On March 18, 2014, the U.S. Court of Appeals for the District of Columbia Circuit denied the U.S. Department of Energy’s (“DOE”) petition for rehearing of its ruling ordering DOE to stop collecting nuclear waste disposal fees from electric utilities.  DOE argued that the D.C. Circuit should rehear the case en banc.

On November 19, 2013, the D.C. Circuit directed the Secretary of Energy to submit a proposal to Congress to change the annual nuclear waste disposal fee to zero, holding that the fees were improper because it could not be determined whether the fees were proportionate to costs or if the fees were inadequate or excessive (see January 10, 2014 edition of the WER).   The D.C. Circuit further held that the annual fees could resume once the Secretary completed a sufficient evaluation of the fee program, either because the Yucca Mountain nuclear waste repository is resumed or because Congress enacts new legislation.

On January 3, 2014, DOE filed a petition for rehearing en banc, arguing that conflicting rulings from the court rendered the calculation of waste fees impossible, and the court should have remanded the case to the Secretary rather than becoming involved in a “political dilemma” surrounding nuclear waste disposal.  DOE also argued that the court’s rulings are inconsistent with the 1982 Nuclear Waste Policy Act and that the court was substituting its judgment over that of the Secretary and Congress.  The Secretary, however, complied with the November 19 ruling and submitted a proposal to Congress that recommends the waste disposal fee be set at zero.