Yucca Mountain and the Rule of Law

In 1982, Congress passed and the President signed the Nuclear Waste Policy Act that directed the Nuclear Regulatory Commission (NRC) to approve or disapprove DOE’s application to store nuclear waste at Yucca Mountain.  Although Yucca Mountain was extensively studied for over a decade, confirming it the best site for nuclear waste, nothing was done until 2008 when the Bush Administration filed an application with the NRC.  In 2010, the Obama Administration sought to withdraw the application and terminate the Yucca Mountain project.  Although, the use of Yucca Mountain has been delayed and delayed, payments into the nuclear waste fund by consumers were not.  The fund accumulated about $30 billion which the Obama Administration has not proposed to refund to tax payers.

The Obama Administration decision to terminate the Yucca project led to litigation by several states and businesses in those state to force the NRC to process DOE’s application.  On August 13, the US Court of Appeals found that the NRC was “simply flouting the law” and must proceed with the processing of the application.

This decision has importance beyond Yucca Mountain because it goes to the heart of the Constitution’s checks and balances and the Executive Branch’s obligation to “follow statutory mandates”.  The Court also held that “ our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law… .”  The Administration’s action was not unique.  Earlier this summer, the President unilaterally decided to defer the employer mandate in the Affordable Care Act which under the law was to take effect this fall.

These two actions by the Executive Branch and perhaps others raise two  fundamental questions: will we remain a nation of laws and is the Constitution still relevant?  These are not partisan questions as they apply to actions that at least go back to the start of this decade. It is an accepted fact that the Federal Government is dysfunctional.  Congress is unable to find common ground to solve major public policy problems.  The President has acted in ways that suggest that the judicial and legislative branches are nuisances, and independent agencies interpret laws as they see fit instead of clearly adhering to Congressional intent.

So, Yucca Mountain should be more than just a question of where nuclear waste will be stored.  It is an opportunity to demonstrate that our system can work.

Yucca Mountain was chosen as a waste site repository after extensive study and a conclusion that wastes could meet a standard of safe storage for 10,000 years.  As a former nuclear test site, the Yucca Mountain area has no other practical use.  While the future of technology cannot be predicted with any degree of certainty, it is a safe bet that over the next 10,000 years technology will be developed to significantly reduce or eliminate the nuclear waste hazard.  But for the near term, the choice is whether Yucca Mountain is a safer repository than the current practice of on-site storage at nuclear plants?  The answer should be obvious and Congress and the Administration to should use the Court’s decision to demonstrate that our system still works.

This article appeared on the FuelFix weblog at http://fuelfix.com/blog/2013/08/16/yucca-mountain-and-the-rule-of-law/

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