The U.S. Department of Energy is currently restricted by significant political headwinds against establishing the Yucca Mountain repository in Nevada, the only legally authorized site for high-level waste disposal.

The 1982 Nuclear Waste Policy Act authorized the DOE to establish a repository for permanently storing high-level waste. Under the law, nuclear power stations began entering into mandated contracts with the DOE to begin moving their spent nuclear fuel to that repository by the beginning of 1998, paying into a fund to cover associated costs.

Decades after the government was supposed to start taking spent fuel, however, there is still no permanent repository, and utilities continue to be locked in long-running legal battles over the government's contractual breaches.

The first settlement was reached in 2000, and according to a 2020 Congressional Research Service report, the government had paid out about $8 billion in related settlements and judgments as of the end of fiscal 2019. The department estimated in 2019 that potential liabilities from delays in disposing of waste could be as high as $36.5 billion.

That hurts the government and utilities alike, and cases will continue for as long as utilities have no place to send their spent fuel, said Pillsbury Government Contracts & Disputes partner Alex Tomaszczuk.

"The utilities are continuing to have to store fuel on site at their facilities located around the country and there's costs associated with that," he said. "So until the government commences performance of its contractual obligations, there's going to be either litigation or litigation that results in settlements."

At her Jan. 27 nomination hearing, Energy Secretary nominee Jennifer Granholm said that the Biden administration opposes reviving the project. She suggested instead that it would likely seek to "engage with some consensus strategies that will allow us to determine where that waste will go," as proposed by a bipartisan Blue Ribbon Commission set up under the Obama administration, which issued a final report in 2012.

But that would require a change to the law that made Yucca Mountain the only legal choice, and Tomaszczuk said that he didn't believe that the political will to resolve the issue is there, given the lack of progress to resolve spent nuclear fuel disposal issues so far.

"It's one of those things where it's just easier to kick the can down the road, right?" he added.

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