It’s 11pm. Do you know where your nuclear waste is?

by Bruce Huber — Monday, May 11, 2015

Even if you are an armchair observer of the federal courts, or a nuclear policy nerd, it’s unlikely that you caught wind of a mid-April decision out of the Court of Federal Claims in the case of System Fuels, Inc. v. United States (decided Apr. 15, 2015). In fact, even if you had, you’d be unlikely—{yawn}—to read past the first paragraph.

I’m not here to tell you to go back and read it; it’s boring, it’s technical. But I am here to tell you that the substance of this decision, and dozens of others like it, reveal something pretty stunning. The Court of Federal Claims, and the Federal Circuit Court of Appeals above it, are taking an active role in regulating nuclear waste storage across the United States. Let me explain.

The Nuclear Waste Policy Act of 1982 obligated the Department of Energy (DOE) to sign contracts with nuclear operators in which the DOE would agree to take possession of nuclear waste from nuclear power plants by 1998. The idea was that by 1998, Yucca Mountain (or an equivalent long-term repository) would be up and running. Of course we all know that didn’t happen. So the DOE has been in breach of its contracts since 1998, and nuclear waste has been piling up at nuclear power plants around the country ever since.

Since then, operators have been making regular visits to the Court of Federal Claims to recoup the costs associated with on-site waste storage. DOE has settled many of those claims, to the tune of billions of dollars. But because each claim involves tens of millions of dollars, the DOE has been willing to spend quite a bit on lawyers—lawyers who are arguing that certain waste management costs should have been mitigated by the operators. (Remember your contracts law, folks? I’m a bit hazy, but I seem to recall something about a duty to mitigate the damages attributable to breach.)

So there is now a veritable slew of caselaw on the precise contours of nuclear operators’ duty to mitigate … which, in their substance, look an awful lot like a set of operating instructions. Yes, that’s right—these are specific determinations about what sorts of costs are compensable as a result of the DOE’s breach, which presumably help other operators decide what sorts of waste management operations to undertake at nuclear facilities around the country. Take a look at this excerpt from theSystem Fuels case decided last month:

 

As a student of energy law and a political scientist, I think this is pretty interesting. In these cases we have federal courts effectively setting operating policy on important matters of nuclear power plant operation, and doing so under breach of contract principles. Anyone else find this intriguing? Give a holler, a tweet, a comment, or fire me an email.

@bruce_huber

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