NRC FILES MOTION FOR DISMISSAL IN MACFARLANE RECUSAL CASE

The Nuclear Regulatory Commission and NRC Chair Allison Macfarlane filed a motion this week in the Court of Appeals for the D.C. Circuit for a dismissal of the petition for her recusal from all decisions dealing with Yucca Mountain. The motion cites a lack of jurisdiction as evidence for the dismissal. “This Court lacks jurisdiction over the Petition for Review,” the motion stated. “Decisions denying recusal motions are not ‘final decisions’ under the Nuclear Waste Policy Act. Thus, the Chairman’s decision is not a “final decision” as contemplated by 42 U.S.C. § 10139(a)(1)(A). Petitioners assert that the proper recusal standard to be applied in this case is found in the judicial recusal standards at 28 U.S.C. § 455. But Petitioners cannot import judicial recusal standards without also importing the legal standards governing when recusal decisions are appealable. Simply put, judicial decisions denying recusal requests are not ‘final decisions’ within the terms of the jurisdictional statute, 28 U.S.C. § 1291,” the motion stated.

 

A group consisting of Nye County, Nev., the state of South Carolina, and Aiken County, S.C. filed a petition to appeal Macfarlane’s denial of a motion to recuse herself. 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.