A Yucca Mountain Update

by Bruce Huber — Monday, Sept. 7, 2015

I’ve previously written here about some of the craziness surrounding Yucca Mountain, the once-and-future federal nuclear waste repository in Nye County, Nevada. That was the better part of a year ago, and it’s time for an update.

First, a brief refresher. Since about the 1960s, nuclear power has been a substantial piece of the electricity pie in the United States. At first, spent nuclear fuel simply accumulated on-site at nuclear power plants. Recognizing that a long-term solution was required, Congress in 1982 established a process to site and build a national repository. Nuclear utilities were taxed to pay for it, and according to the law, the Department of Energy would begin collecting nuclear waste by 1998. Um, yeah. It’s now 2015, and no repository. Under the George W. Bush administration, the Department of Energy selected Yucca Mountain as the repository site, and in June 2008 submitted to the Nuclear Regulatory Commission (NRC) an 8,600-page license application to build and construct the repository. When President Obama took office, he tried to scuttle that application, but the federal courts interfered. Undeterred, the President and Congress simply defunded the NRC’s review of the application, and that’s more or less where we said.

So what’s changed? Not terribly much. Yes, Harry Reid is stepping down next year. And some members of Congress—a collection of Republicans, plus Democrats from The Next States Down The Site List—have vowed to scrape up some more money for the NRC. But don’t hold your breath; the President has staunchly opposed any more funding for Yucca.

So, then, why the update? Well, first, the obvious: you’ll note that no real further progress has been made on siting an alternative repository. Our nuclear power plants are still operating, and still producing waste, and that waste continues to pile up on-site. We’ve grown accustomed to that fact, perhaps, but we probably shouldn’t: the DOE remains in ongoing breach of its obligation to collect nuclear waste, and utilities have paid billions into a repository fund that’s given them nothing. (Headline: “ U.S. ends fee collection [in 2014] with $31B on hand and no disposal option in sight .”) And I suppose it’s worth pointing out (since I’m sure you hadn’t noticed) that the presidential campaign season is upon us; expect to hear at least some talk of Yucca from the GOP side.

But beyond that, there’s much in the Yucca story that deserves attention from scholars of bureaucracy, regulation, and administrative law. The DOE’s efforts to abort the Yucca plan, and to prevent its resurrection, are remarkable—remarkable not only from the standpoint of separation of powers doctrine , but also from the standpoint of practical governance. This story explains how quickly the DOE shuttered its Yucca operations, long before it received the D.C. Circuit’s rebuke. Cancelling leases, closing out contracts, terminating specialized employees—these are not the sorts of decisions that can quickly be undone. Yucca’s closure was a fait accompli by the time a court identified any problem in the DOE’s plan of operation.

This demonstrates why scholars should take notice of executive branch operations. A great deal of scholarship focuses laser-like on rulemakings and on legal doctrines (Chevron, etc.) that address the relationship between legislation and rulemaking. But we have entered an era in which Congress is producing new legislation less frequently than in the past . This has led the executive branch to ever-greater boldness (evidence the numerous claims of executive overreach that have attracted the attention of the Supreme Court). It should also prod scholars to expect that important decisions—ones that bear heavily on policy—may be made at the operational level, beneath the doctrinal radar, if you will.

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