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In re Aiken County

ELR Citation: 43 ELR 20190
Nos. 1101271, (D.C. Cir., 08/13/2013)

The D.C. Circuit ordered NRC to resume processing of DOE's pending license application to store nuclear waste at Yucca Mountain. The Nuclear Waste Policy Act requires NRC to issue a final decision approving or disapproving the application within three years of its submission. DOE submitted its application in 2008, but NRC has yet to issue its decision. Although NRC has at least $11.1 million in appropriated funds to continue its consideration of the application, it has shut down its review and consideration of the application and admitted that is has no current intention to comply with the law. The court rejected the argument that the Executive's power of prosecutorial discretion provides support for NRC's inaction and disregard of federal law. This case does not involve an NRC decision not to prosecute violations of federal law. Rather, this case involves an NRC decision not to follow a law mandating that NRC take certain non-prosecutorial action. The court therefore held that unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, NRC must promptly continue with the legally mandated licensing process.