The state of Texas’ lawsuit demanding that the U.S. government end the years-old impasse on permanent storage of the nation’s nuclear waste has already been overtaken by events under the Trump administration, federal attorneys argued in new filings.
For that and other reasons, the Fifth Circuit Court of Appeals should reject the state’s lawsuit, according to separate motions for the Nuclear Regulatory Commission and the Energy and Treasury departments.
Texas sued the three agencies, and their respective leaders, in March. The lawsuit makes a number of demands for redress, but its primary aim is for a court order requiring the agencies to complete the process for NRC licensing of the Yucca Mountain geologic repository for nuclear waste in Nevada, as directed by the 1987 amendment to the 1982 Nuclear Waste Policy Act.
Texas is stuck with roughly 2,600 metric tons of spent fuel from commercial nuclear reactors while it waits for the Energy Department to meet its legal obligation to find a permanent home for the waste, the state Attorney General’s Office said in its lawsuit. The state has also contributed $1.5 billion in utility fees and interest into the Nuclear Waste Fund that is intended to pay for the repository.
In May, the Trump administration issued a budget proposal that for fiscal 2018 would provide $110 million for Yucca licensing activities at DOE and another $30 million at the NRC. That makes Texas’ demand that the NRC request congressional funding for its review of the Energy Department license application moot, the regulator said in a June 30 filing.
The NRC also said Texas is misreading a 2013 ruling from the D.C. Circuit Court of Appeals that required the agency to resume activities related to the Yucca Mountain license application, which the Obama administration DOE had terminated three years earlier. The ruling directed the NRC to “continue with the legally mandated process,” which it has in the years since, not to “complete” the licensing review, according to the agency’s new filing. The D.C. Circuit is also the correct venue for Texas’ demand here, rather than the Fifth Circuit, it added.
Texas further has not shown that it has been injured by the NRC’s actions, which would be necessary to establish standing for its case, NRC General Counsel Margaret Doane wrote: “Texas’s petition does not demonstrate that the presence of spent fuel constitutes a radiological hazard to residents of the State. Instead, the petition merely alleges – without any explanation or support – that its efforts to regulate the production of electricity are ‘undercut’ by the continued storage of spent fuel within the State.”
Department of Justice attorneys, representing Treasury and DOE, made similar arguments in their own June 30 response, noting again that Texas’ lawsuit takes aim at the Obama administration’s policy on Yucca, rather than that of its successor.
The federal government has also already met another of Texas’ demands by effectively abandoning the Obama administration’s planned replacement for Yucca Mountain: “consent-based siting” in which construction of interim and permanent sites for storage of nuclear waste would be dependent on approval from local and state stakeholders.
“While Texas’ frustration with the lengthy and intermittent process for siting a permanent repository under … is apparent, the Petition is the wrong method to achieve that result,” according to the DOJ.
The Texas Attorney General’s Office did not respond to a request for comment. The parties to the lawsuit have conducted at least two rounds of mediation; the status of those talks was not immediately known.
The Energy Department is the applicant for the Yucca Mountain license, which the NRC will either approve or reject. The Treasury Department oversees the Nuclear Waste Fund, which would pay for the project.