A rare victory over Energy Department

In a rare victory in its struggle to block construction of the nation's high-level nuclear waste dump at Yucca Mountain, the state of Nevada last week found a compelling issue and a sympathetic judge.

The federal Department of Energy and its subcontractors have demanded the use of 4 million gallons of groundwater to cool and lubricate drill bits and make mud for collecting rock samples as they proceed to drill 80 new bore holes at the site, 100 miles northwest of Las Vegas.

The drilling is to demonstrate that the facility will be safe from earthquakes and floods. But the water belongs to the state, and the state engineer has ordered the department to stop using it.

The Energy Department asked the federal court to instruct the state engineer to butt out. But last week, U.S. District Judge Roger Hunt instead ruled for the state in a strongly worded states-rights opinion.

The unauthorized use of the state's water is "a violation of state water law, a violation of an agreement it (the state) entered in good faith, and interference with its obligation to its citizens to enforce its laws and preserve its water," Judge Hunt wrote Friday.

"There has been no act by Congress which pre-empts Nevada's state water laws," the judge continued -- implying the dangerous and unconstitutional but hardly surprising doctrine that the federal Congress might do so if it wished. "The only public interest issue is whether ... a federal agency can run roughshod over a state's rights or interests without specific authority and mandate to do the precise activities it wishes to do."

A bill proposed by the Bush administration to grant the Energy Department just such power to grab water over Nevada's objections seems to be going nowhere this year. And Bob Loux, executive director of the Nevada Agency for Nuclear Projects, contends the state engineer also has power to forbid the federals from trucking in water from out of state or from elsewhere within the state.

Finally, Judge Hunt boldly tackled the question of why the Energy Department is digging bore holes at this late date, anyway. Either the current work is "unreasonable and without demonstrable, legitimate purpose," the judge wrote, "or, alternatively, it (the DOE) shows a complete lack of confidence in its ability to obtain a license from the NRC (Nuclear Regulatory Commission) because of weakness in its original scientific studies."

Hunt agreed with Nevada's contention that the Energy Department's site characterization work was supposed to have been completed by 2002, when then-Energy Secretary Spencer Abraham recommended the site to President Bush.

"Either that is so and this is not site characterization, or it would appear that the DOE misled Congress and the president in its application for approval of the site," Judge Hunt ruled. "DOE attempts to deny that this is further site characterization. However, its own documents contradict that argument."

The ruling is solid, logical, principled and based on facts. It is also a ringing rebuke to the Energy Department -- though it does contain that dangerous assertion that Congress could eventually overrule Nevada water law, if it wished.

So, is it time for Yucca Mountain opponents to take up dancing in the streets?

No. In the real world, judges are political appointees, and remain subject to political pressures. Yucca Mountain is currently unpopular with Nevada officials, and sympathetic rulings by Nevada-based judges are not unprecedented.

Marta Adams, the senior deputy Nevada attorney general who represented Mr. Loux in this case, expresses the opinion that "This is going to be tricky for them to appeal, and they have some real public relations issues here."

Ms. Adams may overrate the reluctance of the Energy Department to suffer "bad publicity," as well as their reticence to reconvene this debate in a friendlier locale, whether before the 9th U.S. Circuit Court of Appeals or the Supreme Court itself.

Generally speaking, the doctrine that the central government can do anything it damned well pleases is likely to find a far more sympathetic hearing in those venues. Celebrations of the demise of the Yucca Mountain Project may be premature.