Wednesday, October 06, 2004
Copyright © Las Vegas Review-Journal

NUCLEAR REPOSITORY: Yucca court challenge alive

Justice Department still may ask court to keep disputed radiation rules intact

WASHINGTON -- The White House on Tuesday distanced itself from a Justice Department document suggesting the Bush administration might ask the Supreme Court to keep intact disputed radiation rules for the Yucca Mountain Project.

Despite previous statements from Bush administration officials that there would be no appeal of a July court ruling that set back the nuclear waste project, Justice Department attorneys on Sept. 23 filed a document in federal court stating the U.S. solicitor general has final say over Supreme Court actions.

"At this writing, the solicitor general has not yet made any decision regarding Supreme Court review in this case," the department said.

The document's disclosure aroused Democrats and critics of the Yucca project. They charged President Bush, who appoints the solicitor general, may be angling to prolong legal fights over Yucca Mountain if he is re-elected.

The deadline for filing a Supreme Court appeal in the matter is Nov. 30, according to attorneys for the Nuclear Energy Institute, which already has indicated it will seek court review.

A Justice Department source said it is unlikely that acting solicitor general Paul D. Clement will take Yucca Mountain to the Supreme Court, consistent with the views expressed by the Bush administration.

But with Justice Department officials claiming they have an option, Sen. Harry Reid, D-Nev., charged Bush was violating a statement he made in Nevada on Aug. 12 that he would let the courts rule on the nuclear waste repository.

"My concern once again is that the president on Yucca Mountain is talking out of both sides of his mouth," Reid said.

"This sounds like George Bush wasn't exactly honest when he was out here last time," said Sean Smith, Nevada spokesman for Democratic presidential candidate John Kerry. "He's giving himself the option to push forward. It fits the pattern of him not leveling with the people of Nevada on this issue and other issues."

Attorney General Brian Sandoval, who also is co-chairman of the Bush campaign in Nevada, disagreed. He said federal agencies appear to be in a turf battle over who calls the shots on Supreme Court appeals, and Justice Department officials were claiming their turf.

"I don't think politics has anything to do with this," Sandoval said. "The solicitor is viewing this purely from a legal perspective."

Sen. John Ensign, R-Nev., said Democrats "are trying to take a cheap shot here." He said the Justice Department document was not inconsistent with what Bush told Nevadans in August.

But, Ensign said, "I would love to drive a stake through Yucca Mountain and be done with it."

Tracey Schmitt, a spokeswoman for the Bush campaign in Nevada, said the criticism of Bush is "disingenuous when Kerry misled the state on his record for months."

Republicans have criticized Kerry on seven specific votes he cast on the project over the course of two decades, including his vote for the "Screw Nevada" bill that singled out Yucca Mountain for study in 1987. Democrats note Kerry opposed the project in key votes in recent years and has promised to kill the program if elected.

The exchange marked a new skirmish over the Yucca Mountain Project, seen as a key wedge issue for the presidential campaigns in Nevada, a battleground state.

It stems from a July 9 ruling in the U.S. Court of Appeals for the District of Columbia that ruled in favor of the government on a number of issues but threw the proposed nuclear waste repository into uncertainty by voiding a 10,000 year radiation standard written by the Environmental Protection Agency.

White House spokesman Ken Lisaius said the president's position has been expressed by Energy Department and EPA officials who have said they see little value in prolonging a court case in which the government won most of the arguments.

"My understanding is that the circumstances have not changed," Lisaius said, adding he could not explain the Justice Department court filing.

Energy Department spokesman Joe Davis said: "We believe that the framework the Court decision requires is workable and that therefore the best way to proceed is not to engage in further litigation but to allow EPA to work to develop an appropriate regulatory response to address the issued raised by the Court."

Justice Department spokesman Blain Rethmeier would not comment on the court filing. He said the department's stance "is in line with the White House."

A Justice Department source indicated that Sandoval's reading of the matter may be closest to correct.