On July 1, 2011, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) rejected an appeal brought forth by the attorneys general of Washington and South Carolina alleging that the United States Department of Energy (“DOE”) violated the Nuclear Waste Policy Act (“NWPA”).  The attorneys general claimed that the DOE violated the NWPA by seeking to withdraw their license application to build and operate the Yucca Mountain nuclear disposal site in Nevada, under the direction of President Obama, thus effectively killing the nuclear disposal project.   

Under the NWPA, the Nuclear Regulatory Commission (“NRC”) is required to either approve or reject a license for Yucca Mountain within three years of DOE filing an application.  DOE filed its application in 2008, then withdrew it in March 2010.  While some argue that the three-year clock started when the license application was filed in June 2008; others contend that the clock did not start until the application was placed on the NRC docket in September 2008.  Regardless, the D.C. Circuit noted that “the deadline for the [NRC] to act is at hand.”  Since the NRC has not yet ruled on the withdrawal application, the three judge panel for the D.C. Circuit dismissed the appeal, stating that it was not ready for judicial review.

Currently, several publications have reported that the NRC Commissioners are split 2-2 on the decision of whether to approve the withdrawal application, with the fifth commissioner, George Apostolakis, recusing himself from the case.  A 2-2 split decision would result in Yucca Mountain continuing its current operation since an NRC licensing panel has already determined that DOE does not have the authority under the NWPA to withdraw its license application. 

Although the ruling to dismiss the case is seen as an immediate victory for the Obama administration, the D.C. Circuit stated that it was prepared to issue an “extraordinary remedy,” such as a writ of mandamus, to force action by the NRC, if necessary.  As such, the D.C. Circuit noted that Washington and South Carolina could file a new lawsuit against the NRC, instead of the DOE, and its alleged failure to meet the NWPA deadlines.  While the D.C. Circuit noted that it does not usually interfere with agency proceedings, it warned the NRC that it “will not permit an agency to insulate itself from judicial review by refusing to act.” 

A copy of the D.C. Circuit’s opinion is available here.