Yucca Mountain: Legal Developments Relating to the Designated Nuclear Waste Repository

Summary

Congressional Research Service

7-5700

www.crs.gov

R44151

Summary

Passed in 1982, the Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit statutory basis for the Department of Energy (DOE) to dispose of the nation’s most highly radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository or an interim storage facility before permanent disposal. Defense-related high-level waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish an objective, scientifically based, multi-stage statutory process for selecting the eventual site of the nation’s new permanent geologic repository. Congress amended the NWPA’s site selection process in 1987, however, and designated Yucca Mountain, Nevada, as the sole candidate site for the repository by terminating site-specific activities at all other sites.

Since 2009, the Obama Administration and DOE have taken a number of steps directed toward terminating the Yucca Mountain project. First, the Administration’s budget proposals have eliminated all funding for the Yucca Mountain project. Second, the President established a Blue Ribbon Commission to consider alternative solutions to the nation’s nuclear waste challenge. Third, and most controversial, DOE attempted to terminate the Nuclear Regulatory Commission’s (NRC’s) Yucca Mountain licensing proceeding by seeking to withdraw its license application, which it had submitted in June 2008. Although DOE’s motion to withdraw the application was denied by the NRC’s Atomic Safety and Licensing Board, the NRC suspended the Yucca Mountain licensing proceeding in 2011, claiming budgetary limitations. In 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) directed the NRC to resume its review of DOE’s license application using what remained of previously appropriated funds, although it acknowledged that such funds were insufficient for the NRC to complete the proceeding.

Following the D.C. Circuit’s decision, the NRC directed its staff to complete work on the Yucca Mountain Safety Evaluation Report (SER). The last two of the five volumes of the SER were issued in January 2015. The SER concluded that DOE’s license application met regulatory requirements, except for requirements related to ownership of land and certain water rights. DOE had filed applications beginning in 1997 to the Nevada State Engineer for permanent water rights, but the State Engineer denied the applications. DOE challenged the denials in court, and that litigation has been stayed for more than a decade pending resolution of other issues relating to the future of Yucca Mountain, at least some of which have since been resolved. NRC staff has also begun work on a supplement to DOE’s environmental impact statement to address groundwater impacts, which the staff has determined necessary for any future review of DOE’s license application pursuant to the NWPA and the National Environmental Policy Act (NEPA). Meanwhile, various other related nuclear waste issues also have been, or are being, litigated, including safety standards for disposal, continued licensing of nuclear waste-generating facilities, nuclear fund fees, and the federal government’s contract liability for failure to take title to and dispose of nuclear waste.

While the result of the ongoing disputes over the Yucca Mountain program remains uncertain, congressional action could have a significant impact on the fate of the Yucca Mountain facility, as well as on the outcomes of ongoing litigation or the fallout from litigation that has concluded. Bills have been introduced that would promote either the Yucca Mountain repository or alternatives, and would modify management and storage of nuclear waste in the meantime.

Contents

Establishing a Permanent Geologic Repository for High-Level Nuclear Waste and Spent Nuclear Fuel 1

Yucca Mountain and the Obama Administration 4

Yucca Mountain Funding 4

Blue Ribbon Commission on America’s Nuclear Future 4

DOE’s Attempted Withdrawal of Its Construction Authorization License Application 6

Legal Challenges to Attempted Termination or Suspension of License Application Review Process 7

NRC Administrative Adjudications and Suspension of Licensing Proceedings 8

D.C. Circuit Litigation 9

Challenges to DOE Withdrawal and NRC Suspension: In re Aiken County 9

After Aiken County: NRC Safety Evaluation Report and Other Licensing Activities 11

NRC Order on Resumption of Licensing Process 11

Safety Evaluation Report Conclusions 12

Yucca Mountain Water Rights Legal Status 14

Background on State Water Law Framework and Permitting Procedures 14

History and Current Status of DOE Applications for Water Rights 15

Other Related Litigation 17

Challenge to Former NRC Chairman’s Involvement in the Yucca Mountain Licensing Proceedings 17

Challenges to EPA’s and NRC’s Health and Safety Regulations and DOE’s Environmental Review for the Proposed Yucca Mountain Repository 17

