Nevada v. Watkins: Who Gets the Shaft?
By Mark E. Rosen
INTRODUCTION
The Nuclear Waste Policy Act of 1982 (NWPA) is the nation's first substantial step towards development of a comprehensive plan for disposal of spent fuel and high-level nuclear waste; byproducts of the peaceful use of nuclear power. Events like Three Mile Island in 1979 and Chernobyl in 1986 grabbed headlines, while high level radioactive waste from civilian power plants continued to accumulate with little congressional attention. Courts have been sensitive to the disposal question, but have been optimistically deferential to talk of a federal solution.
Following the Arab Oil Embargo of 1973 and natural gas shortages in 1978-79, significant funds and personnel were allocated by the Department of Energy to develop a long-term plan for the management of nuclear waste. Disposal plans have varied from deep seabed emplacement to literally launching spent fuel rods into space in the direction of the sun. Opinion began to coalesce in the late 1970's that “mined geological repository (was) the preferred solution for the disposal of high-level waste and spent nuclear fuel.” President Carter endorsed the geologic disposal method in a message to Congress in 1980 and the Department of Energy (DOE) issued a “record of decision” in this regard in 1981. Until a permanent repository is established, on-site stowage is the only short-term stowage option.
Extensive amendments to the NWPA authorized funding for a Monitored Retrievable Stowage (MRS) facility if the Secretary could find a locality willing to accept an MRS facility in exchange for the Section 171 financial benefits ($ 10 million per year) which accrue after the facility is open for business. Under the original 1982 Act, the Secretary was only to perform MRS feasibility studies. MRS facilities, which have temporary stowage capability, are viewed by Secretary Watkins as a temporary respite from the on-site stowage dilemma. Even the MRS future is murky because a legislative fix is required to fully delink the MRS program from the repository program. While an MRS facility offers a community great financial benefits because of significant long-term employment and is less environmentally contentious, a community must still be willing to accept siting of an MRS facility and all the controversy which it will bring.
Nevada has waged a bitter legal fight to prevent the establishment of a permanent repository on Federal property within Nevada. The current legal skirmishes are prefatory to later battles which will be fought if the site is ultimately selected as the nation's high level radioactive waste site. Presently, Yucca Mountain is the only site under consideration and over $2.5 billion has been spent in the scientific formalities of site selection. A significant federal project currently sits in limbo.
In Nevada v. Watkins, the Ninth Circuit upheld the NWPA and the Yucca Mountain project, to the extent there were justiciable issues against the supremacy clause and other constitutional attacks. Because the stakes are so high, a grant of certiorari is reasonable to anticipate because the project has national security implications and, if the scientists are wrong in their technological assessments, has the capacity to cause environment damage to a large portion of the country. A corollary concern is that the “(P)erceptions of risk and the negative imagery attending nuclear waste disposal when amplified by the media may significantly impact Nevada's tourism industry and inmigration for business and retirement purposes.” Because of popular perceptions of geologic instability, and the tremendous destructive capabilities of the material with no corresponding gain to the surrounding community, it is predicted that the Supreme Court's decision will be heavily influenced by matters of nuclear and environmental policy.
The Yucca Mountain controversy does not admit to brevity; there have been numerous congressional hearings on the subject since the 1982 passage of the NWPA and between 20-30 cases were filed challenging sundry procedural and substantive aspects of the NWPA. Nonetheless, Nevada v. Watkins, is the key to future activities under the NWPA--assuming it passes constitutional muster. The decision is also important because it addresses core constitutional issues about a states' police powers to regulate hazardous disposal activities within its borders. Past decisions (concerning the siting of nuclear plants) provide little concrete guidance since the decision to site a plant has traditionally been an initiative of the states acting through their public service commissions. Here, of course, the tables are turned. To gain an appreciation of how the later discussion of the constitutional issues in Nevada v. Watkinsfits into the overall Federal high level waste disposal program, we shall first examine the nature of nuclear waste and some of the scientific issues at stake in designing and sitting a repository. Next there shall be a discussion of the NWPA with emphasis upon the 1987 amendments to place the scientific issues into proper perspective. Finally, since the NWPA has prompted such a particularly bitter legal fight, it is useful to brief the other lawsuits which have been filed by Nevada to defeat the Yucca Mountain initiative in order to derive a sense of where the federal program is moving and to determine what role the U.S. Supreme Court should play in passing upon Nevada v. Watkins.
