Thursday, January 15, 2004
Copyright © Las Vegas Review-Journal

FEDERAL COURT HEARING: Yucca foes gain hope

Judges pepper EPA with questions over radiation standard claims

Rep. Jon Porter, R-Nev., left, and Nevada Attorney General Brian Sandoval on Wednesday leave a Washington, D.C., federal court after a hearing on the Yucca Mountain Project. Photo by ASSOCIATED PRESS Nevada Special Attorney General Joe Egan leaves the U.S. Court of Appeals for the District of Columbia on Wednesday after arguing against the Yucca Mountain Project. Photo by ASSOCIATED PRESS

WASHINGTON -- Federal judges weighing Nevada challenges to the Yucca Mountain Project reacted with skepticism Wednesday to some of the state's key arguments, but suggested they might look favorably on other claims that could slow the proposed repository.

In a long-awaited court hearing, two out of three judges were frosty toward Nevada's claim that the government's bid to bury nuclear waste in the state was in violation of the U.S. Constitution.

The judges also foreclosed a direct challenge to President Bush's designation of the site 100 miles northwest of Las Vegas for the nuclear repository. They said that congressional approval of the site in July 2002 made it a done deal that couldn't be overturned in court.

At the same time, the judicial panel that convened at the U.S. Court of Appeals for the District of Columbia signaled it might support arguments that challenge the repository on other grounds.

Judges aimed sharp questions at whether health standards issued by the Environmental Protection Agency would be sufficient to protect Nevadans when radiation from the repository figures to be at its peak hundreds of thousands of years in the future.

Additionally, Judge Harry T. Edwards said that Nevada should be able to challenge Yucca Mountain environmental studies as part of Nuclear Regulatory Commission's licensing hearings for the project. State attorneys said it would give them more ammunition in that venue.

"We were pleased with a lot of the things we saw," said Nevada lead attorney Joe Egan.

But the 3 1/2-hour session signaled a probable mixed outcome for Nevada and environmental organizations that filed lawsuits against the government's efforts to develop the site. An appeal to the U.S. Supreme Court is expected, no matter which side the circuit court favors.

An Energy Department official and an attorney for the nuclear power industry said they saw nothing out of the session that would kill the Yucca project.

"Our decision-making process and the question of whether Yucca Mountain was selected appropriately is obviously over," DOE spokesman Joe Davis said, referring to likely rejection of the site selection lawsuit.

Robert Bishop, general counsel for the Nuclear Energy Institute, said he could envision the court upholding the repository or ruling in a way that would cause undetermined delays.

"But I can't see any exercise of this court's jurisdiction that would stop the project," he said.

On its highest profile case, the state's constitutional argument, Nevada-hired expert Charles Cooper advanced the state charge it was singled out for the repository without a reason that could stand constitutional muster.

"Sovereign interests have been invaded by the federal government for this material that no other state wants," Cooper said.

Edwards called it "an interesting argument," but one he believed was a stretch when placed beside the powers granted the government to manage federal property. The Yucca repository would sit on Bureau of Land Management land.

"This concerns the use of federal property in a state," Judge David Tatel said. "When you are talking about federal property, it is not intuitive to consult the states."

The third judge, Karen LeCraft Henderson, did not offer a view.

Tatel said Nevada might have a case "if Congress just dropped this stuff on Yucca Mountain." But he said extensive studies by the Energy Department and action by Congress to sign off on the site suggest otherwise.

Egan later said, "When you advance a theory that's new, you are assured one way or another it's going to go to the Supreme Court."

Attorney General Brian Sandoval said Nevada leaders "would look very closely" at a Supreme Court petition if the state's views are rejected at the appeals level.

On the site selection case, Edwards said Nevada could not challenge Bush's pick because Congress passed a law setting it in stone. The Senate completed the legislation on July 9, 2002, and Bush enacted it on July 23 of that year.

"This is the most important issue here," Edwards said. "Once they act, Congress can do what it wants to do, and they did it."

Edwards halted the proceedings shortly afterward, cutting off Nevada's arguments on one of its cases that was tied in part to the president's actions.

Edwards said the judges would decide that case based on written briefs, "if we get to that."

While Henderson asked a handful of questions, Edwards and Tatel engaged attorneys throughout the session.

Encouraged by attorneys for Nevada and the Natural Resources Defense Council, the two judges intensely questioned an attorney for the Environmental Protection Agency, which had set a 10,000-year radiation standard for the repository despite a National Academy of Sciences report ordered by Congress that suggested radiation dangers will exist for a much longer period.

An Energy Department study pegged the period of peak radiation at 480,000 years in the future, attorneys said.

"The facts are incontrovertible. This is an EPA standard that cannot stand review," said Antonio Rossman, a San Francisco environmental attorney representing Nevada. "The National Academy of Sciences determined there was no scientific basis to confine it to 10,000 years."

The argument seemed to strike a chord with Edwards. "It's astonishing what the agency did compared to what the NAS said," he said.

If the court ends up ruling against the EPA standards, Sandoval said the Energy Department could face delays while new ones are developed.

"It essentially would turn the program on its head because they would have to start all over again," Sandoval said. "They cannot prove those canisters will last more than 10,000 years."

Energy Department spokesman Davis said DOE will continue its preparations to license a Yucca repository.

"For whatever standards the court might set, we are confident we can meet them," Davis said.

The Energy Department plans to submit a license application by the end of December. Davis would not say whether the project could be delayed if the court orders any changes.

Outside the court, Rep. Shelley Berkley, D-Nev., said the day "was obviously not a home run (for Nevada), but I think we're going to win the EPA process and that will cause delay."

Berkley also said the judges "opened up a can of worms for us," by indicating that Nevada can mount challenges to the project's environmental impact before the Nuclear Regulatory Commission.

Rep. Jon Porter, R-Nev., cautioned against reading too much into the judges' reaction to oral arguments considering they also will be reviewing thousands of pages of legal documents before issuing decisions.

"These cases will not be won or lost today," Porter said. "We may not win every case but there were points made today that will help us."