In a decision of little practical significance, two Republican judges on the D.C. Circuit Court of Appeals ruled on Tuesday that the Nuclear Regulatory Commission (NRC) must spend $11 million appropriated by Congress to study a proposed nuclear waste dump at Yucca Mountain, Nevada, even though that amount is insufficient to accomplish any meaningful results. Insisting that he intended “no disrespect to the court,” Senate Majority Leader Harry Reid (D-Nevada), a long and implacable foe of the project, said “this decision means nothing. Yucca Mountain is an afterthought.”

Congress chose Yucca Mountain as a nuclear waste site in the 1980s, but the State of Nevada has always opposed the idea. President Barack Obama, while running for president, promised to kill the project. Although Reid succeeded for years in preventing funds from being appropriated even to study the site, and the Energy Department asked to withdraw its application to the NRC for a license to build the facility, and two consecutive NRC Chairs—Gregory Jazcko and Allison Macfarlane—opposed it, $11 million to study the site remains on NRC’s books from earlier years.

That is the money Judge Brett Kavanaugh said by law must be spent.

“Congress speaks through the laws it enacts,” wrote Kavanaugh, who was appointed by George W. Bush. “No law states that the commission should decline to spend previously appropriated funds.” Although Judge A. Raymond Randolph, a George H.W. Bush appointee whose rulings denying that the Guantánamo detainees have constitutional rights were twice overruled by the Supreme Court, agreed with the outcome of the case, he declined to join Part III of Kavanaugh’s decision—a lengthy aside on constitutional law—because he considered it unnecessary to deciding the case.

Judge Merrick B. Garland, who is Chief of the D.C. Circuit, dissented, quoting a leading case from 1936 ruling that “courts will not issue the writ to do a useless thing, even though technically to uphold a legal right.” Garland added that, “Unfortunately, granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do ‘a useless thing,’” because there is not enough money left to complete the safety review and reach a conclusion about the site’s suitability for nuclear waste.

According to Lake Barrett, former head of the Energy Department’s civilian radioactive waste program, the $11 million would at most allow completion and publication of a Safety Evaluation Report, which is only the first step of a contemplated multi-step review.

The case was brought by the States of South Carolina and Washington, which have toxic military waste that must ultimately be buried somewhere, and several other entities. The agency has not yet decided whether to appeal.

-Matt Bewig

To Learn More:

Government Must Continue Review of Nevada Nuclear Waste Site, Court Says (by Matthew L. Wald, New York Times)

In re Aiken County (pdf)

What Should We Do with America’s Nuclear Waste? (by Noel Brinkerhoff, AllGov)

Obama Administration Withdraws Plans for Yucca Mountain Nuclear Dump (by Noel Brinkerhoff, AllGov)