The Nuclear Waste Policy Act of 1982 (NWPA) is the nation's first substantial step towards development of a comprehensive plan for disposal of spent fuel and high-level nuclear waste; byproducts of the peaceful use of nuclear power. Events like Three Mile Island in 1979 and Chernobyl in 1986 grabbed headlines, while high level radioactive waste from civilian power plants continued to accumulate with little congressional attention. Courts have been sensitive to the disposal question, but have been optimistically deferential to talk of a federal solution.
Following the Arab Oil Embargo of 1973 and natural gas shortages in 1978-79, significant funds and personnel were allocated by the Department of Energy to develop a long-term plan for the management of nuclear waste. Disposal plans have varied from deep seabed emplacement to literally launching spent fuel rods into space in the direction of the sun. Opinion began to coalesce in the late 1970's that “mined geological repository (was) the preferred solution for the disposal of high-level waste and spent nuclear fuel.” President Carter endorsed the geologic disposal method in a message to Congress in 1980 and the Department of Energy (DOE) issued a “record of decision” in this regard in 1981. Until a permanent repository is established, on-site stowage is the only short-term stowage option.
Extensive amendments to the NWPA authorized funding for a Monitored Retrievable Stowage (MRS) facility if the Secretary could find a locality willing to accept an MRS facility in exchange for the Section 171 financial benefits ($ 10 million per year) which accrue after the facility is open for business. Under the original 1982 Act, the Secretary was only to perform MRS feasibility studies. MRS facilities, which have temporary stowage capability, are viewed by Secretary Watkins as a temporary respite from the on-site stowage dilemma. Even the MRS future is murky because a legislative fix is required to fully delink the MRS program from the repository program. While an MRS facility offers a community great financial benefits because of significant long-term employment and is less environmentally contentious, a community must still be willing to accept siting of an MRS facility and all the controversy which it will bring.
Nevada has waged a bitter legal fight to prevent the establishment of a permanent repository on Federal property within Nevada. The current legal skirmishes are prefatory to later battles which will be fought if the site is ultimately selected as the nation's high level radioactive waste site. Presently, Yucca Mountain is the only site under consideration and over $2.5 billion has been spent in the scientific formalities of site selection. A significant federal project currently sits in limbo.
In Nevada v. Watkins, the Ninth Circuit upheld the NWPA and the Yucca Mountain project, to the extent there were justiciable issues against the supremacy clause and other constitutional attacks. Because the stakes are so high, a grant of certiorari is reasonable to anticipate because the project has national security implications and, if the scientists are wrong in their technological assessments, has the capacity to cause environment damage to a large portion of the country. A corollary concern is that the “(P)erceptions of risk and the negative imagery attending nuclear waste disposal when amplified by the media may significantly impact Nevada's tourism industry and inmigration for business and retirement purposes.” Because of popular perceptions of geologic instability, and the tremendous destructive capabilities of the material with no corresponding gain to the surrounding community, it is predicted that the Supreme Court's decision will be heavily influenced by matters of nuclear and environmental policy.
The Yucca Mountain controversy does not admit to brevity; there have been numerous congressional hearings on the subject since the 1982 passage of the NWPA and between 20-30 cases were filed challenging sundry procedural and substantive aspects of the NWPA. Nonetheless, Nevada v. Watkins, is the key to future activities under the NWPA--assuming it passes constitutional muster. The decision is also important because it addresses core constitutional issues about a states' police powers to regulate hazardous disposal activities within its borders. Past decisions (concerning the siting of nuclear plants) provide little concrete guidance since the decision to site a plant has traditionally been an initiative of the states acting through their public service commissions. Here, of course, the tables are turned. To gain an appreciation of how the later discussion of the constitutional issues in Nevada v. Watkinsfits into the overall Federal high level waste disposal program, we shall first examine the nature of nuclear waste and some of the scientific issues at stake in designing and sitting a repository. Next there shall be a discussion of the NWPA with emphasis upon the 1987 amendments to place the scientific issues into proper perspective. Finally, since the NWPA has prompted such a particularly bitter legal fight, it is useful to brief the other lawsuits which have been filed by Nevada to defeat the Yucca Mountain initiative in order to derive a sense of where the federal program is moving and to determine what role the U.S. Supreme Court should play in passing upon Nevada v. Watkins.
