United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2013 Decided November 19, 2013

No. 11-1066

NATIONAL ASSOCIATION OF REGULATORY UTILITY

COMMISSIONERS,

PETITIONER

v.

UNITED STATES DEPARTMENT OF ENERGY,

RESPONDENT

Consolidated with 11-1068

On Petitions for Review of Final Actions or 

Failures to Act by the United States Department of Energy

Jay E. Silberg argued the cause for petitioner. With him on

the briefs were Timothy J.V. Walsh, James Bradford Ramsay,

Holly Rachel Smith, and Anne W. Cottingham. 

Joseph A. McGlothlin, Cynthia B. Miller, and Richard C.

Bellak were on the brief for amici curiae Florida Public Service

Commission, et al., in support of petitioners.

Allison Kidd-Miller, Senior Trial Counsel, U.S. Department

of Justice, argued the cause for respondent. With her on the brief
2

were Stuart F. Delery, Acting Assistant Attorney General, and

Jeanne E. Davidson, Director. 

Before: BROWN, Circuit Judge, and SILBERMAN and

SENTELLE, Senior Circuit Judges. 

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Petitioners, a group of

nuclear power plant operators, appear again before us to claim,

essentially, that so long as the government has no viable

alternative to Yucca Mountain as a depository for nuclear waste

they should not be charged an annual fee to cover the cost of

that disposal. We agree.

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). 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,
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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. See Pub. Citizen v. Fed. Motor

Carrier Safety, 374 F.3d 1209, 1221 (D.C. Cir. 2004)

(“[R]egulation would be at an end if uncertainty alone were an

excuse to ignore a congressional command to ‘deal with’ a
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particular regulatory issue.”); Consolidated Edison Co. of N.Y.,

v. U.S. Dep’t of Energy, 870 F.2d 694, 698 (D.C. Cir. 1989).

The Secretary’s position – his “non determination” – is

purportedly predicated on a Departmental report issued in 2011

termed a “Strategy for the Management and Disposal of Used

Nuclear Fuel and High-Level Radioactive Waste.” Even if that

so-called strategy led to a statutorily required determination, it

would still be problematic because, as petitioners point out, the

strategy is based on assumptions directly contrary to law.

Most glaring is the conflict between the statutory

requirement that sites other than Yucca Mountain cannot even

be considered as an alternative to Yucca Mountain, 42 U.S.C. §

10172, and the “strategy’s” assumption that whatever site is

chosen, it will not be Yucca Mountain. The other conflicts are

related to this prime conflict. The “strategy” suggests that a

temporary storage facility might be operational by 2025 and that

the temporary facility could be constructed without NRC first

issuing a license for the construction of a permanent facility. 

But the statute requires that precondition. The statute is

obviously designed to prevent the Department from delaying the

construction of Yucca Mountain as the permanent facility while

using temporary facilities. 42 U.S.C. § 10168(d)(1). Finally –

and this is quite revealing – the strategy assumes that the

Department would be required to obtain the consent of the

jurisdiction where the permanent depository is to be sited. That

is, of course, reflective of the political considerations the

Department faces but, unfortunately, it is directly contrary to the

statute, which explicitly allows Congress to override a host

state’s disapproval. 42 U.S.C. § 10135; accord In re Aiken

Cnty., 725 F.3d 255, 260 (D.C. Cir. 2013) (“[A]n agency may

not rely on political guesswork about future congressional

appropriations as a basis for violating existing legal mandates.”).

Finally, the strategy projects completion of a permanent
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depository (located somewhere) not until 2048, in contrast to the

statute, which directed completion by 1998. 42 U.S.C. §

10222(a)(5)(B). That is truly “pie in the sky.”

In response to petitioners’ argument – that a position

predicated on a policy that so palpably rejects current law cannot

be in accordance with the Secretary’s obligation, even if it does

lead to a specific determination – the government responds that

some of the Secretary’s previous determinations had also

assumed statutory changes. That is so, but even assuming those

prior determinations were legal, it is one thing to anticipate

minor statutory additions to fill gaps, and quite another to

proceed on the premise of a wholesale reversal of a statutory

scheme. The latter is flatly unreasonable.

The government claims it is put in a catch-22 position

because our prior opinion said it was unreasonable for the

Department to use Yucca Mountain as a proxy to estimate

disposal costs, and petitioners now argue that the government

cannot assume a hypothetical non-Yucca Mountain depository.

But the government’s problem is of its own making. It certainly

could have used Yucca Mountain’s costs if it were still pursuing

that site, but it cannot have it both ways. It cannot renounce

Yucca Mountain and then reasonably use its costs as a proxy.

The government was hoist on its own petard. And it does not

follow that the corollary to our previous opinion is that the

government can now use non-Yucca Mountain assumptions that

are contrary to the statutory scheme.

In our last opinion we noted accounting defects in the

Secretary’s prior determination that have now been remedied.

Specifically, the Department now takes into account the interest

accruing on the enormous sums that have already been paid. The

Department deducts costs already expended and excludes costs

for disposal of defense-related waste for which petitioners are
6

not responsible. But these are truly peripheral issues; the key

defect in the government’s position is that the Secretary still

declines to carry out his basic statutory obligation. 

* * * *

The government asks us, if we conclude the Department’s

latest position is contrary to law, to, once again, remand rather

than order the Secretary to suspend the fee. But the Secretary’s

position is so obviously disingenuous that we have no

confidence that another remand would serve any purpose. As we

noted, we are not unaware of the political dilemma in which the

Department is placed. But until the Department comes to some

conclusion as to how nuclear wastes are to be deposited

permanently,1

 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.

To be sure, as the government contends, if the present fee

is suspended, that could mean that the costs of nuclear waste

disposal would be transferred to future rate payers. But that

possibility is inherent in the statutory scheme which obliges the

Secretary to make the annual fee determination.

“Intergenerational equity” is implicated any time the fee is

adjusted.

Finally, the government argues that we should not order the

fee set to zero because petitioners are already being

compensated for the government’s breach of its statutory and

contractual duty to dispose of existing waste, through breach of

contract suits in the Court of Federal Claims. The generators are

1

 It may be that the Secretary simply cannot imagine any permanent

depository other than Yucca Mountain, but if that is true the

implications are obvious.
7

currently storing their waste at the generation facilities, and the

government is compensating them for the cost of this storage.

But the government’s failure to dispose of prior wastes on

schedule is not the legal wrong that we are remedying, and we

do not base our decision on principles of contract. The issue

here, rather, is the government’s failure to conduct an adequate

present fee assessment, as required by the statute. Our ruling

here does not provide petitioners with any form of

compensation, nor does it relieve them of their obligation to

ultimately pay for the cost of their waste disposal. When the

Secretary is again able to conduct a sufficient assessment, either

because the Yucca Mountain project is revived, or because

Congress enacts an alternative plan, then payments will resume

(assuming that some future determination concludes that further

fees are necessary).

III.

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.