{"id":10438,"date":"2012-11-14T00:00:00","date_gmt":"2012-11-14T05:00:00","guid":{"rendered":"http:\/\/localhost\/thenewatlantis.com\/publications\/yucca-mountain-a-post-mortem"},"modified":"2021-09-20T15:21:57","modified_gmt":"2021-09-20T19:21:57","slug":"yucca-mountain-a-post-mortem","status":"publish","type":"article","link":"https:\/\/www.thenewatlantis.com\/publications\/yucca-mountain-a-post-mortem","title":{"rendered":"Yucca Mountain: A Post-Mortem"},"content":{"rendered":"\n

Imagine the following scenario: The President of the United States delivers a speech on nuclear energy. With gasoline prices high and oil being imported from unfriendly countries, the president says that \u201ca more abundant, affordable, and secure energy future\u201d will be a crucial part of getting the nation out of its economic slump. \u201cOne of the best potential sources of new electrical energy supplies in the coming decades,\u201d the president notes, \u201cis nuclear power.\u201d But there are obstacles:<\/p>\n\n\n\n

Nuclear power has become entangled in a morass of regulations that do not enhance safety but that do cause extensive licensing delays and economic uncertainty. Government has also failed in meeting its responsibility to work with industry to develop an acceptable system for commercial waste disposal, which has further hampered nuclear power development.<\/p><\/blockquote>\n\n\n\n

To alleviate these problems, which have caused utilities to shy away from nuclear power, the president issues instructions intended to remove regulatory hurdles and to \u201cproceed swiftly toward deployment of means of storing and disposing of commercial, high-level radioactive waste.\u201d<\/p>\n\n\n\n

This scenario, so familiar in its particulars, would not seem out of place in today\u2019s newspapers. But the quoted speech was actually delivered in 1981<\/a> by President Ronald Reagan. And even though some hoped the speech would mark a turning point \u2014 one trade journal celebrated the president for striving to \u201cmake a faltering nuclear industry viable and robust again\u201d \u2014 nuclear power largely remains, more than three decades later, mired in regulatory uncertainty. While nuclear power currently accounts for about a fifth of the total electricity-generation capacity of the United States, it could satisfy a much greater portion of the national demand. And if the nation ultimately chooses to pursue an energy future that relies less on carbon, then nuclear power will be all the more important.<\/p>\n\n\n\n

The promise of nuclear power is impeded by the lack of a permanent solution to the difficult problem of where to dispose of its radioactive byproducts, and moreover by the ongoing uncertainty over whether there will ever be a solution. As a 2003 M.I.T. report<\/a> argues, the \u201cperceived lack of progress towards successful waste disposal clearly stands as one of the primary obstacles to the expansion of nuclear power around the world.\u201d At least in the United States, a solution to this problem seemed to be on its way, following the decision of President Reagan and Congress to store our nuclear waste in a facility planned for Yucca Mountain in Nevada. But the Obama administration has scuttled the project without offering any specific alternative. \u201cThe termination of Yucca Mountain,\u201d noted a 2011 report from the Government Accountability Office<\/a> (GAO), \u201cessentially restarts a time-consuming and costly process [that] has already cost nearly $15 billion through 2009.\u201d By ending the Yucca Mountain repository, the Obama administration has forced nuclear power plants to continue to store spent nuclear fuel on-site, a \u201ctemporary\u201d solution of indefinite \u2014 perhaps permanent \u2014 duration. This comes at great cost to the facilities and to taxpayers, threatening the industry\u2019s ultimate financial and political viability.<\/p>\n\n\n\n

Whether one supports or opposes the project, the planned Yucca Mountain nuclear waste repository stands as a cautionary tale on the broader questions of how America develops and maintains its energy infrastructure. The saga of Yucca Mountain\u2019s creation and apparent demise, and of the seeming inability of the courts to prevent the Obama administration from unilaterally nullifying the decades-old statutory framework for Yucca, illustrates how energy infrastructure is uniquely subject to the control of the executive branch, and so to the influence of presidential politics.<\/p>\n\n\n

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\r\n\t\tThe Problem of Nuclear Waste\t<\/h5>\r\n<\/div><\/div>\n\n\n

Nuclear reactors produce power through controlled nuclear fission \u2014 the splitting of the atom. For fuel, all commercial power reactors in the United States use enriched uranium, which is weakly radioactive. As it undergoes fission, the uranium splits into a variety of much more radioactive products, including different isotopes of uranium as well as plutonium and radioactive gases. In some countries, the spent fuel is \u201creprocessed\u201d so that it can be reused, a procedure that produces high-level radioactive waste. For reasons related to cost and the risk of weapons proliferation, no American commercial nuclear plants have reprocessed fuel since the 1970s, and reprocessing has been repeatedly banned and unbanned<\/a> by successive administrations, but there is still high-level radioactive waste in the United States left over from past decades and from non-commercial nuclear programs. And so the two byproducts of nuclear power generation that require long-term storage are the spent nuclear fuel and the waste resulting from reprocessing. Both are dangerously radioactive and must be stored in isolation for tens of thousands of years until most of the radioactive elements decay into stable elements.<\/p>\n\n\n\n

