Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

Aug 13 2013

US Court of Appeals directs federal government to move forward on licensing Yucca Mountain repository

SEATTLE—Attorney General Bob Ferguson today announced an important ruling by the U.S. Court of Appeals for the District of Columbia in the lengthy effort to build a nuclear waste repository at Yucca Mountain in Nevada.

The court agreed with Washington state and seven other petitioners that federal law requires the Nuclear Regulatory Commission (NRC) to act on the license application to build the repository and granted the State’s requested remedy – a writ of mandamus.  The effect of the ruling is the NRC is required to resume the licensing proceeding.  

The NRC had failed to make any substantive decision on the application and instead ordered that the licensing proceeding be stopped. These actions prompted Washington and the others to file suit in 2011.

Washington State Senior Counsel Andy Fitz presented the lead argument at the hearing that led to this ruling.

“This ruling is great news for Washington state—especially residents in the Tri-Cities area near the Hanford Nuclear Reservation—who have been waiting for this project to move forward,” Ferguson said. “Our attorneys presented a strong case that the federal government must follow the laws passed by Congress, and the court agreed.”

In its ruling, the court said:

“… 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. Our decision today rests on the constitutional authority of Congress and the respect that the Executive and Judiciary properly owe to Congress in the circumstances here.”


Washington currently houses roughly 56 million gallons of nuclear waste in Hanford’s leaking underground tanks—enough to fill roughly 88 Olympic-sized swimming pools. Much of this waste, once treated, will be permanently disposed at Hanford. However, Congress in 2002 designated Yucca Mountain as the nation’s sole repository site for deep geologic disposal of high-level radioactive waste and spent nuclear fuel.
Roughly $10 billion has been spent to date pursuing development of a high level waste repository at Yucca Mountain. Billions more have been spent in Washington state to prepare for disposal at Yucca.
At the direction of Congress, the U.S. Department of Energy (DOE) filed an application with the NRC in 2008 for a license to construct the repository. But in 2010, the president and DOE announced they would withdraw the application. At that point, the NRC began taking steps to discontinue the licensing proceeding.
Washington state and other petitioners have long said that members of the Executive Branch do not have the authority to abandon Yucca Mountain and Congress’ directive.  

In 2010, Washington successfully intervened before an NRC hearing board to oppose DOE’s motion to withdraw its application.  

The NRC hearing board agreed that the Nuclear Waste Policy Act did not give DOE the discretion to abandon Yucca Mountain, nor did it allow the NRC authority to grant DOE’s request to withdraw its license application.  More than a year later, the NRC upheld the lower board on the law, while at the same time moving forward to dismantle the NRC’s own Yucca Mountain review program.

“We expect a fair and objective processing of the Yucca Mountain licensing application and look forward to a decision on the merits of the application,” Ferguson said.  “This is what Congress intended and affords the best opportunity for a permanent disposal facility for the nation’s high-level radioactive waste.”

Washington state was joined in this case by the state of South Carolina; Aiken County, SC; Nye County, NV; three Tri-Cities residents: Bob Ferguson, Bill Lampson and Gary Petersen; and the National Association of Regulatory Utility Commissioners.


The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Attorney General Bob Ferguson is working hard to protect consumers and seniors against fraud, keep our communities safe, protect our environment and stand up for our veterans. Visit www.atg.wa.gov to learn more.

Contacts: Janelle Guthrie, Director of Communications, (360) 586-0725