Where to Put It All - Opening the Judicial Road for a Long-Term Solution to the Nation's Nuclear Waste Program

INTRODUCTION In 1983, Congress passed and the President signed into law the Nuclear Waste Policy Act (NWPA), (1) which directed the Department of Energy (DOE) to enter into contracts with generators of nuclear waste to collect that waste in return for payment of fees. (2) The DOE would use the fees to construct a permanent geologic repository for long-term storage of the nuclear waste. (3) Unfortunately for all parties involved, the government, despite collecting billions of dollars in fees, has never been able to build the repository. (4) In 1997, nuclear power plant operators asked for and received a writ of mandamus from the D.C. Circuit that barred the government from resorting to an unavoidable delays clause in its contract with the utilities that would have freed the government from liability for breach of its contracts. (5) This Note will argue that the D.C. Circuit exceeded its jurisdiction in issuing this writ and infringed on the exclusive jurisdiction of the Court of Federal Claims to interpret the federal government's contractual obligations. The writ has contributed to stifling efforts to come up with a workable long-term solution to the nation's nuclear waste problem. Part I will examine the history of the search to find a long-term storage option for nuclear waste, why efforts to build a permanent geologic repository failed, and what led to the D.C. Circuit's issuing an extraordinary writ of mandamus. Part II discusses the effects of the writ on the ongoing nuclear waste litigation in the Court of Federal Claims. Parts III and IV then discuss how the government finally decided to mount a collateral attack against the writ of mandamus and why the Court of Federal Claims correctly found the writ to be void for want of jurisdiction. Part V will address how the Federal Circuit reversed the Court of Federal Claims and reinstated the writ, which once again greatly reduced the possibilities of the interested parties working toward an effective, efficient, and long-term solution to the nation's nuclear waste problem. I. BACKGROUND: WHERE TO PUT IT ALL? Since Enrico Fermi produced the first controlled atomic chain reaction at the University of Chicago during World War Two, the federal government and the states have struggled with how to safely dispose of the waste generated from the production of nuclear power. (6) As of 2007, there were over 100 commercial nuclear reactors operating in the United States, which produced some 2,000 metric tons of waste annually. (7) In 1998, the Office of Civilian Radioactive Waste Management calculated that "commercial reactors had produced 38,400 metric tons of spent nuclear fuel and radioactive waste." (8) That same office determined that if each of the nation's licensed reactors "finishes out its 40-year license, the [amount of] waste will reach 100,000 metric tons by the year 2035." (9) Additionally, these estimates "reflect only civilian nuclear waste, and do not consider the spent fuel from defense-related activities, including nuclear weapons, research, and nuclear-powered submarines, which will account for 2,500 additional metric tons of waste needing permanent disposal." (10) With some of the waste containing materials that will be lethal for more than 200,000 years, (11) the necessity of a stable, long-term solution is obvious. A. Options Discarded Since the 1950s, the National Academy of Sciences and other agencies in the federal government have studied a number of different options for the containment, storage, and disposal of nuclear waste. (12) In 1959, Nobel Prize-winning physicist Pyotr Kapitsa of Russia proposed sending nuclear waste to outer space, and scientists in the United States discussed transporting nuclear waste on the space shuttle, an idea that lost support after the explosion of the Challenger in 1986. (13) Scientists have discussed the idea of disposing of nuclear waste at the polar ice sheets by placing it in corrosion-resistant containers and allowing it to melt through the ice down to the bedrock below. …