Jeremy L. Dillon
RW Monitor
2/28/2014
The case seeking Nuclear Regulatory Commission Chairman Allison Macfarlane’s recusal from all Yucca Mountain licensing review decisions was dismissed late last week by the Court of Appeals for the D. C. Circuit. The petitioners, made up of Nye County, Nev., the state of South Carolina, and Aiken County, S.C., called for Macfarlane’s recusal due to her previous published criticism of the suitability of Yucca Mountain as a disposal option. In the court’s order, the judges ruled that “the challenged recusal order is neither final, nor ripe for review,” and therefore, it does not qualify for consideration. In other terms, the court decided that the licensing process had to occur first before the petitioners could ask for recusal, agreeing with the NRC’s argument about a lack of jurisdiction.
Nye County lawyer Robert Anderson told RW Monitor this week that the petitioners are still considering their options moving forward, including filing for a re-hearing en banc, but cautioned it would be difficult to obtain, especially since the court did not issue any opinions on the dismissal. “We are disappointed that neither the judiciary, nor the legislative branch, nor the executive branch wants to adequately address the problem of permanent nuclear waste storage in the United States, and that’s tied to all the other decisions underway, and that’s a shame,” Anderson said. “Basically, the sum total of those decisions amounts to: ‘you have to wait and see what the decision on the merits is; then you can file to have her recused; and then if she is recused, you then have to go through the licensing proceeding again.”
Macfarlane has faced calls for her recusal from Yucca Mountain issues due to her previous academic work on the project, which Yucca supporters have argued demonstrates her bias against the proposed nuclear waste repository. In her decision to deny the recusal request, Macfarlane said her academic background on the subject could help in her decisions, rather than impede them with bias. The NRC declined to comment this week on the court’s decision.
Writ of Mandamus Petitioners Seek Attorney Fees
Meanwhile, the group that successfully petitioned the court for a writ of mandamus to compel the Nuclear Regulatory Commission to re-start the Yucca Mountain licensing review is seeking lawyer fees from the NRC, according to a motion filed this week. The petitioners, featuring the recusal petitioners as well as the state of Washington, argued that by failing to follow the Nuclear Waste Policy Act, the NRC caused the necessity for the group to accrue legal fees. “Petitioners were forced to undertake otherwise unnecessary litigation due to the recalcitrance of Respondents to perform a clear statutory duty,” the motion said. “Petitioners prevailed in the litigation, and request an award of reasonable attorneys’ fees pursuant to 28 U.S.C. § 2412.” The amount in total for each party’s lawyer fees and expenses that the motion is seeking would equal $313,449.89.