Challenge to NRC’s Waste Confidence Determination 20

Challenge to Nuclear Waste Fund Fee 21

Nuclear Power Utility Standard Contract Claims 23

Congressional Action on Yucca Mountain Facility and Nuclear Waste Storage and Disposal 24

Energy and Water Development and Related Agencies Appropriations 24

Blue Ribbon Commission Recommendations 25

Nuclear Waste Reduction and Storage Safety 26

Other Responses to Yucca Mountain and Nuclear Waste-Related Litigation 27

Contacts

Author Contact Information 27

Key Takeaways of This Report

Amendments in 1987 to the Nuclear Waste Policy Act (NWPA) declared Yucca Mountain, Nevada, to be the sole candidate site for a geologic repository for permanent disposal of the nation’s spent nuclear fuel and high-level nuclear waste. The 1987 amendments retained the NWPA’s requirements (1) that the site be fully characterized by the Department of Energy (DOE); (2) that certain procedures for state, tribal, and congressional participation in siting be completed; and (3) that the Nuclear Regulatory Commission (NRC) would have to approve DOE’s construction authorization application before construction of a nuclear waste repository at Yucca Mountain could begin.

In June 2008, DOE submitted to the NRC a detailed application for a license to construct the Yucca Mountain nuclear waste repository. The NWPA requires the NRC to issue a final decision approving or disapproving the issuance of a construction authorization not later than three years after the date of DOE’s submission, after a technical review by NRC’s staff and an adjudicatory hearing before the NRC’s Atomic Safety and Licensing Board (ASLB). This deadline was not met.

DOE attempted to withdraw its application in 2010, but after protracted legal battles, in 2013 a court ruled that the NWPA required the NRC to continue processing the application as long as it could, using the approximately $11 million remaining from previously appropriated funds for the task.

While the ASLB hearing remains suspended, the NRC is working on environmental analyses that are necessary for further review of DOE’s application. The NRC finished its Safety Evaluation Report in January 2015, finding that DOE’s application met the NRC’s regulations regarding safety and related topics, except that DOE lacked necessary land and water rights. The land is currently under the control of other federal agencies, among other issues, and the water rights have been denied to DOE by the state of Nevada under state water rights law. Litigation over DOE’s application for water rights for construction and operation of a repository at Yucca Mountain is still ongoing.

A number of other lawsuits relating to the Yucca Mountain repository and to nuclear waste storage and disposal are also ongoing. This litigation includes the following: challenges to the NRC’s safety regulations; challenges to the NRC’s determination to issue nuclear reactor or storage licenses, given what is argued to be a lack of progress toward a permanent nuclear waste repository; and claims by nuclear power utilities for monetary damages caused by DOE’s breach of its obligation to begin collecting and disposing of the utilities’ nuclear waste by 1998.

Nuclear power utilities’ lawsuits challenging DOE’s assessment and collection of Nuclear Waste Fund (NWF) fees concluded in 2013, and DOE ceased collection of the fees in 2014.

The Obama Administration has opposed the Yucca Mountain repository and promoted alternative approaches in other ways. DOE established the Blue Ribbon Commission on America’s Nuclear Future, which issued a report in 2012 recommending “consent-based” approaches for selection of nuclear waste disposal and interim storage sites, among other recommendations. DOE adopted most of the Commission’s recommendations in a 2013 report, but interim storage would require new authority from Congress.

Establishing a Permanent Geologic Repository for High-Level Nuclear Waste and Spent Nuclear Fuel

More than 30 years ago, Congress addressed increasing concerns regarding the management of the nation’s growing stockpile of nuclear waste by calling for the federal collection of spent nuclear fuel (SNF) and high-level nuclear waste (HLW) for safe, permanent disposal. Passed in 1982, the Nuclear Waste Policy Act (NWPA) was intended to establish an explicit statutory basis for the Department of Energy (DOE) to dispose of the nation’s most highly radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository or an interim storage facility before permanent disposal. Defense-related high-level waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish an objective, scientifically based, multi-stage statutory process for selecting the eventual site of the nation’s new permanent geologic repository. Although DOE would be responsible for developing the eventual repository and carrying out the disposal program, individual nuclear power providers would fund a large portion of the program through significant annual contributions, or fees, to the newly established Nuclear Waste Fund (NWF).

