NRC Can't Ignore Yucca Mtn. Application, Even With Shaky Budgets

By Brett Snider, Esq. on August 15, 2013 | Last updated on March 21, 2019

The Nuclear Regulatory Commission (NRC) got some tough love from the D.C. Circuit on Tuesday, when the court issued a writ of mandamus forcing the agency to process an application to store nuclear waste in an unfunded site.

Mandamus is certainly an extraordinary equitable remedy for any court to issue, but the NRC tried the court's patience by doing nothing about a pending application.

Do Your Duty, NRC

The crux of the In re: Aiken County case is an NRC policy decision to not process an application for the Yucca Mountain nuclear waste disposal site.

This was in large part due to a personal crusade by then-NRC Chairman Gregory Jaczko to suspend the processing of the application because Congress had not appropriated sufficient funds, by the NRC's account, to complete the application review process.

Under the Nuclear Waste Policy Act, the NRC must process an application within three years of submission. The application for Yucca Mountain was submitted in 2008, but still not completed by 2011.

The D.C. Circuit gave the NRC a chance in 2011 after the deadline had lapsed, saying it would either wait for Congress to change its mind about the Yucca Mountain project or for the Department of Energy (DOE) to withdraw its application before forcing the NRC to act via mandamus.

...And We're Back

So two years passed and no one did anything. Not Congress. Not the DOE. And definitely not the NRC. So the D.C. Circuit was a little steamed, and decided that since this was a case of the NRC ignoring a "clear duty" from Congress, mandamus was appropriate.

Executive powers arguments under Article II aren't really of much use here according to the D.C. Circuit because:

  1. An executive body can't refuse to enforce a law merely due to policy reasons;
  2. The executive privilege to refuse to enforce a law deemed unconstitutional as not been invoked; and
  3. Article II prosecutorial discretion of the executive can't be used to disregard laws.

In addition, the court didn't buy that the NRC would refuse to do its job because of speculation that Congress won't be backing the Yucca Mountain project, even though Congress did allocate $11 million for the NRC to start the review process.

If Congress provided some allocation of funds and gave no explicit indication that the NRC could stop processing the Yucca Mountain application, then the NRC was bound to do so by law, in respect for the balance of constitutional powers.

The dissent thought this was a bit too much, since essentially mandamus relief might cause the NRC to review an application that -- if the project were already dead in the water -- does a "useless thing" and wastes taxpayer money.

Bottom line: Agencies sometimes don't have any discretion in following congressional mandates, despite how much it might seem useless to do so.

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