Administrative Law - Mandamus - D.C. Circuit Compels Nuclear Regulatory Commission to Follow Statutory Mandate

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ADMINISTRATIVE LAW--MANDAMUS--D.C. CIRCUIT COMFELS NO CLEAR REGULATORY COMMISSION TO FOLLOW STATUTORY MANDATE. --In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013), reh'g en banc denied, No. 11-1271, 2013 U.S. App. LEXIS 22003 (D.C. Cir. Oct. 28, 2013).

The dispute over nuclear waste storage at Yucca Mountain in Nevada has been raging for decades. (1) Despite general agreement on the need for a permanent nuclear waste repository, (2) the authorization process has been drawn out as a result of fierce opposition by the local community (3) and, more recently, by the Obama Administration. (4) The latest stage in the long-running dispute is the refusal by the Nuclear Regulatory Commission (NRC) to consider a license application by the Department of Energy (DOE) to authorize the construction of the Yucca Mountain nuclear waste repository. Recently, in In re Aiken County, (5) the D.C. Circuit granted a petition for a writ of mandamus to compel NRC to evaluate DOE's application, holding that NRC was statutorily mandated to approve or disapprove the application by a fixed deadline. (6) The court's decision to grant mandamus must have rested on the long history of judicial concession and agency inaction specific to the case. Rather than drawing on those facts in its opinion, however, the court opted for broad and sweeping language about congressional authority. The language in the court's opinion muddles the mandamus inquiry and potentially opens the door to expansion of the judicial power of mandamus in subsequent cases.

The Nuclear Waste Policy Act of 19827 (NWPA) was passed by Congress and signed into law by President Reagan to create a "definite Federal policy" for the disposal of high-level radioactive waste, including a process for the siting of nuclear waste repositories.- NWPA mandates that upon the designation of a site, NRC "shall consider" an application for construction authorization by DOE and "shall issue a final decision approving or disapproving" the application within three years of its submission. (9) In June 2008, DOE submitted its construction authorization application to NRC. (10)

In 2010, DOE filed a motion to withdraw its application. (11) State and local governments sued to challenge DOE's withdrawal as a violation of NWPA, but the D.C. Circuit dismissed the claim as unripe because NRC was still processing its Licensing Board's denial of DOE's motion and was also still considering the underlying application. (12) in finding that NRC's future actions could moot the claim, the court noted that NRC was statutorily mandated to accept or reject the application soon and warned that "[s]hould the Commission fail to act within the deadline specified in the NWPA, Petitioners would have a new cause of action": a petition for mandamus relief. (13) Subsequently, NRC suspended its review of DOE's application. (14)

Petitioners (15) then filed in the D.C. Circuit (16) for a writ of mandamus requiring NRC to resume processing DOE's permit application. (17) Recognizing NRC's argument that Congress did not want the project to continue, the D.C. Circuit issued an order holding the case in abeyance pending Congress's Fiscal Year 2013 appropriations to allow Congress the chance to indicate whether it intended to fund the project going forward. (18) Congress, however, took no action either to fund NRC's consideration of the application or to indicate that the process should not continue. (19)

On August 13, 2013, the D.C. Circuit granted the writ of mandamus. Writing for the court, Judge Kavanaugh (20) first noted that the court was not intervening in the underlying policy debate but restraining itself to the "more modest task" of "ensur[ing] ... that agencies comply with the law as it has been set by Congress." (21) Having framed the issue as a separation of powers question about "the scope of the Executive's authority to disregard federal statutes," (22) the court began with a "settled, bedrock principl[e] of constitutional law": the President, as well as agencies such as NRC, generally must follow statutory mandates. …