WASHINGTON -- 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."
To be fair to him, he was put there to disrupt. He was put there by Nevada's Sen. Harry Reid, on whose staff he had served.
Reid seems uninterested in the metallurgy of waste containment vessels or the geology of the mountain's 40 miles of storage tunnels where the waste would be stored 1,000 feet underground on 1,000 feet of rock. Rather, Reid, like almost all Nevadans, regards the repository as a threat to Las Vegas, a gamblers' destination that lives off tourists who are demonstrably irrational about probabilities. Reid prefers the status quo -- more than 160 million Americans living within 75 miles of one or more of the 121 locations where over 70,000 tons of nuclear waste are kept.
The court, which was concerned only with the law, not the mountain, said "the president must follow statutory mandates so long as there is appropriated money available and the president has no constitutional objection to the statute." He has none, and Reid has not yet quite succeeded in starving the NRC of funding for the Yucca licensing process.
The NRC said Congress has not yet appropriated the full amount required to complete the process. The court said Congress often appropriates "on a step-by-step basis." The NRC speculated that Congress may not finish appropriating the sums necessary. The court said that allowing agencies to ignore statutory mandates based on "speculation" about future congressional decisions "would gravely upset the balance of powers between the (government's) branches and represent a major and unwarranted expansion of the executive's power at the expense of Congress."
The NRC said small appropriations indicate Congress' desire to stop the licensing process. The court responded that "Congress speaks through the laws it enacts" and "courts generally should not infer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of money Congress has appropriated." The court noted that, "as a policy matter," the NRC may want to block the Yucca project but "Congress sets the policy, not the commission." And the court said there is no permissible executive discretion to disregard "statutory obligations that apply to the executive branch."
This episode is a snapshot of contemporary Washington -- small, devious people putting their lawlessness in the service of their parochialism, and recklessly sacrificing public safety and constitutional propriety. One can only marvel at the measured patience with which the court has tried to teach the obvious to the willfully obtuse.
George Will is a columnist for The Washington Post Writers Group.