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In re Aiken County

United States Court of Appeals for the District of Columbia Circuit

May 2, 2012, Argued; August 13, 2013, Decided

No. 11-1271


 [*257]   [**384]  On Petition for Writ of Mandamus

Kavanaugh, Circuit Judge: This case raises significant questions about the scope of the Executive's authority to disregard federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress. Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process. We therefore grant the petition for a writ of mandamus.

This case involves the Nuclear Waste Policy Act, which was passed by Congress and then signed by President Reagan in  [***3] 1983. ] That law provides that the Nuclear Regulatory Commission "shall consider" the Department of Energy's license application to store nuclear waste at Yucca Mountain and "shall issue a final decision approving or disapproving" the application within three years of its submission. 42 U.S.C. § 10134(d). The statute allows the Commission to extend the deadline by an additional year if it issues a written report  [*258]   [**385]  explaining the reason for the delay and providing the estimated time for completion. Id. § 10134(d), (e)(2).

In June 2008, the Department of Energy submitted its license application to the Nuclear Regulatory Commission. As recently as Fiscal Year 2011, Congress appropriated funds to the Commission so that the Commission could conduct the statutorily mandated licensing process. Importantly, the Commission has at least $11.1 million in appropriated funds to continue consideration of the license application.

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725 F.3d 255 *; 406 U.S. App. D.C. 382 **; 2013 U.S. App. LEXIS 16987 ***; 43 ELR 20190; 77 ERC (BNA) 1334; 2013 WL 4054877


Subsequent History: Rehearing, en banc, denied by In re Aiken County, 2013 U.S. App. LEXIS 22003 (D.C. Cir., Oct. 28, 2013)

Stay granted by, Motion granted by, in part, Motion denied by, in part, Request denied by In re U.S. DOE, 2013 NRC LEXIS 9 (N.R.C., Nov. 18, 2013)

Prior History:  [***1] Ordered Held in Abeyance August 3, 2012.

In re Aiken County, 2012 U.S. App. LEXIS 16093 (D.C. Cir., Aug. 3, 2012)


licensing, Nuclear, mandamus, pardon, prosecutorial, storage, statutorily, deadline

Business & Corporate Compliance, Energy & Utilities Law, Regulators, US Nuclear Regulatory Commission, Energy & Utilities Law, Nuclear Power Industry, Licenses & Permits, Civil Procedure, Writs, Common Law Writs, Mandamus, Constitutional Law, The Presidency, General Overview, Administrative Law, Separation of Powers, Constitutional Controls, Legislative Controls, Governments, Legislation, Expiration, Repeal & Suspension, Executive Privilege, The Judiciary, Congressional Duties & Powers, Separation of Powers