Almost 30 years ago, Congress addressed increasing concerns regarding the management of the nation's growing stockpile of nuclear waste by calling for the federal collection of spent nuclear fuel (SNF) and high-level nuclear waste (HLW) for safe, permanent disposal. Passed in 1982, the Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit statutory basis for the Department of Energy (DOE) to dispose of the nation's most highly radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository or an interim storage facility before permanent disposal. Defense-related high-level waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish an objective, scientifically based multi-stage statutory process for selecting the eventual site of the nation's new permanent geologic repository. Although DOE would be responsible for developing the eventual repository and carrying out the disposal program, individual nuclear power providers would fund a large portion of the program through significant annual contributions, or fees, to the newly established Nuclear Waste Fund (NWF). The NWPA created a multi-stage statutory framework—requiring the participation of the President, Congress, the Secretary of Energy, the Department of Energy (DOE), and the Nuclear Regulatory Commission (NRC)—that governs the establishment of a permanent geologic nuclear waste repository. The various phases of the process include site recommendation, site characterization and study, site approval, and construction authorization. At the site recommendation stage, the Secretary of Energy (Secretary) was directed to nominate at least five potentially "suitable" sites for an eventual repository. After identifying and conducting an initial study of these sites, the Secretary was to recommend three sites to the President for characterization as "candidate sites." Pursuant to these obligations, the Secretary recommended Deaf Smith County, Texas; Hanford, Washington, and Yucca Mountain, Nevada, to the President in 1986. The Secretary's recommendations were met with significant opposition from the affected states; however, and as a result, Congress amended the NWPA's site selection process in 1987 and designated Yucca Mountain as the sole candidate site for the repository by terminating "all site specific activities (other than reclamation activities) at all candidate sites, other than the Yucca Mountain site." The 1987 amendments, did not, however, end the site characterization, approval, and construction authorization phases, which continued as outlined under the original terms of the NWPA. In accordance with the characterization stage of the NWPA framework, Yucca Mountain was extensively inspected and studied in an effort to determine if the site was in compliance with suitability guidelines established by DOE, and public health, safety, and environmental guidelines established by the Environmental Protection Agency. Following significant litigation over the proper safety standards to be applied to the Yucca Mountain facility, and notwithstanding charges by the state of Nevada that the site was unsafe, Secretary of Energy Spencer Abraham recommended that the President approve the Yucca Mountain site for the development of a repository in 2002. President George W. Bush approved the Yucca Mountain site the next day, and, pursuant to the terms of the NWPA, recommended the site to Congress. The NWPA, however, provided the state in which the proposed repository would be located with the opportunity to object to the President's site recommendation by submitting a notice of disapproval to Congress. If a notice of disapproval were submitted, the NWPA stated that the site would be "disapproved" unless both houses of Congress overrode the state's objection by passing a "resolution of siting approval." Although Nevada opposed the selection of Yucca Mountain and quickly submitted its notice of disapproval, Congress passed, and the President signed, the necessary approval resolution to override Nevada's objection. Thus, the approval stage of the NWPA process ended. The fourth stage of the NWPA process commenced in June 2008 when DOE submitted an application for authorization to construct the Yucca Mountain nuclear waste repository (license application) to the NRC. Under the NWPA, "if the President recommends to the Congress the Yucca Mountain site … and the site designation is permitted to take effect … the Secretary shall submit to the [NRC] an application for a construction authorization for a repository at such site." The statute further directed that following submission of the license application, the NRC "shall issue a final decision approving or disapproving the issuance of a construction authorization not later than the expiration of 3 years after the date of the submission of such application." The NRC was considering the 8,600 page license application when the new Obama Administration ushered in a change in policy with respect to the suitability of Yucca Mountain as the future site of the nation's permanent nuclear waste repository. Both President Obama and Secretary of Energy Steven Chu have stated that Yucca Mountain does not represent a viable option for the permanent storage