Monday, Nov. 29, 2004 | 11:06 a.m.
WASHINGTON -- The Nuclear Energy Institute will not ask the Supreme Court to review a federal appeals court ruling that threw out a radiation protection standard for the Yucca Mountain project.
The decision by the institute, the nuclear industry's lobbying arm, means that the appellate court ruling stands. The only way that will change is if Congress passes a law changing the standard or upholding the previous standard.
Otherwise, the Environmental Protection Agency will have to develop a new standard, as ordered by the court.
Either option will take some time, experts said, which will cause further delays in the project. The Energy Department wanted to submit its license application for the nuclear waste repository, 90 miles northwest of Las Vegas, at the end of the year, but officials said last week it would not reach that goal.
Nevada Attorney General Brian Sandoval said NEI's decision "reinforces the argument that our legal victory was impervious to appeal." He said the court's decision last summer was significant because the EPA and the Energy Department will "have to go back to the drawing boards" to establish new radiation standards.
NEI intended to go to the high court, but its lawyers evaluated a wide variety of things before making the decision not to file the request, said Mitch Singer, spokesman for the industry's lobbying group. He said that after the U.S. solicitor general decided not to move forward with a Supreme Court request for review, the group's lawyers knew the chances of its case being brought up were not great.
Singer said nothing has been decided yet on whether NEI will push Congress to revise the radiation standard.
All parties involved in this phase of Yucca litigation had until today to decide whether to go to the Supreme Court.
It was "highly unlikely" the Supreme Court would have agreed to consider NEI's case, UNLV Boyd School of Law professor Bret Birdsong said.
The court would question why an industry party was appealing the case and not the EPA -- the federal agency that set the standard at issue, Birdsong said. The absence of the solicitor general's interest in handling the appeal would significantly hurt the chances of this case being accepted by the court, Birdsong said. The solicitor general manages U.S. government cases in the Supreme Court.
"It really is primarily the government's interest at stake under the law," Birdsong said.
NEI would have faced a costly, uphill battle if it had attempted an appeal. It's extremely difficult to convince the Supreme Court to even consider a case. Each year the court typically agrees to take only about 100 to 120 cases out of 7,000 to 8,000 it receives.
The decision ends some lingering uncertainty about the status of the radiation protection standard.
The U.S. Court of Appeals for the District of Columbia ruled on July 9 the Environmental Protection Agency did not follow the law when it established a 10,000-year standard, largely because it did not accept the National Academy of Sciences recommendation of a far higher standard, perhaps 300,000 years.
The court ruling threw out the standard and the Nuclear Regulatory Commission's corresponding licensing rule using the 10,000 year-standard but under court rules, it would be kept in place until all parties finished requests for appeals. The Energy Department continuing working on the project and said nothing had changed.
But the appeals court rejected NEI's request for rehearing and its request to keep the standard in place until the Supreme Court would evaluate the case. Nevada and the federal agencies involved did not file any appeals.
Energy Department spokesman Joe Davis has said the department will follow whatever standard it needs to protect human health and safety. The EPA has said it is looking at the issue but has not said anything specific on how it will move ahead with creating a new standard.
Attorney Joe Egan, who represents Nevada on Yucca issues, said creating a new standard on average can take two years but this one could take longer. The academy's radiation standard recommendation came out in 1995 and the EPA did not finalize the rule until 2001. Egan said the agency will have to announce a schedule, issue a proposed rule and go through several other "hoops" before a new standard would be put in place.
But while the agency was working on a new standard, Congress could decide to allow the old one to stay in place.
Rumors circulated earlier this month that the White House proposed Congress keep the standard in place through a massive spending bill it had to pass. The Office of Management and Budget denied such a request and said the president said the administration would live with the court decision.
The spending bill did not include the option but Yucca critics will watch Congress closely next year to see if the option comes up.
Sandoval said an attempt in Congress to establish the radiation standards "will not be sponsored by the (Bush) administration," he said. "The president said he would be respectful of the court decision."
Egan said the idea would be hard to pass, even for those who support Yucca.
"It's one thing for a majority of senators to site a repository, but it's another thing to get a majority to say site a repository notwithstanding the National Academy of Sciences and a decision by the second highest court," Egan said. "It will be very hard to get those kinds of votes."
If the change does come through Congress, members would have to know it is more than a Yucca Mountain issue, said Amy Spanbauer, spokeswoman for Rep. Jim Gibbons, R-Nev. She said it set a precedent for Congress to change environmental standards and overturn court cases. Gibbons would look at every avenue to stop the change, she said.
Adam Mayberry, spokesman for Rep. Jon Porter, R-Nev., said the congressman knows there are Democrats and Republicans who support moving nuclear waste to Yucca and he would do all he could to make sure they know the dangers associated with it.
Egan said if Congress would agree to change the standard, it could reopen the state's constitutional challenge against the project.
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