In an effort to keep the Nuclear Waste Fund intact, the Nuclear Energy Institute (NEI) this week filed a legal brief in the U.S. 5th Circuit Court of Appeals to block Texas from being awarded restitution and disgorgement from the Nuclear Waste Fund based on the government's long delays in setting up a national repository for spent nuclear fuel.
Texas filed a lawsuit in March intending to prod the federal government into fulfilling its obligations under the Nuclear Waste Policy Act, which was set up to fund a national repository for nuclear waste. However, the NEI believes that a national repository will need solid backing from every state involved in the program. “The Nuclear Waste Fund is needed to pay for the used fuel management program and, therefore, restitution and disgorgement would be counterproductive and would potentially result ion new costs being imposed on generators and their customers,” said NEI vice president and general counsel Ellen Ginsberg.
“Texas simply will not achieve its objective to have the government resume the disposal program if the Nuclear Waste Fund is depleted,” Ginsberg said. Furthermore, according to the NEI, Texas withdrawing from the fund would constitute a breach of contract with the federal government, which could give the federal government a legal argument for withdrawing from its obligations, which include development of a repository at Yucca Mountain in Nevada.
Federal courts have already said that the Nuclear Waste Policy Act does not allow for a total breach of contract. That option is “foreclosed by statute,” the courts have said.
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The lawsuit seems frivolous. The only way to get funds into the NWF is via fees collected by ratepayers and the only way to get money out of the NWF is via appropriations. Getting congress to appropriate is problematic, compounded by a significant amount of the NWF having been used as an "offset" in prior federal budgets and which would have to be "repaid" before it could be used for a reimbursement appropriation.