United States Court of Appeals, District of Columbia Circuit
NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Petitioner
UNITED STATES DEPARTMENT OF ENERGY, Respondent.
Argued Sept. 25, 2013.
Jay E. Silberg argued the cause for petitioner. With him on the briefs were Timothy J.V. Walsh, James Bradford Ramsay, Holly Rachel Smith, and Anne W. Cottingham.
Joseph A. McGlothlin, Cynthia B. Miller, and Richard C. Bellak were on the brief for amici curiae Florida Public Service Commission, et al., in support of petitioners.
Allison Kidd-Miller, Senior Trial Counsel, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, and Jeanne E. Davidson, Director.
Before: BROWN, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges.
SILBERMAN, Senior Circuit Judge:
Petitioners, a group of nuclear power plant operators, appear again before us to claim, essentially, that so long as the government has no viable alternative to Yucca Mountain as a depository for nuclear waste they should not be charged an annual fee to cover the cost of that disposal. We agree.
Last year we decided that the Secretary of Energy had not complied with his statutory obligation to determine annually the adequacy of the fee petitioners pay to the government. Nat'l Ass'n of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, 680 F.3d 819 (D.C.Cir.2012). We rejected the government's argument that the Secretary was not obliged to determine the fee's adequacy unless someone (a " deus ex machina" ?) brought to the Secretary evidence that the fee was excessive or inadequate. Id. at 824. We held that the Secretary had an affirmative obligation to examine the facts himself and come to a determination as to the adequacy of the fee.
We noted also that the Department of Energy's opinion had abandoned, without explanation, its previous policy of producing sophisticated analyses of potential costs. It had ignored the enormous amount of interest— $1.3 billion— accruing annually in the fund built up by previous assessments, and it had not excluded costs already paid and costs associated with the disposition of defense-related waste for which the generators are not responsible. And we thought that using Yucca Mountain's depository cost as a proxy was unreasonable because the government had abandoned that program. But the key defect in the government's position was its failure to make the statutorily required determination as to whether the fee was adequate. We remanded to the Secretary with instructions to conduct a new fee assessment within six months; the panel retained jurisdiction to expedite any further review.
On remand the Department has again declined to reach the statutorily required determination. Instead, we are presented with an opinion of the Secretary that sets forth an enormous range of possible costs. According to the Secretary, the final balance of the fund to be used to pay the costs of disposal could be somewhere between a $2 trillion deficit and a $4.9 trillion surplus. This range is so large as to be absolutely useless as an analytical technique to be employed to determine— as the Secretary is obligated to do— the adequacy of the annual fees paid by petitioners, which would appear to be its purpose. (This presentation reminds us of the lawyer's song in the musical, " Chicago," — " Give them the old razzle dazzle." ) Thus, the Secretary claims that the range is so great he cannot determine whether the fees are inadequate or excessive, which is essentially the same position we rejected only last year as in derogation of his responsibility under the statute. The Secretary may not comply with his statutory obligation by " concluding" that a conclusion is impossible. See Pub. Citizen v. Fed. Motor Carrier Safety, ...