Yucca strategy: Sue, stall

Erin Neff

Monday, Feb. 18, 2002 | 10:40 a.m.

Now that President Bush has approved a nuclear waste dump at Yucca Mountain, Nevada officials plan to stuff the courts with lawsuits, tying up the issue for as long as possible.

Although the state's ultimate goal is to block the repository, attorneys and officials admit that with the federal government's deep pockets and their own questionable legal grounds, Nevada's real court strategy is delay.

"Delay has sort of always been the state's motto here," said Robert Loux, director of the Nevada Agency for Nuclear Projects.

Bret Birdsong, an environmental law professor at UNLV's Boyd School of Law, said time is on the side of the plaintiff -- or in this case Nevada -- in environmental suits.

"If you can just throw enough sand in the gears it can slow things until different science emerges or the political winds change," Birdsong said. "If you just stop the process, it improves your chance for victory."

What started as a small suit disputing water safety has grown to a smattering of cases -- and plaintiffs -- in courts around the country.

Attorney General Frankie Sue Del Papa even had to ask her staff Friday how many Yucca Mountain challenges are out there.

The state already had four lawsuits -- including one joined by Las Vegas and Clark County -- even before Bush's decision. The lawsuits argue everything from the government following a faulty process in making the decision to the Energy Department basing the decision on incomplete science.

Both Energy Secretary Spencer Abraham's recommendation Thursday and Bush's move Friday gave the state additional fodder for lawsuits.

"Now we have a final decision," Marta Adams, senior deputy attorney general, said. "Before much of our legal argument was premature because there was no final agency decision."

On Friday the state sued again, this time naming Abraham and Bush in addition to alleging the Energy Department failed to rely on Yucca Mountain's geological suitability in naming the site.

Las Vegas and Clark County also amended their case Friday naming Bush as a defendant. The state's new suit and the city and county's amended suit are both before the Circuit Court of Appeals in Washington.

"This was a political decision, not based on sound science," Las Vegas Mayor Oscar Goodman, a criminal defense attorney, said.

"Some people have expressed concern that it's over," Goodman added. "But the fight has just begun."

Las Vegas City Attorney Brad Jerbic said it is asking the court to hear the city's arguments as soon as possible, even as the city explores additional legal remedies.

Clark County Commission Chairman Dario Herrera added there is "political, legal, and public relations ammo that hasn't been realized yet."

But what chance does Nevada really have in the courts?

Gov. Kenny Guinn describes it as a David versus Goliath fight.

"These people are just unbelievable," Guinn said referring to the nuclear energy industry. "They don't have a budget and they've hired the best law firm they can."

"Fighting the government is tough, and we're a very small state," Guinn added.

Carl Tobias, a UNLV constitutional law professor, said there is an opportunity and legal precedent for Nevada to successfully make Yucca Mountain a state's rights issue.

The Supreme Court ruled favorably twice for states based on 10th Amendment arguments.

In New York v. United States -- a 1992 case involving nuclear waste in New York -- the court said the federal government was "commandeering" the state's infrastructure to transport the waste.

The second case involved a Montana challenge to the Brady Law's gun registration requirement. Lawyers for a Montana sheriff argued the federal government was "commandeering" local law enforcement officials to perform the background checks.

"Nevada could try that argument," Tobias said. "But it's a fairly narrow window."

Adams said the state believes both Abraham and Bush's decisions have legal and procedural faults that could lead a judge to side with Nevada.

"It's safe to say our strategy is to delay," Adams said. "But there are real legal grounds."

The state has two suits pending on the safety of water under Yucca Mountain. The 9th U.S. Circuit Court of Appeals kicked one of those suits back to federal district court in Nevada and the other is in district court in Tonopah.

Nevada has also filed suit in Washington over the radiation standard and the site guidelines used by the Energy Department.

Birdsong said he thought the water challenge was "a minor sideshow," but that the state's site guideline challenge may prove successful.

The Nuclear Waste Policy Act specifies Yucca Mountain can be recommended as the repository because its geologic isolation allows it to safely store nuclear waste. But the Energy Department last year successfully argued for a change in that law to allow the mountain's suitability to be based on constructed barriers -- not geologic isolation.

But Birdsong warns that many courts will defer to the agency when there is a question about environmental law.

In addition, he added, national environmental laws are generally weak and would likely give the government the edge.

Still Birdsong said there may be enough in the 10,000-page environmental impact statement to "interest a judge."

Among the documents in the 80-pound package of information DOE has submitted is a report assessing Yucca Mountain's science as "poor to fair."

"A judge may see that and say, 'No you can't go forward'," Birdsong said.

Loux said all it takes is one legal victory to block the site. And Guinn vows to fight any of the cases as far as they will go.

"We just have to be litigious," Guinn said. "On science, people can say it's safe and other people can say it isn't.

"We have to rely on the courts to settle that part of our fight," Guinn added. "The presidency of the United States was settled in court and the American people abide by it."

Adams said both the state's internal and private legal teams are "in a good position to make something stick."

Nevada officials are not commenting on how much the state intends to spend in court. However, the Nevada Protection Fund -- established by Guinn to fight the repository -- has $5.4 million.

Guinn said another major donation to the fund will be announced this week, and he encouraged all residents and businesses to give what they can to the fund.

"It's a commitment all of us need to make," Guinn said.