White House won’t appeal Yucca ruling

Benjamin Grove

Monday, Oct. 11, 2004 | 9:12 a.m.

WASHINGTON -- The Bush administration will not ask the Supreme Court to reverse a lower court ruling on Yucca Mountain after all.

Legal documents filed Friday put to rest speculation that White House officials were still mulling an appeal to a lower court ruling. The July 9 ruling by the U.S. Court of Appeals for the District of Columbia dealt a setback to the nuclear waste dump project.

The documents also appeared to settle questions about whether White House officials were in conflict with their own federal agencies.

Department of Energy and Environmental Protection Agency officials had said they intended not to appeal to the nation's highest court.

But the Department of Justice's Office of Solicitor General on Sept. 23 filed court documents in the Yucca case asserting its right to file one.

"We are now in a position to report" there will be no appeal, Solicitor General attorneys said in court documents filed Friday.

Election-year politics may be at play as Bush and challenger John Kerry vie for Nevada's five electoral votes in Nevada, where a majority of voters are opposed to the plan to construct a nuclear waste dump at Yucca Mountain.

Nevada Democrats criticized Bush for indicating that he would respect the federal appeals court ruling, while at the same time reserving the right to appeal it. Rep. Shelley Berkley, D-Nev., had said she fully expected Bush to appeal -- after the election.

The July 9 ruling by the U.S. Court of Appeals said the EPA unlawfully deviated from National Academy of Sciences recommendations when the EPA set a 10,000-year radiation standard for Yucca. The academy recommended that the nuclear waste repository should be held to a stricter standard -- that it be required to contain high doses of radiation for perhaps hundreds of thousands of years.

The Energy Department has said all along that the appeals court decision was "workable," department spokesman Joe Davis said again Friday. The department position has been that the department would work with the EPA to develop a "regulatory response" to the court decision -- not to appeal to the Supreme Court, Davis said.

EPA officials have held the same position.

Nevada Attorney General Brian Sandoval said the solicitor general's decision Friday not to appeal demonstrates the strength of Nevada's legal argument on the radiation issue.

"The D.C. Circuit left little upon which to base an appeal, and this proves it," Sandoval said.

One appeal is planned, however. The Nuclear Energy Institute, the nuclear power industry's top lobby group, has signalled it will ask the Supreme Court to review the radiation standard issue.