The NWPA created a multi-stage statutory framework—requiring the participation of the President, Congress, the Secretary of Energy, the Department of Energy (DOE), and the Nuclear Regulatory Commission (NRC)—that governs the establishment of a permanent geologic nuclear waste repository. The various phases of the process include site recommendation, site characterization and study, site approval, and construction authorization. At the site recommendation stage, the Secretary of Energy (Secretary) was directed to nominate at least five potentially “suitable” sites for an eventual repository. After identifying and conducting an initial study of these sites, the Secretary was to recommend three sites to the President for characterization as “candidate sites.” Pursuant to these obligations, the Secretary recommended Deaf Smith County, Texas; Hanford, Washington; and Yucca Mountain, Nevada, to the President in 1986. The Secretary’s recommendations were met with significant opposition from the affected states; however, and as a result, Congress amended the NWPA’s site selection process in 1987 and designated Yucca Mountain as the sole candidate site for the repository by terminating “all site specific activities (other than reclamation activities) at all candidate sites, other than the Yucca Mountain site.” The 1987 amendments, did not, however, end the site characterization, approval, and construction authorization phases, which continued as outlined under the original terms of the NWPA.

In accordance with the characterization stage of the NWPA framework, Yucca Mountain was extensively inspected and studied in an effort to determine if the site was in compliance with suitability guidelines established by DOE, and public health, safety, and environmental guidelines established by the Environmental Protection Agency. DOE obtained temporary (10-year) water permits from the state of Nevada for use in site characterization in 1992. In 1997, pursuant to state law and to NRC regulations requiring DOE to “have obtained such water rights as may be needed to accomplish the purpose of the geologic repository operations area” before proceeding with licensing, DOE filed five applications to the Nevada State Engineer for permanent water rights at the Yucca Mountain site for performance confirmation studies and eventual construction. The Nevada State Engineer denied DOE’s applications for permanent water rights in 2000, finding that granting the water rights would not be in the public interest. That denial was challenged in litigation, which is still ongoing fifteen years later. Meanwhile, the federal government did not meet its contractual obligation to begin accepting SNF by 1998, leading to litigation by some utilities for contract damages to cover the costs of on-site storage.

Following other significant litigation over the proper safety standards to be applied to the Yucca Mountain facility, and notwithstanding charges by the state of Nevada that the site was unsafe, Secretary of Energy Spencer Abraham recommended that the President approve the Yucca Mountain site for the development of a repository in 2002. President George W. Bush approved the Yucca Mountain site the next day, and, pursuant to the terms of the NWPA, recommended the site to Congress.

The NWPA, however, provided the state in which the proposed repository would be located with the opportunity to object to the President’s site recommendation by submitting a notice of disapproval to Congress. If a notice of disapproval were submitted, the NWPA stated that the site would be “disapproved” unless both houses of Congress overrode the state’s objection by passing a “resolution of siting approval.” Although Nevada opposed the selection of Yucca Mountain and quickly submitted its notice of disapproval, Congress passed, and the President signed, the necessary approval resolution to override Nevada’s objection. Thus, the approval stage of the NWPA process ended.

The fourth stage of the NWPA process commenced in June 2008, when DOE submitted an application for authorization to construct the Yucca Mountain nuclear waste repository (license application) to the NRC. Under the NWPA, “if the President recommends to the Congress the Yucca Mountain site ... and the site designation is permitted to take effect ... the Secretary shall submit to the [NRC] an application for a construction authorization for a repository at such site.” The statute further directed that following submission of the license application, the NRC “shall issue a final decision approving or disapproving the issuance of a construction authorization not later than the expiration of 3 years after the date of the submission of such application.” NRC’s final decision to grant or deny a construction authorization is to be made after completion of the NRC staff’s independent technical review of the license application, an adjudicatory hearing before NRC’s Atomic Safety and Licensing Board, and subsequent review by the Commissioners. The NRC was considering the 8,600 page license application when the Obama Administration began and ushered in a change in policy with respect to the suitability of Yucca Mountain as the future site of the nation’s permanent nuclear waste repository.

