Our Voice: Yucca Mountain ruling about the law, not money

August 17, 2013 

No one is above the law, unless you're Sen. Harry Reid, D-Nev.

A U.S. Court of Appeals ruling on Yucca Mountain last week couldn't have been clearer. The Nuclear Regulatory Commission is violating federal law by failing to review the Department of Energy's license application for a nuclear waste repository at Yucca Mountain, Nev.

The commission "is simply flouting the law" by not acting, U.S. Circuit Judge Brett Kavanaugh wrote.

Reid's reaction? "This is just a bump in the road, without being disrespectful to the court, it means nothing," Reid told reporters after the ruling.

Apparently when you're as important as Reid, the Constitution is merely a speed bump on the road to getting what you want.

It's alarming that the Senate majority leader is so quick to dismiss the court's concerns, which are fundamental to America's concept of democracy.

"This case has serious implications for our constitutional structure," Kavanaugh wrote. "It is no overstatement to say that our 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."

To drive home the point, Kavanaugh references the Federalist Papers: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."

As a reminder about the basic facts in the case, the Obama administration halted design and development work for Yucca Mountain in 2009, cut funding the next year and withdrew its application for a license.

Until there is a licensed repository at Yucca Mountain or elsewhere, 56 million gallons of high level nuclear wastes stored at Hanford has no place to go.

Yucca Mountain might never house nuclear wastes and a better solution may be found, but last week's ruling still means something, despite Reid's comments to the contrary.

It reaffirms that even the president must follow the law.

Reid, who has led the fight against Yucca Mountain for decades, won't easily give up. "There is no money, we've cut funding for many years now and there is none in the pipeline," he told reporters.

In a dissenting opinion, Chief Judge Merrick Garland said the lack of money limits the impact of the court's ruling. It amounts to "little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again," he wrote. But the Nuclear Regulatory Commission has at least $11.1 million for the license review, the court said.

That's enough for the NRC to get started on meeting its legal obligations.

The expense of complying with the court's findings is a weak excuse in any case. The Department of Energy already has spent about $15 billion collected from ratepayers to build a repository, and it collects another $750 million annually. Plenty of money is available to complete the license review.

Even if Garland is right, it seems a dangerous precedent to allow government officials and agencies to flout the law simply because it's cheaper that way.

Money is not the issue. President Obama's unilateral decision to ignore the Nuclear Waste Policy Act doesn't pass constitutional muster, the court ruled. It's illegal for the president to ignore congressional mandates simply to meet his own policy objectives.

That's what happened at Yucca Mountain, and it's wrong.

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