## Facts

- Federal law required nuclear utilities to pay an annual fee into a Nuclear Waste Fund to finance disposal of civilian spent nuclear fuel, and required the Secretary of Energy to evaluate the fee annually to ensure full cost recovery and adjust if needed.
- DOE long assumed a deep geologic repository at Yucca Mountain would be built and used for civilian waste disposal and developed cost estimates on that basis.
- In 2008, DOE issued a Yucca Mountain life-cycle cost estimate of about $97 billion, including substantial costs not chargeable to civilian utilities (including defense-related components).
- By 2009, the federal government announced Yucca Mountain was “no longer an option,” yet DOE continued collecting the annual fee at the existing rate.
- In November 2010, the Secretary issued a determination finding no basis to suspend or adjust the fee, relying largely on the Yucca Mountain estimate as a proxy for an unspecified future program and giving limited consideration to the Fund’s accumulated balance and significant annual interest.
- NARUC and aligned nuclear plant owners/operators petitioned for review, alleging the 2010 determination violated the governing statute and was arbitrary and capricious under the APA.

## Issues

1. Whether the Secretary’s 2010 determination satisfied the statutory duty to conduct an annual evaluation of the nuclear-waste fee and determine whether adjustment was necessary.
2. Whether DOE acted arbitrarily and capriciously by treating the discontinued Yucca Mountain cost estimate as a proxy for future program costs and by failing to account for key statutory and financial considerations.
3. What remedy was appropriate if the evaluation was legally deficient.

## Decision

- The court granted the petition in relevant part and held the Secretary failed to perform the statutorily required annual evaluation.
- The court held DOE’s approach was unreasonable, including reliance on Yucca Mountain’s cost estimate after the government had abandoned that program and failure to address major elements affecting fee adequacy (including fund balance, accruing interest, and exclusion of non-civilian costs).
- The court remanded to the agency and directed the Secretary to conduct a compliant evaluation within six months, while retaining jurisdiction.
- The court declined to order immediate suspension of the fee on the existing record.

## Legal Principles

- When a statute imposes an ongoing evaluative duty, an agency must affirmatively assess the relevant facts and make the required determination; it may not maintain the status quo absent external proof that a change is needed.
- Under arbitrary-and-capricious review, an agency must offer a reasoned explanation grounded in the statutory factors and the record, particularly when it departs from prior analytic practices.
- An agency’s cost and fee analysis must account for major financial realities directly bearing on statutory objectives, including accumulated fund balances and interest, and must exclude categories of costs not assignable to the regulated payors.
- Remand with a deadline and retained jurisdiction is an available remedy when an agency has failed to perform a required statutory evaluation, and immediate substantive relief may be withheld where future policy and cost assumptions are materially uncertain.

## Conclusion

The D.C. Circuit held DOE did not satisfy its statutory obligation to evaluate the nuclear-waste fee because it failed to make the required adequacy determination using a reasoned, fact-based analysis, including by relying on a discontinued repository’s cost estimate; the court remanded for a proper evaluation within six months and retained jurisdiction, but did not order immediate fee suspension.


Nat’l Ass’n of Regul. Util. Comm’rs v. U.S. Dep’t of Energy, 680 F.3d 819 (D.C. Cir. 2012)