Notice & Comment

Introducing Bruce Huber and Yucca Mountain: Not Dead Yet

I’m very happy to join the other contributors to the Yale Journal on Regulation’s Notice and Comment Blog. I am an Associate Professor of Law at Notre Dame, and my research is principally in the areas of environmental and energy regulation, property law, and natural resource management. In several upcoming posts, I hope to explore some issues in energy regulation that figure to loom large in the 114th United States Congress. With the Republicans soon to hold a majority in the Senate, we’ve been hearing a great deal about the resuscitation of the Keystone XL pipeline debate, but there are plenty of other regulatory issues deserving of similar attention.

Let’s begin with a look at the Nuclear Regulatory Commission’s regulation of high-level nuclear waste management. Many readers will be aware that the United States remains without a long-term repository for high-level nuclear waste such as spent nuclear fuel. Under the Nuclear Waste Policy Act of 1982, the federal government obligated itself to establish a repository and accept waste by 1998. The Department of Energy (DOE) has been in breach of that obligation for sixteen years now, of course, and its liability is mounting.

There is scant reason to imagine that the next Congress will solve our waste woes, but there are some interesting possibilities ahead nonetheless. The most intriguing has to do with Yucca Mountain in Nevada, long presumed to be the site of DOE’s eventual repository. President Obama, with the help of Harry Reid and Gregory Jaczko (former chair of the NRC, and a former Reid aide), all but killed Yucca, and tried everything short of sabotage to take Yucca permanently off the table. This effort received little media attention, but it’s quite a fascinating tale.

Shortly before Obama took office, the DOE had applied to the Atomic Safety and Licensing Board (ASLB) of the NRC for a license to construct a repository at Yucca Mountain. But Obama’s first budget slashed funding for the project, and in early 2010, Energy Secretary Steven Chu submitted a motion to the Board, requesting to withdraw the application with prejudice.

With prejudice? That’s right—a highly unusual step, but the administration wanted to guarantee, insofar as it was possible, that a subsequent administration could not revive the application process. The ASLB denied the motion to withdraw, arguing that governing law makes no allowance for license withdrawal: once an application is submitted, the law requires the Board to consider and decide upon it. The DOE appealed this decision to the full NRC, which deadlocked 2-2, leaving the ASLB’s decision intact. Undeterred, Jaczko disallowed further consideration of the DOE’s application, citing the budget cuts made by the administration. This provoked a petition for mandamus to the D.C. Circuit. That court has been distinctly unimpressed by the NRC’s treatment of the Yucca application. Its most recent opinion on the matter granted the petition, finding that the NRC still had $11 million allotted to the Yucca application and lacked discretion to terminate the application process (with Judge Randolph juicily accusing Jackzo of having “orchestrated a systematic campaign of noncompliance”).

The NRC won’t get very far on that $11 million (now down to about $7M )—which brings us roughly to the midterm elections earlier this month. With Reid’s influence on the decline and a new Republican Senate majority just around the corner, at least one prominent Democratic Senator has been willing to stick her neck out in support of Yucca Mountain. The administration’s official position on Yucca hasn’t changed, of course, but the incoming Congress might just choose to force the issue.

– Bruce Huber

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