The nation\u2019s 104 operational commercial nuclear power reactors produce between 2,000 and 2,400 metric tons of spent nuclear fuel each year. Over time, they have accumulated some 65,000 metric tons of spent fuel. That is greater than the mass of the Titanic<\/i> when fully loaded; by one estimate<\/a>, all that spent fuel would \u201ccover one football field to a depth of approximately 20 feet.\u201d Even if no new nuclear plants were built after today, the amount of spent nuclear fuel in the United States would be expected to more than double to 140,000 metric tons by 2055.<\/p>\n\n\n\n

Nearly all of this material is now stored, either in water-filled concrete pools or in dry casks, on-site at the plants that produced it (including some plants with decommissioned reactors). There are 75 such storage sites<\/a> spread across 33 states, mostly in the East and Midwest. (There are fewer storage sites than reactors because some power plants have more than one reactor sharing one pool.) The eight states with the most spent nuclear fuel \u2014 Illinois, Pennsylvania, North Carolina, New York, Alabama, California, Florida, and South Carolina \u2014 have a total inventory greater than the other 25 states combined.<\/p>\n\n\n\n

In addition to the spent nuclear fuel stored in civilian facilities, the federal government is directly responsible<\/a> for about 2,500 metric tons of spent nuclear fuel (mostly produced at a handful of commercial sites, plus much smaller amounts from research institutions and the U.S. Navy), as well as around 90 million gallons of other high-level radioactive waste.<\/p>\n\n\n\n

These commercial and government storage facilities are designed to withstand most natural disasters, though not all disasters can be anticipated and hardened against. And although nuclear plants are guarded, a federal appeals court held in 2006<\/a> that the threat of terrorist attacks was sufficiently plausible to require regulators to consider the environmental impact of such events when licensing a new temporary storage site.<\/p>\n\n\n\n

The question of what to do with the dangerous byproducts of nuclear power generation was recognized from the early years of civilian nuclear power. The Atomic Energy Commission (AEC), successor to the wartime Manhattan Project, grappled with decisions about how much exposure to radiation is too much, and how the nation should go about disposing of the new nuclear industry\u2019s spent fuel and waste. Some critics argued that the AEC was subordinating security concerns to the growth of nuclear power \u2014 the pursuit of \u201celectrical energy too cheap to meter,\u201d as AEC Chairman Lewis Strauss famously put it in a 1954 speech. For instance, the renowned Shell Oil geologist M. King Hubbert chastised the AEC in 1960 for being \u201cpeculiarly reluctant to face up to the fact that disposal sites for the existing plants must soon be chosen.\u201d<\/p>\n\n\n\n

As historian J. Samuel Walker recounts in The Road to Yucca Mountain<\/i><\/a> (2009), in the 1960s the AEC began considering a plan to store nuclear waste at a site in central Kansas. But Kansans balked at the \u201csomewhat debatable honor of becoming an atomic garbage dump,\u201d as one newspaper put it. When President Gerald Ford signed the Energy Reorganization Act of 1974, terminating the AEC and creating the Nuclear Regulatory Commission (NRC), the waste disposal issue had officially outlived the AEC itself.<\/p>\n\n\n\n

After the 1979 incident at Three Mile Island spooked the nation and galvanized the anti-nuclear movement, the demoralized nuclear industry hoped the 1980 election of Ronald Reagan would offer a path forward. During his first year in office, as mentioned above, President Reagan instructed Secretary of Energy James Edwards to proceed swiftly toward development of the means for storing and disposing of commercial radioactive waste. It was by then a familiar mantra \u2014 a call for further study of a subject that had been studied for decades \u2014 and skepticism would have been warranted had the proposal remained strictly a matter of bureaucratic introspection. But just a year later, Congress joined President Reagan in committing to a framework for finally deciding where to store the nation\u2019s spent nuclear fuel.<\/p>\n\n\n\n

The Nuclear Waste Policy Act of 1982 (NWPA) devised a series of steps that would culminate with the establishment of two national nuclear disposal sites by 1999. First, the Department of Energy (DOE) would study five possible sites and recommend three to the president. The president would then select one of those sites and inform Congress, and the DOE would apply for NRC approval of the specific storage facility to be built at that site, with a decision to be issued in 1990. A second site would be selected, reviewed, and constructed by the same process a short time later. The government would collect fees from the nuclear energy industry to pay for the facility. Finally, the DOE would take possession of spent fuel and waste before 1999.<\/p>\n\n\n\n

The NWPA-prescribed process began according to plan, with the DOE studying sites in Mississippi, Nevada, Texas, Utah, and Washington. In 1986, Secretary of Energy John Herrington recommended three sites: Yucca Mountain, Nevada; Deaf Smith County, Texas; and Hanford Engineer Works, Washington. The selections ignited a predictable firestorm among local groups, and Herrington\u2019s further announcement that DOE would select only one site, rather than two \u2014 ostensibly owing to lack of need \u2014 exacerbated the controversy, leading Congress to stop funding the site-analysis process.<\/p>\n\n\n\n

