|The Major Yucca Mountain Lawsuits|
Yucca Mountain was designated as the site for the nation's nuclear waste storage facility by President George W. Bush in February 2002. Nevada Governor Kenny Guinn vetoed the President's decision, but Congress overturned Guinn's veto in late spring/early summer 2002. The State of Nevada has subsequently shifted its battle against the nuclear waste repository to the courts.
Over the past few years, the State of Nevada has filed major lawsuits against the Department of Energy (DOE), the President of the United States, the Environmental Protection Agency (EPA), and the Nuclear Regulatory Commission (NRC). The lawsuits ask the courts to declare President Bush's designation of Yucca Mountain invalid because the DOE, EPA, and NRC violated the law throughout the Yucca Mountain site recommendation and approval process. They also request the courts to put a halt to construction of the repository pending final outcomes of the cases.
In November 2002, the D.C. Court of Appeals agreed to hear the major Yucca Mountain lawsuits together, rather than splitting up the suits between panels or having the cases spread out over months.
The cases were argued in one session in front of one 3-judge panel.
CASE BY CASE BREAKDOWN
The State of Nevada consolidated the lawsuits into four main cases: The "Recommendation" lawsuit (which consisted of the "EIS" lawsuit and the "Guidelines" lawsuit), the "EPA" lawsuit, the "NRC" lawsuit, and the "Constitutional" lawsuit.
EIS LAWSUIT (part of the Recommendation lawsuit)
The EIS lawsuit was filed by the State of Nevada on June 6, 2002, against Secretary of Energy Spencer Abraham and President George W. Bush. The suit challenges the DOE's Final Environmental Impact Statement (FEIS) on the Yucca Mountain repository.
The State of Nevada contends the FEIS violates the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA). The suit also challenges Abraham and Bush's decisions to recommend Yucca Mountain based on the FEIS.
Nevada cites multiple deficiencies of the DOE's Final Environmental Impact Statement. Among other things, the FEIS:
The lawsuit also points out that the FEIS fails to disclose whether the Yucca repository will be high-temperature or low-temperature. This is a pivotal decision that will determine the entire structure and physical layout of the repository.
The suit also alleges that Energy Secretary Abraham deliberately withheld the FEIS from Nevada and the public. Abraham released the FEIS with his recommendation to the President, violating NEPA regulations by not providing a mandatory 30-day public review period.
The lawsuit concludes that the Final Environmental Impact Statement is full of crucial information gaps, ignores public concerns, and does not adequately predict the impacts of a Yucca Mountain high-level waste repository. Nevada also challenges President Bush's approval of the site based on the faulty FEIS.
GUIDELINES LAWSUIT (part of the "Recommendations" case)
Another lawsuit Nevada has filed against the Department of Energy concerns DOE guidelines about Yucca Mountain geologic suitability.
When the Nuclear Waste Policy Act (NWPA) was originally written in 1982, both Congress and DOE agreed that deep geologic isolation was the required form of containment for the nation's high-level nuclear waste. Nuclear waste remains highly radioactive for hundreds of thousands of years, and no known form of man-made barrier or container is capable of serving as a reliable and safe permanent waste container for that long. Consequently, NWPA expressly mandated that geologic considerations be the "primary criteria" for the selection of the repository site.
DOE's guidelines for selection of the site originally reflected this mandate. In the Yucca Mountain Mission Plan, DOE stated its intent to "place primary importance on the capabilities of the natural system for waste isolation." However, in 1999, the DOE "rewrote" its guidelines to rely primarily on engineered waste packages, not on geologic disposal.
The lawsuit, filed on December 17, 2001, contends that after several years of study, the DOE discovered Yucca Mountain was not geologically suitable due to water infiltration, seismic activity, and volcanism. However, instead of notifying Congress and the Secretary of Energy that Yucca Mountain was unsuitable, the DOE merely changed the rules by rewriting their guidelines.
Nuclear industry lobbyists even tried to convince Congress to change the law by altering NWPA's geologic suitability guidelines. They were unsuccessful.
The Department of Energy is not the only agency being sued by Nevada, however. Nevada filed a lawsuit against the Environmental Protection Agency (EPA) on June 27, 2001.
The EPA was responsible for setting the health and safety standards for residents living near the Yucca Mountain site. Energy Secretary Abraham calls these standards 'safe' and extremely 'stringent'. However, the State of Nevada contends the EPA's standards do not adequately limit radiation exposure. The standards would allow DOE to use 18 kilometers (11 miles) of the Amargosa aquifer for dilution and dispersion of radiation from the repository.
Nevada also claims the EPA did not take into account future growth rates and other changes while predicting future impacts on Nevadans living near the site. Notably, in the 2000 census, Nevada was shown to be the fastest growing state in the nation.
