Tuesday, January 11, 2005
Copyright © Las Vegas Review-Journal

Nevada entitled to more funds to fight Yucca, lawyers say

Court to decide whether energy secretary can increase state's $1 million allocation

WASHINGTON -- Lawyers for the state of Nevada returned to federal court Monday over Yucca Mountain, arguing the state is entitled to millions more dollars to contest the proposed nuclear waste repository.

Nevada was short-funded when it was given only $1 million to monitor the Energy Department project last year, a three-judge panel was told. The sum was $4 million less than state officials believed necessary to pay scientists and hire experts for upcoming repository license hearings.

Robert Cynkar, one of the state's nuclear waste lawyers, said the government is obliged by law to make sure Nevada has a meaningful voice in Yucca Mountain, where DOE plans to bury 77,000 tons of highly radioactive spent nuclear fuel.

"The question of how Nevada spends its money is fundamental," Cynkar said, saying funding limits "would prevent Nevada from participating."

The question before judges in the U.S. Court of Appeals for the District of Columbia Circuit was whether Energy Secretary Spencer Abraham could increase the $1 million allocation, which was in an appropriations bill passed by Congress.

Justice Department attorney Ronald Spritzer, representing DOE, said Abraham's hands were tied.

"Clearly, when Congress makes an appropriation, it is a ceiling unless Congress expresses otherwise," Spritzer said. "The agency can't supplement the money that Congress has provided."

The case could hold implications for Nevada's fight against Yucca Mountain at a time when it could get expensive. State officials have said they would need to spend up to $10 million annually during repository licensing that could take four or five years.

A loss in court could require the state to come up with millions of dollars out of its own pocket to continue challenging the repository, further testing the state's resolve against the project.

"The citizens of Nevada would have to pay the costs rather than the guys who made the garbage," Cynkar said.

In November, the Nevada Legislature's Interim Finance Committee approved $1.1 million from a contingency fund to allow the state Agency for Nuclear Projects to continue operations while its seeks more money from the government.

In court, judges focused on the $1 million appropriation.

"Doesn't that suggest that's what Congress intended Nevada to get for these activities?" Judge David S. Tatel asked Cynkar. "Your theory is that Nevada is entitled to whatever it needs."

Cynkar responded Nevada doesn't believe it is entitled to a "blank check."

The judges also expressed interest in whether Nevada should be allowed to use nuclear waste funds in the first place to take part in Yucca licensing, a quasi-judicial proceeding that will be run by the Nuclear Regulatory Commission.

The Nuclear Energy Institute argued in a court brief that there is nothing in law that says the nuclear waste fund should pay for Nevada to fight Yucca Mountain at the NRC.

A ruling is expected in the next several months, attorneys said.