No Excuses: Appeals Court Says DOE Can't Claim "Unavoidable Delay" to Escape Liability for Failing to Take Utilities' Spent Nuclear Fuel

The U.S. Court of Appeals for the Federal Circuit in Washington in an en banc decision issued yesterday, reversed a lower court’s ruling and held that the U.S. Government can't claim that its delay was "unavoidable" and therefore can't use that as an excuse to avoid compensating utilities for the added costs of storing the spent fuel on site until DOE starts to perform.

"Today's decision means the government will not be able to blame its broken promises to accept utilities' spent fuel on 'unavoidable delays,'" said Silberg, who represented the Nebraska Public Power District in the case before the trial court and the Federal Circuit. "By overturning the Government's last major argument against paying damages, the judges sided with utilities seeking compensation for the substantial costs that they have incurred and will continue to incur as a result of the Government's failure to perform."

Congress passed a law in 1982 mandating that DOE develop facilities to dispose of the utilities' spent nuclear fuel and that the utilities were responsible to pay the costs to develop, built and operate those facilities. Almost three decades later, the utilities have paid more than $20 billion to the Federal Government as their part of the bargain, but DOE has not met its obligation. Although more than a decade behind schedule, DOE in June 2008 applied for a license to build a facility at Yucca Mountain, Nevada.

However, President Obama, carrying out a campaign promise, has announced the termination of the project, even as nuclear power is gaining increasing support in Congress and elsewhere as an effective, affordable way to produce clean burning energy and combat global warming.

Going back to the mid-1970's, Pillsbury's Energy lawyers, lead by Silberg, have represented most of the nation's nuclear utilities in efforts to enforce the Federal Government's commitments to deal with the nation's nuclear waste.

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