Shortly after the Obama administration unlawfully terminated the Yucca Mountain Project, three Washington State citizens (Robert L. Ferguson [the author], Bill Lampson, and Gary Petersen) filed suit to hold the President and his administration accountable to the law. Similar suits filed by Aiken County, South Carolina, and the states of Washington and South Carolina; the National Association of Regulatory Utility Commissioners; and Nye County, Nevada, were combined into one lawsuit.
After a year-long wait for the D.C. Circuit Court of Appeals to rule on our lawsuit against the U.S. Nuclear Regulatory Commission for illegally stopping the Yucca Mountain license review, the court finally ruled on Tuesday, August 13, to grant us a writ of mandamus ordering the NRC to follow the law and resume the review.
Two of the judges on the three-judge panel agreed that the NRC had violated the Nuclear Waste Policy Act (NWPA) when its former chairman, Gregory Jaczko, stopped the Yucca Mountain license review at the point when it was nearly complete. Jaczko also withheld the Yucca Mountain Safety Evaluation Reports (SERs), which were due to be released to Congress and the public.
The NRC eventually delivered two volumes of the Yucca Mountain SERs to Capitol Hill, in response to a Freedom of Information Act request from The Heritage Foundation. However, any conclusions about whether or not the site would be safe for storing radioactive waste were omitted from the reports, and the executive summary was gone. The NRC said that the redactions were justified by a Freedom of Information Act exemption that excludes material that could affect a legal process.
One of the legal processes pending against the NRC was our lawsuit, which began in February 2010, and is now at an end in August 2013. It has been a long and personally expensive endeavor, but we accomplished what we set out to do-establish that the President of the United States is not above the law. The court's ruling confirmed that U.S. laws must be followed regardless of political opinions. It's regrettable that private citizens had to resort to litigation to compel our elected and appointed government officials to obey the law. I've written a book chronicling our legal battle and the politics behind it entitled The Cost of Deceit & Delay: Obama and Reid's Scheme to Kill Yucca Wastes $Billions.
Circuit Judge Brett Kavanaugh wrote in his opinion, "This case raises significant questions about the scope of the Executive's authority to disregard federal statutes." He explained, "The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies to implement within statutory boundaries." He concluded that the President and federal agencies "may not ignore statutory mandates or prohibitions merely because of policy disagreements with Congress." (Link to the Court's order here.)
The NRC has $11.1 million left in an account designated for the Yucca Mountain license review. Chief Judge Merrick Garland wrote in his dissenting opinion that the lack of funds makes the court's ruling "useless" because it amounts to "little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again."
We disagree. The NRC testified during the court hearing that $10 million would be enough to at least publicly release the Yucca Mountain SERs. Hopefully, they won't have to unpack too many boxes to find the un-redacted versions.
The value of disclosing to the public the results of the Department of Energy's costly scientific evaluation of Yucca Mountain, which is located in Nevada, and the NRC's review contained in the safety reports will settle once and for all whether or not Yucca is a suitable site for the disposal of high-level waste. If the conclusions of the NRC's review favor licensing the site, doing so will comply with the NWPA and clear the way for building interim storage facilities for nuclear waste, whether or not construction of a repository at Yucca Mountain is authorized by Congress.
The logical next step would be for Congress to modify the NWPA to allow implementation of the Blue Ribbon Commission's recommendations to establish consolidated storage facilities and create a new organization to manage the nuclear waste program. Congress also should amend the NWPA to allow the separation of the defense waste program from the commercial waste program, to establish a clear path for the disposal of defense waste independent of any future decisions regarding reprocessing of commercial spent fuel.
I want to congratulate and thank our legal team, with special thanks to Andy Fitz, the attorney for Washington State who presented and argued the case before the court for the entire team.
Robert L. (Bob) Ferguson is a former Deputy Assistant Secretary for Nuclear Energy at the Department of Energy. His career in nuclear energy spans 50-plus years, much of it dealing with managing nuclear waste. His book, The Cost of Deceit & Delay: Obama and Reid's Scheme to Kill Yucca Mountain Wastes $Billions, is available at Amazon.com.