RECENT LITIGATION IN FEDERAL COURTS RELATED TO THE DEPARTMENT OF ENERGY’S FAILURE TO ACCEPT SPENT NUCLEAR FUEL

The Department of Energy (DOE) failed to meet its legal obligation to begin accepting spent nuclear fuel (SNF) from nuclear electric utilities by January 31, 1998. The DOE’s obligation--and failure to meet it-- has been and continues to be the subject of substantial litigation in federal courts. Difficulties with the Department’s management and disposal program for SNF and other high-level radioactive wastes resulted in two significant decisions by the U.S. Court of Appeals for the District of Columbia Circuit in a period of less than two years. The first decision, Indiana Michigan Power Co. v. DOE, established the unconditional nature of the DOE’s legal obligation to commence accepting SNF from utilities on or before January 31, 1998. The second decision, Northern States Power Co. v. DOE, addressed the question of whether or not the DOE could excuse its delay as being “unavoidable, ” regardless of its judicially-determined obligation to begin accepting SNF by the January 1998 deadline. In the Northern States Power case, which ultimately reached the U.S. Supreme Court, the Court of Appeals held that the DOE could not excuse its failure to perform-- and, as a result, escape legal liability-- by maintaining that default was “unavoidable.