Thursday, September 16, 2004
Copyright © Las Vegas Review-Journal

YUCCA MOUNTAIN PROJECT: U.S. Supreme Court intervention sought

Nuclear industry group wants ruling reversal

WASHINGTON -- The Nuclear Energy Institute has served notice it intends to ask the U.S. Supreme Court to reverse a ruling that threw the Yucca Mountain Project into turmoil when it was issued in July.

Lawyers for the nuclear industry association say in court documents the effort to build a repository for the nation's radioactive spent fuel is important enough to merit the attention of the highest court.

The NEI filed a motion Sept. 8 asking a federal appeals court in Washington to delay finalizing a July 9 ruling that struck a blow against the repository until the justices are asked to intervene.

Officials with the Energy Department and the Environmental Protection Agency have indicated they do not plan to join a Supreme Court appeal.

But the nuclear industry group said the case "involves a matter of great national importance: the creation of a national repository for spent nuclear fuel and high-level radioactive waste."

The deadline for filing a petition for writ of certiorari asking the Supreme Court to accept the case is Nov. 30, NEI attorneys said.

The NEI is attempting to focus the justices on a July 9 ruling by a three-judge panel from the U.S. Court of Appeals for the District of Columbia.

The judges voided a 10,000-year radiation safety guideline the Environmental Protection Agency had written for the repository. They said EPA disregarded the views of a National Academy of Sciences study that recommended radiation protections for thousands of years longer.

The ruling has thrown the Yucca project into uncertainty as the EPA, the Energy Department and the Nuclear Regulatory Commission weigh its impact only months before the DOE planned to submit repository licensing paperwork for review.

Of 8,883 petitions for writ of certiorari received during their 2003-04 term, Supreme Court justices accepted only 91 for argument, according to Ed Turner, deputy public information officer.

Bret Birdsong, a professor at the Boyd School of Law at the University of Nevada, Las Vegas, said odds are long the justices will accept the Yucca case. But it may intrigue them.

"They will sometimes grant `cert' in cases that pose issues of national importance and this could be regarded as that because waste will be shipped from places all around the country," said Birdsong, who was an attorney in the Justice Department's environmental division from 1994 to 2000.

But Birdsong said the legal questions the NEI plans to advance may not rise to a compelling level to interest the justices. And the industry's case may be diminished in the eyes of the Supreme Court if the government chooses not to join the appeal.

"If the Solicitor General has decided not to pursue it, in some sense that sends a message to the court it may not be worth their time," he said.