The impasse was broken not by spreading the burdens of nuclear waste among more sites, but rather by further focusing the burden on one and only one site: Yucca Mountain. In the Nuclear Waste Policy Act Amendments of 1987, Congress and the president instructed the Department of Energy to stop analyzing the Texas and Washington sites, and instead to focus exclusively on Yucca Mountain. Senator J. Bennett Johnston (D.\u2013La.), chairman of the Senate Energy and Natural Resources Committee, boasted, \u201cI think it\u2019s fair to say we\u2019ve solved the nuclear waste problem with this legislation.\u201d But as Walker notes in The Road to Yucca Mountain<\/i>, others on Capitol Hill were less sanguine. \u201cIt\u2019s a roll of the dice with Yucca Mountain,\u201d an anonymous congressional staffer observed. \u201cWe have reason to believe it will work out, but if it doesn\u2019t … man, we\u2019re in trouble.\u201d<\/p>\n\n\n

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\r\n\t\tThe Science of Yucca Mountain\t<\/h5>\r\n<\/div><\/div>\n\n\n

Before continuing with this account of the policy, political, and legal history of the Yucca Mountain project, it is worth examining the justification for storing nuclear waste underground and in particular at Yucca Mountain, as well as the arguments against both.<\/p>\n\n\n\n

Today there is a broad consensus among scientists from around the world on the best available option for permanent disposal of spent nuclear fuel and high-level radioactive waste. \u201cAmong technical experts,\u201d noted a 2003 paper by the International Atomic Energy Agency<\/a> (IAEA), \u201cthe generally accepted method for disposing of radioactive waste is to contain the waste and isolate it from the environment generally accessible to humans.\u201d Such isolation \u201cis considered to be best achieved through its emplacement at significant depths underground, that is, by \u2018geological disposal.\u2019\u201d<\/p>\n\n\n\n

The IAEA paper echoed a 2001 report of the National Research Council<\/a>, which said, \u201cAfter four decades of study, geological disposal remains the only scientifically and technically credible long-term solution available to meet the need for safety without reliance on active management.\u201d The report conceded that there are still uncertainties associated with geological disposal, since \u201cproviding convincing evidence that any repository assures long-term safety is a continuing technical challenge.\u201d But it noted that \u201cour present civilization designs, builds, and lives with technological facilities of much greater complexity and higher hazard potential.\u201d Thus, the \u201cbiggest challenges to waste disposition\u201d are not technical but \u201csocietal\u201d \u2014 that is, cultural and political.<\/p>\n\n\n\n

Even if society is willing to proceed with projects that present residual uncertainty, the risk of low-probability but high-impact catastrophe should not be ignored. But by the same token, Yucca Mountain\u2019s proponents have marshaled mountains of evidence demonstrating the project\u2019s relative safety. \u201cAfter over 20 years of research and billions of dollars of carefully planned and reviewed scientific field work,\u201d Energy Secretary Spencer Abraham reported in his official 2002 recommendation of the Yucca Mountain project<\/a>, \u201cthe Department has found that a repository at Yucca Mountain brings together the location, natural barriers, and design elements most likely to protect the health and safety of the public, including those Americans living in the immediate vicinity, now and long into the future.\u201d The department laid out its analysis in a voluminous Final Environmental Impact Statement, published in February 2002<\/a> and supplemented in 2008<\/a> with an analysis of the risks posed by transporting waste to the Yucca repository, concluding that the disposal facility would not \u201cresult in impacts to public health beyond those that could result from the prescribed radiation exposure and activity concentration limits in [federal laws] during the 10,000-year period after closure.\u201d<\/p>\n\n\n\n

The DOE\u2019s analysis had its critics, however, several of whom contributed to Uncertainty Underground<\/i><\/a> (2006), a collection of technical critiques co-edited by Allison Macfarlane (later appointed by President Obama to chair the NRC) and Rodney Ewing. As Macfarlane summarized in her concluding essay, the DOE\u2019s analysis was undermined by the sheer uncertainty inherent in a project of such complexity and duration \u2014 the \u201cvariety of factors that make it difficult to predict repository behavior over geologic time,\u201d including climate, volcanism, and \u201cthe environmental and chemical conditions of the repository environment as it evolves over time, especially the chemistry of the water that will exist in the repository.\u201d Macfarlane\u2019s preferred alternative, in the end, was to continue to store spent nuclear fuel and waste on-site at the reactors, decrying the \u201cfalse sense of urgency [that] surrounds nuclear waste disposal in the United States.\u201d<\/p>\n\n\n\n

Macfarlane and other critics\u2019 appeal to prudence and skepticism is not unreasonable, at least in theory. But in practice, there remains a substantial question of whether long-term nuclear waste disposal must remain in limbo until regulators successfully prove a negative. As Harvard\u2019s Cass Sunstein, a scholar of risk and regulation and until recently President Obama\u2019s Administrator of the Office of Information and Regulatory Affairs, explained in a 2002 essay<\/a>, the demand for absolute certainty, taken to extremes, ultimately transforms the Precautionary Principle into the \u201cParalyzing Principle,\u201d for \u201cany effort to be universally precautionary will be paralyzing, forbidding every imaginable step, including no step at all.\u201d<\/p>\n\n\n

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\r\n\t\tDecades of Inaction\t<\/h5>\r\n<\/div><\/div>\n\n\n

