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Court Deals Harry Reid Small Setback on Yucca Mountain (Updated)

Yucca Mountain is in Nevada, which Reid represents. (Tom Williams/CQ Roll Call File Photo)
Yucca Mountain is in Nevada, which Reid represents. (Tom Williams/CQ Roll Call File Photo)

Updated 1:25 p.m. | The District of Columbia Circuit Court of Appeals issued an opinion Tuesday that’s a bit of a setback to Majority Leader Harry Reid’s ongoing efforts to ensure that Yucca Mountain never becomes a nuclear waste repository.

The opinion noted, however, that Congress could very well continue to use the power of the purse to deny funding for the project in the Democratic senator’s home state of Nevada.

Reid has long used his clout as majority leader to ensure that federal money isn’t appropriated for the project. In a split decision, a three judge panel of the Court of Appeals held that the law requires that the Nuclear Regulatory Commission comply with a law requiring the agency to consider a permit application for storage of nuclear waste at the site.

“At the behest of the Commission, we have repeatedly gone out of our way over the last several years to defer a mandamus order against the Commission and thereby give Congress time to pass new legislation that would clarify this matter if it so wished,” the court explained. “In our decision in August 2012, the Court’s majority made clear, however, that mandamus likely would have to be granted at some point if Congress took no further action.

“This case has serious implications for our constitutional structure. It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission,” Judge Brett M. Kavanaugh wrote in the opinion.

Kavanaugh noted that the court wasn’t taking a position on the merits of the Yucca Mountain project. He also wrote that Congress could continue to block funding for it.

“To be sure, if Congress determines in the wake of our decision that it will never fund the Commission’s licensing process to completion, we would certainly hope that Congress would step in before the current $11.1 million is expended, so as to avoid wasting that taxpayer money,” Kavanaugh wrote. “And Congress, of course, is under no obligation to appropriate additional money for the Yucca Mountain project.”

Kavanaugh joined the appeals court in 2006, after the bipartisan “gang of 14” deal in the Senate allowed a number of President George W. Bush’s judicial nominations to be confirmed. That agreement avoided a standoff over the “nuclear option” to change the way the Senate handles such nominations with a simple majority vote (at that time, floated by Republican Majority Leader Bill Frist of Tennessee).

Just last week, Reid alluded to the D.C. Circuit judges who were confirmed as part of the agreement, calling them “terrible.”

“We put on three people — I don’t think they deserve to be on any court, but they — we put them on there, and they have been terrible,” Reid said on Nevada Public Radio. “They’re the ones that said … the president can’t have recess appointments which we’ve had since this country started. They’ve done a lot of bad things, so we’re focusing very intently on the D.C. Circuit.”

That’s, of course, in reference to the same court finding that President Barack Obama’s recess appointments to the National Labor Relations Board were constitutionally invalid. Reid subsequently said that Democrats need at least one more judge confirmed to that court to flip the balance of power, opening the door to yet another standoff over the Senate’s filibuster rules.

“Today’s judgment should ensure that the Commission’s next chapter begins with adherence to the law. In the Nuclear Waste Policy Act Congress required the Commission to rule on the Yucca Mountain application, and it appropriated funds for that purpose,” Senior Judge A. Raymond Randolph wrote in a concurrence. “The Commission’s duty is to comply with the law and our duty is to make sure it does so.”

Randolph was nominated by President George Bush, assuming senior status in 2008 (but his successor, Sri Srinivasan, didn’t take office until earlier this year.

Reid is in Las Vegas Tuesday for his annual National Clean Energy Summit.

Update 1:25 p.m.

At a news conference before the summit, Reid largely dismissed the Yucca Mountain court ruling. He referenced the continued blockade of funding for the project, according to the Las Vegas Review-Journal.

“With no disrespect to the court, this decision means nothing,” Reid said. “Yucca Mountain is an afterthought.”

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