Court Finally Rules on Yucca Mountain’s NRC License Review

By Robert L. Ferguson

Shortly after the Obama administration unlawfully terminated the Yucca Mountain Project, three Washington State citizens (Robert L. Ferguson [the author], Bill Lampson, and Gary Petersen) filed suit to hold the President and his administration accountable to the law. Similar suits filed by Aiken County, South Carolina, and the states of Washington and South Carolina; the National Association of Regulatory Utility Commissioners; and Nye County, Nevada, were combined into one lawsuit.

tour group yucca  mountainAfter a year-long wait for the D.C. Circuit Court of Appeals to rule on our lawsuit against the U.S. Nuclear Regulatory Commission for illegally stopping the Yucca Mountain license review, the court finally ruled on Tuesday, August 13, to grant us a writ of mandamus ordering the NRC to follow the law and resume the review.



Two of the judges on the three-judge panel agreed that the NRC had violated the Nuclear Waste Policy Act (NWPA) when its former chairman, Gregory Jaczko, stopped the Yucca Mountain license review at the point when it was nearly complete. Jaczko also withheld the Yucca Mountain Safety Evaluation Reports (SERs), which were due to be released to Congress and the public.

The NRC eventually delivered two volumes of the Yucca Mountain SERs to Capitol Hill, in response to a Freedom of Information Act request from The Heritage Foundation. However, any conclusions about whether or not the site would be safe for storing radioactive waste were omitted from the reports, and the executive summary was gone. The NRC said that the redactions were justified by a Freedom of Information Act exemption that excludes material that could affect a legal process.

One of the legal processes pending against the NRC was our lawsuit, which began in February 2010, and is now at an end in August 2013. It has been a long and personally expensive endeavor, but we accomplished what we set out to do—establish that the President of the United States is not above the law. The court’s ruling confirmed that U.S. laws must be followed regardless of political opinions. It’s regrettable that private citizens had to resort to litigation to compel our elected and appointed government officials to obey the law. I’ve written a book chronicling our legal battle and the politics behind it entitled The Cost of Deceit & Delay: Obama and Reid’s Scheme to Kill Yucca Wastes $Billions.



Circuit Judge Brett Kavanaugh wrote in his opinion, “This case raises significant questions about the scope of the Executive’s authority to disregard federal statutes.” He explained, “The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies to implement within statutory boundaries.” He concluded that the President and federal agencies “may not ignore statutory mandates or prohibitions merely because of policy disagreements with Congress.”  (Link to the Court’s order here.)



The NRC has $11.1 million left in an account designated for the Yucca Mountain license review. Chief Judge Merrick Garland wrote in his dissenting opinion that the lack of funds makes the court’s ruling “useless” because it amounts to “little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again.”

We disagree. The NRC testified during the court hearing that $10 million would be enough to at least publicly release the Yucca Mountain SERs. Hopefully, they won’t have to unpack too many boxes to find the un-redacted versions.

The value of disclosing to the public the results of the Department of Energy’s costly scientific evaluation of Yucca Mountain, which is located in Nevada, and the NRC’s review contained in the safety reports will settle once and for all whether or not Yucca is a suitable site for the disposal of high-level waste. If the conclusions of the NRC’s review favor licensing the site, doing so will comply with the NWPA and clear the way for building interim storage facilities for nuclear waste, whether or not construction of a repository at Yucca Mountain is authorized by Congress.

The logical next step would be for Congress to modify the NWPA to allow implementation of the Blue Ribbon Commission’s recommendations to establish consolidated storage facilities and create a new organization to manage the nuclear waste program. Congress also should amend the NWPA to allow the separation of the defense waste program from the commercial waste program, to establish a clear path for the disposal of defense waste independent of any future decisions regarding reprocessing of commercial spent fuel.

I want to congratulate and thank our legal team, with special thanks to Andy Fitz, the attorney for Washington State who presented and argued the case before the court for the entire team.

The legal team for the case number 11-1271, known as Aiken County, S.C., et al. v. NRC et al., in the U.S. Court of Appeals for the District of Columbia Circuit, from left to right: Ken Woodington, attorney for South Carolina; James Bradford Ramsey, attorney for the National Association of Regulatory Utility Commissioners (NARUC); the author Bob Ferguson; Barry Hartman, attorney for Ferguson et al.; Andy Fitz, attorney for Washington State; Robert Anderson, attorney for Nye County, NV; Tom Gottshall, attorney for Aiken County, SC; S. Ross Shealy, attorney for Aiken County, SC; and Mary Wilson, attorney for Washington State.

