The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday ruled [opinion, PDF] that the Nuclear Regulatory Commission (NRC) [official website] has been violating federal law by failing to accept or deny the pending Department of Energy (DOE) [official website] application for a waste storage facility at Nevada's Yucca Mountain, which was originally filed in 2008. The Obama administration has since made plans to close the facility, and Congress has additionally cut funding for the project. In 2011 the NRC permitted the shutdown plan to stand, citing budgetary limitations as the cause. The NRC action goes against a federal law [AP report] that designates Yucca Mountain as the nation's nuclear waste repository. Judge Brett Kavanaugh wrote in Tuesday's majority opinion, "This case has serious implications for our constitutional structure. 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."
In July 2011 the DC Circuit dismissed a similar case [JURIST report] brought by Washington state, South Carolina and other local governments challenging the DOE failure to proceed with the Yucca Mountain project. The plaintiffs, responsible for the temporary storage of nuclear waste, challenged both a decision of the DOE to withdraw its application from the NRC for Yucca Mountain and its apparent abandonment of that project. The nuclear repository was not welcomed by Nevada government officials, who had been mounting challenges against the site since Congress approved government plans to construct the facility in 2002. Rejecting the challenges by Nevada officials, however, the DC Circuit ruled in 2004 that federal plans to build a nuclear waste site in the state were constitutional under the Takings Clause. Government officials fear that the repository, located 90 miles northwest of Las Vegas, will negatively effect the city's lucrative tourism industry. The application for the repository had been pending since 2008 when it was filed by former president George W. Bush. The repository was approved by Congress in 1987 to contain highly toxic waste from nuclear complexes that built atomic bombs during the Cold War.