## Facts

- Congress created a framework for selecting and licensing a permanent geologic repository for high-level radioactive waste, assigning EPA to set environmental radiation standards and NRC to issue conforming licensing criteria.
- For the proposed Yucca Mountain repository, a later statute required EPA’s site-specific standards to be “based upon and consistent with” the National Academy of Sciences (NAS) findings and recommendations.
- EPA issued Yucca Mountain radiation protection standards in 40 C.F.R. pt. 197, including (1) an individual-protection, dose-based standard and (2) a 10,000-year compliance period for demonstrating compliance.
- NRC issued Yucca Mountain licensing regulations in 10 C.F.R. pt. 63 that incorporated EPA’s standards, including the 10,000-year compliance period.
- Multiple petitioners (industry, Nevada and local governments, and environmental organizations) sought direct appellate review challenging EPA’s and NRC’s rules and related federal actions selecting Yucca Mountain as the repository site.
- Nevada also raised constitutional objections to Congress’s approval of Yucca Mountain and separately challenged steps taken by DOE and the President in recommending the site before congressional approval.

## Issues

1. Whether EPA’s adoption of a 10,000-year compliance period for Yucca Mountain was “based upon and consistent with” NAS recommendations as required by statute.
2. Whether other portions of EPA’s Yucca Mountain standards were unlawful under the governing statutes or arbitrary and capricious under the APA.
3. Whether NRC’s licensing regulations were lawful, including to the extent they incorporated EPA’s compliance period.
4. Whether Congress’s approval of Yucca Mountain violated constitutional federalism principles asserted by Nevada.
5. Whether Nevada’s challenges to pre-approval actions by DOE and the President were moot after Congress approved the site.

## Decision

- The court vacated the portion of EPA’s rule adopting the 10,000-year compliance period.
- The court vacated NRC’s licensing requirements to the extent they incorporated the invalid 10,000-year compliance period.
- The court denied the remaining challenges to EPA’s and NRC’s regulations, leaving other provisions in place.
- The court upheld the constitutionality of Congress’s approval of Yucca Mountain and rejected Nevada’s federalism-based theories.
- The court dismissed Nevada’s petition challenging DOE’s and the President’s pre-approval actions as moot in light of Congress’s subsequent approval.

## Legal Principles

- When Congress directs an agency to base a rule “upon and consistent with” identified expert findings, that directive is a binding constraint; the agency may not disregard central expert recommendations without statutory support.
- Agency choices that conflict with the core substance of the mandated expert recommendations are unlawful and subject to vacatur.
- A second agency’s regulation that expressly relies on an unlawful component of another agency’s standard must fall to the same extent of that reliance, while severable, lawful portions may remain in effect.
- Constitutional challenges to federal site-selection legislation require support in recognized constitutional doctrine; generalized claims that Congress must treat states identically in facility siting do not invalidate federal action authorized by congressional powers.
- Claims seeking relief from preliminary executive actions may be moot when a subsequent statute supersedes the challenged steps and eliminates effective judicial relief.

## Conclusion

The court required EPA and NRC to revisit Yucca Mountain’s compliance timeframe because EPA’s 10,000-year period conflicted with the statute’s NAS-consistency mandate, while otherwise sustaining the core dose-based standards, sustaining most of NRC’s licensing framework, rejecting Nevada’s constitutional objections to congressional site approval, and dismissing Nevada’s pre-approval procedural challenges as moot.


Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004)