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August 13, 2013
  In re: Aiken County
Headline: D.C. Circuit compels NRC to consider Yucca Mountain nuclear waste facility application

Area of Law: Mandamus; Separation of Powers

Issue(s) Presented: Whether and under what circumstances an independent agency has the authority to refuse to comply with a statute.

Brief Summary:
This case arises out of the ongoing controversy over the proposed nuclear waste storage facility at Yucca Mountain, Nevada. The Nuclear Waste Policy Act, signed into law by President Reagan in 1983, provides that the Nuclear Regulatory Commission (NRC) "shall consider" the Department of Energy's application for a license to store nuclear waste at the Yucca Mountain facility. The application was submitted in June 2008. A former NRC Commissioner, Gregory Jaczko, ordered the review process to terminate in October 2010, and the Commission shuttered the project in 2011, dismantling the computer system on which it depended and reassigning personnel to other projects.

Petitioners, including the states of South Carolina and Washington, have sought a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit requiring the NRC to resume processing the application since 2010. In August 2012, the D.C. Circuit issued an order holding the case in abeyance pending fiscal year 2013 congressional appropriations in light of NRC's claims that Congress did not intend to continue the licensing process. Although it did not then issue the petition for mandamus, the court indicated that the NRC was flouting the law and that the court would be constrained to grant the petition if the NRC continued to do so and Congress did not terminate the licensing process.

One year later, the court found that neither Congress nor the NRC had taken any action regarding the licensing process and granted the petition for mandamus. The court rejected NRC's contention that Congress's failure to fully fund the project, coupled with near-zero appropriations in recent years, demonstrated a congressional desire not to proceed with the licensing process. The court determined that, in the absence of a definitive legislative mandate to shut the process down, NRC was legally required to proceed using the $11 million dollars already allocated to it. The court also rejected NRC's contention that it did not wish to pursue the Yucca Mountain storage area as a policy matter, emphasizing that policy-making authority rested with Congress, not the NRC.

Judge Garland dissented.

For the full text of the decision, please see

Significance (if any): The case represents a key loss to the state of Nevada in its effort to prevent disposal of nuclear waste at Yucca Mountain. In addition, the case clarifies the circumstances in which an arm of the executive branch can disregard a clear statutory mandate.

Extended Summary (if applicable):

Panel (if known): Kavanaugh, Randolph, Garland

Argument Date (if known): 05/02/2012

Date of Issued Opinion: 08/13/2013

Docket Number: 11-1271

Decided: Writ of mandamus granted

Case Alert Author: Ripple Weistling

Counsel (if known):

Author of Opinion: Kavanaugh; dissent by Garland

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

Edited: 08/13/2013 at 02:23 PM by Ripple Weistling

    Posted By: Ripple Weistling @ 08/13/2013 02:16 PM     DC Circuit  

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