Yucca Mountain and the Obama Administration

President Obama, former Secretary of Energy Steven Chu, and current Secretary of Energy Ernest Moniz have stated that Yucca Mountain does not represent a viable option for the permanent storage of nuclear waste. In accordance with this view, the Administration has taken several important steps directed toward terminating the Yucca Mountain facility. First, with Congress’s cooperation, the Administration has sought to defund the Yucca Mountain project. Second, the President and former Secretary Chu established a Blue Ribbon Commission to consider alternative solutions to the nation’s nuclear waste challenge. Third, and perhaps most controversial, DOE attempted to terminate the NRC’s Yucca Mountain licensing proceeding by seeking withdrawal of its application for a construction authorization (license application) for the Yucca Mountain facility.

Yucca Mountain Funding

DOE’s recent budget proposals have not requested funding for the Yucca Mountain facility. Moreover, the Administration utilized its FY2011 budget request to recommend the closure of the Office of Civilian Radioactive Waste Management (OCRWM), which had previously been charged with administering the Yucca Mountain project and many of DOE’s obligations under the NWPA. After steady reductions in staff, the OCRWM officially closed on September 30, 2010. The recent budget proposals follow years of steady decreases in funding for the repository: from $572 million in FY2005, to $288 million in FY2009, to only enough funds, approximately $197 million, to finance the ongoing NRC licensing process in FY2010. Consistent with the Administration’s budget requests, Congress, though debating several funding proposals, has not appropriated funds for the Yucca Mountain project since the limited funding included in FY2010.

Blue Ribbon Commission on America’s Nuclear Future

Shortly before releasing the FY2011 budget proposal, the President asked DOE to establish the Blue Ribbon Commission on America’s Nuclear Future (Commission) to explore, study, and evaluate alternatives to the Yucca Mountain facility for the permanent storage of SNF and HLW. The 15-member Commission, appointed by the Secretary of Energy, consisted of distinguished scientists, academics, industry representatives, labor representatives, and former elected officials. The Commission’s goal was to “provide recommendations for developing a safe, long-term solution to managing the nation’s used nuclear fuel and nuclear waste.” The Commission would not, however, consider specific sites for a future repository.

The Commission issued its final report on January 26, 2012. As expected, the report did not make any specific recommendations as to the “suitability” of Yucca Mountain, other than to make clear that the process of selecting and establishing the Yucca Mountain facility has suffered from several flaws and should be replaced by a new “consent-based approach” that provides “incentives” and encourages interested communities to “volunteer” as a potential host site for an eventual repository. While acknowledging that “the future of the Yucca Mountain project remains uncertain,” the Commission did make specific findings that may have significant influence over the future of nuclear waste disposal. Importantly, the Commission concluded that deep geologic disposal “is the most promising and accepted method [of disposal] currently available,” and therefore recommended that the United States “should undertake an integrated nuclear waste management program that leads to the timely development of one or more permanent deep geological facilities for the safe disposal of spent fuel and high-level nuclear waste.” Additionally, the Commission concluded that “new institutional leadership for the nation’s nuclear waste program is clearly needed.” The final report therefore recommended that control over nuclear waste disposal be removed from DOE, and instead vested in a newly established “single-purpose organization” that could “provide the stability, focus, and credibility that are essential to get the waste program back on track.” The Commission found a sufficiently independent “federal corporation chartered by Congress” to be the most promising structure for this new entity. Finally, the Commission reiterated the severe consequences of continued delays and urged Congress and the President to take action to institute the Commission’s recommendations “without further delay.”

Recognizing the delays in a permanent disposal solution, the Commission also urged “[p]rompt efforts to develop one or more consolidated storage facilities” to contain SNF temporarily before final disposal. Such interim storage facilities could enable removal of SNF from shutdown reactors and could also allow the federal government to begin meeting its waste acceptance obligations sooner, reducing its liability. However, legal authority for the federal government to provide or arrange for centralized, consolidated storage is lacking under the NWPA; provisions of the NWPA addressing such storage either have expired or are tied to depository-related milestones that have not been met. Currently, nuclear reactors store spent fuel in pools or (after several years of “cooling”) dry casks on- or off-site.

