WASHINGTON -- Lawyers for Washington and South Carolina on Tuesday accused President Obama of having exceeded his constitutional power in shuttering the Yucca Mountain nuclear waste repository.
Washington Assistant Attorney General Andrew Fitz told a federal appellate court that Obama's refusal to pay for continued development of the Nevada radioactive waste disposal site violates the 1982 Nuclear Waste Policy Act.
"He's acting unconstitutionally under the separation of powers doctrine because he doesn't have the authority under the statute," Fitz told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. "He had no authority to reverse it."
In 1987 amendments to the nuclear waste law, Congress designated Yucca as a repository site to dispose of used commercial nuclear power fuel and high-level radioactive defense waste, including Hanford's high-level waste.
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The government has spent $10 billion developing the Yucca site, but Obama has stripped money for it from his last two budget proposals to Congress.
Republicans, who have crafted legislation to revive the repository, accuse Obama of making a political gesture to Senate Majority Leader Harry Reid of Nevada, whose residents dislike the notion of burying radioactive debris from across the country at the subterranean site 90 miles northwest of Las Vegas.
The state of Washington and three Tri-City business leaders -- Bob Ferguson, Bill Lampson and Gary Petersen -- filed lawsuits against Obama. In addition, South Carolina and the South Carolina county that is home to the Department of Energy Savannah River Site also filed lawsuits.
Chief Judge David Sentelle and Judge Brett Cavanaugh repeatedly challenged Fitz on whether the lawsuit by Washington and South Carolina is premature because the Nuclear Regulatory Commission has not issued a related ruling.
Sentelle and Cavanaugh said three administrative judges within the NRC in June had rejected a bid by Energy Secretary Steven Chu to withdraw the Energy Department license to build and operate the Yucca repository.
The case has been before the NRC since then, with no indication of when the full commission will rule on the license withdrawal.
After the hearing, Washington Attorney General Rob McKenna said although the NRC has not ruled on whether DOE might withdraw its license application, DOE is moving ahead to "unilaterally and irrevocably" terminate the Yucca Mountain project.
Neither DOE nor the NRC has the legal authority to terminate the licensing process prematurely and in a manner that forever forecloses it from being re-opened, McKenna said.
"It's time for the Department of Energy to live up to the law," he said.
McKenna is concerned that the massive environmental cleanup project under way at Hanford has been planned on the assumption that Yucca Mountain will be available.
That includes the design and construction of the vitrification plant, which is being built to treat high-level radioactive waste now stored in potentially leaky underground tanks.
"It creates a real problem for Washington and the Hanford site if Yucca Mountain is not available," he said.
Barry Hartman, attorney for the Tri-City business leaders, said after the hearing that the judges seemed to be inviting a lawsuit against the NRC.
The judges had pressed Department of Justice attorneys about why the NRC had not made a decision, he said.
The judges and lawyers didn't address the substantive merits of the case, avoiding the complex scientific and environmental issues tied to the Yucca site.
At Obama's direction, Chu set up the Blue Ribbon Commission on America's Energy Future in January 2010 and gave it two years to come up with an alternative to drilling deep tunnels beneath Yucca for nuclear waste disposal.