Up & Atom

The US Court of Appeals for the Fifth Circuit on June 1 dismissed all of the claims brought by Texas seeking to compel a final decision on Yucca Mountain’s suitability as a nuclear waste repository. See Texas v. United States et al., Case No. 17-60191. The Fifth Circuit found that most of Texas’s claims were untimely, and the remaining, timely claims failed because they were outside of the court’s jurisdiction.

Texas petitioned the Fifth Circuit on March 14, 2017, arguing that several federal entities, including the Nuclear Regulatory Commission (NRC) and the US Department of Energy (DOE), had violated their obligations under the Nuclear Waste Policy Act of 1982 (Waste Act) by failing to accept waste by 1998; failing to complete the Yucca Mountain licensing project by 2012; and exploring “consent-based” siting as an alternative option for waste storage. Texas sought, generally, “equitable relief prohibiting [the Department of Energy] from conducting any other consent-based siting activity and ordering Respondents to finish the Yucca licensure proceedings.” After filing its petition, Texas moved for declaratory and injunctive relief, to which Nevada responded with a motion to dismiss.

Texas circumvented the district court and brought its petition into the Fifth Circuit under 42 USC § 10139(a)(1), which prescribes a 180-day statute of limitations. Taking the petition to the Fifth Circuit became problematic because the actions and omissions that Texas challenged in its petition occurred years ago (i.e., 1998, 2012), well beyond the 180-day limitations period. Further, the Fifth Circuit panel rejected Texas’s argument to toll the deadline on a “continuing violations” theory. In determining whether equitable tolling is appropriate, the inquiry turns on “what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.” The court found that Texas itself had cited in its petition several federal actions that, “‘in fairness and logic,’ should have alerted it to act years ago.”

The only discrete actions that Texas challenged that were not time-barred are DOE’s decisions to release a January 2017 consent-based siting policy document and to solicit public comments on that document. However, the court concluded that these two actions, “which [have] no legal consequence,” do not constitute a “final decision or action” subject to challenge under the Waste Act.

The Fifth Circuit, therefore, dismissed all of Texas’s claims, concluding that they did not meet the statutory requirements of timeliness or finality.