Thursday, January 16, 2003
Copyright © Las Vegas Mercury

Editor's Note: Yucca Mountain: To be continued

I attended a press conference about Yucca Mountain the other day. When I mentioned to a news biz colleague that I was surprised he wasn't there, he responded, "If I ever have to write about Yucca Mountain again, I'll kill myself." Or something to that effect.

It's true the federal government's plan to dump high-level nuclear waste at Yucca Mountain was a long, drawn-out story in 2002. It went on and on, and people tend to get bored with incremental coverage of the same story day after day.

Plus, the story seemed to have an end to it, which is rare for the news. The president recommended Yucca Mountain, Congress voted for it, Gov. Kenny Guinn vetoed it, Congress overrode his veto and the president signed it. End of story, move on.

Well, not quite. What happened is that President Bush's signature merely signaled round two in Nevada's fight to keep the nation's high-level radioactive garbage out of the state. Round two consists of half a dozen lawsuits the state has filed questioning the legality of Congress' schemes.

Lawsuits don't tend to be very interesting, so round two will be even more mind-numbing than the political fights of round one. Besides, most Nevadans appear to have given up. They assume the feds have won and there's nothing more to be done about it.

Even my compadres in the alternative press have adopted this attitude. The editors of the three alternative newsweeklies in town appeared Sunday on Ed Bernstein's talk show on Channel 3, and two of them predicted with an air of grave certainty that the waste is coming to Nevada.

Well, not just yet. You see, those lawsuits the state has filed shouldn't be taken lightly. The press conference last week was held to announce the latest lawsuit, which challenges Congress' Yucca Mountain resolution on constitutional grounds.

The state has hired some serious legal firepower to handle these cases. Don't worry, the fate of these suits does not rest in the relatively inexperienced hands of former Attorney General Frankie Sue Del Papa or new AG Brian Sandoval. They have retained some of the top guns in the field to do this work. The latest hire, Chuck Cooper, was recently named by the National Law Journal as one of the 10 best civil litigators in Washington. He once served as a law clerk to Supreme Court Chief Justice William Rehnquist and worked for the Justice Department during the Reagan administration.

The state has what appears to be a compelling case revolving around the contention that Nevada's sovereignty is under attack. The initial lawsuits center on the fact that, in the mid-'90s, the Department of Energy and Congress abandoned scientific principles in determining Yucca Mountain's suitability. When the original argument for Yucca--that its geologic characteristics were ideal for underground waste storage--could not be verified, the feds changed the rules and said geology was no longer the most important factor. Instead, the metal waste storage containers became the most important thing.

As a result, Yucca Mountain lost its uniqueness as a storage site. If the storage containers are the main protection against exposure, then the waste can be stored just about anywhere. This being so, the state argues that Yucca Mountain does not meet the conditions of the Nuclear Waste Policy Act.

The new lawsuit, however, could be the biggie. Joseph Egan, chief counsel for the state's Yucca fight, believes the constitutional challenge will "put a stake through the vampire's heart." In simple terms, the suit makes this point: If 49 states impose an "undue burden" on one state against its will, they better have a good reason to do so or else they violate the 10th Amendment.

Cooper gave this analogy: If 49 states were to get together in Congress and reinstitute the draft, then decide that draftees would come only from the state of California, everybody would agree that was wrong. For 49 states to choose Nevada against its will to store the nation's nuclear waste, the only rationale to do so would be if Nevada had unique geologic conditions for a repository. Those conditions have been "scientifically debunked," Cooper says, so "in the absence of a compelling reason, 49 states can't gang up on one."

It's not just the 10th Amendment that comes into play, Cooper says, but the entire Constitution, which, the U.S. Supreme Court has said, contains "fundamental postulates" against this kind of thing. He says it is "inconsistent with the founders' design."

One oft-repeated cause for optimism is that the courts tend to be more objective than politicians. This is generally true, though the U.S. Supreme Court's handling of the 2000 presidential election certainly throws some cold water on that bit of conventional wisdom.

That said, the conservative bent on the high court would appear to work in Nevada's favor on this issue. States' rights are supposedly a high priority for the Rehnquist court. The Yucca Mountain case, certain to end up in the Supreme Court, will be a major test of that belief.

Here's all I'm saying: The Yucca Mountain story is not over. We have only begun to fight.

--GEOFF SCHUMACHER