Monday, August 19, 2013

Yucca Mountain and Vermont: Scofflaws in High Places

Yucca Mountain

Last week saw two court decisions that favored the nuclear industry. Both were about groups (the Vermont legislature, the NRC) that had taken actions that were illegal for them to take.

 The first court decision was the appeals court victory for Vermont Yankee. The Vermont legislature cannot regulate nuclear safety.  This decision was discussed in my post Vermont Yankee Wins in Appeals Court.

The second decision was a Writ of Mandamus about Yucca Mountain. With this Writ, a federal Court required the NRC to continue the license review process for the Yucca Mountain repository.  Billions of dollars have been spent on building this repository for high-level nuclear  waste in Nevada. However, Senator Harry Reid of Nevada is determined to keep the repository from opening.  So far, he has managed keep it closed.

Jaczko in Brattleboro, 2010
Former NRC Commission Chairman Gregory Jaczko was appointed to his NRC position in order to please Senator Reid.  As Commissioner, Jaczko stopped the Yucca Mountain license review process when it was nearly complete.

Jaczko had no legal right to stop the review process, but he did it anyway.  Jaczko also refused to release the Safety Evaluation Reports which were due to be released to the public.

Winning the Lawsuit

 A consortium of groups brought a lawsuit against the NRC to force them to continue the Yucca Mountain review; the plaintiffs included the National Association of Regulatory Utility Commissioners.  They won. This week, the Circuit Court in the District of Columbia ruled in their favor, issuing the Writ on August 13.

The Wall Street Journal described the legal outcome in  Problems with Authority: Lawless Regulators and the White House earn a Judicial Rebuke.  A quote:  In a  major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This "extraordinary remedy"(was taken in a case that)..."raises significant questions about the scope of the Executive's authority to disregard federal statutes."

The Lawsuit Explained

ANS Nuclear CafĂ© has an excellent review of the case, written by one of the petitioners: Court Finally Rules on Yucca Mountain NRC License Review, by Robert L. Ferguson. Ferguson has also written a book on the subject.  Also, this video clip is short but clear.

And Yet, Scofflaws Are Still Scofflaws

Writ of Mandamus or no Writ of Mandamus, it doesn't look as if the license review will continue. Senator Harry Reid of Nevada, Yucca Mountain's chief foe, has kept the funding for the review at zero.   As Senator Reid said: “With no disrespect to the court, this decision means nothing,”

Well, to me, that sounds just a little disrespectful of the court.

The Reid quote comes from the Las Vegas Review Journal article: Federal court order NRC to restart licensing process for Yucca Mountain. The video clip above is from the same article. In the video, you can see Reid make a similar statement about the meaninglessness of the court decision.  You can also see Energy Secretary Ernest Moniz whine  about lack of funding for the license review process.

The Money is There, If They Want It

Lack of funding?  Oh Puh-leeze.

Moniz talking about "lack of funding" (a lack arranged by Harry Reid) is pretty funny, because the utilities pay $800 million dollars a year into the Nuclear Waste fund. They pay a tenth of a cent to the fund for every kilowatt-hour generated by nuclear energy.  This fund is supposed to provide a repository for spent nuclear fuel. In other words, they pay almost a billion dollars a year, and the fund has been growing for about thirty years.

While $10 billion was paid from this fund to develop Yucca Mountain, more than $20 billion remains in the fund. (Unspent balance of $25 billion according to Wikipedia.) In other words, if some of the money already paid by utilities..say, maybe $20 million of the $20 billion, was freed for the license process expenses, the license process could go ahead.

It might take a small amount of maneuvering to free this money from one federal pocket to another. But the government is good at moving money, when it wants to. (Sometimes it moves money to non-existent pockets, but let's not get into that.)  Apparently, the government doesn't want to move this money or use it.  So much for the court case, I guess.

Vermont and Yucca Mountain

U.S. Constitution
First page
Here in Vermont, we also have scofflaws in high places.  Last week, Vermont legislators were also given clear notice by the courts that they were breaking the law (attempting to regulate issues that are regulated at the federal level) and pretty close to violating the Constitution (though the commerce issue was not "ripe").

Will our legislators and governor find a way to ignore the courts and go on their merry way against Vermont Yankee? Nevada seems to be doing this. I know the situations are quite different.  Still,  I fear our legislators will use some methodology that will be illegal, but perhaps not stoppable in time, even by injunctions.

I hope not.  I think not.  I hope the rule of  law will prevail.

I'm basically an optimist.

1 comment:

Anonymous said...

A Constitutional Republic only survives if we have a government of laws and not men. When men like Harry Reid, Gregory Jaczko, and Barack Obama take it upon themselves to decide which laws will be enforced and which ones won't, the Republic no longer functions. And if these individuals continue to flout Federal law with no consequences, who is going to stop them? Enforcement action at the Federal level must come from the Executive, but it is the Executive that is breaking the law. Anyone here want to take bets on Eric Holder doing anything? Congress? Cripes, they can't even pass a budget. Who expects them to take action to enforce the very laws they passed? The electorate? The same voters who placed people like Reid and Obama in power? Give me a break. Unfortunately, I think Reid is probably right, this means nothing. The Courts can hand down all the writs they want, but if nobody enforces them, the result is moot. But, in the larger picture, the concept of a government of laws is abrogated.