Attorney confident Nevada can win latest Yucca suit

Friday, Jan. 10, 2003 | 9:29 a.m.

The old saying "you can't fight City Hall" applies to everything from a town board to the White House, with each ascending level harder to beat.

In the last dozen years, however, U.S. Supreme Court rulings have strengthened the rights of states and provide states with more than a fighting chance when they take on the federal government.

And that's why Nevada has a chance of winning the constitutional challenge filed Thursday to try to stop the Energy Department from building a high-level nuclear waste repository at Yucca Mountain, said a constitutional law expert who is part of Nevada's legal team.

"The judicial landscape definitely has changed in federalism cases since 1990," Charles Cooper said Thursday after announcing he has joined Nevada's legal team to fight the nuke dump.

Before 1990, he said, there weren't many cases lost by the federal government.

Cooper, who represented President Ronald Reagan as constitutional attorney when he served at the Office of Legal Counsel in the 1980s, said Thursday that two major 10th Amendment cases decided by the nation's highest court in the late 20th century -- ones the government lost -- will play a role in Nevada's constitutional challenge.

Those cases are New York v. the United States (1992) and Printz v. the United States (1997).

In New York v. the United States, the high court found that the federal government was "commandeering" the state's infrastructure to transport nuclear waste.

Ironically, Nevada was one of three states with low-level nuclear waste dumps that sided with the Justice Department. The fear was that if New York won, Nevada would have to keep its low-level nuclear dump near Beatty open. South Carolina and Washington also had those concerns.

Although Nevada and the other states were on the losing side, the high court ruling gave them a measure of victory by allowing them to refuse shipments altogether after Jan. 1, 1993, paving the way for them to shut down their controversial facilities.

In Printz v. the United States, Ravalli County (Mont.) Sheriff Jay Printz questioned whether a provision of the Brady Handgun Violence Prevention Act that ordered state and local law enforcement officers to conduct background checks on prospective handgun purchasers violated the Constitution.

Again, the high court found that the federal government was "commandeering" local law enforcement officials to perform those background checks. Cooper was quick to caution that no one case of record will ensure a victory for Nevada and he will cite "many" others. Cooper declined to elaborate, saying they will be included in his court brief.

"New York is a very important case, but we will not rely on any single case," he said. "There is no case (that stands) on all fours. But also, the government doesn't have any one case it can point at to say, 'Nevada loses.'

"We will rely on all provisions (of the Constitution) -- from Article 1 to the 27th Amendment."

Cooper said one reason there are no definitive precedent cases is because Congress has never before tagged a state with such a mandate over its objections.

Cooper indicated that not only is the law on Nevada's side, but so is common sense.

"Forty-nine states cannot gang up on one," he said. "If 49 states voted to reinstate the (military) draft but required that only people from California could be conscripted, no one would disagree that Congress violated the fundamental postulates implicit to constitutional design."

Nuclear engineering expert Joe Egan, also working for the state, said the constitutional case is necessary to protect Nevada's three prior anti-dump lawsuits, which were consolidated from five suits. Those cases are scheduled to be heard in September.

"If we win those cases, Congress could go back yet again and change the rules," Egan said. "This (constitutional suit) will put a stake in the vampire's heart."

The state alleges that the government abandoned the issue of "geological isolation" -- that is, Nevada purportedly has the sole physical resources to store the waste -- and changed the rules to make Nevada fit the government's needs for the dump.

Allen Benson, spokesman for the Energy Department and the Yucca Mountain project, declined to comment on the lawsuit, saying he hadn't seen it. He said, however, that nowhere did the law say the government had to find a best site for the nuclear repository.

"Under site suitability guidelines, it says a suitable site had to be selected," Benson said. "We are continuing the process to make our license application to the Nuclear Regulatory Commission."

The constitutional challenge, filed in a federal appeals court in Washington, alleges the nation's nuclear waste disposal laws apply one set of standards to judge Yucca Mountain's suitability and a different, much stricter standard, to assess the suitability of other repositories in other states.