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December 11, 2018

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Court refuses to order Congress to spend last $10 million on Yucca Mountain

In a welcome reprieve for opponents of the nuclear waste repository, the federal appeals court will not force the Nuclear Regulatory Commission to spend its last $10.4 million on Yucca Mountain – at least not for now.

But the court's reasoning is a harsh reminder of the uncertainty of the project's future.

“Granting mandamus now would entail significant expenditures of government resources,” Judge Brett Kavanagh wrote in the court’s decision. “But Congress’s upcoming appropriations decisions could well affect whether those expenditures are necessary.”

The petitioning states, led by South Carolina with an assist from Nevada's Nye County, had asked the court to issue a “writ of mandamus” – a court order instructing the NRC to spend the money it had been appropriated in years past to develop Yucca Mountain as a nuclear waste dump.

Yucca Mountain hasn’t received any appropriations in the last three fiscal cycles, because Sen. Harry Reid has used his majority leadership of the Senate to make sure any such funds are stripped from the bill.

But Republicans are hoping a successful turn in the 2012 elections will let them overcome Reid’s block.

The court was keenly aware of the uncertain future back in May when the petitioning states and the NRC presented their arguments to the three-judge panel.

At the time, the judges scoffed at lawyers for the NRC, and charged that they based their entire argument on “prognostication” that Congress would not fund Yucca in fiscal 2013-- a prediction that they could not substantiate.

“You’re asking me to read Congress’ mind here,” NRC attorney Charles Mullins protested at the judges’ questions.

“That’s exactly what we’re asking,” Judge Arthur Raymond Randolph said at the time. “Because that’s your defense.”

Randolph dissented from the court’s decision Friday with a stern reprimand.

“Whether mandamus should issue when an agency is willfully defying an earlier Congress’s command has never depended on the possibility that a later Congress might do something to excuse the violation,” he wrote, following that up with a sharp rebuke of former chairman Gregory Jaczko, whom he accused of “orchestrating a systematic campaign of noncompliance.”

“We should ensure that the commission’s next chapter begins with adherence to the law,” he concluded.

But in the opinion of the judges, any action by the court would be premature.

“Out of respect for the coordinate branches of government, and so as to not unnecessarily waste government resources, it behooves us to wait for Congress,” Kavanagh wrote. “If Congress provides no additional clarity on the matter, however, we will be compelled to act on the petition for mandamus.”

That suggests that at some point in the future, should Congress not change its course of action on Yucca, the court might well intervene and issue a binding order to spend that last $10.4 million out of principle, whether or not it actually advances the project at all. The Yucca Mountain repository has an estimated total price tag of $90 billion.

But Kavanagh did not specify in his decision how long the court might wait before revisiting its decision and potentially issue a writ of mandamus.

So for now, opponents of Yucca are taking this decision as a win.

“Today is a good day for Nevada and the entire country,” Reid said in a statement Friday. “I am confident that in the coming months and years, we will craft a nuclear waste policy that keeps Americans safe and secure and restores trust that the government will not turn a deaf ear to the communities asked to undertake the burden of storing the nuclear energy industry’s toxic waste.”

Currently, there is at least one bill in Congress seeking to implement a new framework for choosing a national nuclear waste repository. But it is unlikely to advance this year, and its future beyond that likely depends on Democrats maintaining a majority in the Senate – and Reid maintaining his majority leadership.

This June, 326 members of the House voted in favor of pumping $10 million of already-appropriated funds — the same $10 million the appeals court ruled on today — toward Yucca Mountain. Only 81 members voted against it.

The count indicates that despite Reid’s conversation-ending opposition, there remains strong bipartisan support for developing the nuclear waste repository at Yucca Mountain.

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