The Federal Structure: Can Congress Commandeer Nevada to Participate in Its Federal High Level Waste Disposal Program?
By James Davenport
INTRODUCTION
[I]n 1987 Congress passed what is known locally as the Screw Nevada Bill, terminating all investigations except the one at Yucca Mountain. Despite the site's manifest uncertainties—its history of geologic turbulence; its potential, as a world-class mineral district, for being quarried by unsuspecting future miners; its unlikely location, thousands of miles from 90 percent of the nation's 110 nuclear-power plants—Congress was persuaded by one simple fact: with fewer than a million people and but four legislative representatives, Nevada was the weakest kid on the block. “It was the shabbiest, sleaziest political maneuver I've ever seen,” says former governor Grant Sawyer, now chairman of the State's Commission of Nuclear Projects.
This article examines the national disposal system for nuclear waste under the Nuclear Waste Policy Act (NWPA), as enacted in 1982 and amended in 1987 and 1992, focusing particularly on the constitutionality of the Act's “notice of disapproval” and “congressional override” provisions. Part I of this article describes the notice of disapproval and congressional override provisions of the NWPA, including a brief analysis of their legislative history. Part II discusses the advantages of the federal structure as a protection against the exercise of autocratic congressional power, and studies the United States Supreme Court's approach to federalism in two recent cases. Parts III addresses Nevada's experience under the NWPA. Parts IV and V analyze the constitutionality of the notice of disapproval and congressional override provisions of the NWPA in light of these two Supreme Court holdings. Part VI discusses the “environmental subsidy” imposed by the NWPA. Part VII concludes the article with a more practical, workable and constitutionally-defensible alternative to the existing waste disposal siting process.
A. The Nuclear Waste Policy Act's Notice of Disapproval and Congressional Override Provisions
The problem of what to do with spent fuel from nuclear power plants and high-level nuclear waste from nuclear weapons production led Congress to create a national disposal system with the 1982 Nuclear Waste Policy Act (NWPA). The 1982 NWPA, a compromise, required the Department of Energy (DOE) to open a permanent waste repository by 1998 and to recommend a second site in a different geographical and geological location. The first repository site was to be selected from among multiple candidates, after a seven year “characterization” process. The 1982 law also provided that the site selected by DOE and the President would be subject to a state veto, which Congress could override. This state veto, or notice of disapproval provision, enabled any state to formally express its disapproval of a federally designated repository site within sixty days after the President designated it:
Upon the submission by the President to the Congress of a recommendation of a site for a repository, the Governor or legislature of the State in which such site is located may disapprove the site designation and submit to the Congress a notice of disapproval. Such Governor or legislature may submit such a notice of disapproval to the Congress not later than the 60 days after the date that the President recommends such site to the Congress under 42 U.S.C. § 10134. A notice of disapproval shall be considered to be submitted to the Congress on the date of the transmittal of such notice of disapproval to the Speaker of the House and the President pro tempore of the Senate. Such notice of disapproval shall be accompanied by a statement of reasons explaining why such Governor or legislature disapproved the recommended repository site involved.
Also in the 1982 NWPA, Congress reserved to itself the right to override any state objections to a federally-designated repository:
If any notice of disapproval of a repository site designation has been submitted to the Congress under 42 U.S.C. § 10136 or § 10138 after a recommendation for approval of such site is made by the President under 42 U.S.C. § 10134, such site shall be disapproved unless, during the first period of 90 calendar days of continuous session of the Congress after the date of the receipt by the Congress of such notice of disapproval, the Congress passes a resolution of repository siting approval in accordance with this subsection approving such site, and such resolution thereafter becomes law.
B. Congressional Policy Concerns that Gave Rise to the Notice of Disapproval and Congressional Override Provisions
Congress' early discussions about the problem of what to do with spent nuclear fuel had focused on the pivotal question: should state or federal law prevail in siting decisions? The National Conference of State Legislatures, which favored giving the states an active voice in the selection of nuclear waste repository sites, circulated a policy statement in support of an absolute state veto over federal siting decisions. Congressman Morris Udall, then Chairman of the House Interior Committee, recognized and endorsed this policy statement in a 1977 article: “trends in state legislation indicate that exclusive Federal pre-emption of waste management and disposal is outdated public policy.” However, the Chairman and Ranking Member of the Senate Energy Committee, then Senators James McClure and Bennett Johnston, and the Chairman and Ranking Member of the Nuclear Regulation Subcommittee of the Senate Committee on Environment and Public Works, then Senators Alan Simpson and George Mitchell, took a different view. Apparently believing that an absolute state veto would be unworkable in practice, they successfully insisted on the inclusion of a congressional override provision in the final version of the NWPA.
In short, through the state veto and congressional override language of the 1982 NWPA, Congress defined the time and method by which states could register their objections to the federal repository siting decision and reserved to itself the right to overcome those objections. Congress thus ensured that it would have the final word in the designation of a nuclear waste repository site.