The legal team for the case number 11-1271, known as Aiken County, S.C., et al. v. NRC et al., in the U.S. Court of Appeals for the District of Columbia Circuit: (left to right)
Ken Woodington, attorney for South Carolina; James Bradford Ramsey, attorney for the National Association of Regulatory Utility Commissioners (NARUC); the author Bob Ferguson; Barry Hartman, attorney for Ferguson et al.; Andy Fitz, attorney for Washington State; Robert Anderson, attorney for Nye County, NV; Tom Gottshall, attorney for Aiken County, SC; S. Ross Shealy, attorney for Aiken County, SC; and Mary Wilson, attorney for Washington State.




Robert L. (Bob) Ferguson is a former Deputy Assistant Secretary for Nuclear Energy at the Department of Energy. His career in nuclear energy spans 50-plus years, much of it dealing with managing nuclear waste. His book, The Cost of Deceit & Delay: Obama and Reid’s Scheme to Kill Yucca Mountain Wastes $Billions, is available at

16 thoughts on “Court Finally Rules on Yucca Mountain’s NRC License Review

  1. Bob Ferguson

    Judge Garland was a candidate for the last appointment to the Supreme Court and is viewed as a likely appointment by this Administration if there should be a vacancy. Some informed individuals speculate that this is the reason he has been reluctant to decide against the Administration. I personally don’t know but find it strange that he recommended postponement of the decision until Dec 4, 2012 and yet when the Congress had done nothing to change the NWPA he still wrote the opinion against granting Mandamus. This record is very clear so I guess my answer is that I don’t know or understand why a Chief Judge would argue the way he did.

  2. Anatoly Blanovsky

    My name is Anatoly Blanovsky, I am a nuclear physicist who has recently sent letters to Senator Diane Feinstein and her team about our current nuclear waste situation. My stance is simple: By investing further into spent fuel storage, we are taking the short-term approach that will inevitably lead to problems in coming years. Now, a federal appeals court ordered the US Nuclear Regulatory Commission to resume its review of DOE’s application for a nuclear waste repository at the Yucca Mountain site. This results in a new longstanding dispute about nuclear waste storages but not in a long-term solution to the nuclear waste problem.
    I have in fact myself pioneered a process, in recent years working in collaboration with Purdue and Texas A&M Universities, involving a fuel cycle without uranium enrichment and plutonium isolation that will safely convert nuclear waste into a high energy density fuel. The process, based on proven light water reactor (LWR) technology, could be a part of the efforts to use depleted uranium as a major source of energy for centuries.
    The sub-critical LWR core driven by a factory-produced small module that does not need a large investment or transportation of highly radioactive material would be a major step in improving the safety and security of the nation’s energy source. The module production placement near spent fuel storages will make inexpensive fuel readily available and simplify the disposition of final waste. I am working hard to generate public support for my company’s revolutionary technology that would finally create a permanent solution to the nuclear waste problem. If anybody’s interested in more information or my contact info, you may visit

  3. Bill Rodgers

    Fantastic job Mr. Ferguson. And congratulations on winning the legal fight to push the NRC and the administration into doing what they were legally obligated to finish.

    One question I have concerns the dissenting opinion from Judge Garland. If you are able to answer, do you have any idea why he used a finanical argument in his dissension when this was a matter of interpretation of law? What would it matter to a judge if there were just $1 or $100 million left in the NRCs’ fund. The law is the law.

    Thanks again for pushing on this when many, including myself, thought this battle had been lost.

  4. Susanne E. Vandenbosch

    Thank you, Robert Ferguson, for listing all of the petitioners in Aiken County The announcement of the decision by the DC Court of Appeals lists the lawyers involved but not any of the petitioners besides Aiken County. Al Ghiorso ,co- discoverer of 12 transuranium elements once said he was the Al in et. al.

  5. Martin Bensky

    I’d add that the change from a 10,000 year requirement to a million year requirement is not simply a trivial change that doesn’t affect the basis upon which Yucca was chosen in the first place. The original selection process is no longer valid, and I hope that becomes part of the legal argument. There is no question that continuation of any aspect of Yucca site development for a repository should not be allowed. And Dan, WIPP site is a salt bed, not a dome, and I think the answer to your 2 initial questions is “Yes” in both cases.

  6. Dan Graser

    The same 1 million year standard will apply to WIPP, will it not? Will non-engineered barriers of a salt dome meet that 1 million year containment standard? So, one question is technical.

    And then, all else being equal, will it be $12 billion less costly than Yucca with an engineered barrier? That question is financial.

    The real question in my mind is whether the senate is willing to fund any of the BRC recommendations, but (concurrently/hypocritically) decline to fund the resumption of Yucca Mt. proceedings. The administration no longer has the excuse that ‘it is not politically viable’. How will the Court of Appeals will view that situation? It also makes me wonder how favorable would the Supreme Court be to entertain a review request while such a scenario is in play? Is the appeals court mandamus stayed while the Supreme court considers whether to review? Stay tuned.

