Nowadays the federal government leavens its usual quotient of incompetence with large dollops of illegality. This is eliciting robust judicial rebukes, as when, last week, the U.S. Court of Appeals for the District of Columbia instructed the Nuclear Regulatory Commission to stop “flouting the law.” Judge Brett M. Kavanaugh said: “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.”
For six decades the nation has been studying the challenge of safely storing nuclear waste from weapons production, Navy vessels and civilian power plants. So far, more than $15 billion has been spent developing a waste repository system (in the 1980s, a Nevada senator misnamed it a waste “suppository”) deep within Yucca Mountain, 90 miles northwest of Las Vegas.
The Nuclear Waste Policy Act of 1982 says the NRC “shall consider” the Yucca Mountain application to become a repository and “shall” approve or disapprove the application within three years of its submission. “Shall” means “must.” The application, submitted in June 2008, has not been acted upon, and the court says: “By its own admission, the commission has no current intention of complying with the law.”
Judge A. Raymond Randolph's concurring opinion said: “Former (NRC) Chairman Gregory Jaczko orchestrated a systematic campaign of noncompliance. Jaczko unilaterally ordered commission staff to terminate the review process in October 2010; instructed staff to remove key findings from reports evaluating the Yucca Mountain site; and ignored the will of his fellow commissioners.”
Jaczko resigned last year, leaving the NRC in demoralized disarray. The New York Times reported “charges of mismanagement and verbal abuse of subordinates” and that all four of his fellow commissioners, two from each party, complained about Jaczko to the White House and told a congressional committee that (the Times reported) he “unprofessionally berated the agency's professional staff and reduced female employees to tears with his comments.”