Scientific findings were supposed to determine the outcome of the Yucca Mountain debate \u2014 at least that was the intention of the 1987 NWPA amendments: to end the political war over where<\/i> to store spent nuclear fuel and move on to a purely technocratic consideration of precisely how<\/i> to store it, to be settled in short order. But the amendments disappointed on both counts. The political debate over Yucca Mountain only intensified, and the technical questions over design specifications for the proposed facility dragged on for decades.<\/p>\n\n\n\n

On the latter point, the process that followed the 1987 amendments bore little resemblance to the process prescribed by the original statute of the NWPA. By the terms of the Nuclear Waste Policy Act, the Energy Secretary was to submit the formal project application to the NRC in time for a decision in 1990. But the DOE came nowhere close to meeting that deadline. Slowed by years of litigation, bureaucratic inertia, and political controversy, the DOE waited fifteen years from the amendments before Energy Secretary Spencer Abraham finally submitted to the president a formal recommendation that Yucca Mountain house the nuclear storage facility. President George W. Bush immediately approved Abraham\u2019s plan for the site.<\/p>\n\n\n\n

The state of Nevada formally objected to the decision, as was its right under the NWPA, but Congress swiftly overrode the veto by a bicameral vote pursuant to its own statutory right. Finally, in June 2008, the DOE filed its official 8,600-page project application<\/a> to the NRC. By that time, the application was already a decade behind schedule. Meanwhile, the federal government\u2019s failure to take possession of nuclear waste accumulating at commercial nuclear plants gave rise to myriad breach-of-contract claims, since the government had been obligated to provide the storage facility to energy companies. The government\u2019s eventual total liability was estimated to be as great as $50 billion, according to the Congressional Research Service<\/a>.<\/p>\n\n\n\n

These delays were largely a symptom of the more fundamental problem. By settling upon Yucca Mountain as the sole site for consideration of a nuclear waste repository, President Reagan and the 100th Congress may have alleviated the concerns of local communities in Washington and Texas, but only at the cost of the concerns of Nevadans, along with various anti-nuclear groups. The 1987 NWPA amendments effectively left only two venues for opposition to the Yucca Mountain site selection: the regulatory proceedings before the Department of Energy and, ultimately, the Nuclear Regulatory Commission.<\/p>\n\n\n\n

Yucca Mountain aroused the ire of one important Nevadan in particular. Harry Reid, a Democrat elected to the Senate one year before the law was passed, complained that Nevada, \u201cthe small kid on the block,\u201d was being bullied with \u201can act of naked and unprovoked aggression by the people of several states against a state which is smaller and has less power.\u201d While Nevada\u2019s senior Senator Paul Laxalt had muted his criticism of the Yucca Mountain plan out of deference to President Reagan, his close friend and fellow Republican, the newly elected Senator Reid felt no such reluctance and promptly joined those who dubbed the 1987 amendments the \u201cScrew Nevada Bill.\u201d<\/p>\n\n\n\n

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Gregory B. Jaczko is sworn in on April 28, 2008 for a second term as a commissioner of the Nuclear Regulatory Commission by mentor and former boss Senator Harry Reid (D.\u2013Nev.).<\/figcaption><\/figure><\/div>\n\n\n\n

While Senator Reid was initially pessimistic about Nevada\u2019s prospects for blocking the project, he succeeded in delaying it years beyond the statutory timeline. And as his power grew in the Senate, so did his ability to block the project. In March 2003, Reid (then Senate Minority Whip) and Senate Minority Leader Tom Daschle (D.\u2013S.D.) formally requested that President Bush appoint Reid\u2019s staffer Gregory Jaczko to one of the NRC\u2019s Democratic seats<\/a>. The White House unsurprisingly rebuffed the suggestion of putting a clear Yucca opponent on the NRC, but Reid was undeterred, and held hostage President Bush\u2019s executive branch nominations until the White House acquiesced to Jaczko\u2019s nomination<\/a>. President Bush seated him by a recess appointment<\/a> and he was ultimately confirmed by the Senate in 2006 and again in 2008<\/a>.<\/p>\n\n\n\n

Significant though it was, the Jaczko appointment was overshadowed by the election that year of Barack Obama. Throughout his campaign, he had been an outspoken opponent of the Yucca Mountain project, echoing the Democratic Party\u2019s broader skepticism of nuclear power and acknowledging the electoral importance of the state of Nevada. In 2007, just months after announcing his candidacy, then-Senator Obama wrote a letter to the Las Vegas Review-Journal<\/i><\/a> disputing criticism that he was insufficiently opposed to the Yucca project. \u201cI want every Nevadan to know that I have always opposed using Yucca Mountain as a nuclear waste repository,\u201d he wrote. \u201cI believe all spending on Yucca Mountain should be redirected to other uses.\u201d While paying lip service to an approach \u201cbased on sound science above all else,\u201d he had seemingly decided on his own that the Yucca project must end. Later, during the heat of the Democratic primary, Obama added<\/a>, \u201cYou\u2019ve got the [Hillary] Clinton camp out there saying, \u2018He\u2019s for Yucca.\u2019 What part of \u2018I\u2019m not for Yucca\u2019 do you not understand?\u201d<\/p>\n\n\n

