Thursday, January 09, 2003
Copyright © Las Vegas Review-Journal

Nevada to file Yucca challenge

State charges federal government with infringing on its sovereignty

WASHINGTON -- Nevada plans to file a long-anticipated lawsuit today charging the federal government with violating state rights under the U.S. Constitution in singling out Yucca Mountain for a nuclear waste repository.

Attorneys will present a 14-page petition to a federal appeals court in Washington while Nevada Attorney General Brian Sandoval discusses the lawsuit at a news conference in Las Vegas.

"This really goes to the heart of the overall issue of whether the federal government has the authority to commandeer a state to host a project like this, not only against its will but without a rational basis," said Bob Loux, director of Nevada's Agency for Nuclear Projects.

State officials along with Clark County and Las Vegas leaders filed a half-dozen lawsuits in 2001 and 2002 attacking the Yucca Mountain Project on administrative and procedural grounds.

Now, Nevada prepares to charge that the government's actions violate some of the nation's fundamental principles.

"This has been part of the legal strategy since square one," Loux said.

When Congress completed a joint resolution on July 9 finalizing Yucca Mountain, 100 miles northwest of Las Vegas, for nuclear waste burial, it "took an act in derogation of the sovereignty of Nevada that exceeds the authority granted to the national government by the Constitution," according to a lawsuit draft obtained Wednesday.

The lawsuit incorporates a charge that runs through the state's other lawsuits: that the Energy Department "substituted" site selection guidelines when scientists realized that the natural features of Yucca Mountain would be unable to contain radioactive particles from decaying containers of spent nuclear fuel for a required 10,000 years.

"The national government has arbitrarily operated according to two sets of rules: one for Nevada and another for every other state," the lawsuit says.

Under the Constitution, "the national government lacks the power to require a sovereign state to singularly bear the burden, and thereby relieve all other states from bearing any burden," without compelling reasons imposed by Congress, it says.

The joint resolution that Congress approved on an expedited schedule failed to outline such reasons. Instead, it "arbitrarily and discriminatorily singled out Nevada to bear the burden of disposing of the nation's nuclear waste," the state charges.

The lawsuit names the Energy Department, Energy Secretary Spencer Abraham and the "United States of America" as defendants. Plaintiffs are the state of Nevada, Clark County and the city of Las Vegas.

This will not be the first time Nevada has raised constitutional issues in challenging the Yucca Mountain Project.

Nevada charged state rights violations in a lawsuit it pressed in the late 1980s after Congress in 1987 passed a law naming Yucca Mountain as the only site to be studied for a repository.

The 9th U.S. Circuit Court of Appeals ruled against the state in a decision issued in September 1990.

The San Francisco-based court rejected Nevada claims, saying they could not stand in the way of the Energy Department conducting site characterization at Yucca Mountain.

Attorneys who support the government cite that case, Nevada vs. Watkins, in discussing the state's legal challenges.

Marta Adams, Nevada senior deputy attorney general, said the state's new case is different.

"We think there are some distinguishing features between that one and what's going to be filed," Adams said. "That one was against a different law, and the new suit is going to challenge the joint resolution."