DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

Goodbye Nuclear Waste Fees: Return to Yucca Mtn.

The D.C. Circuit axed annual fees for nuclear waste disposal on Tuesday, noting that the government had left the Court no option while Yucca Mountain is tied up in red tape.

Politico reports that since the Obama administration has continuously demonstrated its resistance toward finishing the Yucca Mountain nuclear waste repository, it is ludicrous for the Department of Energy to collect its "0.1-cent charge from utilities and customers for each nuclear-generated kilowatt-hour of electricity."

The fee has fed the Nuclear Waste Fund for the last three decades, but not after this week's D.C. Circuit ruling.

Return to Yucca Mountain: The Reckoning

It may sound like that Disney movie about the kids with supernatural powers, but Yucca Mountain is actually a site designated by Congress for nuclear waste. Yucca Mountain's future radiation may yet produce children with preternatural abilities (or cancer) but it currently doesn't function as a nuclear waste facility.

This is partly due to the leadership within the Nuclear Regulatory Commission (NRC) who have consistently thumbed their noses at the D.C. Circuit and Congress in stonewalling the Yucca Mountain application. After the NRC was slapped around by the D.C. Circuit in August over this issue, this nuclear waste project is likely on the Court's "naughty" list.

This time around, a coalition of utility companies challenged that annual fees they are charged to fund the Nuclear Waste Fund are excessive in light of the zero amount of effort being put into Yucca Mountain. And the court agreed.

Between a Rock and a Nuclear Dump Site

A large part of the issue is the growing enmity between the D.C. Circuit and the Secretary of Energy. In 2012, the Court had ordered the Secretary to comply with his statutory obligations and evaluate whether the fees are appropriate in light of the federal costs of nuclear waste disposal.

But as the court evaluated the present case, it noted that the Secretary returned with an evaluation of funds "somewhere between a $2 trillion deficit and a $4.9 trillion surplus." Justice Laurence Silberman, penning the opinion for the court, compared this unsatisfactory report with this musical number from "Chicago."

Even if the Secretary's non-effort had been enough to satisfy the Court, the D.C. Circuit noted that the government couldn't claim it needed funds for sites other than Yucca Mountain -- because it was bound by statute to use only Yucca Mountain.

The government having now placed itself in a position where it refused to fund Yucca Mountain, couldn't suggest alternatives due to statute, and couldn't produce any believable numbers to suggest why they were charging any amount for the annual nuclear waste fee, the court had no choice but to suspend the fee.

Bottom Line

Don't come to the D.C. Circuit with excuses if it requested something substantive, unless you want to give the Senate something to be catty about.

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