Jeremy L. Dillon
RW Monitor
1/31/2014
The Court of Appeals for the D.C. Circuit this week ordered that the petitioners in the Nuclear Waste Fund Fee case respond to the Department of Energy’s motion for a re-hearing en banc, effectively extending the time period the court has to decide if the motion should be granted. The petitioners, the National Association of Regulatory Utility Commissioners and the Nuclear Energy Institute, have 15 days to respond to DOE’s motion, after which, the court is soon expected to make a decision. Usually, in cases of en banc, a vote must be requested by one of the justices within 14 days of the initial filing for it to move forward to a vote by all of the court, but with this order, the window has been extended.
The court’s original 3-0 decision ruled that DOE had to halt the collection of the fee from electricity rate payers due to the shuttering of the planned repository at Yucca Mountain and lack of alternative disposal plan for the nation’s high level nuclear waste as required by the Nuclear Waste Policy Act. For an en banc hearing to occur, a majority of the D.C. Circuit judges need to approve the motion, and then, if that happens, a rehearing would be presided over by all the judges of the court. DOE is arguing in its en banc motion that that the three-judge panel’s unanimous ruling places it in a “damned if you do, damned if you don’t” situation, in which the Secretary of Energy cannot possibly satisfy the court’s demands with the fee assessment.
