Friday, January 10, 2003
Copyright © Las Vegas Review-Journal

Sandoval outlines Yucca challenge

Nevada singled out by feds, lawsuit says

Saddling Nevada with the nation's most deadly nuclear wastes is akin to restarting the draft to help fight the nation's war against terrorism but taking all the draftees from one state, Nevada's legal team said Thursday.

The analogy of the other 49 states ganging up on a single state was presented by Attorney General Brian Sandoval and his hired legal experts at a briefing at the Sawyer Building, where they announced the filing of a constitutional challenge to the Yucca Mountain Project.

"At issue is the right of the state not to be singled out and unduly burdened," Sandoval said. "The proposed dump is not safe, not scientifically sound, and is not legal."

Charles Cooper, regarded as a leading expert on constitutional law and a member of Nevada's legal team, said that as the nation prepares for "what looks like imminent war against Iraq" with calls for reinstating the draft, no one would disagree that it would be unfair to select those draftees only from California.

"So also we will argue the state of Nevada cannot be asked to endure this burden" of nuclear waste disposal that other states won't bear, he said.

In the absence of any compelling reason, Cooper said, "it surely must mean the other 49 states cannot gang up" on Nevada.

"Our point, Nevada's point, is if sovereignty means anything, this type of mandate cannot stay," he said.

Cooper later said he anticipates Justice Department attorneys for the Department of Energy will argue that the need for a repository to entomb the nation's spent fuel from commercial power reactors is a compelling reason to put it at the site 100 miles northwest of Las Vegas.

"But those provisions are not blank checks to encroach on sovereignty of the state," he said.

He noted that a 1992 U.S. Supreme Court ruling in favor of New York over the United States regarding the Low-Level Radioactive Waste Policy Act will be a cornerstone in Nevada's constitutional challenge. In that case, the court held the act's "take title" provision, which required states to accept ownership of waste or regulate it based on instructions from Congress "lies outside Congress' enumerated powers and is inconsistent with the 10th Amendment."

Cooper and Sandoval were joined by lawyer Joseph Egan, a nuclear engineer who heads the state's special legal team. They said the resolution that Congress passed in July and was signed by President Bush, overriding Gov. Kenny Guinn's disapproval of the planned repository at Yucca Mountain sidesteps the U.S. Constitution's 10th Amendment regarding states' rights.

The 14-page lawsuit, filed by the state, Clark County and Las Vegas in the District of Columbia Circuit of the U.S. Court of Appeals, claims the federal government "has arbitrarily operated according to two sets of rules: one for Nevada and another for every other state."

"Under the federal system of government established by 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, of resolving a perceived problem of national scope," the lawsuit states.

Egan said the lawsuit, the sixth Yucca Mountain action filed by the state, is designed "to put a stake thought the vampire's heart."

The lawsuit asks the court to declare the resolution unconstitutional and require the federal government to halt "all activities relating to the development or licensing of a nuclear waste repository at Yucca Mountain."