Wednesday, January 14, 2004
Copyright © Las Vegas Review-Journal

YUCCA MOUNTAIN: Nevada gets its day in court

A rail line leads into a tunnel at the proposed Yucca Mountain repository. REVIEW-JOURNAL FILE PHOTO

WASHINGTON -- Statues of Hammurabi, Justinian, Solon and Moses -- four historically significant lawgivers -- look down from behind the judges' bench in the Ceremonial Courtroom of the federal courthouse in Washington, D.C.

The high-ceilinged chamber is where judges heard arguments in the government's long-running antitrust lawsuit against Microsoft Corp. and where the McCain-Feingold campaign finance law was legally dissected. John Hinckley Jr. was tried there for the attempted assassination of President Reagan.

Today, it will be where the state of Nevada will make a major stand, throwing 20 years of accumulated legal ammunition into battle over the Yucca Mountain Project.

After failing to persuade the Bush administration and Congress to abandon plans to bury nuclear waste deep in a mountainside 100 miles northwest of Las Vegas, the state is turning to the third branch of government for what some say is its best chance to be heard.

"This is a day that Nevada has been waiting for. Finally, we will be heard in a forum where our statements will not be falling on deaf ears," Attorney General Brian Sandoval said. "We will be heard by this court, and I feel very strongly we have a good chance."

Federal court "is the best opportunity to derail this project," said former U.S. senator Richard Bryan. "I don't want to give the impression we could not go forward otherwise, but if we could prevail on the legal issues here, that would be the major victory."

"This is our last, best chance at stopping nuclear waste from coming to Nevada," said Sen. John Ensign, R-Nev., although the state also is mounting other administrative challenges to the project.

Conversely, attorneys for the government and the nuclear power industry believe the court system will vindicate efforts to develop permanent storage for highly radioactive spent fuel assemblies now kept at 103 commercial reactors.

"We believe our case will be presented in a very thoughtful and efficient manner," Energy Department spokesman Joe Davis said Tuesday. "We believe in two things. One, that the science behind Yucca Mountain is sound, and that we have followed the law."

A three-judge panel assembled by the U.S. Court of Appeals for the District of Columbia Circuit will preside over oral arguments in six major cases involving the Yucca Mountain Project.

The appeals court is a step below the U.S. Supreme Court, which is expected to be the next stop for the Yucca Mountain Project no matter which side prevails at the circuit level.

Rulings by the appeals court are expected by mid- to late 2004, before a Department of Energy self-imposed deadline to ask the Nuclear Regulatory Commission for a license to build and operate a Yucca repository.

The court could rule in a manner that would effectively kill the project, or it could uphold the government's effort. Or it could remand segments back to federal agencies, an outcome that could cause further delays in a program already five years behind schedule.

Federal court officials on Monday relocated the Yucca Mountain proceedings to the Ceremonial Courtroom, the largest in the building with a capacity of more than 200, after fielding dozens of inquiries about the case.

Representatives from other states, the nuclear industry, environmental organizations and others involved in the long-running debate over Yucca Mountain will reunite as observers at the courthouse, some together for the first time since the Senate delivered its key vote designating the site on July 9, 2002.

"It's important to hear what's going to be said so I can tell what I'm hearing to the people in Nevada," Peggy Maze Johnson, executive director of Las Vegas-based Citizen Alert, said Tuesday before boarding a plane to Washington.

Rep. Shelley Berkley, D-Nev., and Rep. Jon Porter, R-Nev., planned to attend. Six members of the Nevada Commission on Nuclear Projects were to witness the oral arguments and meet the following day with Sandoval and lead attorney Joe Egan to review the proceeding.

"For 20 years, Nevada has been fighting 49 other states and administrations, both Democrat and Republican, trying to ship waste to Nevada," Porter said. "It's appropriate for the court to settle this and take the politics out and look at true, sound science."

"Our court system is all about putting aside prejudices and doing the right thing," said Sen. Harry Reid, D-Nev. "That's all we want, to do the right thing."

Margaret Chu, director of DOE's Office of Civilian Radioactive Waste Management, along with other Yucca Mountain Project managers from Washington and Las Vegas, also were expected in the courtroom.

The hearing is scheduled for three hours, although attorneys said it could go longer if the judges become particularly engaged.

The cases will be heard by Judges Harry T. Edwards, a former chief judge who was appointed in 1980 by President Carter; David S. Tatel, appointed in 1994 by President Clinton, and Karen LeCraft Henderson, who President George H.W. Bush appointed in 1990.

Edwards and Tatel have reputations as probing jurors during oral arguments, while Henderson customarily asks fewer questions, attorneys said. They also will be watching for signals from Edwards and Tatel, who have participated in other Department of Energy cases.

On Monday, Nevada's legal team totaling more than a dozen attorneys sequestered for 10 hours in a downtown office, honing its oral arguments and staging a mock court session.

"In terms of preparation and strategy and passion, they've all come together," said Sandoval, who will sit alongside the attorneys in the courtroom but does not plan to address the judges.

The state's cases will be voiced by Egan, an attorney and nuclear engineer being paid $4 million to organize Nevada's legal opposition; former Nuclear Regulatory Commission counsel Martin Malsch; California environmental attorney Antonio Rossman, and constitutional law expert Charles Cooper.

Justice Department attorneys Michelle Mitchell, Ron Spritzer and John Bryson, and NRC lawyer Stephen Crockett, will defend the government in various segments.

The state is charging President Bush, the Energy Department and two other agencies disregarded federal laws and established administrative procedures in pushing to name Yucca Mountain for burial of the nation's nuclear waste. Bush designated the Yucca site on Feb. 14, 2002.

Separately, Nevada will argue the law that Congress passed in July 2002 completing the designation of Yucca Mountain over the veto objections of Gov. Kenny Guinn at the repository site violated state protections under the Constitution.

Government attorneys plan to counter that congressional approval was fully consistent with powers granted the federal government under the Constitution and, if anything, Nevada was given consideration through the veto power that was exercised by Guinn.