On March 14, 2017, the state of Texas—which has four functioning nuclear reactors at two different sites—sued the federal government under the Nuclear Waste Policy Act of 1982 (Act), 42 U.S.C. § 10101 et seq., based on the Executive Branch’s failure to comply with the Act’s mandate that the federal government establish a permanent nuclear waste repository site at Yucca Mountain, Nevada. Frustrated with the Executive Branch’s failure to comply with the Act, Texas seeks either injunctive relief compelling the licensure of a national nuclear waste repository at Yucca Mountain, or alternatively, disgorgement of the money that Texas nuclear utility generators paid into the Nuclear Waste Fund established under the Act to finance the Yucca Mountain repository. In simple terms, Texas has asked the federal courts to compel the Executive Branch to either “fish or cut bait” in regard to Yucca Mountain.
Under the Act, Congress declared that the federal government would assume responsibility for the waste material created by nuclear power generation and establish a permanent repository. To that end, Congress directed the Energy Department (DOE) and Nuclear Regulatory Commission (NRC) to search for a suitable site for the President to recommend to Congress. To pay for the site search, development, construction, as well as the site’s ultimate operation, Congress established the Nuclear Waste Fund (Fund) to be financed through the assessment of fees on nuclear utilities. According to Texas’s petition, the market value of the Fund is now approximately $40 billion, to which Texas nuclear utilities have made (mandatory) contributions of approximately $1.5 billion (including interest).
In 1987, Congress amended the original Act to dictate that the site be located at Yucca Mountain, which was to be operational by 1998. That deadline, of course, was never met. In 2008, DOE finally submitted a Yucca Mountain license application to the NRC, which is still pending. The Obama Administration unsuccessfully attempted to withdraw the Yucca Mountain license application, and actively searched for an alternative site. For various reasons, the license application remains mired at the NRC, and there is no indication that the NRC will ever accept or reject it.
Texas’s Claims and Requested Relief
Texas asserts several arguments. First, Texas contends that DOE’s search for alternatives to Yucca Mountain violates the Act. Second, Texas contends that the NRC’s continued stalling on the approval or rejection of DOE’s long-since submitted license application to operate Yucca Mountain violates the Act. Texas seeks injunctive relief requiring the NRC to complete the Yucca Mountain licensure proceeding and compelling DOE to account for all moneys assessed and collected for the Fund. Alternatively, if Texas is unable to compel licensure of Yucca Mountain, Texas seeks restitution or disgorgement of the over $815 million paid by Texas nuclear utilities (and recovered from Texas ratepayers) and the $709 million in interest that has accrued on that sum.
Next Steps in the Litigation
In procedural terms, Texas’s petition is tantamount to the filing of a complaint. But unlike in district court litigation, there is no possibility of discovery. Instead, Texas and the federal government will file briefs in the same manner as if the case were an appeal. Like an ordinary appeal, briefing will be followed by oral argument and a decision. In short, the Act’s provision for original and exclusive jurisdiction in the federal courts of appeals offers the opportunity for a relatively inexpensive and expedited judicial resolution of Texas’s claim.
Implications for Nuclear Utilities
Nuclear utilities with operations in the three states comprising the Fifth Circuit (Texas, Louisiana, and Mississippi) have a direct interest in that court’s resolution of Texas’s petition. They would have the ability to intervene in the Fifth Circuit proceeding, or bring similar petitions in their own right, so that their interests could be protected.
Nuclear utilities with operations outside of the Fifth Circuit should consider whether to bring similar actions in the appropriate circuit, to both protect their own interests and to ensure that they have a seat at the table at any ultimate settlement of the issue.
Cutting the Gordian Knot?
The nuclear waste storage status quo—where no permanent disposal site is likely to be established in the foreseeable future—is clearly intolerable to both states with nuclear power plants and the nuclear utilities that operate those plants. The Texas suit offers the possibility that a judicial decision will cut through an otherwise intractable problem and force the Executive Branch and Congress to conclude a reasonable resolution of this pressing national problem.
 See Texas v. United States, No. 17-60191 (5th Cir. 2017), available at https://www.texasattorneygeneral.gov/files/epress/NWF_Petition_(Filed_-_03-14-17).pdf. Texas brought its suit in the United States Court of Appeals for the Fifth Circuit, rather than a federal district court where litigation is typically initiated, because the Act confers original and exclusive jurisdiction in the United States courts of appeals—not district courts—for any suit alleging the government’s failure “to make any decision, or take any action, required” under the Act. See 42 U.S.C. § 10139(a)(1).