Tuesday, May 06, 2003
Copyright © Las Vegas Review-Journal

State argues nuclear waste plan violates Constitution

WASHINGTON -- Nevada is pursuing a legal case that argues the government's effort to single out the state for nuclear waste disposal was unconstitutional.

Rather than adhere to limits on federal authority, the Bush administration and Congress applied "raw political power" and usurped Nevada's sovereignty when Yucca Mountain was designated for nuclear waste burial through a resolution passed last year, the state contends.

"If there are any such limits, if Congress' power is this regard is not absolute, then the resolution challenged here surely exceeds them," Nevada argued.

Nevada's nuclear waste legal team opened the state's constitutional case against the Yucca Mountain Project in a 61-page brief filed on Thursday in Washington.

Singling out Yucca Mountain to serve a national need to dispose of nuclear waste is akin to the government re-establishing the military draft but only conscripting Nevadans into service, the state said.

"The congressional action is tantamount to a political mugging by 49 states against Nevada," attorney general Brian Sandoval said in a statement.

The brief was filed in the U.S. Circuit Court of Appeals for the District of Columbia. A government response is due early next month.

Attorneys said the constitutional issues will likely be argued before a three-judge panel in September, around the same time as three other consolidated cases Nevada has pressed against the Yucca project.

In its brief, Nevada argued the federal government violated the Constitution's fundamental principles on sovereignty and federalism as well as states' rights protections outlined in the 10th Amendment.

"Congress may establish a national nuclear waste repository but it may not run roughshod over Nevada's sovereign dignity in the process," the state argued.

Like its other lawsuits, the constitutional challenge involves Nevada's argument that the government changed its repository site rules after concluding that Yucca Mountain's rock structure would not meet licensing criteria. Research showed cracks would carry water through the repository and enable radioactive particles to seep into groundwater.

Instead, new rules allowed significant protection from titanium drip shields and special alloy canisters to count in calculating the mountain's effectiveness.

The change removed any chance the government would judge the Nevada site by a constitutionally acceptable "neutral" criteria, the state charged.

Consequently, the Yucca Mountain resolution Congress passed last July "is a perfect illustration of an arbitrary law that singles out a state in a way that leaves it politically isolated and powerless."

To force a single state to bear a burden for the nation, the government must have a "rational, neutral reason," Nevada's attorneys said.

But in the case of Yucca Mountain, the state said, 49 states get rid of their nuclear waste "while Nevada gets metal drums and wishful thinking."