Nevada and the Nuclear Regulatory Commission through Thursday continued to wrangle over against a state request that a federal judge block Commissioner David Wright from participating in adjudicating the license application for the Yucca Mountain nuclear waste repository.
Lawyers for both sides in recent days filed counter-claims and counter-counter-claims in the U.S. Court of Appeals for the District of Columbia Circuit to the NRC’s Oct. 15 motion for dismissal of the state’s petition to force Wright to recuse himself from the long-frozen license review.
In its Oct. 24 response to the dismissal request, Nevada rebuffed the NRC assertion that it is covered in this case by the federal government’s sovereign legal immunity. “NRC fails to recognize that … the Administrative Procedure Act waives sovereign immunity for actions like this where no money damages are sought. NRC fails to distinguish here between sovereign immunity and jurisdiction,” according to the filing by Nevada Attorney General Adam Paul Laxalt and other attorneys representing the state.
Citing case law and Latin, NRC Solicitor Andrew Averbach and two colleagues on Thursday said Nevada was misconstruing the 1982 Nuclear Waste Policy Act to expand the waiver for sovereign immunity. “Here, Nevada’s interpretation of NWPA would expand the waiver of sovereign immunity by adding additional remedies to the statute,” they wrote. “Such an interpretation is clearly contrary to the meaning of the statutory text and would constitute an entirely new approach to challenging agency decisions – one that is not supported by an analytical framework.”
Nevada leaders have long opposed the federal government’s plans to ship tens of thousands of tons of radioactive waste for permanent disposal under Yucca Mountain, on federal land in rural Nye County. The Department of Energy license application before the NRC has been moribund for the better part of a decade, but the Trump administration has sought congressional appropriations – so far without luck – to revive the proceeding.
The state government in June asked Wright to recuse himself from the potentially resumed adjudication, just weeks after the South Carolina energy consultant was sworn into office. Nevada said he had shown himself in word and deed to be unfairly biased toward Yucca Mountain while serving on the South Carolina Public Service Commission and the National Association of Regulatory Utility Commissioners (NARUC).
Among a number of illustrations to its point, the state noted a 2010 NARUC petition, submitted by Wright, calling on the Obama administration DOE to move head with the license application before the NRC; Wright also served as co-chairman of the Yucca Mountain Task Force formed in 2005 to advocate for building and opening the federal facility.
Wright declined voluntary recusal, saying his intent was to promote permanent disposal of nuclear waste rather than any specific location. Nevada then took the case to court in August, asking the commissioner be ordered to recuse himself.
Laxalt’s team last week also fought back against the NRC’s assertion in its dismissal motion that Nevada had filed the petition too soon.
The regulator said the recusal petition should follow “final agency action,” which in this case would be an NRC ruling on the license application. But Nevada attorneys countered in their latest filing that relevant federal regulations do not mandate “finality” before the judicial review sought by the state. The D.C. Circuit has said it will on rare occasion evaluate “extraordinary prejudgment claims” before final action by a government agency, according to the state. Nevada said it believes this situation applies.
“It takes extraordinary initiative, careful deliberation, and even passion to establish a task force to lobby and advocate for particular cause,” Laxalt and his colleagues wrote. “Nevada does not judge Wright’s passion or his opinions; however, given that Wright’s view is decidedly ‘pro Yucca Mountain’ it is clear that Commissioner Wright now lacks the ability to serve as a neutral adjudicatory decision-maker, and his failure to acknowledge as much in his recusal decision illustrates that this challenge is one that should be considered both rare and extraordinary.”
Nevada concurred with the federal position that there is a legal question on the “ripeness” of the petition for Wright’s recusal, given that the NRC adjudication is suspended and may never resume unless funded by Congress. Even then, the commission might not approve the license.
But Nevada has met the criteria for judicial review in this case, it said: whether the case if strictly legal, whether review would “benefit from a more concrete setting, and whether the agency in question has taken action that is effectively final. “The Wright recusal decision is fit for judicial resolution under these criteria – the decision is purely legal, the setting is already concrete (a specific licensing proceeding), and … Nevada has exhausted administrative review of the Wright recusal decision.”
The federal agency, unsurprisingly, did not agree. Nevada’s attorneys acknowledged they would have an opportunity to appeal any disagreeable NRC decision on Yucca Mountain, undercutting the demand for immediate relief, according to the federal filing Thursday.
“Nevada all but concedes the lack of ripeness of its claims when it acknowledges that it would have an adequate means of review if a series of contingent events take place that results in a decision by which it is aggrieved,” the NRC attorneys stated. “It further acknowledges that there is no cognizable hardship associated with waiting until agency action is complete.”
