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Few barriers between Nevada and nation’s nuclear waste

Yucca Mountain

File photo

Yucca Mountain is located about 90 miles northwest of Las Vegas.

Updated Tuesday, Aug. 13, 2013 | 12:48 p.m.

National Clean Energy Summit 6.0

Actor and former California Gov. Arnold Schwarzenegger speaks during the National Clean Energy Summit 6.0 on Tuesday, Aug. 13, 2013, at Mandalay Bay. Launch slideshow »

Yucca Mountain

The U.S. Energy Department plans to store spent nuclear fuel at Yucca Mountain, an extinct volcano about 90 miles northwest of Las Vegas. Launch slideshow »

The pressure on Nevada lawmakers to see a new nuclear waste disposal act through Congress this session just skyrocketed.

The U.S. Court of Appeals in Washington, D.C., decided Tuesday that the Nuclear Regulatory Commission must continue reviewing plans for a nuclear waste dump at Yucca Mountain until they have zero funds to continue.

That leaves only two barriers to Nevada getting dumped with the nation’s nuclear waste: Sen. Harry Reid’s ability to block funding – which depends entirely on Democrats keeping a majority in the Senate – or a scientific determination that Yucca Mountain is unfit.

Neither is as sure a thing as a law that simply designates a new destination for nuclear waste.

But it may take a small miracle to get such legislation passed.

“We’re not going to get any laws passed to change this,” Reid told reporters during a summit on clean energy in Las Vegas on Tuesday, blaming Tea Party opposition for stymieing any positive momentum toward siting a new repository.

In fact, the problem runs far deeper than that.

Last month, Congress began considering a bill to site new temporary and permanent repositories to store spent nuclear fuel by a consent-based process. Such a process, which would rely on the host community agreeing to the project, won tentative approval of members of the Nevada delegation, including Sen. Dean Heller, who got a whole lot more vocal about his support for the legislation immediately after the appeals court decision.

“Today’s decision serves as yet another example of why Yucca Mountain needs to be taken off the table once and for all,” Nevada Sen. Dean Heller said in a statement released after the ruling. “Instead of continuing to try to force Yucca Mountain on the people of Nevada, my colleagues should focus on moving toward a new process that will allow for consent-based siting.”

But last month, lawmakers in the House of Representatives also overwhelmingly rejected amendments presented by Rep. Joe Heck, R-Nev., to divert money appropriated for the Yucca Mountain licensing process by a vote of 335 to 81.

Votes like that – which occur on an annual basis – make it clear that support for Yucca is strong in both the Republican and Democratic parties.

And that is one of the reasons the court dismissed the Nuclear Regulatory Commission’s argument that re-starting the licensing process to spend down the last $11.1 million in the bank – universally acknowledged to be too little to achieve much – was a fool’s errand.

“The fact is, they have no money at this point,” Reid argued. “The place is locked. It’s padlocked. Nothing is happening there.”

Similarly, the NRC had argued that because Congress had failed to appropriate any money for Yucca during Obama’s presidency, it was unlikely the money would ever start flowing to Yucca again.

That might be the case, the court mused. But it ultimately determined that was not a call for the NRC to make. Instead, the court ruled, federal agencies must comply with the orders of Congress.

“The Commission’s political prognostication may or may not ultimately prove to be correct. Regardless, an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates,” Judge Brett M. Kavanaugh wrote. “Courts generally should not infer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of money Congress has appropriated.”

And should Republicans assume the majority in the Senate there is potentially ample support for directing more money toward Yucca Mountain.

Politics has never been that distant from the Yucca Mountain licensing process, which by the books, is supposed to be a strictly scientific affair.

Former Nuclear Regulatory Commission chairman Gregory Jaczko made the decision to cease the review of Yucca Mountain’s fitness to host a repository in a manner that irked his colleagues, and set off a ugly fight in Congress about whether Jaczko, once a Reid aide, was simply doing his former boss’ bidding. Jaczko would ultimately resign amid a sea of accusations that he had bullied his colleagues on the commission.

The current NRC chairman, Allison Macfarlane, has avoided similar controversy – but her history opposing Yucca Mountain is well documented.

“Congress sets the policy, not the commission. And policy disagreement with Congress’s decision about nuclear waste storage is not a lawful ground for the commission to decline to continue the congressionally-mandated licensing process,” Kavanaugh wrote. “A judicial green light for such a step…would gravely upset the balance of powers between the branches.”

That view was not unanimous in the 2-1 decision. Judge Merrick B. Garland wrote a dissent scoffing at the assumed import of the decision, chiding that an order to send $11 million would do more than “order the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again.”

“This exercise will do nothing to safeguard the separation of powers, which my colleagues see as imperiled by the NRC’s conduct,” Garland wrote in his dissent.

But constitutionality was the rub of this decision: While Nevada’s leaders and representatives’ ultimate objective is to make sure Nevada doesn’t turn into a nuclear waste dump, the court’s judges were concerned with establishing that executive agencies don’t have the latitude to reinterpret Congress’ intent.

The writ of mandamus the court issued in its decision amounts to a “do your job” rebuke of the Nuclear Regulatory Commission. But Kavanaugh expanded upon that – suggesting that Congress had tried the court’s patience as well.

“We have repeatedly gone out of our way over the last several years to defer a mandamus order against the commission and thereby give Congress time to pass new legislation that would clarify this matter if it so wished,” Kavanaugh wrote. (The court last heard arguments in this case over a year ago.) “Since then, Congress has taken no further action on this matter…we therefore have no good choice but to grant the petition for a writ of mandamus against the commission.”

Supporters of Yucca Mountain are cheering the decision as a victory.

“Today’s action by the court is a significant milestone for Yucca Mountain and a clear rebuke of the Nuclear Regulatory Commission’s failure to implement the Nuclear Waste Policy Act,” House Energy and Commerce Committee chairmen Fred Upton and John Shimkus wrote in a statement released Tuesday.

At the clean energy conference in Las Vegas, Energy Secretary Ernest Moniz declined to take a specific stand on Yucca or the constitutionality of the court's decision.

"What's really important is to be moving forward on a process to be moving spent fuel. We believe that's a consent-based process," Moniz told reporters. "The science [on Yucca] will be judged if and when the licensing process is completed."

Reporters Cy Ryan and Andrew Doughman contributed to this report.

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