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Despite the politics surrounding Yucca Mountain and the Obama Administration’s policy to terminate the project, a federal court today held the executive branch to its chief role: executing the law.
After 468 days of waiting, the U.S. Court of Appeals for the District of Columbia today ruled that, despite the President’s wishes, the Nuclear Waste Policy Act (NWPA) of 1982, as amended, is still the law of the land. In a 2–1 decision, the court ruled that the Nuclear Regulatory Commission (NRC) must continue its review of the Yucca Mountain license application as required by the law.
The NWPA designated Yucca Mountain as the location for a national repository for nuclear waste, which the Department of Energy (DOE) was required to accept by 1998—a promise still waiting to be kept. Though the act was not perfect and the DOE’s progress on Yucca Mountain was slow, this at least was a policy on nuclear waste.
However in 2010, President Obama ignored the previous 28 years of executing the law and ordered the NRC to end its review of the Yucca Mountain project. With nearly 70,000 metric tons of used nuclear fuel in temporary storage waiting to be collected by the DOE, President Obama left America’s commercial nuclear reactors, the Department of Defense, and federal regulators with no waste policy at all and taxpayers on the hook for over $15 billion for the Yucca Mountain repository project—not to mention the billions more in federal liability with commercial reactors for the government’s broken promise.
While President Obama’s rhetoric has been supportive of nuclear power, his actions have been far from it, forcing the industry to all but lock into a holding pattern until the uncertainty over nuclear waste management and other issues, such as regulation, and reactor licensing is resolved.
The Heritage Foundation has consistently made the case that the President and his Administration should follow the law and require the NRC to finish its review of the Yucca Mountain project. Today, the court agreed.
Judge Brett Kavanaugh, writing the court’s opinion, said:
This Case raises significant questions about the scope of the Executive’s authority to disregard federal statutes.… The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries.
The court made clear that “unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process.” In other words, the President must faithfully execute the law.
Requiring the NRC to continue its review of the application for Yucca Mountain as the court did today does not mean that Yucca will be built. It simply means that the nation will learn whether the NRC approves or disapproves of the project and on what merits. At the very least, knowing this will allow for a more fact-based debate.
The court’s decision today is far from the real reform that is needed in how the federal government regulates spent nuclear fuel. The next step should be to transfer the permit to a Nevada-based entity if the NRC approves the project. However, today’s decision is an important step in the right direction and a great victory for putting America’s nuclear waste management back on track.