On June 8, 2012, in State of New York v. Nuclear Regulatory Commission, the Court of Appeals for the D.C. Circuit vacated the Nuclear Regulatory Commission’s Waste Confidence Decision—a regulation that provided, in part, that a permanent repository for nuclear waste (also called “spent nuclear fuel”) would be made available “when necessary,” and that until then, the waste could be stored safely onsite at each of the more than 100 nuclear power plants across the country.

Immediately after the court issued its decision and on behalf of 24 environmental organizations, the Turner Environmental Law Clinic and our co-counsel petitioned the Commission to stop issuing nuclear power licenses until it prepares a revised Waste Confidence Decision that accurately examines the environmental and safety risks of nuclear waste storage and disposal. In an exciting victory, the Commission granted our petition.

State of New York marked the end of the Commission’s ability to ignore the difficulties and dangers of nuclear waste storage and disposal. Adopting the arguments of New York, New Jersey, Vermont, Connecticut, an Indian community, and a number of environmental groups, the court held that the Commission must consider the very real possibility that a permanent disposal solution may never be developed. And in light of this reality, the Commission must fully consider the environmental and safety risks associated with long-term, onsite storage of nuclear waste—especially, leaks and fires occurring at the storage pools.

This decision was a long time coming. As the court noted, “Even though it is no longer useful for nuclear power, [spent nuclear fuel] poses a dangerous, long-term health and environmental risk. It will remain dangerous for time spans seemingly beyond human comprehension. . . . Yet, despite years of blue ribbon commissions, congressional hearings, agency reports, and site investigations, the United States has not yet developed a permanent solution [for nuclear waste disposal]. That failure . . . is the central flaw of the U.S. nuclear waste management program to date.” Indeed, at this time, “there is not even a prospective site for a repository, let alone progress towards actual construction of one.”

Without a final resting place for nuclear waste, spent nuclear fuel must be stored onsite, which comes with serious risk. During the catastrophic nuclear disaster at the Fukushima Daiichi plant in 2011, spent fuel pools caught fire, releasing harmful radiation into the atmosphere. Back in the U.S., spent fuel pools across the country—including Salem Nuclear Generating Station in New Jersey, Indian Point Nuclear Generating Units in New York, and Hatch Nuclear Plant in Georgia—have been leaking hundreds of thousands of gallons of contaminated water into our aquifers. In State of New York, the court held the Commission must analyze the impacts of these disconcerting events.

Although paying lip service to the import of conducting a new and more honest Waste Confidence analysis, the Commission has decided to rush the process. Going against the recommendations of its own technical staff, it will attempt to complete this vast study in just two years. The Clinic is determined to ensure that despite the unrealistic timeframe, the analysis is thorough and complete. We have already submitted one round of comments to the Commission, detailing the study’s appropriate scope. Clinic students are now working closely with several nuclear experts to prepare our next round of comments, which will likely be due later this fall.

Right now, “the Commission apparently has no longer-term plan [for nuclear waste disposal] other than hoping for a geologic repository,,” the court decision reads. This simply won’t do. Before nuclear power can be considered as a viable energy alternative, we must accept that the government may continue to fail in its quest to establish a permanent waste disposal site. Following the mandates of State of New York, the Clinic is dedicated to making certain that the Commission fully assesses the effects of such a failure before it resumes issuing new licenses to generate nuclear waste.

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