The U.S. Fifth Circuit Court of Appeals on June 1 dismissed a lawsuit filed by the state of Texas demanding that the federal government complete licensing proceedings on the long-planned radioactive waste disposal site at Yucca Mountain, Nev.
Writing for a three-judge panel, Judge Patrick Higginbotham said Texas had failed to submit its claim in a timely fashion and had not persuasively argued a “continuing violations” case to support the lawsuit.
“We hold that Texas’s claims do not satisfy the statutory requirements of timeliness or finality, and we therefore must dismiss them,” Higginbotham wrote.
The court specifically ruled in favor of a dismissal motion from the Nevada Attorney General’s Office, one of several entities that had joined the case in opposition to Texas’ lawsuit.
“Today’s decision comes after many hard fought legal efforts to protect Nevadans from the poster-child for federal overreach – a cram down of a nuclear waste repository at Yucca Mountain,” Nevada Attorney General Adam Paul Laxalt said in a prepared statement. “This victory proves Nevada is unified in its fight.”
The Texas Attorney General’s Office said only that it disagrees with the court ruling and is studying “next legal steps in the case.” The office did not respond to several follow-up questions regarding its plans.
“We don’t think Texas will appeal. If they do, we’re ready to give them more,” Robert Halstead, executive director of the Nevada Agency on Nuclear Projects, told RadWaste Monitor on Monday. The Fifth Circuit’s decision, particularly on the issue of continuing violations, was so definitive as to deter appeal, he added.
Texas filed the lawsuit in March 2017, claiming it had been harmed by the federal government’s failure to start placing radioactive waste into permanent disposal by the Jan. 31, 1998, set by the 1982 Nuclear Waste Policy Act. Congress in 1987 designated Yucca Mountain as the disposal location for domestic stockpiles of spent nuclear fuel and high-level radioactive waste, but the project has made little progress and remains hotly disputed in Congress and opposed by Nevada.
The Energy Department in 2008 filed its license application for Yucca Mountain with the Nuclear Regulatory Commission, with an up or down vote required under law within four years. However, most licensing work effectively stopped two years later as the Obama administration declared Yucca Mountain unworkable and sought another disposal route for the waste. Following a blue-ribbon panel study, the Obama DOE pursued a “consent-based” approach that required local accession for siting nuclear waste disposal. But that also fell by the wayside as the Trump administration refocused on Yucca Mountain.
Meanwhile, Texas as of 2016 had provided $1.5 billion, via utility payments and interest, into the Nuclear Waste Fund, the federal account intended to pay for the waste repository, according to the lawsuit. The state’s two nuclear plants also remained stuck with about 2,600 metric tons of spent fuel.
Defendants in the state lawsuit included Energy Secretary (and former Texas governor) Rick Perry; Nuclear Regulatory Commission Chairman Kristine Svinicki; Treasury Secretary Steven Mnuchin; and their respective agencies. Nevada, the Nuclear Energy Institute, and several utilities filed to intervene in the lawsuit on behalf of the defendants.
Highlighting the multiple breached deadlines in the waste disposal proceeding, Texas demanded 24 separate measures of relief from the court, notably: that DOE and the NRC resume and complete the licensing process for the Yucca Mountain repository; and that further consent-based siting efforts for other potential repository locations be prohibited.
The Fifth Circuit, though, noted that the Nuclear Waste Policy Act allowed only 180 days for civil action “after the date of the decision or action or failure to act involved.” If a party could show it was not aware of the decision or action, it could get another 180 days from the date at which it “acquired actual or constructive knowledge of such decision, action, or failure to act.”
“And of course, the actions and omissions that Texas challenges came and went years ago,” Higginbotham wrote.
Texas also sought to apply the “continuing violations doctrine” to its situation, effectively arguing that the ongoing harm extends the statute of limitations for its complaint. In an extended discussion of the argument, the Fifth Circuit judges made clear they were not persuaded: “By its plain language, the [Nuclear Waste Policy Act] treats failures to act as subject to its deadline. And by its plain language, the Waste Act speaks of failures to act as discrete events, not as ongoing, durational conditions.”
