatory Commission acted improperly to close out repository licensing last year and should be ordered to resume it.

A federal law still in effect requires the agency to complete the license review and issue a safety decision, Fitz said.

He said the Nuclear Regulatory Commission "chose to abdicate its duties. The NRC's duty is to comply with the law."

With $10 million left over in a repository budget, the commission could resume the license case for some period of time and release reports containing its staff's views on whether the Yucca site might be safe, Fitz said.

The hope, according to Yucca proponents, is that Congress might resume funding that has been zeroed out for the past two years.

Judge Brett Kavanaugh said the case presents a worrisome "shift of power" if an executive agency can "disregard a statutory mandate even if there is money remaining."

Judge A. Raymond Randolph said the Nuclear Regulatory Commission "acting in defiance of a congressional mandate" may have influenced Congress not to appropriate more money for the program.

But whether the court agrees with the plaintiffs, recourse might be limited, Judge Merrick Garland said.

"How do we draw the line to issue orders to agencies to do things that Congress hasn't given them the money to do?" Garland asked. Congress did not appropriate money for Yucca Mountain last year, "and doesn't that tell us something?"

"It doesn't matter if the NRC misbehaved in the past; the question is what do we do for the future," Garland said.

Fitz noted Energy Secretary Stephen Chu has told Congress his department would revive the Yucca program if ordered, but Garland said "in the end it depends on whether they have the money."

NRC senior attorney Charles Mullins also came under sharp questioning.

"How can the agency justify ignoring a mandate?" Kavanaugh asked him.

Mullins said repository licensing was brought to a halt out of prudence after President Barack Obama requested no funding for 2012 and the agency anticipated that Congress would agree.

"In this case, the agency did not have enough money to continue in a meaningful matter," Mullins said. "The commission did not feel it appropriate to throw good money after bad."

Kavanaugh was not satisfied.

"That is not a good enough reason to ignore a statutory mandate," he said. "Your whole theory is based on predicting that Congress will do zero (funding). What kind of theory is that?"

Mullins said it would cost the Nuclear Regulatory Commission $6 million just to reinstate its electronic database of Yucca documents.

Martin Malsch, an attorney representing Nevada, said the state sided with the commission. He told judges resuming Yucca Mountain licensing for a short period would be burdensome for the 14 parties participating if the process is brought to a halt again.

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760. Follow him on Twitter @STetreaultDC.