The Nuclear Energy Institute this week filed a brief in the U.S. Court of Appeals for the 5th Circuit opposing Texas’s March 2017 lawsuit that challenges the failure of the US Department of Energy and the US Nuclear Regulatory Commission to complete licensing the Yucca Mountain used fuel repository.

NEI’s brief specifically argues that the court should reject Texas’s request to be awarded “restitution and disgorgement” funds from the Nuclear Waste Fund. Nuclear utilities and their customers have paid more than $30 billion into the fund.

“The Nuclear Waste Fund is needed to pay for the used fuel management program and, therefore, restitution and disgorgement would be counterproductive and would potentially result in new costs being imposed on generators and their customers,” NEI Vice President, General Counsel and Secretary Ellen Ginsberg said.

“Texas simply will not achieve its objective to have the government resume the disposal program if the Nuclear Waste Fund is depleted.”

NEI asserts that the Nuclear Waste Policy Act (NWPA) prohibits returning to Texas money paid into the Nuclear Waste Fund for any alleged violations of the Act.

The NWPA establishes reciprocal obligations via a standard contract under which the federal government undertakes the obligation to dispose of used nuclear fuel and generators of used fuel pay fees into the Nuclear Waste Fund for that express purpose.

NEI indicated that restitution and disgorgement of the Nuclear Waste Fund are not possible without a total breach of the standard contract. A so-called “total breach,” however, would essentially revoke the federal government’s obligation to dispose of used nuclear fuel, NEI further explained.

The federal courts have confirmed that parties filing damage claims for program delays could only do so under partial breach of the standard contract and that a total breach is “foreclosed by statute.” Even after the Energy Department’s attempted withdrawal of the Yucca Mountain license application, DOE continued to affirm its disposal obligation, as has the current administration with its proposal to appropriate funds to revive the Yucca Mountain program.

Payments out of the Nuclear Waste Fund also would unfairly disadvantage nuclear utilities—and their customers—that would have to pay into it, resulting in an increase in fees and “thwarting the quid pro quo arrangement.”

NEI additionally argues that the state of Texas, not being a party to the standard contract, does not have standing to seek payments out of the Nuclear Waste Fund as it has not paid any fees into it.