Strike Three: U.S. Court Orders Moniz to Zero-Out Nuclear Waste Fee

[FBaggins]

http://www.cadc.uscourts.gov/internet/opinions.nsf/2708C01ECFE3109F85257C280053406E/$file/11-1066-1466796.pdf

You don't often get to see court decisions with language quite as entertaining as (bold):

I
Last year we decided that the Secretary of Energy had not complied with his statutory obligation to determine annually the adequacy of the fee petitioners pay to the government. Nat'l Ass'n of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, 680 F.3d 819 (D.C. Cir. 2012), reh'g denied (July 2, 2012). We rejected the government’s argument that the Secretary was not obliged to determine the fee’s adequacy unless someone (a "deus ex machina”?) brought to the Secretary evidence that the fee was excessive or inadequate. Id. at 824. We held that the Secretary had an affirmative obligation to examine the facts himself and come to a determination as to the adequacy of the fee.

We noted also that the Department of Energy’s opinion had abandoned, without explanation, its previous policy of producing sophisticated analyses of potential costs. It had ignored the enormous amount of interest – $1.3 billion – accruing annually in the fund built up by previous assessments, and it had not excluded costs already paid and costs associated with the disposition of defense-related waste for which the generators are not responsible. And we thought that using Yucca Mountain’s depository cost as a proxy was unreasonable because the government had abandoned that program. But the key defect in the government’s position was its failure to make the statutorily required determination as to whether the fee was adequate. We remanded to the Secretary with instructions to conduct a new fee assessment within six months; the panel retained jurisdiction to expedite any further review.

II
On remand the Department has again declined to reach the statutorily required determination. Instead, we are presented with an opinion of the Secretary that sets forth an enormous range of possible costs. According to the Secretary, the final balance of the fund to be used to pay the costs of disposal could be somewhere between a $2 trillion deficit and a $4.9 trillion surplus. This range is 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. (This presentation reminds us of the lawyer’s song in the musical, “Chicago,” – “Give them the old razzle dazzle.”) Thus, the Secretary claims that the range is so great he cannot determine whether the fees are inadequate or excessive, which is essentially the same position we rejected only last year as in derogation of his responsibility under the statute. The Secretary may not comply with his statutory obligation by “concluding” that a conclusion is impossible.

Also - "The government was hoist on its own petard" "That is truly 'pie in the sky'" and "the Secretary’s
position is so obviously disingenuous that we have noconfidence that another remand would serve any purpose"

There there's the meat of the decision:

Because the Secretary is apparently unable to conduct a legally adequate fee assessment, the Secretary is ordered to submit to Congress a proposal to change the fee to zero until such a time as either the Secretary chooses to comply with the Act as it is currently written, or until Congress enacts an alternative waste management plan. So ordered.

An early reaction:

NARUC: Court Decision Zeroing Out Nuclear-Waste Fund 'Great News' For Consumers

WASHINGTON—The National Association of Regulatory Utility Commissioners issued the following statement after the U.S. Court of Appeals for the District of Columbia Circuit granted our request that the Department of Energy suspend collection of the Nuclear Waste Fund fees:

“Today’s decision from the court is great news for consumers of nuclear power. Nuclear utilities and their consumers have paid more than $30 billion since the early 1980s for the construction of a nuclear-waste repository. These consumers have upheld their end of the deal, but unfortunately all they have to show for their investment is a hole in the Nevada desert. Putting aside the political dispute about the proposed Yucca Mountain facility, nuclear-power ratepayers should not be charged for a program the federal government has closed down. Thankfully, because of today’s actions, nuclear-power consumers will no longer have to pay for the government’s mishandling of this program.”

--NARUC Executive Director Charles Gray

http://www.naruc.org/News/default.cfm?pr=401

[intaglio]

1. So not only does the nuclear industry attract a subsidy

They also are nor required to cover the costs of clean-up ...

... seems like a power companies wet dream not an effective or equitable judgment.

[FBaggins]

2. Nope.

Ignoring allusions to fancifull notions of what constitutes a "subsidy"... the main allegation is simply false.

They are of course required to cover the costs of clean-up. They just aren't required to pay the costs of government services that are not provided... particularly when the government violates the law.

[bananas]

3. Clearly an unbiased opinion. Thanks, Reagan! :sarcasm:

BROWN, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges

http://en.wikipedia.org/wiki/Janice_Rogers_Brown

President George W. Bush nominated her to her current position in 2003. However, her nomination was stalled in the U.S. Senate for almost two years because of Democratic opposition. ...

In a speech to the Federalist Society, Brown called the group a "rare bastion (nay beacon) of conservative and libertarian thought" and that the "latter notion made your invitation well-nigh irresistible."[18]

In the same speech, she gave hints of her philosophical foundations. She described private property as "the guardian of every other right". Later in her speech she described collectivism as "slavery to the tribe" and that government was a "leviathan [that] will continue to lumber along, picking up ballast and momentum, crushing everything in its path".[18]

http://en.wikipedia.org/wiki/Laurence_H._Silberman

"This was 1980. ... I had come back from San Francisco for a meeting of the foreign policy advisors for the Reagan campaign. I was co-chairman of his foreign policy advisors."

http://en.wikipedia.org/wiki/David_B._Sentelle

On February 2, 1987, Reagan nominated Sentelle to a position on the United States Court of Appeals for the District of Columbia Circuit to replace Antonin Scalia. ...

On the D.C. Circuit, Sentelle, along with Judge Laurence Silberman, voted to overturn the convictions of Oliver North and John Poindexter. He also served on the Special Division of the Court which appointed Kenneth Starr under the renewed Independent Counsel statute, replacing Robert B. Fiske, who had been appointed by Attorney General Janet Reno to investigate the allegations against President Bill Clinton with respect to the Whitewater Affair.

In 2007, in Boumediene v. Bush, 375 U.S. App. D.C. 48, Judge Sentelle concurred with Judge Arthur Raymond Randolph, relying on Johnson v. Eisentrager, to uphold the Military Commissions Act of 2006's suspension of habeas corpus for enemy combatants as constitutional. Judge Judith Ann Wilson Rogers dissented. That decision was reversed by the U.S. Supreme Court.

[FBaggins]

4. The law was crystal clear in this case

Even republican appointees could get it right.