The Old Razzle Dazzle Is Not Sufficient: DOE May Not Collect a Nuclear Waste Disposal Fee If It Has No Way to Dispose of the Waste

In an opinion last week surprising only for the shortness of the shrift that the Court gave to DOE’s arguments, the DC Circuit Court of Appeals ruled that DOE may not continue to collect nuclear waste handling/disposal fees from nuclear plant operators when DOE does not have a plausible estimate of the cost to construct and operate a nuclear waste disposal site.

The Court had previously ruled that DOE had violated a statutory obligation to determine annually what the waste disposal fee should be.  It remanded, giving DOE six months to conduct a new fee assessment.  DOE did not even really try.  Instead, DOE simply concluded that it either was $2 trillion short or in fact had a $4.9 trillion surplus – a range described by the Court as:

so large as to be absolutely useless as an analytical technique to be employed to determine – as the Secretary is obligated to do – the adequacy of the annual fees paid by petitioners, which would appear to be its purpose.

Adding insult to injury, the Court then noted that:

This presentation reminds us of the lawyer’s song in the musical, “Chicago,” – “Give them the old razzle dazzle.”  The Secretary may not comply with his statutory obligation by “concluding” that a conclusion is impossible.

This case of course stems from the government’s decision to give up on the Yucca Mountain site.  The problem is that the government does not have another alternative at this point, and the Court, for obvious reasons, was unwilling to allow the government to base its cost estimate on an approach that it has itself rejected.  As the Court concluded:

Until the Department comes to some conclusion as to how nuclear wastes are to be deposited permanently, it seems quite unfair to force petitioners to pay fees for a hypothetical option, the costs of which might well – the government apparently has no idea – be already covered.

The bottom line – no fee may be imposed until DOE actually comes up with a plan, estimates how much it will cost, and determines what fee is necessary to fund that cost.  Doesn’t actually seem too unreasonable, does it?

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