The recent decision by the U.S. Court of Appeals regarding the Yucca Mountain Nuclear Waste Repository was a major victory for both Aiken County and the Constitution. Whether this decision will jump start the mothballed facility remains unknown.
The 2-to-1 decision, written by Judge Brett Kavanaugh and joined in a concurring opinion by Judge Arthur Randolph, granted a writ of mandamus forcing the Nuclear Regulatory Commission to continue the licensing process for the Yucca Mountain facility.
The chain of events leading to this decision began in 2010 when Commission Chairman Gregory Jaczko, a former aide to Yucca Mountain opponent Sen. Harry Reid, violated the Nuclear Waste Policy Act.
According to Judge Randolph, “Jaczko orchestrated a systematic campaign of noncompliance. Jaczko unilaterally ordered Commission staff to terminate the review process in October 2010; instructed staff to remove key findings from reports evaluating the Yucca Mountain site; and ignored the will of his fellow commissioners.”
Jaczko, under fire from his Nuclear Regulatory Commission colleagues on this and other matters, later resigned.
The Aiken County Council believed that suspending the licensing process, effectively killing the project, was detrimental to the county. It petitioned the federal courts for relief. The states of Washington and South Carolina; Nye County, Nev.; and the Nuclear Energy Institute also joined the suit.
In its petition, Aiken County argued that, “Yucca Mountain is the site selected for the long-term disposal of SRS’s radioactive materials. The Department of Energy’s environmental analysis demonstrates that failure to go forward with Yucca Mountain could result in ‘widespread contamination at the 72 commercial and five Department of Energy sites across the United States, with resulting human health impacts.’ The SRS site is one of the five referenced DOE sites.”
The petition was initially rejected in 2011, but the court noted that if the Nuclear Regulatory Commission failed to act on the project’s licensing application within certain deadlines, then mandamus would be appropriate.
The Commission failed to act, and on Aug. 13, the writ of mandamus was granted.
Judge Kavanaugh’s unsparing criticism of the Commission and the administration was based on constitutional grounds. “The policy is for Congress and the president to establish as they see fit in enacting statutes and for the President and subordinate executive agencies to implement within statutory boundaries,” wrote Kavanaugh.
“Under Article II of the Constitution and relevant Supreme Court precedents,” he continued, “the president must follow statutory mandates so long as there is appropriated money available and the president has no constitutional objection to the statute ... the president may not decline to follow a statutory mandate or prohibition simply because of policy objections.”
“This case has serious implications for our constitutional structure,” summarized Kavanaugh. “It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission.”
Kavanaugh systematically annihilated the Commission’s counter-arguments.
The Commission claimed that Congress hadn’t fully funded the licensing effort. In response, Kavanaugh declared, “The Commission is under a legal obligation to continue the licensing process, and it has at least $11.1 million in appropriated funds – a significant amount of money – to do so.”
The Commission also speculated that future funding won’t be forthcoming. Kavanaugh replied that, “an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates.”
In addition, thundered Kavanaugh, “Congress speaks through the laws it enacts ... courts generally should not infer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of money Congress has appropriated.”
Of course, the Commission could spend the remaining $11 million on the licensing application and then send everyone home again. This would be tragic, but Sen. Reid and President Obama could bottle up any future funding for Yucca Mountain.
Constitutionally, however, this is an important case. Ever since, Arthur Schlesinger Jr. wrote “The Imperial Presidency,” executive omnipotence has grown at the expense of Congressional authority. By not defending its institutional prerogatives, Congress has been steadily neutering itself.
These are the ultimate questions: Are we a republic of laws passed by Congress? Or are we a plebiscitary dictatorship under the will of a quadrennially elected king?
Fortunately, the Aiken County Council struck a blow for bedrock legal principles by insisting that the Commission adhere to the Constitution and the rule of law.
Gary Bunker is a former Aiken County Councilman.
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