[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday dismissed [opinion, PDF] a case brought by Washington state, South Carolina and other local governments challenging the Depart of Energy (DOE) [official website] failure to make a permanent nuclear waste repository [Berkeley Lab backgrounder] in Yucca Mountain, Nevada. The plaintiffs, responsible for the temporary storage of nuclear waste, challenged both a decision of the DOE to withdraw its application from the Nuclear Regulatory Commission (NRC) [official website] for Yucca Mountain and its apparent abandonment of that project. Chief Judge David Sentelle wrote the opinion of the panel’s decision with the other two judges concurring, holding that the claims were not ripe since the NRC has not completed its four-year review process for the application filed by the Bush administration which will be complete in 2012. Santelle said:

Between the Commission’s possible review of the denial order and the Licensing Board’s consideration of the Yucca Mountain license application, the only administrative outcome that will fail to resolve the issues presented in Petitioner’s first claim would be if the Commission reviews and overturns the Licensing Board’s denial, permitting the DOE to withdraw its license application. At that point, petitioners would have the opportunity to demonstrate whether the effects of the DOE action are felt in a concrete way by the challenging parties.

Further, Santelle held that the determination of the DOE to abandon the project was “simply not reviewable by this court.” Also, President Barack Obama had promised to stop the plan to use Yucca Mountain, but last July, the three administrative law judges with the NRC Atomic Safety and Licensing Board [official website] denied a request [JURIST report] by the Obama administration and the DOE to withdraw the government’s application for a license to construct a permanent repository in Yucca Mountain.

The nuclear repository has not been welcomed by Nevada government officials, who have been mounting challenges against the site since Congress approved government plans to construct the facility in 2002. Government officials fear that the repository, which will be located 90 miles northwest of Las Vegas, will negatively effect the city’s $28 billion tourism industry. Rejecting challenges by Nevada officials, the DC Circuit ruled in 2004 that federal plans to build a nuclear waste site in the state were constitutional under the Takings Clause [JURIST report]. In March 2006 Nevada filed a lawsuit against the federal government, seeking documents related to the repository [JURIST report], including documents which allegedly contain information that the proposed site cannot meet radiation safety standards [JURIST report] mandated by the Environmental Protection Agency (EPA) [official website]. Later that year Nevada filed suit in the DC Circuit Court challenging the DOE’s Record of Decision (ROD) and Final Environmental Impact Statement (FEIS) governing the transportation of waste to Yucca Mountain, alleging that both violated the National Environmental Policy Act. The court declined to review a DOE proposal to move nuclear waste to the repository by rail, finding that some claims by Nevada lacked merit [JURIST report] while others were unripe. The application for the repository has 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.