By Lawrence Hurley
WASHINGTON (Reuters) - A federal appeals court said on Tuesday that the U.S. Nuclear Regulatory Commission can no longer delay a decision on whether to issue a permit for the long-stalled nuclear waste project at Yucca Mountain in Nevada.
On a 2-1 vote, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ordered the commission to promptly decide to license the project or reject the application.
It was unclear how much difference the court ruling would make to a long-running, politically divisive saga over safely storing nuclear waste, as the United States continues to debate how big a role nuclear power should play in the nation's energy mix.
The Obama administration, which picks the Senate-confirmed members of the nuclear commission, and Senate Democratic Leader Harry Reid, whose home state is Nevada, are among those eager to scuttle the Yucca project. They would be in a position to deny any future funds for the project.
"Under the current political environment, it seems unlikely additional funds will be given" to the project, even if the commission does issue a license, said Jack Spencer, a nuclear policy expert at the conservative-leaning Heritage Foundation.
But he said the ruling indicated that, as a long-term proposition, "Yucca is not dead" because there could still be a way to revive it, possibly in a modified form.
The project, in discussion since the 1970s, calls for the nation's nuclear waste to be buried inside Yucca Mountain in the Nevada desert about 100 miles northwest of Las Vegas.
Congress chose the site in the 1980s because it is a secure location surrounded by federally owned land. Since 1983, the government has spent almost $15 billion assessing its suitability for long-term nuclear waste disposal.
But funding has been dropped under the Obama administration, leaving the United States still with no solution to the vexing problem.
Nuclear waste - which can stay radioactive for thousands of years - is now stored temporarily at more than 100 sites at nuclear plants around the country, a move approved by the NRC on the assumption that a national repository would be built within 60 years.
PARTIES TO SUIT
If Yucca Mountain is deemed safe, it should proceed, said the states of Washington and South Carolina, both of which currently host nuclear waste storage facilities. These states, the National Association of Regulatory Utility Commissioners (NARUC), and other parties had sued the NRC over its inaction.
They successfully argued before the court in Washington that the commission must continue to work on the Energy Department's Yucca application even though the Obama administration has said it wants to abandon the project and Congress has not appropriated enough funds for it.
The ruling was not unexpected. The court had signaled in a decision last year that it would likely rule against the commission unless Congress specifically voted to terminate the project. Congress has taken no action.
D.C. Circuit Judge Brett Kavanaugh said in the ruling that the commission "has not acted, and Congress has not altered the legal landscape." As a result, he added, "the commission is simply flouting the law."
He was referring to the 1983 Nuclear Waste Policy Act that says the commission has to either approve or disapprove an application from the Energy Department for a nuclear waste repository.
Philip Jones, president of NARUC, said in a statement that the ruling would direct the commission "to comply with the law and continue its legally obligated review of the license."
A commission spokesman said officials were reviewing the decision but had no further comment.
In a dissenting opinion, Chief Judge Merrick Garland said the lack of funds limits the impact of the court's ruling. He said it amounts to "little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again."
The commission has around $11 million left to spend on the project.
Robert Andersen, a lawyer representing the Nevada county where the repository would be located, took issue with Garland's assessment of the project's funding.
Andersen said the judge was "wholly mistaken" in focusing on what the commission had left to spend because Congress "never appropriates upfront money to complete decades long projects."
(Reporting by Lawrence Hurley. Additional reporting by David Ingram. Editing by Kevin Drawbaugh and Philip Barbara)
[Yucca Mountain via Flickr user cyanocorax]