DOE responded to the Commission’s recommendations in January 2013 with a new waste strategy that calls for a “consent-based” process to select nuclear waste storage and disposal sites. The strategy calls for geologic repository siting to occur by 2026, after development by the Environmental Protection Agency (EPA) of generic, non-site-specific, repository safety standards; the goal under the strategy is for repository licensing to be completed by 2042, and operations to begin by 2048. The strategy also calls for a pilot interim surface storage facility to open by 2021, and a larger consolidated interim storage facility by 2025, which would require new authority from Congress. On March 24, 2015, President Obama reiterated support for the 2013 strategy and authorized DOE to move forward with planning for a separate repository for high-level radioactive waste resulting from atomic energy defense activities. This authorization reverses the conclusion made under President Reagan in 1985 that separate disposal of defense nuclear waste was not required and that defense and civilian waste could be disposed of together in a dual-purpose repository.

DOE’s Attempted Withdrawal of Its Construction Authorization License Application

The most controversial action taken by DOE has been the agency’s effort to terminate the NRC licensing proceeding by attempting to withdraw the Yucca Mountain license application. The 8,600 page license application had been submitted in June 2008. At the time of DOE’s decision to withdraw its license application, NRC’s review of the application was proceeding on two tracks: technical review by NRC staff, to be documented in a safety evaluation report, and preliminary phases of adjudication before the NRC’s Atomic Safety and Licensing Board (Board), to resolve challenges by a number of parties to technical and legal aspects of the DOE application. The Board had admitted nearly 300 contentions, or contested issues, for adjudication.

DOE formally filed its motion seeking to withdraw the Yucca Mountain license on March 3, 2010. The agency made clear that the decision to withdraw the license application was based on “policy” considerations. Specifically, DOE asserted that scientific and technological advancements since the enactment of the NWPA, such as dry cask storage and advanced recycling, “provide an opportunity to develop better alternatives to Yucca Mountain.” The agency further asserted that it did not “intend ever to refile an application to construct a permanent geologic repository for spent nuclear fuel and high-level radioactive waste at Yucca Mountain.” As discussed in the following section, DOE’s withdrawal motion triggered strong opposition from a number of concerned parties.

Legal Challenges to Attempted Termination or Suspension of License Application Review Process

Several petitioners filed similar legal claims in two different venues immediately following DOE’s withdrawal motion. These petitioners—Washington; South Carolina; Aiken County, South Carolina; the Prairie Island Indian Community; and the National Association of Regulatory and Utility Commissioners (NARUC)—petitioned to intervene in the NRC licensing proceeding in order to stop the withdrawal. Washington, South Carolina, and Aiken County, along with a group of private plaintiffs from Washington State, also filed statutory claims in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) challenging DOE’s authority to withdraw the license application. Most of the aforementioned parties later joined claims in the D.C. Circuit challenging NRC’s authority to terminate its review of DOE’s license application.

The legal battle over the Secretary’s authority to withdraw the license application—and the NRC’s obligation to review the license application—hinges on specific statutory language within the NWPA. Section 114 outlines the process for obtaining the necessary site approval and construction authorization for a permanent repository and provides the statutory foundation for the ongoing litigation. The provision states that once the site approval procedures are completed and the site is designated, as was the case with Yucca Mountain, “the Secretary shall submit to the [NRC] an application for a construction authorization for a repository.” Upon submission of the application, the NRC “shall consider” the application “in accordance with the laws applicable to such applications, except that the [NRC] shall issue a final decision approving or disapproving the issuance of a construction authorization not later than the expiration of 3 years after the date of the submission of such application.”

NRC Administrative Adjudications and Suspension of Licensing Proceedings

At the administrative level, the Board issued a sweeping opinion in June 2010, ruling that Secretary Chu did not have the authority to withdraw the Yucca Mountain license application. In rejecting DOE’s arguments, the Board concluded that the statutory language of the NWPA “mandates progress towards a merits decision,” which DOE could not “single handedly derail” by withdrawing the license application. Beginning with the plain language of Section 114, the Board held that Congress had established a “detailed, specific procedure” that removed control of the license application process from the Secretary by creating a mandatory statutory scheme. In the Board’s view, to allow DOE to withdraw the application as a matter of policy at this stage would be contrary to Congress’s intent that the licensing process be “removed from the political process.”

