Yucca debate: Federal panel puts off nuke dump decision

A divided panel of federal judges last week put off deciding whether to force the government to re-start licensing for the Yucca Mountain nuclear waste site. But in another sign that talk about the death of the Nevada project remains premature, one judge said the court will be looking for fresh signs from Congress that might make the case easier 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 nonetheless agreed to delay ordering the agency 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. "It behooves us to wait for Congress," wrote Judge Kavanaugh.

Judge A. Raymond Randolph was alone in his dissent. "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. The states, seeking somewhere to put spent fuel from their commercial nuclear reactors, argue that Congress has never repealed the 1982 legislation that created the project - known here as the Screw Nevada bill - so the process must go forward by law.

It was Judge Kavanaugh who asked a lawyer for the NRC to explain, earlier this year, on what grounds the agency could ignore the statute requiring action on the Yucca Mountain license application. "If it's just, 'We don't like it,' well, that's not good enough," the judge said.

At the urging of Senate Majority Leader Harry Reid, D-Nev., President Obama moved to terminate work on the dump soon after taking office.

Sen. Reid has called the court's reluctance to intervene a victory, a "good day for Nevada and the entire country." It certainly could have been worse had the court not agreed to the delay. But if the court hopes for fresh guidance from Congress, it could well be waiting till next year. In a presidential election season, it's unlikely the deeply divided Congress will be able to act together to do much more than enact an interim spending bill to keep the lights on in federal office buildings from October through next March - if that.

Until Congress actually repeals the Screw Nevada law, or the courts refuse to force the NRC to go forward, Yucca remains alive, in intensive care.