In re Aiken County

Congress passed the Nuclear Waste Policy Act in 1983. The act required the Nuclear Regulatory Commission (the commission) (defendant) to consider the United States Department of Energy’s license application to store nuclear waste at Yucca Mountain. The act also required the commission to issue a final decision approving or denying the application within at most four years of submission. The Department of Energy submitted its license application in June 2008. Congress appropriated at least $11.1 million to the commission for the fiscal year 2011 for the purpose of conducting the licensing process. The deadline to make a determination on the license application passed without a final decision. The commission indicated that it had no intention of complying with the Nuclear Waste Policy Act and ceased the licensing-application-review process. Beginning in 2010, the states of South Carolina and Washington (plaintiffs), among other parties, sought a writ of mandamus to force the commission to comply with the act. In 2011, a prior three-judge panel of the court of appeals cautioned the Department of Energy that if it failed to act, a writ of mandamus would likely be appropriate. In 2012, the states filed a new mandamus petition. In August 2012, this panel of the court of appeals issued an order suspending the case to allow time for the receipt of updated information on appropriations for the licensing process for fiscal year 2013. At this time, the commission strenuously claimed that Congress did not want the licensing process to move forward, so this panel provided time for Congress to clarify the issue. This panel warned that if Congress did not act, then the mandamus petition would eventually have to be granted. Over a year passed from the date the order was issued, so this panel revisited the petition for a writ of mandamus.