The Nuclear Regulatory Commission (“NRC”), a five-member so-called “independent agency” comprised of five members appointed for five-year terms by the President, was recently dealt a significant blow by the U.S. Court of Appeals for the D.C. Circuit in the case In re Aiken County, et al., No. 11-1271 (Aug. 13, 2012). Concluding that the NRC “has continued to violate the law governing the Yucca Mountain licensing process,” the Court of Appeals granted a petition for a writ of mandamus and ordered the Commission to resume its currently-shelved review of the Department of Energy’s pending license application related to the storage of nuclear waste at Yucca Mountain in Nevada.
The case was brought in 2010 by the States of South Carolina and Washington, and entities and individuals in those States, where nuclear waste is currently stored in the absence of a long-term storage facility such as Yucca Mountain. In 2011, a prior panel of the Court of Appeals, noting that Congress had appropriated and the NRC held at least $11.1 million in appropriated funds to continue the review of the license application, declined to issue a writ of mandamus but held that if the NRC failed to act within the guidelines set by the Nuclear Waste Policy Act of 1983, mandamus would likely be appropriate. That Act requires the NRC to issue a final decision regarding a DOE license application within three years of its submission. See 42 U.S.C. § 1034(d). In 2012, a new mandamus petition was filed but was held in abeyance pending the results of the Fiscal Year 2013 appropriations by Congress, as the NRC “strenuous[ly]” claimed “that Congress did not want the licensing process to continue.”
In Aiken, in an opinion by Judge Kavanaugh, joined in part by Judge Randolph, the Court of Appeals concluded that the statutory deadline “has long since passed” without a decision by the NRC. “Indeed,” the Court continued, “by its own admission, the Commission has no current intention of complying with the law. Rather, the Commission has simply shut down its review and consideration of the Department of Energy’s license application.” Moreover, Congress had taken no action with respect to the NRC’s review of the licensing application, “either terminating the Commission’s licensing process or otherwise making clear that the Commission may not expend funds on the licensing process.” Consequently, the Court of Appeals held, “[a]s things stand . . . the Commission is simply flouting the law.” “In light of the constitutional respect owed to Congress,” the Court of Appeals continued, “and having fully exhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory Commission.”
The Court of Appeals began its analysis by noting certain “bedrock principles of constitutional law,” namely, that under Article II and Supreme Court precedents, “the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute.” Mere policy objections are insufficient to excuse the President from following the law. “[A]bsent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.” Noting that these “principles apply to the President and subordinate executive agencies,” the Court of Appeals held that “they apply at least as much to independent agencies such as the Nuclear Regulatory Commission.” In this case, it was clear that “the Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process.”
The Court of Appeals rejected the NRC’s purported justifications for failing to follow the statute. First, the NRC claimed that “Congress has not yet appropriated the full amount necessary for the Commission to complete the licensing proceeding.” Yet, the Court of Appeals noted, Congress often appropriates funds on a step-by-step basis, especially for long term projects. Hence, “[f]ederal agencies may not ignore statutory mandates simply because Congress has not yet appropriated all of the money necessary to complete a project.”
Second, the NRC speculated that Congress would not appropriate additional funds in the future, so it would be a waste to continue the process now. The Court of Appeals rejected this argument, holding that the “Commission’s political prognostication may or may not ultimately prove to be correct.” Moreover, the Court continued,
an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates. A judicial green light for such a step—allowing agencies to ignore statutory mandates and prohibitions based on agency speculation about future congressional action—would gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive’s power at the expense of Congress.
Third, the NRC pointed out that Congress’s appropriations in the recent three years had been low or zero, allegedly demonstrating a congressional desire for the NRC to shut down the licensing process. Rejecting this argument, the Court of Appeals held that “Congress speaks through the laws it enacts. No law states that the Commission should decline to spend previously appropriated funds on the licensing process. No law states that the Commission should shut down the licensing process.” Additionally,
the fact that Congress hasn’t made additional appropriations over the $11.1 million available to the Commission to continue the licensing process tells us nothing definitive about what a future Congress may do. As the Supreme Court has explained, courts generally should not infer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of money Congress has appropriated.
Finally, the Court of Appeals noted that “the record suggests that the Commission, as a policy matter, simply may not want to pursue Yucca Mountain as a possible site for storage of nuclear waste.” The Court rejected this position, noting that “Congress sets the policy, not the Commission. And policy disagreement with Congress’s decision about nuclear waste storage is not a lawful ground for the Commission to decline to continue the congressionally mandated licensing process.”
Section III of the Court of Appeals’ opinion was joined only by its author, Judge Kavanaugh. In section III, Judge Kavanaugh elaborated and expanded on the history and scope of the authority of the Executive to independently assess, and refuse to comply, with a statute the President believes is unconstitutional. Section III also discusses and distinguishes the doctrine of prosecutorial discretion and the holding of the majority in Aiken. The difference between prosecutorial discretion and the rule applied in Aiken, according to Judge Kavanaugh, is that “prosecutorial discretion encompasses the discretion not to enforce a law against private parties; it does not encompass the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch.” In his concurrence, Judge Randolph explained his refusal to join this portion of the opinion because he believed it was “unnecessary to decide the case.”
Chief Judge Garland dissented, arguing that the Court of Appeals had ordered the NRC to perform a “useless thing,” given Congress’s failure to appropriate any funds for two years for the licensing review program. According to Chief Judge Garland, and the NRC, the $11.1 million “is wholly insufficient to complete the processing of the application.” The NRC had already “shuttered” the program, and it would take a “significant part” of the $11.1 million simply to retrieve documents from storage, restart the computer system, and “get the process started again.” “In short,” Judge Garland stated, “given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again. This exercise will do nothing to safeguard the separation of powers . . . . “