Opinion

Yucca Mountain ruling feels like victory of sorts

We're taking the latest court ruling on the proposed nuclear waste repository at Yucca Mountain, Nev., as a victory for the rule of law.

Sort of.

Our optimism comes despite a baffling part of the District of Columbia Circuit U.S. Court of Appeals' recent opinion that delays its decision until after the general election.

The three-judge panel is considering lawsuits filed by seven parties, including Washington state and a group of three Tri-City business leaders -- Bill Lampson, Bob Ferguson and Gary Petersen.

The lawsuits allege that the Obama administration's decision to dismantle the high-level nuclear waste storage project at Yucca Mountain was illegal.

It's tough to come to any other conclusion, and the judges seem to side with the plaintiffs.

From the sidelines, the case appears unambiguous -- the administration overstepped its authority.

In 2002, Congress passed the Nuclear Waste Policy Act, designating Yucca Mountain as the nation's repository for deep geological disposal of used commercial nuclear fuel and Department of Energy weapons waste.

That stockpile includes Hanford's irradiated fuel and its high-level radioactive waste once it is treated for disposal at the vitrification plant under construction.

In 2008, the Department of Energy took the next step in the plan outlined by Congress and filed an application with Nuclear Regulatory Commission for a license to build the repository.

Then, in January 2010, the Obama administration announced it would withdraw the application despite the congressional mandate.

Critics, us included, cried foul. The president can't simply ignore the law because he finds it politically expedient to do so.

At least two of the judges appear to recognize that the NRC is obligated under the Nuclear Waste Policy Act to move forward with the licensing process, despite the president's objections to Yucca Mountain.

And one judge expressed doubts about the decision to wait until Dec. 14, just in case Congress decides to change the law.

"Here, the Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward," Judge Arthur Raymond Randolph wrote in a dissenting opinion.

There is no reason to delay ordering the NRC "to correct this transparent violation of the law," he added.

Randolph has it right. The principle -- delaying judicial action because legislation might alter the rules -- would seem ridiculous applied to any other law.

But December will be here soon enough, and Congress isn't going to reopen a political hot potato like nuclear waste disposal in the meantime -- not in the middle of an election season.

All signs indicate the court will force the Obama administration to comply with the law. The sooner the better.

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