[I]n 1987 Congress passed what is known locally as the Screw Nevada Bill, terminating all investigations except the one at Yucca Mountain. Despite the site's manifest uncertainties—its history of geologic turbulence; its potential, as a world-class mineral district, for being quarried by unsuspecting future miners; its unlikely location, thousands of miles from 90 percent of the nation's 110 nuclear-power plants—Congress was persuaded by one simple fact: with fewer than a million people and but four legislative representatives, Nevada was the weakest kid on the block. “It was the shabbiest, sleaziest political maneuver I've ever seen,” says former governor Grant Sawyer, now chairman of the State's Commission of Nuclear Projects.
This article examines the national disposal system for nuclear waste under the Nuclear Waste Policy Act (NWPA), as enacted in 1982 and amended in 1987 and 1992, focusing particularly on the constitutionality of the Act's “notice of disapproval” and “congressional override” provisions. Part I of this article describes the notice of disapproval and congressional override provisions of the NWPA, including a brief analysis of their legislative history. Part II discusses the advantages of the federal structure as a protection against the exercise of autocratic congressional power, and studies the United States Supreme Court's approach to federalism in two recent cases. Parts III addresses Nevada's experience under the NWPA. Parts IV and V analyze the constitutionality of the notice of disapproval and congressional override provisions of the NWPA in light of these two Supreme Court holdings. Part VI discusses the “environmental subsidy” imposed by the NWPA. Part VII concludes the article with a more practical, workable and constitutionally-defensible alternative to the existing waste disposal siting process.
A. The Nuclear Waste Policy Act's Notice of Disapproval and Congressional Override Provisions
The problem of what to do with spent fuel from nuclear power plants and high-level nuclear waste from nuclear weapons production led Congress to create a national disposal system with the 1982 Nuclear Waste Policy Act (NWPA). The 1982 NWPA, a compromise, required the Department of Energy (DOE) to open a permanent waste repository by 1998 and to recommend a second site in a different geographical and geological location. The first repository site was to be selected from among multiple candidates, after a seven year “characterization” process. The 1982 law also provided that the site selected by DOE and the President would be subject to a state veto, which Congress could override. This state veto, or notice of disapproval provision, enabled any state to formally express its disapproval of a federally designated repository site within sixty days after the President designated it:
Upon the submission by the President to the Congress of a recommendation of a site for a repository, the Governor or legislature of the State in which such site is located may disapprove the site designation and submit to the Congress a notice of disapproval. Such Governor or legislature may submit such a notice of disapproval to the Congress not later than the 60 days after the date that the President recommends such site to the Congress under 42 U.S.C. § 10134. A notice of disapproval shall be considered to be submitted to the Congress on the date of the transmittal of such notice of disapproval to the Speaker of the House and the President pro tempore of the Senate. Such notice of disapproval shall be accompanied by a statement of reasons explaining why such Governor or legislature disapproved the recommended repository site involved.
Also in the 1982 NWPA, Congress reserved to itself the right to override any state objections to a federally-designated repository:
If any notice of disapproval of a repository site designation has been submitted to the Congress under 42 U.S.C. § 10136 or § 10138 after a recommendation for approval of such site is made by the President under 42 U.S.C. § 10134, such site shall be disapproved unless, during the first period of 90 calendar days of continuous session of the Congress after the date of the receipt by the Congress of such notice of disapproval, the Congress passes a resolution of repository siting approval in accordance with this subsection approving such site, and such resolution thereafter becomes law.
B. Congressional Policy Concerns that Gave Rise to the Notice of Disapproval and Congressional Override Provisions
Congress' early discussions about the problem of what to do with spent nuclear fuel had focused on the pivotal question: should state or federal law prevail in siting decisions? The National Conference of State Legislatures, which favored giving the states an active voice in the selection of nuclear waste repository sites, circulated a policy statement in support of an absolute state veto over federal siting decisions. Congressman Morris Udall, then Chairman of the House Interior Committee, recognized and endorsed this policy statement in a 1977 article: “trends in state legislation indicate that exclusive Federal pre-emption of waste management and disposal is outdated public policy.” However, the Chairman and Ranking Member of the Senate Energy Committee, then Senators James McClure and Bennett Johnston, and the Chairman and Ranking Member of the Nuclear Regulation Subcommittee of the Senate Committee on Environment and Public Works, then Senators Alan Simpson and George Mitchell, took a different view. Apparently believing that an absolute state veto would be unworkable in practice, they successfully insisted on the inclusion of a congressional override provision in the final version of the NWPA.
In short, through the state veto and congressional override language of the 1982 NWPA, Congress defined the time and method by which states could register their objections to the federal repository siting decision and reserved to itself the right to overcome those objections. Congress thus ensured that it would have the final word in the designation of a nuclear waste repository site.