United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 25, 2013            Decided November 19, 2013

                          No. 11-1066

      NATIONAL ASSOCIATION OF REGULATORY UTILITY
                   COMMISSIONERS,
                      PETITIONER

                                v.

          UNITED STATES DEPARTMENT OF ENERGY,
                      RESPONDENT


                  Consolidated with 11-1068


         On Petitions for Review of Final Actions or
  Failures to Act by the United States Department of Energy


     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
                               2

were Stuart F. Delery, Acting Assistant Attorney General, and
Jeanne E. Davidson, Director.

   Before: BROWN, Circuit Judge, and SILBERMAN and
SENTELLE, Senior Circuit Judges.

    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

     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.

                               I.

     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,
                               3

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.

                               II.

     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, 374 F.3d 1209, 1221 (D.C. Cir. 2004)
(“[R]egulation would be at an end if uncertainty alone were an
excuse to ignore a congressional command to ‘deal with’ a
                                4

particular regulatory issue.”); Consolidated Edison Co. of N.Y.,
v. U.S. Dep’t of Energy, 870 F.2d 694, 698 (D.C. Cir. 1989).

     The Secretary’s position – his “non determination” – is
purportedly predicated on a Departmental report issued in 2011
termed a “Strategy for the Management and Disposal of Used
Nuclear Fuel and High-Level Radioactive Waste.” Even if that
so-called strategy led to a statutorily required determination, it
would still be problematic because, as petitioners point out, the
strategy is based on assumptions directly contrary to law.

     Most glaring is the conflict between the statutory
requirement that sites other than Yucca Mountain cannot even
be considered as an alternative to Yucca Mountain, 42 U.S.C. §
10172, and the “strategy’s” assumption that whatever site is
chosen, it will not be Yucca Mountain. The other conflicts are
related to this prime conflict. The “strategy” suggests that a
temporary storage facility might be operational by 2025 and that
the temporary facility could be constructed without NRC first
issuing a license for the construction of a permanent facility.
But the statute requires that precondition. The statute is
obviously designed to prevent the Department from delaying the
construction of Yucca Mountain as the permanent facility while
using temporary facilities. 42 U.S.C. § 10168(d)(1). Finally –
and this is quite revealing – the strategy assumes that the
Department would be required to obtain the consent of the
jurisdiction where the permanent depository is to be sited. That
is, of course, reflective of the political considerations the
Department faces but, unfortunately, it is directly contrary to the
statute, which explicitly allows Congress to override a host
state’s disapproval. 42 U.S.C. § 10135; accord In re Aiken
Cnty., 725 F.3d 255, 260 (D.C. Cir. 2013) (“[A]n agency may
not rely on political guesswork about future congressional
appropriations as a basis for violating existing legal mandates.”).
Finally, the strategy projects completion of a permanent
                                5

depository (located somewhere) not until 2048, in contrast to the
statute, which directed completion by 1998. 42 U.S.C. §
10222(a)(5)(B). That is truly “pie in the sky.”

     In response to petitioners’ argument – that a position
predicated on a policy that so palpably rejects current law cannot
be in accordance with the Secretary’s obligation, even if it does
lead to a specific determination – the government responds that
some of the Secretary’s previous determinations had also
assumed statutory changes. That is so, but even assuming those
prior determinations were legal, it is one thing to anticipate
minor statutory additions to fill gaps, and quite another to
proceed on the premise of a wholesale reversal of a statutory
scheme. The latter is flatly unreasonable.

     The government claims it is put in a catch-22 position
because our prior opinion said it was unreasonable for the
Department to use Yucca Mountain as a proxy to estimate
disposal costs, and petitioners now argue that the government
cannot assume a hypothetical non-Yucca Mountain depository.
But the government’s problem is of its own making. It certainly
could have used Yucca Mountain’s costs if it were still pursuing
that site, but it cannot have it both ways. It cannot renounce
Yucca Mountain and then reasonably use its costs as a proxy.
The government was hoist on its own petard. And it does not
follow that the corollary to our previous opinion is that the
government can now use non-Yucca Mountain assumptions that
are contrary to the statutory scheme.

     In our last opinion we noted accounting defects in the
Secretary’s prior determination that have now been remedied.
Specifically, the Department now takes into account the interest
accruing on the enormous sums that have already been paid. The
Department deducts costs already expended and excludes costs
for disposal of defense-related waste for which petitioners are
                               6

not responsible. But these are truly peripheral issues; the key
defect in the government’s position is that the Secretary still
declines to carry out his basic statutory obligation.

                            ****

     The government asks us, if we conclude the Department’s
latest position is contrary to law, to, once again, remand rather
than order the Secretary to suspend the fee. But the Secretary’s
position is so obviously disingenuous that we have no
confidence that another remand would serve any purpose. As we
noted, we are not unaware of the political dilemma in which the
Department is placed. But until the Department comes to some
conclusion as to how nuclear wastes are to be deposited
permanently,1 it seems quite unfair to force petitioners to pay
fees for a hypothetical option, the costs of which might well –
the government apparently has no idea – be already covered.

     To be sure, as the government contends, if the present fee
is suspended, that could mean that the costs of nuclear waste
disposal would be transferred to future rate payers. But that
possibility is inherent in the statutory scheme which obliges the
Secretary to make the annual fee determination.
“Intergenerational equity” is implicated any time the fee is
adjusted.

    Finally, the government argues that we should not order the
fee set to zero because petitioners are already being
compensated for the government’s breach of its statutory and
contractual duty to dispose of existing waste, through breach of
contract suits in the Court of Federal Claims. The generators are


1
 It may be that the Secretary simply cannot imagine any permanent
depository other than Yucca Mountain, but if that is true the
implications are obvious.
                                7

currently storing their waste at the generation facilities, and the
government is compensating them for the cost of this storage.
But the government’s failure to dispose of prior wastes on
schedule is not the legal wrong that we are remedying, and we
do not base our decision on principles of contract. The issue
here, rather, is the government’s failure to conduct an adequate
present fee assessment, as required by the statute. Our ruling
here does not provide petitioners with any form of
compensation, nor does it relieve them of their obligation to
ultimately pay for the cost of their waste disposal. When the
Secretary is again able to conduct a sufficient assessment, either
because the Yucca Mountain project is revived, or because
Congress enacts an alternative plan, then payments will resume
(assuming that some future determination concludes that further
fees are necessary).

                                III.

     Because the Secretary is apparently unable to conduct a
legally adequate fee assessment, the Secretary is ordered to
submit to Congress a proposal to change the fee to zero until
such a time as either the Secretary chooses to comply with the
Act as it is currently written, or until Congress enacts an
alternative waste management plan.

                                                      So ordered.