of nuclear waste. During the 2008 presidential campaign, then-Senator Obama supported Nevada's fight against the repository, asserting in an issue statement on energy policy that he did not believe Yucca Mountain was a "suitable site." In accordance with this view, during his first year in office the Administration requested, and Congress appropriated, only enough funds in FY2010 to continue the NRC license proceeding while halting any design or development progress on the actual repository. During his second year in office, the President, in conjunction with DOE, took three important steps directed toward terminating the Yucca Mountain facility. First, the Administration's FY2011 budget proposal eliminated all funding for the Yucca Mountain project. Second, the President and Secretary Chu established a Blue Ribbon Commission to consider alternative solutions to the nation's nuclear waste challenge. Third, and most controversially, DOE attempted to terminate the NRC's Yucca Mountain licensing proceeding by seeking to withdraw the license application for the Yucca Mountain facility. Following years of decreases in program funding going back to the George W. Bush Administration, the Obama Administration and Secretary Chu have resolved to completely defund and terminate the Yucca Mountain program while developing nuclear waste disposal alternatives. DOE's FY2011, FY2012, and FY2013 budget proposals requested no funding for the Yucca Mountain facility. The consecutive budget proposals follow years of steady decreases in funding for the repository: from $572 million in FY2005, to $288 million in FY2009, to only enough funds, approximately $197 million, to finance the ongoing NRC licensing process in FY2010. The FY2011 DOE budget request was met with some resistance from both House and Senate appropriators. Senator Patty Murray offered an amendment during the Senate Committee on Appropriations' consideration of the Energy and Water Appropriations bill that would have restored funding to the repository. Similarly, the ranking Member of the House Appropriations Subcommittee on Energy and Water Development, Representative Rodney Frelinghuysen, offered an amendment that would have restored $100 million in funding for the Yucca Mountain facility. Both proposals were rejected in committee. Although there was no final action on a full FY2011 budget, Congress passed a series of continuing resolutions that extended appropriations across the federal government "at a rate for operations as provided in the applicable appropriations Acts for fiscal year 2010 and under the authority and conditions provided in such Acts." The final extension, the Department of Defense and Full-Year Continuing Appropriations Act, followed the DOE proposal and provided no funding for the Yucca Mountain program. In addition to defunding the Yucca Mountain project, the President's FY2011 budget request recommended closing the Office of Civilian Radioactive Waste Management (OCRWM), which had previously been charged with administering the Yucca Mountain project and many of DOE's obligations under the NWPA. After steady reductions in staff the OCRWM officially closed on September 30, 2010. Pursuant to the President's budget proposal, the administration of the NWF and responsibility for DOE's ongoing obligations under the Standard Contract and NWPA have been shifted to the Office of Nuclear Energy. At least two Members of Congress have expressed concern over the legality of the Administration's decision to eliminate the statutorily established OCRWM, which was specifically created by the NWPA for the purpose of "carrying out the functions of the Secretary" under the act. In response to these concerns, DOE has suggested that the 1977 Department of Energy Organization Act grants the Secretary of Energy "broad authority to create, eliminate, and merge organizations" within DOE. Generally speaking, Congress has the authority to structure the administrative bureaucracy. Thus, absent specific statutory authority, agencies have limited legal power to direct how statutorily defined functions and powers of agencies are to be utilized, allocated, or abandoned. In this instance, the Secretary of Energy has been granted statutory authority to "establish, alter, consolidate or discontinue, such organizational units or components within the Department as he may deem to be necessary or appropriate." The Administration's proposal—which Congress, through its appropriation power, is free to either follow or disregard—is to "terminate" the OCRWM and transfer the office's responsibilities to the Office of Nuclear Energy. Given the Secretary's statutorily granted authority, it is likely that such a transfer would be a valid consolidation of DOE offices. However, any statutory duties or obligations that were placed in OCRWM must continue to be carried out by the Office of Nuclear Energy. Like the FY2011 budget proposal, DOE's FY2012 budget proposal again requested no funding for the Yucca Mountain program. As a result of growing opposition from its Members, the House rejected DOE's proposal and passed an appropriations bill that included $25 million for DOE to continue work on the program.