Appeals court dismisses Yucca Mountain lawsuit

WASHINGTON -- A federal court on Friday dismissed a lawsuit that sought to keep alive the blueprint for burying nuclear waste in Nevada.

But while the ruling was a victory for the termination efforts of the state and the Obama administration, it focused attention -- yet again -- on the small federal agency that has become the center of controversy over the Yucca Mountain plan.

A three-judge panel said in a unanimous decision the lawsuit by the states of Washington and South Carolina and others challenging the shutdown of the Yucca project was premature until the Nuclear Regulatory Commission takes final actions that could bring it to an end.

The five-member NRC began considering last summer whether to allow the Department of Energy to take a final step to withdraw a 3-year-old license application. No final affirmation vote has been scheduled although commissioners cast initial votes in August.

"When we have an order to issue, we will issue an order," commission Chairman Gregory Jaczko said after a Capitol Hill appearance on June 16.

The passage of time has increased the focus on the agency, which has been put under a microscope for its handling of the Yucca issue.

The ruling by the U.S. Court of Appeals for the District of Columbia might provide only a reprieve in the legal battle over Yucca Mountain, as judges hinted that continued delays could make the NRC vulnerable to new legal challenges.

Writing the court's opinion, Chief Judge David Sentelle noted federal law gave the NRC three years to decide on a repository application. Some set that deadline at June 28, three years from the date when the Department of Energy submitted a license application in 2008. Others contend the clock started ticking on Sept. 15, 2008, when the NRC formally accepted the application for docketing.

Federal law allows the NRC to claim an additional year, but the agency is moving in the opposite direction to close out all its actions on high-level waste by this fall.

Sentelle suggested the states could revive their lawsuit if NRC fails to meet the deadline.

"Should the commission fail to act within the deadline specified" by the federal nuclear waste law, "petitioners would have a new cause for action," Sentelle wrote.

"We will not permit an agency to insulate itself from judicial review by refusing to act," he wrote.

Judge Janice Rogers Brown, in a short concurring opinion, said, "It is arguable the NRC has abdicated its statutory responsibility." She said plaintiffs missed an opportunity to press a stronger case against the NRC's failure to act.

The ruling brings to an end a case that was born after interests in states holding substantial caches of nuclear waste learned early in 2010 that the administration was shifting its decades-long focus away from the Yucca site, 100 miles northwest of Las Vegas.

Officials in Aiken County, S.C., and three business leaders from near Hanford, Wash., with the attorneys general of the two states, filed lawsuits that were later incorporated. They argued that terminating the site would leave millions of gallons of radioactive waste stranded in their states.

They also said the Department of Energy did not have the authority to shut down the project and withdraw its license application from the NRC.

Washington state Attorney General Rob McKenna said plaintiffs will review the ruling and decide a course.

"This case is far from over," McKenna said. "The court of appeals today ruled only that our suit is premature because the Nuclear Regulatory Commission has not issued a decision on the merits of the application to build the Yucca Mountian repository or on the Department of Energy's motion to withdraw that application."

The court made clear the NRC needs to act soon, said Charles Gray, executive director of the National Association of Regulatory Utility Commissioners, a group that monitors the Yucca project on behalf of utility ratepayers.

"While we are disappointed in this decision, the court makes it perfectly clear that the Nuclear Regulatory Commission must act in this case," Gray said. "Consumers of nuclear power have contributed more than $30 billion for the development of a nuclear-waste repository, and deserve prompt action by the NRC."

The lawsuit decided Friday was the only one pending against the Obama administration on Yucca Mountain, although lawyers say more will be filed whenever the Nuclear Regulatory Commission does issue an official decision on the project either way.

By erasing a legal challenge, the ruling gives a boost to Nevada in its efforts to see the Yucca project brought to a final halt, said Marta Adams, senior deputy attorney general.

The plaintiffs "were trying to push the envelope rather than wait until the NRC has finally ruled," Adams said. "This case was never ripe. If you follow these types of cases, you always wait until the final administrative body rules. That is fairly standard jurisprudence."

Sen. Harry Reid, D-Nev., called the decision "an important win in the long battle to put the ill-conceived Yucca Mountain project permanently to rest."

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.