Government considers appealing Yucca ruling

Benjamin Grove

Wednesday, Oct. 6, 2004 | 9:10 a.m.

WASHINGTON -- The federal government is maintaining its option to seek a Supreme Court review of a lower court ruling against Yucca Mountain.

The request for appeal remains unlikely and would contradict stances made by the Environmental Protection Agency and the Energy Department. The two agencies have signalled they have no interest in a Supreme Court appeal.

The Energy Department has said the best way to proceed "is not to engage in further litigation but to allow EPA to work to develop an appropriate regulatory response to address the issues raised by the courts," department spokesman Joe Davis said.

Still, a court document filed by the Justice Department on Sept. 23 asserts that the department's solicitor general is clinging to the Supreme Court option. The deadline to request an appeal is Nov. 30.

At issue is a July 9 ruling by the U.S. Court of Appeals for the District of Columbia Circuit. It said the EPA's 10,000-year radiation standard for the proposed waste repository at Yucca unlawfully deviated from stricter National Academy of Sciences recommendations.

The ruling was a significant setback to the Energy Department plan to bury the nation's high-level nuclear waste at Yucca, Nevada officials said.

White House spokesman Ken Lisaius this week gave no new signal that President Bush wants to appeal to the nation's highest court.

"There is nothing changed" in Bush's stance, Lisaius said.

Lisaius noted that after the ruling Energy Secretary Spencer Abraham said his department would work with the Environmental Protection Agency and Congress -- he notably did not mention courts -- to respond to the ruling.

Both the Energy Department and the EPA declined to file appeals to the federal appeals court by an Aug. 24 deadline.

And on Sept. 7, in response to Sun questions about whether the EPA would appeal the ruling to the Supreme Court, the EPA issued a statement saying the agency "has elected not to seek further court review."

In addition, an EPA official told a National Academy of Sciences Board on Sept. 20 that the agency was reviewing how to best comply with the lower court. The official made no mention that the EPA considered a Supreme Court appeal an option.

But "final authority" on Supreme Court appeals rests with the nation's Solicitor General, according to the Justice Department court document. And Acting Solicitor General Paul Clement has not signalled whether he would appeal, Justice Department spokesman Blain Rethmeier said.

Generally, the Solicitor General reserves the right to appeal whether he intends to or not.

The solicitor general is keeping his cards close to the vest by design, Nevada Senior Deputy Attorney General Marta Adams said. For strategy reasons lawyers often wait until the last minute to file a Supreme Court appeal, she said.