The Obama Administration is Violating the Law

[russ_watters]

The law is the Nuclear Waste Policy Act of 1982. This is the act that established the Yucca Mountain waste repository. You can read about it on the wiki: http://en.wikipedia.org/wiki/Nuclear_Waste_Policy_Act
and at the NRC: http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/fs-yucca-license-review.html

Key Facts:

1. The law establishes the requirement for the US government to permanently store all nuclear waste in the US including commercial waste.
2. The facility is paid for by power companies that produce nuclear power on a per megawatt-hour basis.
3. Provides states with veto power over a repository in their territory while providing Congress with override power. When Yucca was selected, it was written into an amendment to the act in 1987. Nevada vetoed and Congress overrode in 2002.
4. The DOE submitted to the NRC a license to construct and operate in June of 2008.

Obama made a campaign promise to cancel the project, which you can find in letter form here: http://www.lvrj.com/opinion/7598337.html

Since then, he's been attacking the issue on several fronts (here's a congressional briefing: http://www.fas.org/sgp/crs/misc/R41675.pdf ):

1. From a purely political standpoint, he appointed a Blue Ribbon Commission to recommend alternatives to Yucca. http://www.energy.gov/news/8584.htm
The interim report is due at the end of July. We'll have to wait and see if it actually addresses the merrits of Yucca or just starts on the assumption that it is off the table, but the Sec Energy Chu used exactly those words to describe its status.

2. Removing funding from the project from the federal budgets the last two years.

3. Having the DOE retract its application to build/operate the site.

4. DOE owns and operates the not finished facility and has all but shut it down.

Unfortunately for Obama, the Nuclear Waste Policy Act is still the law and he's not just failing to uphold the law but he's taking active steps to countermand it. He doesn't have that power. Currently, there are challenges being made on multiple fronts which are the reason I started this thread. They haven't been getting much press, but as the legal cases progress, they'll get more.

From the FAS link, the law expressedly requires the DOE to do things such as filing the application:

The legal battle over the Secretary’s authority to withdraw the license application hinges on
specific statutory language within the NWPA. Section 114 outlines the process for obtaining the
necessary site approval and construction authorization and provides the statutory foundation for
the ongoing litigation.61 The provision states that once the site approval procedures are completed
and the site is designated, as was the case with Yucca Mountain, “the Secretary shall submit to the
[NRC] an application for a construction authorization for a repository.”62 Upon submission of the
application, the NRC “shall consider” the application “in accordance with the laws applicable to
such applications, except that the [NRC] shall issue a final decision approving or disapproving
the issuance of a construction authorization not later than the expiration of 3 years after the date
of the submission of such application.”63

1. Washington State and South Carolina have sued, accusing Obama of steppping outside his Constitutional authority and violating the law by withdrawing the license application. This lawsuit is currently before a federal appeals court (oral arguments started two weeks ago), having been stalled for a year due to ongoing action by the NRC. It's getting a little press, most of it local:

Washington state Assistant Attorney General Andrew Fitz told a federal appellate court that Obama's refusal to fund continued development of the Nevada site violates the 1982 Nuclear Waste Policy Act.

"He's acting unconstitutionally under the separation of powers doctrine because he doesn't have the authority under the statute," Fitz told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. "He had no authority to reverse it."

http://www.kansascity.com/2011/03/22/2745358/obama-lacks-authority-to-shutter.html

2. In June of last year, a 3 judge panel that handles licensing for the NRC rejected the DOE's/Obama's request to withdraw the application, stating that they do not have the power to do that. Moreover, they ruled that such an act was a policy act that contradicted the law and was thus illegal. There is a lot of legal wrangling still going on, not the least of which involves the commissioners of the NRC, three of which were appopinted by Obama and were asked specifically how they would respond to this issue during confirmation hearings. All three said they'd allow the DOE to withdraw the application. That part gets pretty complicated, but it is in the FAS link...

3. The House Energy and Commerce Committee last week opened an investigation into the Obama Administrations' actions. http://www.kansascity.com/2011/04/01/2769357/house-panel-to-probe-obama-on.html

In the above link, a DOE official acknowledges that Obama's position is based at least partially on the politics of NIMBY and the political status of Nevada for Obama:

Under questioning by Sen. Lindsey Graham, R-S.C., Peter Lyons, the Energy Department's assistant secretary for nuclear energy, acknowledged at a Senate appropriations hearing Wednesday that intense opposition from Nevadans played a role in Obama's decision. Obama won the state in 2008, and it may become a battleground for his re-election next year.

So basically, Obama is violating a federal law as a political favor to a Senator in a key battleground state for his own [re-]election prospects. It's taken a while for this to come back to him - it's largely been ignored in the media, though I have brought it up before here. Now that the legal actions are active, the issue going to start gaining some prominence and has potential to become a very big problem for him. I'll update this thread as the challenges progress.

 

[russ_watters]

An article on the relative lack of national coverage of the issue:

Since Japan's earthquake and following nuclear crisis, the CBS Evening News has done two reports on the Obama administration blocking use of the Yucca Mountain storage facility in Nevada to safely dispose of U.S. nuclear waste. Meanwhile, NBC and ABC have ignored the controversy.

The first CBS report on the issue came on March 22, when Evening News anchor Katie Couric declared: "The crisis in Japan has renewed the debate over nuclear power in this country. Today a federal appeals court heard arguments in a lawsuit over what to do with spent fuel rods."

http://www.mrc.org/biasalert/2011/20110401125441.aspx

 

[Vanadium 50]

This has been going on since the 90's.

There are a very interesting couple of cases winding there way through the courts. As you said, the US government is requiring utilities to pay them to store the waste, and then not doing it - but continuing to collect the money. The position of the government is that this is not a contract under the Tucker Act, and that they cannot be sued because of sovereign immunity.

There's an interesting precedent called United States v. Winstar. In this case, the government negotiated tax incentives for banks to take over failing savings and loans, then reneged, and then claimed sovereign immunity when they were sued.

 

[Proton Soup]

just put the waste on flatbed trailers and make a public spectacle out of bringing it to politically inconvenient locations. send it on tour during the presidential debates, for example.

 

[russ_watters]

There are a very interesting couple of cases winding there way through the courts. As you said, the US government is requiring utilities to pay them to store the waste, and then not doing it - but continuing to collect the money.

Yes, I forgot about that one. That's also been a little in the news in the past month:

More than a dozen power companies are suing the Energy Department to try to suspend fees they pay the government for nuclear waste storage, joining utility commissioners in a legal fight over the annual charges.

http://www.nasdaq.com/aspx/company-...mpanies-sue-to-stop-annual-nuclear-waste-fees

IIRC, they actually sued last year, but the case was dismissed as irrelevant since the government was in the process of reviewing the fees.

The position of the government is that this is not a contract under the Tucker Act, and that they cannot be sued because of sovereign immunity.

There's an interesting precedent called United States v. Winstar. In this case, the government negotiated tax incentives for banks to take over failing savings and loans, then reneged, and then claimed sovereign immunity when they were sued.

That's nice - the 'we aren't bound by contractual agreements because we're the government' defense. [Googles] The government lost that case though...