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\r\n\t\tThe Rogue Regulator\t<\/h5>\r\n<\/div><\/div>\n\n\n

Once inaugurated, President Obama quickly set his administration into action, employing both of the two powerful levers that the NWPA had given the executive branch: the Department of Energy and the Nuclear Regulatory Commission. The administration used both fiscal starvation and regulations to shut down the Yucca Mountain project. Most prominently, President Obama promoted Commissioner Jaczko to the status of NRC chairman in May 2009, placing a firm anti-Yucca hand on the wheel. It is worth lingering in some detail on the administration\u2019s actions because they constitute a stunning record of overreach, with Jaczko standing out for abusing his position.<\/p>\n\n\n\n

In November 2009, documents leaked to the press revealed an imminent administration plan to withdraw the DOE\u2019s Yucca Mountain application to the NRC. At the same time, the administration would dramatically reduce its budget request for Yucca Mountain activities, eliminating all funding for activities other than winding down the project. A leaked DOE memorandum noted that \u201call license defense activities will be terminated in December 2009.\u201d This strategy was so aggressive that even some Nevada officials who opposed the Yucca repository suggested that the cutoff date was a typographical error<\/a>.<\/p>\n\n\n\n

But in January 2010, President Obama issued a Presidential Memorandum<\/a> ordering Energy Secretary Steven Chu to convene a Blue Ribbon Commission on America\u2019s Nuclear Future, which would review \u201call alternatives for the storage, processing, and disposal of\u201d nuclear waste. The memorandum, which made no mention of the Yucca project, tacitly signaled its demise and the further delay by untold years of a permanent nuclear-waste solution. (As Obama had joked<\/a> while campaigning for president, commissions are \u201cWashington-speak for \u2018we\u2019ll get back to you later.\u2019\u201d)<\/p>\n\n\n\n

More importantly, the president\u2019s decision raised significant legal problems. First, the 1987 NWPA amendments directed the Department of Energy to pursue the Yucca Mountain project and only<\/i> the Yucca Mountain project. And because the Nuclear Regulatory Commission had accepted the DOE\u2019s application as complete in 2008, the law required<\/a> the commission to complete its review and issue a decision by 2011. As the U.S. Court of Appeals had explained in 2002<\/a>, the NWPA amendments \u201caffirmatively and finally approved the Yucca site for a repository, thus bringing the site-selection process to a conclusion.\u201d<\/p>\n\n\n\n

Nevertheless, at a public ceremony on the day that the president issued his memorandum, Carol Browner, the White House energy and climate \u201cczar,\u201d stressed that \u201cas the president has said many times, we\u2019re done with Yucca and we need to be about looking for alternatives.\u201d According to National Journal<\/i><\/a>, \u201cwhen asked why the administration has taken Yucca out of consideration, Browner said it was the president\u2019s choice and they were carrying out his decision.\u201d<\/p>\n\n\n\n

Weeks later, in March 2010, the Department of Energy filed a motion<\/a> with the Nuclear Regulatory Commission to withdraw its application for the Yucca repository. It was a remarkable document \u2014 for the department did not merely seek to end the proceedings conducted thus far, but went even further, clarifying that it wanted the NRC to dismiss the application \u201cwith prejudice.\u201d The words \u201cwith prejudice,\u201d peppered throughout the motion, were of great legal significance: the department was effectively asking the NRC to permanently prohibit<\/i> any future DOE officials, under future presidential administrations, from submitting a new Yucca Mountain application. As the department explained in a fine-print footnote, \u201cDOE seeks this form of dismissal because it does not intend ever to refile an application to construct a permanent geologic repository for spent nuclear fuel and high-level radioactive waste at Yucca Mountain.\u201d The upshot was that, in spite of President Obama\u2019s professed commitment to letting science drive the nation\u2019s nuclear waste policy, his administration was attempting to end the Yucca project irrevocably<\/i>, regardless of any present or future scientific findings supporting it.<\/p>\n\n\n\n

The project\u2019s proponents, including states and local communities affected by the federal government\u2019s refusal to accept nuclear waste, responded on two fronts: they filed papers with the NRC opposing the motion, and they filed federal lawsuits challenging it (which we will return to in a moment). The licensing board of the NRC sided with them, rejecting<\/a> in June 2010 the Department of Energy\u2019s motion to withdraw the Yucca application on the grounds that the department lacked the discretion to do so:<\/p>\n\n\n\n

Why would Congress have specified in detail the steps that the [Energy] Secretary, the President, the State of Nevada, and even Congress itself had to take to permit the Yucca Mountain application to be filed, and included provisions mandating that the Application be filed with and considered by the NRC, if DOE could simply withdraw it at a later time or in the same breath if the Secretary so desired?<\/p><\/blockquote>\n\n\n\n

The NRC staff, bent on terminating Yucca, did not wait for the Department of Energy to appeal the board\u2019s decision to the NRC commissioners: the very day after the decision, the NRC\u2019s Secretary issued an order inviting the parties to file an appeal to the full commission, which they soon did. But that was where the NRC\u2019s speediness ended: the process promptly ground to a halt. Chairman Jaczko stalled the commission\u2019s decision by withholding his own vote for more than two months, offering a variety of dubious and inconsistent reasons to explain his inaction. (As an inspector general\u2019s report later noted, Jaczko\u2019s refusal to cast a vote was an unusual violation of the NRC\u2019s standard operating procedure.) And even after Jaczko finally cast a preliminary vote, the NRC did not proceed to an official public vote \u2014 for reasons that are unclear \u2014 and the matter remained in limbo for ten more months.<\/p>\n\n\n\n

