An attorney for the state of Washington, representing communities that support the dump, said the NRC broke the law last fall when it allowed the Obama administration to continue plans to close the controversial Yucca Mountain site, 90 miles northwest of Las Vegas.
The NRC cited “budgetary limitations” imposed by Congress in approving the shutdown last September.
Andy Fitz, a lawyer for the Washington attorney general’s office, said the NRC violated a 1982 law requiring it to act on an application for construction of the Nevada site.
“The agency can’t ignore the law simply because it thinks it won’t get money (for the project) in the future,” Fitz told a three-judge panel of the U.S. Court of Appeals for the District of Columbia.
The nation “will never have a nuclear waste site if the executive (branch) doesn’t follow the laws of Congress,” Fitz said.
Judge Brett M. Kavanaugh, a Republican appointee, appeared sympathetic, asking a lawyer for the NRC to explain how the agency could ignore the statute requiring action on the Yucca Mountain application.
“If it’s just, ‘we don’t like it,’ well that’s not good enough,” Kavanaugh said.
Charles Mullins, a senior NRC attorney, said the order to stop work on the project was based on “reality,” since the Obama administration canceled the project in 2009 and Congress did not appropriate money for it in the current budget year. It is not clear whether Congress will approve money for Yucca Mountain next year either, Mullins said.
The agency has about $10 million it could spend from previous budget years, but Mullins said that would be futile, since the project is unlikely to go forward under the current administration.
“Let’s not throw good money after bad,” he said.
Judge Merrick B. Garland, a Democratic appointee, said that by failing to approve money for the project this year, Congress had spoken.
“Congress is telling us something,” not just the executive branch, Garland said.
But Kavanaugh said it was premature to assume that Congress will again fail to approve money for Yucca Mountain, noting that negotiations for the budget year that starts Oct. 1 were ongoing.
“You can’t guarantee zero funding” in 2013, Kavanaugh told Mullins, adding, “Your whole theory is based on predicting what Congress will do.”
Judge A. Raymond Randolph, a Republican appointee, said allowing the NRC to disregard the 1982 law “would be a shift of power from Congress” to the executive branch, which is choosing not to spend money Congress has appropriated.
Randolph also asked why Congress had chosen not to “take a drop” of a $26 billion nuclear waste fund collected from nuclear power companies over the past several decades.
Washington state and South Carolina are among those that filed a lawsuit seeking to force the NRC to rule on the Yucca Mountain application. A decision is expected later this year.