Jeremy L. Dillon
RW Monitor
3/21/2014
The Court of Appeals for the D.C. Circuit denied two separate motions this week 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 a re-hearing in front of the 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.” DOE did not return calls for comment this week.
The National Association of Regulatory Utility Commissioners, along with the Nuclear Energy Institute, petitioned the court to reduce the fee due to the lack of planned disposal options. The fee amounted to one-tenth of a cent per kilowatt hour of energy generated by nuclear power, and was mandated under the Nuclear Waste Policy Act to pay for the ultimate disposal of spent fuel in a repository, designated as Yucca Mountain. But since the Yucca Mountain project has been shuttered since 2010, NARUC and NEI argued that the fees should be suspended as well. “This decision is a big win for consumers of nuclear power,” NARUC President Colette Honorable said in a statement. “Once again, the U.S. Court of Appeals for the District of Columbia Circuit has sent another strong signal to the federal government: Stop charging consumers of nuclear power for the stalled Yucca Mountain, Nev., nuclear-waste repository program. While the debate over the proposed repository at Yucca Mountain will continue, consumers should not be forced to pay for a program that is, at best, in hiatus. We stand ready to work with Congress and the federal government so we can restart this vital program,” she said.
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. “Today’s decision rejecting DOE’s efforts to reopen its fight to collect fees for a program that the department unilaterally terminated is both appropriate and timely,” NEI Vice President and General Counsel Ellen Ginsberg said in a statement. “DOE has already submitted to Congress the required proposal to adjust the fee to zero. If Congress does not act within the 90-day period during which the proposal is pending before it, the fee will be reset to zero, relieving consumers of nuclear-generated electricity of the burden of paying for a program that DOE illegally terminated.”