But these procedural tactics were only half the story. On September 30, 2010, as the federal government\u2019s annual fiscal cycle came to a close without agreement on a new budget, Congress passed the first of a series of \u201ccontinuing resolutions\u201d directing government agencies to keep spending money at the same levels as the last fiscal year \u2014 including, in the case of the NRC, spending on Yucca. Yet on October 4, 2010, Chairman Jaczko unilaterally ordered the NRC staff to commence the orderly closure of the Yucca Mountain review proceedings, and to cease ongoing work on a multi-volume safety evaluation report.<\/p>\n\n\n\n

To recap: Under the NWPA and the continuing resolution, the NRC was required by law to continue work on Yucca Mountain unless and until the Department of Energy succeeded in withdrawing its 2002 application. But Chairman Jaczko was stalling the vote on whether to accept the DOE\u2019s withdrawal, and he meanwhile ordered work on Yucca to wrap up. Without having formally voted on whether the Yucca Mountain application would be withdrawn, he effectively terminated the application. Thirty years after the president and Congress passed the Nuclear Waste Policy Act, and nearly twenty-five years after they amended the act to settle upon Yucca Mountain, Jaczko appeared to have single-handedly killed the project.<\/p>\n\n\n\n

Eventually, on October 29, 2010, Jaczko did cast the vote that he had long withheld, but that did not settle the matter of the DOE\u2019s application, since his vote meant the commission was deadlocked 2-2. (A fifth commissioner had recused himself because of previous involvement in Yucca issues.) And so the fate of the Yucca project formally remained in limbo, even as the law required it to continue and the NRC staff continued to dismantle it.<\/p>\n\n\n\n

Nearly another year passed before this bizarre stalemate was resolved. In September 2011, the NRC finally reached a resolution \u2014 of a sort. A very short two-page order from the commission noted that it \u201cfinds itself evenly divided\u201d on whether to end the Yucca project as the Obama administration wanted. But, the order continued, \u201cwe exercise our inherent supervisory authority\u201d to order the NRC licensing board to completely dispose of the Yucca case \u201cby the close of the current fiscal year.\u201d In other words, the NRC was ordering its staff to wind down the Yucca project in the next three weeks.<\/p>\n\n\n

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\r\n\t\tNo Relief in the Courts\t<\/h5>\r\n<\/div><\/div>\n\n\n

Even as the Obama administration was using both the DOE and the NRC to shut down Yucca Mountain, it had made noises about pursuing alternative disposal strategies, most notably through the establishment of the Blue Ribbon Commission in 2010. But when the commission issued its final report<\/a> in January 2012, it declined even to suggest alternative disposal sites. Instead, the report laid out a general \u201cstrategy\u201d for the establishment of \u201ca truly integrated national nuclear waste management system,\u201d much of which would include substantial legislative reform. And its recommendation that local communities be given veto authority over proposed disposal sites effectively dispelled any suggestion that the report was intended to constitute a serious effort. If the Obama administration was wiping out decades of progress toward developing Yucca, the Blue Ribbon Commission was effectively conceding that no other permanent national nuclear-waste storage facility would ever be built anywhere else.<\/p>\n\n\n\n

Meanwhile, the Obama administration\u2019s actions on Yucca triggered an avalanche of lawsuits, resulting in a series of recent decisions from the federal courts of appeals that were harshly critical of the administration.<\/p>\n\n\n\n

First, in May 2012, the U.S. Court of Appeals for the Federal Circuit affirmed a lower court\u2019s decision<\/a> that nuclear utilities were entitled to nearly $160 million in damages for the government\u2019s failure to accept their spent nuclear fuel and nuclear waste under the NWPA. This was but the latest decision in a course of litigation<\/a> that had already cost the government $2 billion and was estimated to cost much more. Then in June 2012, the U.S. Court of Appeals for the D.C. Circuit held that the Department of Energy had violated the NWPA<\/a> by failing to consider whether to adjust the fees nuclear facilities paid to the DOE in light of the fact that the government would no longer be providing a waste repository. The court declared DOE\u2019s actions \u201clegally defective\u201d and ordered the secretary to respond within six months as to the agency\u2019s plan of action going forward. Finally, just a week later, the same court issued another decision<\/a> holding that the NRC\u2019s environmental review of proposed rules for the temporary storage of nuclear waste and spent nuclear fuel was legally insufficient without a full consideration of the consequences of the absence of a long-term government storage facility.<\/p>\n\n\n\n

Each of these decisions highlighted the consequences of the government\u2019s failure to complete the Yucca Mountain project, but none offered the project\u2019s proponents any prospects for reversing the administration\u2019s actions. Such a case was brought \u2014 twice \u2014 but the D.C. Circuit\u2019s treatment of the case illustrated the inability or unwillingness of the courts to force the administration to comply with the NWPA.<\/p>\n\n\n\n

