The Court of Appeals for the D.C. Circuit denied two separate motions yesterday that would have re-opened the court’s decision to reduce the Nuclear Waste Fund fee to zero. The Department of Energy filed a motion for re-hearing by the original three judge panel that unanimously agreed to reduce the fee as well as a motion for rehearing en banc, which would result in a re-hearing in front of all the judges within the D.C. Circuit. DOE argued that the court’s decision placed it in a “damned if do, damned if you don’t situation,” in which DOE could not possibly satisfy the court’s demands for an adequate fee assessment. “Respondents’ petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested,” the court’s en banc decision said. “Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is ordered that the petition be denied.”
The court unanimously mandated DOE set the fee to zero after failing to comply with the Nuclear Waste Policy Act by shuttering the planned Yucca Mountain geological repository and lacking an alternative disposal plan for the nation’s high level nuclear waste as required by the Nuclear Waste Policy Act. For a fee adjustment to occur, Energy Secretary Ernest Moniz must send a letter to Congress seeking the change. Congress then has 90 days to accept the request. If no action is taken by Congress, the fee would be set to the requested level. Moniz, at the prompting of the court, sent the request to Congress back in early January.
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