The Department of Energy had submitted its 8,600 page Yucca license application to the NRC in June 2008, but the incoming Obama Administration, in league with Senate Majority Leader Harry Reid (D-NV), worked to zero-out money for the program. Then, a former Reid staffer, Gregory Jaczko, even became NRC chairman, and unilaterally froze the agency staff’s evaluation of DOE’s application.
By Richard Bornemann | September 5, 2013
For their larger philosophical reasons, some conservative columnists and editorial boards are actually paying some attention to nuclear power, and giving strong thumbs-up reviews to a August 13 federal court decision dealing with the stalled spent fuel repository at Yucca Mountain in Nevada.
In a suit brought by the states of Washington and South Carolina against the Nuclear Regulatory Commission (NRC), a panel of the DC Circuit Court of Appeals decided 2-1 to grant a writ of mandamus against the NRC for the agency’s failure to obey 1987 amendments to the Nuclear Waste Policy Act of 1982 (the Act). The Department of Energy had submitted its 8,600 page Yucca license application to the NRC in June 2008, but the incoming Obama Administration, in league with Senate Majority Leader Harry Reid (D-NV), worked to zero-out money for the program. Then, a former Reid staffer, Gregory Jaczko, even became NRC chairman, and unilaterally froze the agency staff’s evaluation of DOE’s application.
Mr. Jaczko resigned last year, after a very critical NRC inspector general’s report on his management style, but not before he’d suppressed (“redacted”) staff conclusions that were favorable to Yucca, and not before he’d shut down and scattered most of the agency’s documentation infrastructure for Yucca Mountain.
So, the Court took an extraordinary step because it had finally lost patience with a case that had begun in 2010: “We have repeatedly gone out of our way over the last several years to defer a mandamus order against the Commission . . .” But enough was enough because “the Commission is simply defying a law enacted by Congress and [it’s] doing so without any legal basis.”
Naturally, we’re to welcome the notice given this issue by conservative commentators. It’s rare for them these days to speak directly to the importance of nuclear power, or to the continuing impediments to its expansion, because much of the issue’s drama ended twenty years ago, after the licensing of Seabrook Station in New Hampshire (and the expectation that new reactors were “dead” in a “dying” industry). The big protests stopped, and the likes of Carly Simon and Jackson Browne left the stage to warble their profundities elsewhere.
But Yucca Mountain symbolizes something else to conservatives. It’s emblematic of a larger frustration with the Obama Administration’s general selectivity in complying with the law. Whether the issue is the Affordable Care Act (unilateral suspension of Congress’ employer mandate); or immigration (unilateral implementation of provisions of the Senate-defeated DREAM Act); or rulemakings by illegal recess appointees, the landscape abounds with administration and agency defiance of actual statutes, or with actions taken in the absence of any Congressional authorization at all.
So, Yucca Mountain becomes a story about the rule of law, and the separation of powers, as columns by the Wall St. Journal’s Kimberly Strassel, and the Washington Post’s George Will, eloquently pointed out in discussing Judge Kavanaugh’s majority decision in Yucca. And one hopes that the judge’s tough words become precedent for other federal court decisions that finally limit the doctrine of “agency deference.” (That includes EPA’s unilateral re-write of the Clean Air Act to combat “climate change.”)
But broad principles aside, what does the Court’s decision do to actually advance the progress of Yucca Mountain, and end decades of standoff? After all, the Court could not order Congress to appropriate money from the Nuclear Waste Fund (into which all consumers of nuclear-generated electricity pay a fee of 0.1¢ per kwh) for the NRC to complete its Yucca license review, or for contractors to actually begin building it. (We’ve spent $15 billion so far.)
According to the NRC itself, the agency has some $11.1 million left over from previous appropriations, enough to at least finish the staff’s 5-volume Final Safety Evaluation Report (FSER) for DOE’s Yucca application. Volume 1 – basically a table of contents – was published in 2010. But the real meat is in the Jaczko-redacted portions of Volumes 2 and 3, dealing, respectively, with repository performance before permanent closure, and a million years after permanent closure. And, it shouldn’t cost very much money to paste back into the documents the conclusions that the former chairman withheld from both the public and the Congress. But finishing Volumes 4 and 5, dealing, respectively, with administrative requirements and license specifications, may consume much of the $6 million that the staff says is necessary to finish the FSER.
That leaves way too little in the kitty to complete a lengthy and highly contested hearing before the NRC’s Atomic Safety and Licensing Board, the trial level panel whose decisions, in the NRC’s quasi-judicial system, are appealable to the Commission itself. Some 288 contentions have already been admitted, and competing lawyers and experts would run the clock and drain the till quickly.
Ultimately, the NRC was told to drive its car as far as it could go with the little bit of gasoline that’s still in its tank, so, naturally, anti-Yucca forces want to siphon away as much money as possible for hometown Nevada pork.
But the Court may end up having altered the nasty politics of the whole Senate mess. Key House Republican staff, who’ve seen the redacted stuff, say that it concludes that Yucca meets the requirements of the Nuclear Waste Policy Act – out to a million years. In short, the professional NRC staff officially declared Yucca to be safe. Be we don’t know it yet, because it’s not under a letterhead.
Maybe the Court has handed pro-Yucca forces on Capitol Hill a potentially marvelous political tool in Yucca’s FSER. Senate Democrats running for re-election next year, from states that host nuclear plants, will have to explain why, if an “officially safe” alternative exists in Nevada, the citizens of their states must continue to store spent fuel, and keep contributing to the Nuclear Waste Fund.
And, their re-election paths can be made much bumpier if the best explanation they can offer is peeled down to its core truth: “I have to do what Harry Reid says on this one.”
That’s an example of “taking one for the team.” The team in this case is one very influential person, but should a “one person” explanation ever be allowed to suffice with real constituents? And, shouldn’t those constituents hear about this, over and over?
Richard Bornemann has provided strategic legislative and regulatory counsel to American energy and surface transportation companies of all sizes for more than 20 years. He is an energy and environment analyst for the Selous Foundation for Public Policy Research, and author of American Energy Independence: A Policy Review 1973-2012. Mr. Bornemann is also a contributor to SFPPR News & Analysis.