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Policy: Environment & Energy

Day 7: Obama refuses to follow the law on nuclear waste

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Part seven of the Washington Examiner's 10-part series "With the Stroke of a Pen: How Obama abuses executive power to make the law of the land."

Just months after announcing his candidacy for president of the United States, then-Sen. Barack Obama, D-Ill., wrote the Las Vegas Review-Journal in 2007 seeking to clarify his position on the Yucca Mountain nuclear waste storage project.

“I want every Nevadan to know that I have always opposed using Yucca Mountain as a nuclear waste repository,” he wrote. “States should not be unfairly burdened with waste from other states.”

Problem is, the 1987 amendments to the Nuclear Waste Policy Act directed the U.S. Department of Energy to pursue the Yucca Mountain project as the only nuclear waste-solution projection.

Furthermore, the NWPA also directs the Nuclear Regulatory Commission to make a “final decision approving or disapproving” any application to store waste at Yucca Mountain within three years of its submission.

And, prior to President Obama’s 2009 inauguration, the energy department had submitted an application to the NRC for the Yucca Mountain project.

Unfortunately, since immediately upon entering office, Obama has done everything possible to kill the Yucca project … Everything possible but go to Congress to get the law changed, that is.

About this series

On Nov. 16, 2010, just days after voters gave Republicans control of the House of Representatives, the progressive think tank Center for American Progress published a report titled "The Power of the President."

Obama-Biden Transition Project Chairman John Podesta introduced the report, writing that "in the aftermath of this month's midterm congressional elections, pundits and politicians across the ideological spectrum are focusing on how difficult it will be for President Barack Obama to advance his policy priorities through Congress."

"Some debate whether the administration should tack to the center and compromise with the new House leadership," Podesta continued.

"As a former White House chief of staff, I believe those to be the wrong preoccupations. President Obama's ability to govern the country as chief executive presents an opportunity to demonstrate strength, resolve, and a capacity to get things done," Podesta said.

Not only did Obama almost immediately embrace the report's call for maximizing executive power to achieve progressive ends without Congress, it even branded the effort "We Can't Wait," thus advertising the fact that Obama had abandoned all pretense of following the U.S. Constitution's carefully drawn separation-of-powers doctrine.

In this Washington Examiner series, Senior Writer Conn Carroll documents the many times Obama has flagrantly abused executive authority to advance his liberal agenda without congressional approval.

The top 10 instances will be examined over the next two weeks, and more will come later.

Stories in this series

1. Immigration amnesty by executive memo

2. The employer mandate delay

3. War in Libya

4. The illegal Solyndra contract modification

5. Rewriting federal education law by waiver

6. Unconstitutional NLRB appointees

7. The Yucca Mountain delay

8. Gutting welfare reform

9. The Gulf of Mexico drilling moratorium

10. Regulating the Internet

First, Obama promoted Gregory Jaczko, a former staffer for Senate Majority Leader Harry Reid, from NRC commissioner to NRC chairman.

Jaczko, a longtime opponent of Yucca, then began immediately withdrawing all funding from the Yucca project and issued a memo directing DOE to completely terminate the project by December 2009.

Then in March 2010, DOE officially filed a motion with the NRC withdrawing its Yucca application, “with prejudice.”

The “prejudice” legal term of art was included in an effort to preclude any future administrations from ever submitting a Yucca application again.

Those in favor of the project immediately filed opposition to DOE’s motion with the NRC and also took the Obama administration to federal court seeking a court order forcing the government to proceed with the Yucca application.

By Aug. 13 of this year, the NRC still had not ruled on the Yucca Mountain permit, and after several warnings from other courts, the U.S. Court of Appeals for the District of Columbia issued a “writ of mandamus” forcing the commission to act.

“This case raises significant questions about the scope of the Executive’s authority to disregard federal statutes,” Circuit Court Judge Brett Kavanaugh began the court’s opinion.

“The underlying policy debate is not our concern,” Kavanaugh wrote. “The policy is for Congress and the president to establish as they see fit in enacting statutes, and for the president and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries.

"Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.”

“Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing.

"… Under Article II of the Constitution and relevant Supreme Court precedents, the president must follow statutory mandates so long as there is appropriated money available and the president has no constitutional objection to the statute … the president may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

Despite the Circuit Court’s ruling, however, the Yucca Mountain project appears dead as long as Obama is in office.

Even if the NRC approved the Yucca application, it is abundantly clear that Yucca proponents would need a court order to force Obama’s hand on every step of the process. He has shown zero interest in following the law.

The end result is a nation with no way to dispose of the 2,000 metric tons of spent nuclear fuel produced by the private sector every year, let alone the 2,500 metric tons produced by the federal government.

Instead, there are now more than 75 storage sites across the country that are not only environmental hazards, but also immensely vulnerable to terrorist attack.

If anything ever happens to the nuclear waste at any of these sites, Obama’s wanton refusal to heed the law will be solely to blame.

Conn Carroll is a senior writer with the Washington Examiner.
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