One day after the Board’s decision, and before DOE filed a formal appeal, the NRC released an order inviting the parties to file briefs on whether the Commission should review the Board’s decision. However, before the NRC took further action, the NRC Chairman at the time, Gregory Jaczko, directed NRC staff to use funds appropriated under the FY2011 Continuing Appropriations Act (CR) to close down the agency’s review of the Yucca Mountain license application. In an October 4, 2010, memorandum, NRC staff were instructed to continue their Yucca Mountain activities “in accordance with” the Commission’s FY2011 budget request that had sought only $10 million to “support work related to the orderly closure of the agency’s Yucca Mountain licensing support activities.” The Chairman’s guidance was opposed by two fellow NRC commissioners as inconsistent with principles of appropriations law.

Notwithstanding the ongoing budget dispute, the NRC released an order on September 9, 2011, stating that the “Commission finds itself evenly divided on whether to take the affirmative action of overturning or upholding the Board’s decision.” Although not reaching a decision on the license withdrawal, the order, citing “budgetary limitations,” directed the Board to “complete all necessary and appropriate case management activities, including disposal of all matters currently pending before it and comprehensively documenting the full history of the adjudicatory proceeding,” by the end of the fiscal year. On September 30, 2011, the Board officially announced that “because both future appropriated [Nuclear Waste Fund] dollars and [Full-Time Equivalent positions] for this proceeding are uncertain, and consistent with the Commission’s Memorandum and order of September 9, 2011, this proceeding is suspended.” However, the Board made clear that because the Commission remained evenly divided, “the Board’s decision to deny DOE’s motion to withdraw [the license], therefore stands.”

D.C. Circuit Litigation

Challenges to DOE Withdrawal and NRC Suspension: In re Aiken County

In conjunction with opposing DOE’s motion for withdrawal at the administrative level, a number of parties also filed cases in federal court in an attempt to stop the termination of the Yucca Mountain licensing proceeding. Statutory claims filed by South Carolina, Washington, and private plaintiffs were consolidated in the D.C. Circuit. The complaints alleged violations of the NWPA, the National Environmental Policy Act and the Administrative Procedure Act—claims similar to those made before the NRC.

In a July 2011 decision entitled In re Aiken County I, the D.C. Circuit dismissed the challenges to the DOE License withdrawal as unripe. However, the court made clear that the plaintiffs may have found greater success had they challenged NRC’s obligation to review the license application, as opposed to DOE’s obligation to submit the application. The parties quickly re-filed, arguing that the NRC had no authority to terminate the licensing process. In In re Aiken County II, issued in August 2012, the court ruled that it would hold the case in abeyance until December 14, 2012, at which point the parties were directed to update the court on the status of FY2013 appropriations, giving Congress the opportunity to provide more clarity regarding the funding issue.

On August 13, 2013, in the final In re Aiken County decision, the D.C. Circuit issued a writ of mandamus ordering the NRC to resume processing DOE’s license application. The order stated that since the court’s 2012 order, “Congress has taken no further action on this matter. At this point, the Commission is simply defying a law enacted by Congress, and the Commission is doing so without any legal basis.” The court rejected NRC’s arguments that it lacked funding to complete the Yucca Mountain licensing process:

Congress often appropriates money on a step-by-step basis, especially for long-term projects. Federal agencies may not ignore statutory mandates simply because Congress has not yet appropriated all of the money necessary to complete a project.... For present purposes, the key point is this: The Commission is under a legal obligation to continue the licensing process, and it has at least $11.1 million in appropriated funds—a significant amount of money—to do so.

The court also noted that despite several years of appropriations for the Yucca Mountain licensing at or near zero, “Congress speaks through the laws it enacts. No law states that the Commission should decline to spend previously appropriated funds on the licensing process.... [C]ourts generally should not infer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of money Congress has appropriated.” The court concluded:

[O]ur decision here does not prejudge the merits of the Commission’s consideration or decision on the Department of Energy’s license application, or the Commission’s consideration or decision on any Department of Energy attempt to withdraw the license application. But unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process.

The dissent in the case argued that the court should have used its discretion “not to order the doing of a useless act.’”

Following the decision granting the writ of mandamus, the state of Nevada sought rehearing en banc, but its petition was denied. Thereafter, certain petitioners moved to recover their attorneys’ fees pursuant to the Equal Access to Justice Act; one such claim was settled and the court denied the remaining petitioners’ claims