In re Aiken County

Ever since 1978, scientists and researchers have been looking into the possibility of storing spent nuclear fuel at Yucca Mountain in Nevada. In June of 2008, the Department of Energy (DOE) finally submitted its application to the Nuclear Regulatory Commission (NRC) for licensing of the Yucca Mountain nuclear waste repository project. However, the DOE moved to withdraw the application in 2010. Among other parties, the states of South Carolina and Washington intervened to challenge that withdrawal, and the NRC found that the DOE lacked the authority to withdraw its application.

The NRC later directed its staff to cease the technical review of the application, citing, inter alia, a lack of Congressional funding going forward. The states subsequently brought suit against the NRC, seeking a writ of mandamus to force it to continue with the licensing process. The initial suit was held in abeyance in 2012 by the D.C. Circuit until Congress had a chance to clarify the matter by way of either withdrawing prior funding or granting additional funds to show its support. Congress did neither and the court finished hearing the case in 2013.

The D.C. Circuit held that the NRC could not decline to follow the statutory mandate of the Nuclear Waste Policy Act of 1982, either for policy reasons or because of its prognostications that future Congresses would decline to provide the additional funding required. The court noted that the project was currently funded, Congress had not withdrawn the funding, and there was no constitutional challenge to the statute. Therefore, the NRC did not have the discretion to decline to act pursuant to its mandate, and the court ordered it to do so. The court did not, however, address the DOE’s motion for withdrawal.

Citation: In re Aiken Cty., 725 F.3d 255 (D.C. Cir. 2013)

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