In the first case, the D.C. Circuit\u2019s opinion<\/a> recognized the substantial possibility that the Department of Energy had violated the NWPA by ceasing to proceed with the Yucca application. Nevertheless, the court held that the suit was technically premature, because there remained a possibility \u2014 at least in July 2011, when the case was decided \u2014 that the NRC commissioners would reject the DOE\u2019s motion to withdraw. The court left open the door that a new suit could be filed even without an NRC decision, if the NRC subsequently failed to satisfy the NWPA\u2019s three-year deadline for issuing final approval or disapproval of Yucca Mountain. When that deadline did indeed pass in September 2011, a new suit was filed in the D.C. Circuit, this time against only the NRC, challenging its failure to comply with the deadline.<\/p>\n\n\n\n

At oral argument<\/a>, the judges grappled with constitutional questions of separation of power. Speaking to the petitioners, Judge Brett Kavanaugh conceded, \u201cit is difficult for a Court to force the Executive Branch to take affirmative acts, as opposed to prohibiting the Executive Branch from doing forbidden acts, and that\u2019s what you\u2019re asking in this case.\u201d The day after oral argument, the court took the extraordinary step of inviting the Justice Department to file a brief, on behalf of the White House and the DOE, explaining the Obama administration\u2019s position on the case. The Justice Department said that its absence from the case owed only to the petitioners\u2019 failing to sue the DOE in addition to the NRC, and that the Obama administration believed that the lawsuit should be dismissed because the NRC lacked funding specified by Congress to proceed with the Yucca Mountain review. (In a status report<\/a> filed with the court in October 2012, the NRC argued that the upcoming lame-duck session, in which \u201cCongress will be faced with the proposed \u2018sequestration\u2019 cuts, which are scheduled to take effect on January 1, 2013,\u201d might result in Congress and President Obama cutting Yucca Mountain funding as part of the final deal.)<\/p>\n\n\n\n

The administration\u2019s argument ultimately persuaded the court. In August 2012, a two-judge majority suspended the case<\/a> pending knowledge of whether the federal government\u2019s budget for the 2013 fiscal year would appropriate money to the NRC for Yucca Mountain\u2019s review. The third judge, A. Raymond Randolph, dissented, arguing that the NRC\u2019s clear violation of the NWPA entitled the petitioners to an immediate decision, and that whether a decision \u201cshould issue when an agency is willfully defying an earlier Congress\u2019s command has never depended on the possibility that a later Congress might do something to excuse the violation.\u201d He added that \u201cthe Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward.\u201d<\/p>\n\n\n\n

While the Yucca Mountain proceedings were pending in court, the man most responsible for the current predicament was forced to resign from the Nuclear Regulatory Commission. Gregory Jaczko\u2019s handling of Yucca Mountain not only outraged the project\u2019s proponents, it led to congressional hearings and harsh criticism from the NRC\u2019s inspector general. Meanwhile, his professional and interpersonal dealings with his fellow commissioners (and the NRC staff) led to so much bitterness and frustration that all four of them took the unprecedented step of going over his head to lodge a formal complaint with the White House<\/a>. While Jaczko initially rebuffed calls for his resignation, he ultimately announced it in May 2012.<\/p>\n\n\n\n

But Jaczko\u2019s ouster did nothing to improve Yucca Mountain\u2019s prospects, as the administration promptly replaced him with Allison Macfarlane. As mentioned above, Macfarlane is a geologist with a long record of opposition to Yucca, including co-editing the manifestly anti-Yucca book Uncertainty Underground<\/i>. In a 2009 interview with Technology Review<\/i>, presciently titled \u201cLife after Yucca Mountain<\/a>,\u201d Macfarlane endorsed the verdict that Yucca Mountain is \u201coff the table,\u201d arguing that \u201cthere are lots\u201d of alternative locations \u201call over the country.\u201d When pressed by her interviewer to \u201cname two or three,\u201d she replied, \u201cI haven\u2019t studied anything in detail, and I don\u2019t want to get anybody upset. But we have a huge country, and there are many locations.\u201d When the White House tapped Macfarlane in 2012 to chair the NRC, it was clearly with the aim of continuing the dismantling of Yucca that her predecessor had begun.<\/p>\n\n\n

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In the end, the Obama administration succeeded, by a combination of legal authority and bureaucratic will, in blocking Congress\u2019s plan for the Yucca Mountain repository \u2014 certainly for the foreseeable future, and perhaps permanently. A future president could theoretically pursue the project again, but that would require restarting an immense regulatory machine that had been mothballed for years. Even under the best of circumstances, that is a long-shot scenario unlikely to comfort those looking to invest in existing or new nuclear generation capacity.<\/p>\n\n\n\n

Considering the full scope and history over the last few years of the actions of the Nuclear Regulatory Commission and the Department of Energy regarding Yucca Mountain, it is increasingly clear that Judge Kavanaugh fundamentally misdiagnosed the situation when he wrote, in a concurring opinion<\/a>, that \u201cthe President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project.\u201d In fact, the president\u2019s NRC chairman, Secretary of Energy, and other appointees have effectively ground the project to a halt \u2014 achieving just what President Obama promised to do.<\/p>\n\n\n\n

