Wednesday, November 27, 2013

Did Reid go Nuclear for Nuclear Waste?

By US Senate standards Senate Majority Leader Harry Reid’s maneuver to execute the Nuclear Option and limit debate on judicial nominees by an unprecedented rules change was explosive and sudden.  It happen one afternoon quickly as the Senate was getting out of town for Thanksgiving.  Why did Reid do it so suddenly?

While allowing President Obama’s agenda to pack the DC Circuit was certainly part of it, another reason may have been more personal. 

No, the reason why we locals ought to despise Reid's latest move is because it will facilitate his campaign to block the construction of a safe, permanent repository under Yucca Mountain in his home state of Nevada for dangerous spent fuel from nuclear power plants located in Illinois and elsewhere.

As a freshman senator in 1987, Reid fought against the project with — you guessed it — a filibuster. It proved unsuccessful, but now that he has ascended to majority leader, he's not shy about using his power to block the Yucca project. Mind you, this is the guy who reminds us that Obamacare "is the law," so it must be implemented, even though Congress likewise passed a law designating the Yucca Mountain site as the nation's repository.

Still, Reid and Obama have their hands full. Recently, a three-judge panel of the U.S. Appeals Court in Washington, D.C., ordered, 2-1, the administration to proceed with the project on the grounds that the president can't simply "flout" the law. You might see a pattern here, in that this is the president who thinks he can unilaterally change the Obamacare law by putting off an insurance mandate until after the 2014 elections.

Just a week ago, the court also ruled that if the Energy Department has no plans to proceed with the Yucca project, it then has no good reason to keep collecting the money that we have been paying through our electric bills to build the project. Money that the Obama administration wanted to continue collecting.

So, now comes Reid clearing the way for Obama to pack that court with his appointees. Among the things the court could do that would please Reid is to rehear the Yucca case. With an Obama majority on the court, the case could be reheard en banc, in which the entire bench might overturn the ruling by the three-judge panel.

A former leader on the Nuclear Regulatory Commission wrote me in a private email more about Reid’s decision and background on this issue.

Last Tuesday the DC Circuit issued the third decision in the last eighteen months upending Senator Reid’s campaign to block construction of the national nuclear waste repository in his home state. The unanimous “fee adequacy" decision by three Republican Judge’s on the DC Circuit, followed a decision last summer where the court issued a “Mandamus” ordering the Nuclear Regulatory Commission (NRC) to continue processing the Yucca Mountain license application. That decision had been preceded by one striking down NRC’s gerrymandered “waste confidence” rule, which NRC had issued to paper over the Administration’s cancellation of the Yucca project, and has since halted all nuclear license applications pending NRC submitting a NEPA compliant confidence rule.

In Reid's post vote press conference on the Senate Rules change, he prominently cited the DC Circuit as a central issue in his decision to launch the filibuster “nuclear option.” He commented that a Republican colleague offered to allow the DC Circuit bench to be occupied by a five to four ratio; an offer Reid rejected. What elevated the DC Circuit ahead of all the other contentious issues before the Senate; why else would Reid be talking with a Republican about the DC Circuit, to the extent that the Republican would respond with such an offer? My guess, Tuesday’s decision was the tipping point (Senator Durbin used that term - "we’ve reached the tipping point"). Is Reid attempting to put the court on notice; don’t mess with Yucca Mountain.

So we have a situation where both President Obama and Senate Majority Leader Harry Reid are attempting to pack the DC Circuit to get around a court and laws they do not like. 

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