The lawsuit contends that by failing to set adequate health and safety standards for Yucca Mountain, the EPA violated the Nuclear Waste Policy Act and other laws.
In conjunction with Clark County and the city of Las Vegas, the State of Nevada has additionally filed a lawsuit against the Nuclear Regulatory Commission (NRC). The NRC is responsible for granting licenses to DOE for construction and operation of Yucca Mountain. This case says the NRC acted illegally in revising regulations that govern the criteria to be used for licensing the Yucca Mountain repository.
Among other things, the State contends that the NRC:
Nevada filed its most recent lawsuit, a constitutional challenge against the federal government, on January 9, 2003. The lawsuit argues that by forcing the State to house nuclear waste against its will, the federal government is violating the State of Nevada's sovereign rights. In March, the federal court in D.C. decided the case will be heard with the others.
On January 14, 2004, Nevada presented arguments for its combined Yucca Mountain lawsuits to a 3-judge panel in D.C. Judges listened to arguments and asked questions during a 3 ½ hour session.
According to Nevada officials, the judges had mixed reactions to the State's lawsuits during the January 2004 hearing. Judges Harry T. Edwards, David Tatel, and Karen LeCraft Henderson were skeptical about Nevada's claim that the Federal Government was violating the State's constitutional rights by constructing a repository against the State's will (Case No. 03-1009, the "Constitutional" Case). They seemed equally unconvinced by Nevada's arguments against the siting of the project (the "Recommendations" Case).
However, the judges appeared to share Nevada's concerns over the Environmental Protection Agency's (EPA) Yucca safety standards. The case argues that the EPA's 10,000 year limit on radiation containment in the site is insufficient and illegal ("EPA" Case). The judges questioned the EPA sharply on its justification for the 10,000-year limit, especially given the National Academy of Sciences' (NAS) recommendation for a longer period.
"NAS says there is no scientific basis for limiting it to 10,000 years," Judge Tatel said. "What could be more inconsistent with that academy's recommendation?"
The State also won a concession from the Nuclear Regulatory Commission. Judge Edwards said that the State should be able to challenge the final environmental impact statement for the Yucca repository during the Commission's license hearings. This had not previously been an option, and Nevada attorneys said it would give them more ammunition in the licensing proceedings.
The judges were left with extensive legal briefs and supporting documentation to consider before making decisions.
The Court's Ruling:
On July 9, 2004, the Court of Appeals ruled on Nevada's Yucca Mountain Lawsuits. The judges dismissed almost all of the State's claims except a key challenge against the Environmental Protection Agency (EPA). The Court ruled that the EPA's 10,000-year safety standard on radiation containment at the site was arbitrary and inconsistent with the congressionally-mandated recommendations of the National Academy of Sciences. The Court also struck down the Nuclear Regulatory Commission's licensing standards insofar as they include a 10,000 year compliance limit. (Read the Court's decision).
The National Academy of Sciences said the radiation safety standard should be set at a higher limit, when the waste would be at its peak radiation levels - at least 300,000 years from the time the waste is sent to Yucca. The EPA was required by law to base its rule on NAS' recommendation, but chose to set the standard at 10,000 years instead.
State officials believe the ruling will significantly delay or even scrap the project. State Attorney General Brian Sandoval claimed a sound victory for Nevada, saying that the EPA would have to form a new rule with a tougher standard - a standard the Energy Department would not be able to meet due to Yucca Mountain's inferior geology. This "is a fatal blow to the repository," Sandoval said. (Read the Office of the Attorney General's Press Release).
DOE itself has expressed doubts in the past about being able to meet a longer time limit. As quoted by the Court, former project director Lake Barrett wrote in 1999 that a safety standard significantly longer than 10,000 years would be "unworkable and probably unimplementable."
Nonetheless, DOE remains positive about the Court of Appeal's ruling. "I am pleased with today's decisions handed down by the Court," said Energy Secretary Spencer Abraham in a July 9 statement. "The Court dismissed all challenges to the site selection of Yucca Mountain." As for the 10,000 year safety standard, Abraham said, "DOE will be working with the EPA and Congress to determine appropriate steps to address this issue."
The rest of Nevada's challenges, including the Constitutional case claiming Nevada's sovereign rights as a state were being violated, and the Recommendations case claiming DOE and President Bush acted illegally in recommending Yucca Mountain, were dismissed by the judges.
However, the last pages of the court's ruling contained a concession giving Nevada the power to challenge DOE's Environmental Impact Statement for Yucca Mountain in any DOE or Nuclear Regulatory Commission proceeding. "This means issues such as DOE's rejection of the "no-action" alternative (continued on-site storage), its transportation plan, and its violation of Nevada's hazardous waste laws are now fully addressable in courts of law," said Attorney General Sandoval.
The ruling came 7 months after a 3 ½ hour hearing in D.C.