Saturday, October 09, 2004
Copyright © Las Vegas Review-Journal

Yucca ruling's appeal rejected

Options weighed after court rejected radiation standard

WASHINGTON -- Addressing a potential problem for President Bush in Nevada, the Justice Department said Friday the government will not ask the U.S. Supreme Court to review a ruling that went against the Yucca Mountain Project this summer.

Attorneys disclosed the decision in a one-page brief filed late in the day at the U.S. Court of Appeals for the District of Columbia.

The filing aimed to put an end to speculation whether Bush intended to follow through after he said in Las Vegas on Aug. 13 he would allow the courts to set a course for the proposed nuclear waste repository.

Nevada Democrats and critics of the Yucca Mountain program pounced on Bush after Tuesday's disclosure that Justice Department officials had told the court in a Sept. 23 document they hadn't decided whether to appeal a July 9 ruling that struck a blow against the program.

That decision voided a 10,000 year radiation standard the Environmental Protection Agency had written for the nuclear waste repository.

EPA and Energy Department officials have said they will develop new radiation regulations to satisfy the court rather than prolong a legal fight.

While the court ruling in July damaged a key portion of the project, it also upheld most other segments in favor of the government.

Although officials at the Energy Department and the Environmental Protection Agency were stating there were no plans to take the Yucca Mountain issue to the Supreme Court, Democrats charged the Justice Department quietly was allowing Bush to keep his options open.

Two sources confirmed that state Attorney General Brian Sandoval, co-chairman of the Bush campaign in Nevada, telephoned the White House on Wednesday and complained. It could not be learned who took his call.

"The word was, 'What's going on here,' " said one source aware of the conversation. "Your underlings aren't on the same page."

On Friday, the Justice Department told judges: "We are now in a position to report that the Solicitor General's Office has reached a decision and that the United States does not intend to file a petition" seeking Supreme Court review.

An industry association, the Nuclear Energy Institute, has indicated it will file an appeal, but experts have said its chances are diminished if the government doesn't join in.

After the Justice Department filed the document, Sandoval issued a statement saying the government's decision not to appeal "is a resonant indicator of the strength of Nevada's legal position on Yucca Mountain."

Sen. John Ensign, R-Nev., said the development put an end to the possibility of a prolonged legal fight.

"I hope this decision also puts an end to partisan claims meant to put President Bush in an unfavorable light," Ensign said. "The president has said he would abide by the court's rulings, and he is doing just that."

Rep. Shelley Berkley, D-Nev., said she would not take the Justice Department's announcement at face value. She said the administration still could turn to Congress to overturn the unfavorable ruling.

"I'm wary. I'd like to know what the next trick is up their sleeves," Berkley said. "There is still a lot of mischief that can be done."