  7. Martin Bensky

    Steve, though I have great respect for Abe and trust the information I get from him, I don’t get my cues on what I think is the way forward from him. My own background is good, and I get a lot of information from a local expert who makes sense in the positions he takes. When the Yucca design incorporated those titanium umbrellas and impervium overpacks to meet a weird million-year criterion, it was pretty evident, in light of the availability of a far superior site at WIPP, that fighting for completion of Yucca was a fool’s errand.

  8. Steve

    Great article, and excellent comments. Dan Graser, thanks for reminding all of us how a few politically-driven people can nearly quash a 20-year project.

    Martin, I wish you and your friend Abe would hold off on your WIPP campaign until the issue of Yucca Mountain has been resolved. You are not helping the situation.

  9. Martin Bensky

    There is no doubt that if the political and legal process for a change in direction could be expedited, the WIPP site in New Mexico is far superior to the Yucca Mountain site. Yucca Mountain was, and is, technically adequate, but the design changes incorporated in mid-stream to meet a million-year longevity criterion rather than the original 10,000-year criterion made the design vastly more expensive. WIPP has demonstrated that it can be operated safely and efficiently. The local people are totally supportive. That’s the direction to move.

  10. Dennis Mosebey

    Great job. It is a shame so much time and effort had to be taken through the courts on what was clearly illegal from the get go. You folks and the team did well.

  11. Dan Graser

    I applaud the decision, albeit too late to have prevented the total dismantling of the federal government’s infrastructure to effectively resume the Yucca Mt. proceedings. I also applaud the state’s skill and efforts in standing up for the rule of law in a matter that is of national importance to the health and safety of every other state in the union that would end up with stranded spent fuel in proximity to population centers. I disagree, however with the proposition that the Blue Ribbon Commission recommendations warrant any support for finding a volunteer location. If Yucca Mt. has shown nothing else at all, it has demonstrated, at the cost of over $10 billion and 20 years of effort, that one misguided senator, a craven president, a spineless secretary, and a political operative as chairman can subvert a federal law and walk. In the realm of volunteer locations, is the prospect going to be $10 billion/20 years per volunteer site – only to be derailed by some unscrupulous governor after the NWF coffers have been plundered? Or what about characterizing sites that will not pass the NRC safety and security requirements, which would not be known until a license application has been docketed. There are some issues of such great national importance that certain constituencies need to be discomfited. This has happened before in our history, during wartime mobilization, post-911, etc., and Washington state, Tennessee, Illinois, and South Carolina know this firsthand to be true. That some states do not always get to ‘just say no’ may be a hard truth, but it is a truth that this country fought a civil war over.

  12. Walter R Russell

    As a nuclear professional I’m pleased with this apparent victory for common sense, but be not deceived this is not a political issue. This is a matter of technical capability that over shadows any political crusade against any particular administration or the U.S Government. I look forward to the technical breakthroughs that is within this generations reach to fulfill the original plans of the Atomic Energy Commission act of 1954.

  13. Robert L. Ferguson

    Jackie-DOE’s breach of contract for not accepting utility fuel is paid for from the Justice Fund. The Justice Fund is an annual appropriation paid by taxpayers. It is estimated that by 2020 the amount will be $20.8 billion and that assumes DOE will be able to accept fuel by that time. The $0.001 per kilowatt hour utilities pay (users of nuclear power) is paid into a fund administered by Treasury and invested in U.S. bonds. The Congress must appropriate this money in order for it to be used by DOE. To date about$10 billion has been spent on Yucca-and $5 billion from the Defense Program-with about $27 additional paid in to be used for Yucca. Unless the law is changed this money must be spent to develop Yucca. The utilities pay annually approximately $800 million into this Nuclear Waste Fund. More details can be found in my book-see pages 9, 59, 62-65, 73 .

  14. Joffan

    It will interesting to see the NRC’s response to the court ruling. Hopefully they will set out what they feel they can do within the funding available and apply for the difference to Congress – presumably from the Nuclear Waste Fund, since there has been no problem spending vast amounts of that fund on experiments in Nevada.

  15. Jackie K.

    I think this is great. However, I have another question somewhat related to this and that is all the money the utilties put into Yucca Mountain is supposed to be in account the Government cannot touch. I am hopeful that given the economy that this is a true statement and that the funds are still there to either move forward on Yucca Mountain or to give back to the utilities so that another option can be explored. It is not fair that the utilities are paying for onsite storage and continue to pay for the indecision on Yucca Mountain.

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