Filed under: Capitalism, Democrat Corruption, Domestic Policy, Economy, Law, The Constitution, The United States | Tags: Constitutional Respect Owed to Congress, The D.C. Court of Appeals, Yucca Mountain Nuclear Waste Repository
President Obama held one of his rare press-conferences on Friday, just before departing for a vacation. Asked a question about his authority to delay aspects of ObamaCare that were by law to take effect, the president asserted his unilateral power to “tweak” inconvenient laws. He believes his authority as president trumps mere law or regulation.
On Tuesday the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, a direct judicial order compelling the government to fulfill a legal obligation. This “extraordinary remedy” is nominally about nuclear waste, wrote Judge Brett Kavanaugh for the 2-1 majority. The case “raises significant questions about the scope of the Executive’s authority to disregard federal statutes.” This is a major rebuke.
In re Aiken County is another episode in the long running political soap opera about storing spent nuclear fuel at Nevada’s Yucca Mountain, an Energy Department project that requires the approval of the U.S. Nuclear Regulatory Commission. The Nuclear Wast Policy Act of 1983 requires that the NRC “shall consider” the license application for the repository and “shall issue a final decision approving or disapproving” it within three years of submission.
Well, green lobby, not-in-my-backyard Nevadans and Californians, Harry Reid, endless delays, lies, obfuscations, protests and more delays. This particular application was submitted to the NRC in June 2008, and yes that certainly does add up to more than three years. Congress did not amend the 1983 statute.
The country has been searched for suitable sites. Everybody wants it somewhere else, but Yucca Mountain was chosen as the optimal site in the nation. Oddly, nobody worries about the nuclear waste stored hither and yon around the country, in places not nearly so well protected as Yucca Mountain.
“As things stand, therefore the Commission is simply flouting the law,” Judge Kavanaugh continued. “In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us,” the court had no option other than the mandamus writ.
A federal Appeals Court is stating, overtly that federal regulators are acting as if they may freely ignore the law. Judge A. Raymond Randolph notes in a concurrence that former NRC Chairman Gregory Jaczko, who has since resigned, “Orchestrated a systematic campaign of noncompliance.” If Mr. Jaczko worked on Wall Street, he would be indicted.
Judge Kavanaugh offered some remedial legal education in “basic constitutional principles” for the President who claimed only last Friday to be a constitutional law professor. Under Article II and Supreme Court precedents, the President must enforce mandates when Congress appropriates money, as well as abide by prohibitions. If he objects on constitutional grounds, he may decline to enforce a statute until the case is adjudicated in the courts. “But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections” wrote the court.
The employer-insurance requirement that Obama decided to delay, and other such provisions are exactly such statutory mandates, with hard start dates. The executive has broad enforcement and interpretative discretion, but no authority to suspend core parts of laws — even ones that he co-wrote.
President Obama is redefining the structure of the U.S. Political system, not just changing statutes as it is convenient. It is crucial that the courts reject Mr. Obama’s increasing contempt for any constitutional limits on his authority or his overreach, and remind him of the limits of his power.
Filed under: Capitalism, Economy, Energy, Law | Tags: Nuclear Energy or Not?, West Virginia Coal, Yucca Mountain Nuclear Waste Repository
One of the things that bothers me most about the current administration is the consistent attempt to ignore existing statutes, regulations, custom and tradition. I don’t know whether this is just the Chicago way, or if Barack Obama believes himself above the law and free to do whatever he chooses.
The Chairman of the Nuclear Regulatory Commission (NRC) Gregory Jaczco, has ordered his staff to stop the review of the nuclear materials repository at Yucca Mountain in Nevada. Aside from the potential harm this policy could do, the chairman seems to be moving forward without any authority to do so.
The President has made it clear that he supports terminating the Yucca Mountain nuclear repository. There is no scientific or technical evidence to support that decision. He also has no plan for just how the U.S. should manage its nuclear waste without that repository.
Mr. Obama has made many positive remarks about nuclear energy, and how nuclear energy should be an important part of our ongoing energy portfolio. However, the federal government is responsible for collecting and maintaining nuclear waste. According to the Nuclear Waste Policy Act (NWPA) of 1982, as amended (1) the federal government was obliged to begin collecting nuclear waste by 1998. According to the Yucca Mountain Development Act of 2002 (2)Yucca Mountain was to be the waste repository.
The federal government has collected over $30 billion in waste disposal fees from electricity ratepayers and has spent $10 billion on Yucca development, but no waste has been collected. Much remains in storage in various facilities around the country.
This puts the federal government in partial breach of contract even before the President decided to ignore existing statute and terminate the Yucca program. With over 60 lawsuits already filed, the federal government has paid out $214 million in settlements. Without Yucca Mountain or any backup plan, this taxpayer liability will amount to over $12.3 billion through 2020 and $500 million annually thereafter.
Chairman Jaczco, according to Nuclear Townhall, is deriving his authority based upon an interpretation of the 2011 budget. Congress has not passed the 2011 budget. Even if it were passed, it is unlikely to contain any authority to close Yucca for there is broad support for the repository in boththe House and Senate. Mr. Jaczco, however, was an aide to Senator Harry Reid who is in a pitched election battle with Sharon Angle. Which puts us back at the Chicago way.
Ninety Members of Congress have signed a letter to Energy Secretary Steven Chu urging DOE to halt plans to dismantle the repository and saying it has “ignored congressional intent without peer review or proper scientific documentation. A bipartisan House resolution shows further support for licensing Yucca Mountain. The Atomic Safety Licensing Board (ASLB) determined that the DOEs request to withdraw its application did not have scientific merit and was therefore not justified. My guess is that it will be resolved shortly after the election no matter whether Reid or Angle wins — but it’s just a guess.
There will be no new nuclear plants until a waste repository is opened. I don’t think that Mr. Obama has any intent to license nuclear plants. He is putting all of his bets on wind and solar energy and vast taxpayer dollars behind his misguided belief that they are viable sources of energy rather than just the proverbial gamblers’ rathole.
Other evidence is that Barack Obama vowed to “bankrupt” coal, and seems to be proceeding down that path. He is using the regulatory process to strangle surface coal mining. The administration is trying to keep their formal steps in this direction under wraps, even, once again, in violation of the law. West Virginia wants to see a copy of the EPA-recommended determination about surface mining. They specifically want to know if Obama has decided to shut down West Virginia’s economy. And Ohio’s as well. The EPA is violating the law by refusing to let anyone see the recommendation in the form of a Federal Register publication. You don’t believe that the administration would use federal regulation to influence election results, do you?