WASHINGTON (AP) — Federal appeals court judges heard arguments Tuesday in a case to determine whether the Obama administration has the authority to stop plans to bury U.S. nuclear waste in an underground site in the American West.
South Carolina and Washington state, both of which have reactors that create waste, are among those suing the president and other federal officials to try to restart plans to ship their radioactive spent nuclear fuel to a repository 90 miles (145 kilometers) from Las Vegas at Yucca Mountain.
Congress had chosen Yucca Mountain as the leading candidate for waste disposal, but opponents worry about contamination, and the Obama administration said it would not consider the site and would look for alternatives.
The case comes as the nation questions the future of nuclear plants in the aftermath of a nuclear crisis in Japan. A plant has been leaking radiation since a powerful earthquake and resulting tsunami hit the country on March 11.
The United States has no long-term plans to dispose of its nuclear waste. Arguments before a three-judge panel of the appeals court in Washington focused on whether the federal government has made a final decision yet that the states could appeal.
Last year, the Energy Department filed a motion with the Nuclear Regulatory Commission to withdraw its application for the Yucca Mountain repository. The commission has not ruled on the motion, but the Energy Department has gone ahead with dismantling the project.
Barry M. Hartman, an attorney arguing against the administration's decision, said the Energy Department was acting on the orders of the president, who he contended cannot just opt out of the choice of Yucca Mountain made by Congress in law. "He had no authority to reverse it," Harman argued.
The three appellate judges assigned to the case, all Republican nominees, questioned whether they can get involved at this point when the commission's decision is pending. They pressed the Obama administration's lawyer, Ellen Durkee, on when, or if, the commission will rule.
Durkee said she did not know when the commission plans to act; its chairman recently refused to tell reporters whether it ever will. Durkee argued there is no deadline, and although there has been little action lately, "the licensing proceeding is going forward."
"It's going forward by standing in place," replied the court's chief judge, David Sentelle. Sentelle asked what would happen if the commission should sit on the motion with no action for 20 years. Durkee replied that a new case could be filed arguing the commission was making an unreasonable delay, but she did not think they were there yet.
Judge Brett Kavanaugh questioned whether the Energy Department would comply if the commission should overturn its decision. She said it would, while exploring options to appeal.
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