Comments on DC Circuit case

As much as I’d love him to be right, and despite the fact that he is an attorney and I am not, I must beg to differ with Pat Parenteau’s remarks above about the legal implications of this case.


Both storage and disposal of “spent” nuclear fuel are federal responsibilities, and the DC Circuit decision does absolutely nothing to change that.  For those of us opposed to nuclear power, I believe the best interpretation of this case is that the DC circuit has placed a temporary cloud of uncertainty over the nonchalance with which, in the past, NRC has been able to deal with the issue of its “confidence” that nuclear waste can be adequately dealt with in an environmentally sound manner.


In particular, the court’s decision requires that the agency perform “a more thorough analysis” (p. 21) than its previous Waste Confidence Update.  If history is any guide, the NRC will do just that, reaching precisely the same predetermined conclusions as before, but this time convincing the courts that it has properly complied with NEPA requirements in doing so.  To my admittedly far less than complete knowledge, this has happened EVERY time the NRC has been successfully challenged on NEPA grounds in the past.  NEPA mandates a process, not an outcome.  An agency determined to reach a given finding can pretty much always do so; compliance with NEPA sometimes requires them to strain a few more bureaucratic muscles to satisfy the demands of the courts.  If this sounds cynical, it’s because long experience has made me so.


Congress passed the Nuclear Waste Policy Act, making nuclear waste disposal a federal responsibility, in the years FOLLOWING the PG&E decision, thus modifying that part of the legal landscape.  My understanding is that the DOE’s failure to open the Yucca Mountain facility has resulted in successful lawsuits by utilities requiring DOE to pay for storage of nuclear waste on a temporary basis as well as for its ultimate disposal.  The basis for these decisions is that the utilities have been paying a 1 mil per Kwh disposal fee for nuclear power generated since the 1980s. The courts have accepted the argument put forward by the utilities that financial responsibility for the waste has therefore shifted along with the taxes paid.  If this is so, this responsibility is clearly a federal responsibility, leaving no economic burden for the States to deal with.


While I suspect I am oversimplifying matters a bit, my point is that for a number of reasons, this DC case does NOT appear to me to give the States any new leverage over nuclear operations that they did not have previously. Indeed, on this very specific aspect of the issue, States may well have LESS leverage than they did at the time of PG&E. Any attempt to shut down a nuclear plant based on issues around the disposal of “spent” nuclear fuel would certainly have to take extremely careful consideration of the ENTIRE legal landscape that has developed with the rise and fall of Yucca Mountain, as well as with the generic safety licensing of dry casks.


Given that the safety of dry casks has been determined by NRC on a GENERIC design basis, there MAY remain some issues for State regulatory consideration around where waste is placed, if or how it can be transported, etc., that is, around traditional land use issues which arise from siting ANYTHING anywhere.  These could, as Sandy Levine suggests, come before the Public Service Board in the new PG case, though the Board’s March ruling made it pretty clear that the legislature has denied it authority to do much about waste issues without a prior legislative mandate.  In any case, that’s a VERY different set of legal issues than those arising in the DC Circuit case.


When all is said and done, despite what Judge Murtha ruled, I continue to believe that his interpretation of Vermont’s existing laws is completely untenable and that they are NOT even close to being preempted under existing law, since there is no reliance – explicit or implicit – on anything within the federally preempted field of safety.  Snippets of legislative discussion are not enacted statutes and cannot supply legislative “intent” in the absence of enacted text.


In my estimation, there’s FAR more hope for Vermont in overturning Murtha’s ruling than there is in any attempt to shut VY down through a nuclear “moratorium” paralleling what happened in CA before the Nuclear Waste Policy Act was enacted.

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