Nuclear Regulatory Commission (NRC) Chairman Gregory Jaczko has ordered his staff to stop the review of the nuclear materials repository at Yucca Mountain. Aside from the harmful policy implications of this action, the chairman seems to be moving forward without any authority to do so.

President Obama has made it clear that he supports terminating the Yucca Mountain nuclear repository. And despite there being no scientific or technical evidence to support the decision and the fact that he has no plan for how the United States should manage its nuclear waste absent Yucca, he has that right. But neither he, his Administration, nor the NRC has the right to ignore existing statute, the legal process, or the will of Congress.

What Does the Statute Say?
The Nuclear Waste Policy Act of 1982, as amended, clearly states that the federal government is responsible for managing America’s commercial nuclear waste, and the Yucca Mountain Development Act of 2002 explicitly identifies Yucca Mountain as the location of the nation’s nuclear materials repository.

No Congress has passed any bill to reverse these laws. Thus it becomes very questionable how the Administration or NRC can shut down all Yucca activities without either a plan to replace Yucca or congressional authority to terminate the project.

No Existing Authority
According to a report from Nuclear Townhall, Jaczko is deriving authority to stop all NRC Yucca operations based on an interpretation of the 2011 budget. The problem here is that the 2011 budget has not been passed by Congress. Indeed, only one Senate committee has passed any version of the budget. And even if the budget were passed, there is no guarantee that it would terminate Yucca. In fact, it is more likely that the opposite would be true, given the broad support that Yucca enjoys in both the House and the Senate.

Explicit Congressional Support for Yucca
Support for Yucca Mountain extends across both sides of the aisle. Senator Jim DeMint (R–SC) calls the project essential for safe storage of nuclear waste, and Senator Mary Landrieu (D–LA) has offered support, citing the years and money spent on the project.

The Obama Administration’s proposal to cut funding for Yucca Mountain frustrated lawmakers, who say the move damages nuclear energy’s future. Sen. James Inhofe (R–OK) expressed criticism, highlighting the billions spent in research and the $11 billion in liability costs to taxpayers because the Department of Energy (DOE) has yet to accept used fuel. Ninety-one Members of Congress signed a letter to Energy Secretary Steven Chu urging DOE to halt plans to dismantle the repository and saying it has “ignored congressional intent without peer review or proper scientific documentation.”

A bipartisan House resolution shows further support for licensing Yucca Mountain. Congressman Norm Dicks (D–WA) called DOE’s action “illogical” since no alternative exists, and Congressman Fred Upton (R–MI) remarked on the disparity between the large sums of money spent and the miniscule returns.

Ongoing Legal Process
A series of lawsuits were filed soon after the President announced his intention to terminate the Yucca project. None of these suits has been resolved yet. So for Jaczko to take this extraordinary step prior to knowing the legality of the DOE request is premature.

But beyond that, the NRC process itself has questioned the legitimacy of the DOE request. The Atomic Safety and Licensing Board (ASLB) determined that the DOE’s request to withdraw its application did not have scientific merit and was therefore not justified. The NRC has oversight of the ASLB and authority to overturn its decisions but has not voted on the matter as yet. Given that Jaczko is chairman of the commission, he should have not problem bringing the matter to a vote. That he has not implies that he is unsure about the outcome of such a procedure, which calls into further question the legitimacy of his actions.

Rhetoric v. Renaissance
Nuclear power can help the U.S. meet is energy, economic, and environmental goals. It is a clean, affordable domestic energy source. But until the nation comes up with a sensible waste management policy, nuclear power will be more about rhetoric than renaissance. The President could take a huge step forward on clean energy simply by allowing the NRC to finalize its review of the Yucca Mountain application. The President said that he would respect science and invite transparency. Yet it seems that neither is present when it comes to Yucca Mountain.