Court seeks signs from Congress on Yucca Mountain

WASHINGTON – A divided panel of federal judges Friday put off deciding whether to force the government to restart licensing for the Yucca Mountain nuclear waste site.

A court order put the case on the back burner until December. In the meantime, one judge said the court will be looking for fresh signs from Congress that might make the case clearer to decide.

In five pages of discussion that accompanied the order, judges in the U.S. Court of Appeals for the District of Columbia indicated the Nuclear Regulatory Commission defied federal law when it suspended work on a Yucca Mountain license application in 2010. But two of the three judges assigned to the case agreed to delay ruling whether the agency should be ordered back to work.

Judge Brett Kavanaugh said Congress, when it writes appropriations bills for the upcoming fiscal year, may make clear whether it wants the project to continue. His suggestion appeared to be that ordering the NRC to resume licensing may not be practical if lawmakers refuse to give the agency the money to do so.

“It behooves us to wait for Congress,” wrote Kavanaugh, a Republican appointee who was joined by Judge Merrick Garland, a Democratic appointee.

Judge A. Raymond Randolph, a Republican appointee, dissented.

“Congress has its responsibilities. We in the judiciary have ours,” he wrote. “There is no reason to delay” ordering the Nuclear Regulatory Commission to restart its work “to correct this transparent violation of the law.”

Washington and South Carolina were among eight petitioners who sued the commission over the Yucca Mountain shutdown. Nye County in Nevada also joined the lawsuit.

Nuclear Regulatory Commission officials said they took the action after it was clear President Barack Obama was not going to support the project. At the urging of Sen. Harry Reid, D-Nev., Obama moved to terminate it soon after taking office.

Reid declared victory that the court declined to rule, calling it a “good day for Nevada and the entire country.” Bob Halstead, executive director of the Nevada Agency for Nuclear Projects, said the court was prudent to wait.

But David Wright, president of the National Association of Regulatory Utility Commissioners, said the court order only “seems to delay for a few months the inevitable,” that the NRC will be required to resume its Yucca review.

“While we would have preferred that the court act now instead of waiting on Congress, it seems clear that the majority of the judges favor our request that the agency be ordered back to work,” said Wright, whose organization consists of state public service officers who oversee nuclear utility rates.

With Reid exercising his influence as Senate majority leader, Congress has approved no funding for Yucca Mountain over the past two years. But knowledge that the court is looking for fresh clues from Capitol Hill could trigger a new Yucca fight over the next few months.

Congressional leaders have agreed to work on a spending bill to carry the government from the beginning of fiscal 2013 on Oct. 1 through next March.

On nuclear waste, both repository critics and supporters could maneuver to add provisions designed to sway the court, said Lake Barrett, a nuclear industry consultant and former Yucca Mountain project director.

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


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