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IN RE AIKEN COUNTY

No. 11-1271.

725 F.3d 255 (2013)

In re AIKEN COUNTY, et al., Petitioners. State of Nevada, Intervenor.

United States Court of Appeals, District of Columbia Circuit.

Decided August 13, 2013.

Ordered Held in Abeyance August 3, 2012.

Attorney(s) appearing for the Case

Andrew A. Fitz, Senior Counsel, Office of the Attorney General for the State of Washington, argued the cause for petitioners. With him on the briefs were Robert M. McKenna, Attorney General, Todd R. Bowers, Senior Counsel, Thomas R. Gottshall, S. Ross Shealy, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, William Henry Davidson II, Kenneth Paul Woodington, James Bradford Ramsay, Robin J. Lunt, Barry M. Hartman, Christopher R. Nestor, and Robert M. Andersen.

Jerry Stouck and Anne W. Cottingham were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of petitioners.

Charles E. Mullins, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondent. With him on the brief were Stephen G. Burns, General Counsel, John F. Cordes Jr., Solicitor, and Jeremy M. Suttenberg, Attorney.

Martin G. Malsch argued the cause for intervenor State of Nevada. With him on the briefs were Charles J. Fitzpatrick and John W. Lawrence.

Dissenting opinion filed by Chief Judge GARLAND.

KAVANAUGH, Circuit Judge:

This case raises significant questions about the scope of the Executive's authority to disregard federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent...

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