On May 18, in Yankee Atomic Elec Co. v. United States, the Federal Circuit affirmed a damages judgment of $142.6 million, and added $17.0 million to the judgment by granting a cross-appeal, in a breach of contract action against the government arising from the Department of Energy’s failure to remove spent nuclear fuel from three reactor sites in New England.  The decision came in three consolidated cases from among the 55 that have been filed in the Court of Federal Claims as a result of DOE’s breach of contracts it has with all nuclear utility companies under which the agency was required to begin removing spent fuel from reactor sites in 1998.  Due to chronic delays with the DOE program, including controversy over the proposed Yucca Mountain, Nevada, repository DOE has never commenced any performance.  The utilities have therefore been required to license and construct on-site storage facilities for the nuclear waste, the substantial cost of which constitutes the bulk of the damages claimed in the breach of contract actions.
 
Beginning in 2004 the government began settling some of these contract cases, and in recent years the pace of settlements has increased following utility victories on most contested issues.  Settlements to date are estimated to exceed $2 billion, and only about 20 of the contract cases remain pending.  However, separate litigation has arisen in the D.C. Circuit over DOE’s proposal to formally cancel work on the Yucca Mountain repository, and also seeking to relieve the utilities of the obligation to pay ongoing fees to DOE under the spent fuel contracts, fees that collectively cost the industry about $750 million per year.
 
Yankee Atomic was the first of these spent fuel damages cases filed, in 1998, and GT lawyers have represented Yankee Atomic as well as the other two companies involved in the May 18 decision, Connecticut Yankee Atomic Power Company and Maine Yankee Atomic Power Company, throughout the litigation, which has involved two trials and three appeals.
 
For the Legal Times of Washington‘s take on this opinion, click here.
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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights