By: Peter Glaser, Associate
On October 1st, 2013, the government of the United States of America ordered 800,000 “non-essential” federal employees to stay home. Though the Nuclear Regulatory Commission (“NRC”) was able to remain open for a period of time, about a week later it, too, ran out of money. As a consequence of the shutdown, hearings on a new waste confidence decision (“WCD”) were postponed, extending the current directive to avoid issuing final decisions on licensing issues for nuclear plants. Further delays in nuclear plant licensing threaten to harm efforts to reduce usage of pollution emitting coal plants. Without a new WCD to replace the WCD rejected in the D.C. Circuit’s decision in State of New York, v. NRC, efforts to replace fossil fuel based power plants with nuclear plants may remain delayed indefinitely.
After usage in nuclear plants, spent nuclear fuel (“SNF”) remains a threat to human contact for periods “seemingly beyond human comprehension.” Consequently, and until a permanent storage solution is developed, in order to issue licenses to operate nuclear plants, the NRC is required to consider whether a permanent repository will be available at the expiration of the plants’ operating licenses or, alternatively, “whether there is reasonable assurance that the fuel can be stored safely” on site. In 1984, a generic WCD was issued establishing five findings relevant to issuing licenses: 1) safe disposal in a mined geologic repository is technically feasible; 2) such a repository will be available by 2007–2009; 3) waste will be managed safely until the repository is available; 4) SNF can be stored safely at nuclear plants for at least thirty years beyond the licensed life of each and plant; and 5) safe, independent storage will be made available if needed.
These findings were updated in 1990 to adjust the predicted time frame for the establishment of a permanent storage facility to the first quarter of the 21st century. The NRC’s 1999 review of the findings made no changes, but the 2010 revisions adjusted the predicted time frame in Finding 2 to “when necessary” and increased the 30-year period of safety in Finding 4 up to 60 years. It is these revisions that the court has rejected resulting in the current licensing delay.
The National Environmental Policy Act of 1969 requires federal agencies to “examine and report on the environmental impacts of their actions” by preparing and Environmental Impact Statement (“EIS”) prior to any “major Federal actions significantly affecting the quality of the human environment.”  A major federal action may include a decision that precludes future decisions or reasonably foreseeable future actions. The EIS may be avoided if the agency “conducts an Environmental Assessment (“EA”) and makes a Finding of No Significant Impact (“FONSI”).” In State of New York v. NRC, the court held that updating the WCD is a major federal action because, despite the site-specific factors in each licensing decision, the WCD provides preclusive conclusions that apply uniformly.
Because an EIS was not performed, the Court, in what could have been considered an act of leniency, considered whether the assessments underpinning the new WCD were sufficient to be construed as an EA with a FONSI. The Court found the NRC environmental risk evaluation deficient for two reasons: first, the NRC did not consider the effect of failing to secure permanent storage when determining that such storage would be available when necessary, and, second, the NRC did not adequately consider the future danger or consequence of fuel pool leaks and fires. Thus the Court ordered the NRC to conduct a true EA prior to amending the WCD.
Although recent licenses issued in reliance on the now-vacated WCD might be subject to challenge by anti-nuclear groups, the NRC seems confident that reevaluation of recent licenses is unnecessary, noting that “[t]he potential impact [of the Commissioners’ decision to suspend new licensing] is enormous – the [court] Order affects licensing reviews for as many as 21 new reactors and 12 license renewals for existing reactors. It does not affect licenses already issued or renewed.”
The waste confidence order, issued in State of New York v. NRC, has resulted in a substantial delay in licensing and relicensing of nuclear plants—the delay has already exceeded a year. As licensing delays continue, the ability to reduce the nation’s dependence of fossil fuel derived power and the pollution concomitant with such energy generation stagnates, resulting in long-lasting environmental damage.
 Brad Plumer, Absolutely Everything You Need to Know About How the Government Shutdown Will Work, Wash. Post (Sept. 30, 2013), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/09/30/absolutely-everything-you-need-to-know-about-how-the-government-shutdown-will-work/.
 David Perera, NRC Furloughs Employees Due to Government Shutdown, Fierce Homeland Security (Oct. 10, 2013), http://www.fiercehomelandsecurity.com/story/nrc-furloughs-employees-due-government-shutdown/2013-10-10
 Id.; see also Plumer, supra note 1.
 681 F.3d 471 (D.C. Cir. 2012).
 Id. at 474 (quoting Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1258 (D.C. Cir. 2004).
 Minnesota v. NRC, 602 F.2d 412, (D.C. Cir. 1979).
 Waste Confidence Decision, 49 Fed. Reg. 34,658-60 (Aug. 31, 1984).
 Waste Confidence Decision Review, 55 Fed. Reg. 38,474, 38,505 (Sept 18, 1990).
 Waste Confidence Decision Review: Status, 64 Fed. Reg. 68,005, 68,006-07 (Dec. 6, 1999).
 681 F.3d at 483.
 42 U.S.C. § 4321 et seq.
 681 F.3d at 476-77 (noting that actions which have reasonably foreseeable consequences in predetermining the future outcome of decisions would be considered major federal actions).
 Id. at 477.
 Id. at 478.
 Id. at 478. The court held that such findings were necessary because the probability of failing to develop a repository was not so low as to render any potential environmental impact insignificant. However, were the environmental impact found insignificant, given the probability of failing to develop a permanent repository, then the NRC could establish a FONSI.
 Id. at 481-82.
 Id. at 483.
 Deciphering the Waste Confidence Order, NRC Blog (Aug. 9, 2012), http://public-blog.nrc-gateway.gov/2012/08/09/deciphering-the-waste-confidence-order/, (emphasis added).
 Neil Hirst, Is Nuclear Power Necessary for Solving Climate Change, The Guardian (Dec. 21, 2012), http://www.theguardian.com/environment/2012/dec/21/nuclear-power-necessary-climate-change (noting that “decarbonising [sic] electric power will be critical for solving climate change”).