In response to the Yucca Mountain regulatory meltdown, Senator Jeff Bingaman (D.\u2013N.M.) proposed new legislation, the Nuclear Waste Administration Act, to amend the NWPA. The act would create a new agency, the Nuclear Waste Administration, that would plan a permanent facility for the storage of spent nuclear fuel and waste, as well as an interagency Nuclear Waste Oversight Board. The head of the Nuclear Waste Administration would replace the Energy Secretary in the NWPA process, but he would be appointed by the president, with the Senate\u2019s advice and consent \u2014 just like the NRC Chairman and the Secretary of Energy. And the new law would set deadlines for action, just like the NWPA.<\/p>\n\n\n\n

In short, the proposal does not address the fundamental problem: not too little presidential discretion, as Judge Kavanaugh had diagnosed, but too much. Twenty-five years after Congress and President Reagan determined that Yucca Mountain would be the site of the nation\u2019s nuclear waste repository, we have no comprehensive storage and disposal capacity, and no clear path going forward. We have only regulatory uncertainty.<\/p>\n\n\n\n

\u201cUncertainty\u201d has become a common concern in politics today, with both Republicans and Democrats decrying it \u2014 and each other \u2014 as the cause of slow economic growth. But in the case of energy infrastructure, regulatory uncertainty poses a particularly potent threat: A complex regulatory environment imposes great risk upon a project, and that risk is multiplied when the regulators are seen as acting arbitrarily, capriciously, contrary to evidence or law, or without transparency. And that regulatory uncertainty is in turn only exacerbated when tremendous power is vested in a single official \u2014 in the case of Yucca, the chairman of the Nuclear Regulatory Commission.<\/p>\n\n\n\n

The problem is not limited to nuclear energy infrastructure. In 2010, after the Deepwater Horizon oil spill, the Obama administration attempted to impose a full moratorium on deep-water oil drilling. When the federal courts intervened, nullifying the moratorium for failing to satisfy the requirements of administrative law, the administration responded by simply refusing to process drilling-permit applications. According to administration documents obtained by the House Oversight Committee<\/a>, the official moratorium and unofficial \u201cpermitorium,\u201d as it came to be called, prevented the drilling of a hundred new wells by December 2010.<\/p>\n\n\n\n

A more recent example of the harm imposed by regulatory uncertainty is the Obama administration\u2019s handling of the proposed Keystone XL pipeline, which would import oil from Canada. After a three-year review, the State Department concluded in August 2011<\/a> that the project \u201cwould comply with all applicable laws and regulations,\u201d and that it would cause \u201cno significant impacts to\u201d local environmental resources. Nevertheless, President Obama, sensitive to environmentalists\u2019 heated criticism of the project, first withheld the final permit, and then denied it outright, and he has offered little indication of how he will treat the revised application for a permit to build the pipeline into the United States. This uncertainty imposes great costs upon the project. A pipeline official explained in a statement to a federal court<\/a> that the delays \u201cnot only affect TransCanada\u2019s investment in the Keystone XL, but also result in diminishing the value of the entire Keystone pipeline system.\u201d<\/p>\n\n\n\n

In each of these cases, the ultimate question is whether the government can create a transparent framework for the evaluation of energy infrastructure proposals. If projects cannot rely on the government to make good on its legislative and regulatory commitments, then few companies \u2014 if any at all \u2014 will devote the capital and other resources that complicated energy infrastructure projects require. This reliability and commitment requires both a Congress willing to legislate substantive energy policy and a president willing to put those policies into effect.<\/p>\n\n\n\n

Our nation is capable of great things. But our energy infrastructure is bedeviled by issues of regulatory policy and constitutional law, making it difficult to reach lasting decisions \u2014 let alone wise ones \u2014 on some matters of great consequence. The Yucca Mountain project is, by all appearances, dead. It might someday be resurrected, but we can\u2019t count on miracles. If we are ever to settle on a long-term solution to the decidedly long-term problem of storing nuclear waste, it will require either a political consensus we have no reason to expect or a new sturdy process that prevents any branch or agency of government from unilaterally bringing the project to an end.<\/p>\n","protected":false},"excerpt":{"rendered":"

Adam J. White on the death of the planned nuclear-waste repository<\/p>\n","protected":false},"author":1,"featured_media":18533,"template":"","article_type":[13],"noteworthy_people":[],"topics":[4997,5002],"_links":{"self":[{"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/article\/10438"}],"collection":[{"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/article"}],"about":[{"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/types\/article"}],"author":[{"embeddable":true,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/users\/1"}],"version-history":[{"count":2,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/article\/10438\/revisions"}],"predecessor-version":[{"id":23145,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/article\/10438\/revisions\/23145"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/media\/18533"}],"wp:attachment":[{"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/media?parent=10438"}],"wp:term":[{"taxonomy":"article_type","embeddable":true,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/article_type?post=10438"},{"taxonomy":"noteworthy_people","embeddable":true,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/noteworthy_people?post=10438"},{"taxonomy":"topics","embeddable":true,"href":"https:\/\/www.thenewatlantis.com\/wp-json\/wp\/v2\/topics?post=10438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}