Editorial: Legal twist over Yucca

Friday, April 29, 2005 | 9:01 a.m.

It's been clear to us that the federal government has been neglecting safety standards while feverishly trying to get a nuclear waste dump built at Yucca Mountain. Recently discovered e-mails from scientists working on the Yucca Mountain project, for example, acknowledge that data was fabricated at a time when the Energy Department was trying to meet a hasty schedule to determine Yucca Mountain's suitability. Nevadans are disgusted with this whole project, and the state has taken the Energy Department to court. And we're not alone. Utilities are disgusted, too, and have also taken the federal government to court -- but for a very different reason.

In 1982 Congress passed a law that required the government to take possession of the nuclear waste by 1998, but since that hasn't happened, utilities have filed lawsuits against the Energy Department, alleging breach of contract. While the utilities are seeking monetary damages, they also are hoping to put pressure on the federal government to accelerate the project. But there has been an unanticipated development. A U.S. Court of Federal Claims judge says she is willing to cancel the Energy Department's contract with a Sacramento utility -- unless she can be persuaded that the federal government didn't renege on its agreement to have the nuclear waste out of the utilities' hands by 1998.

Ironically, the Sacramento utility's lawsuit to recover $78 million in damages from the federal government actually could have the unintended effect of boosting Nevada's case. Judge Susan Braden, in her declaration seeking more information from the parties involved in the lawsuit, said that "there is no evidence" that the federal government had reason to believe that "Yucca Mountain ever will be licensed." That statement is the kind of thunderclap that gives even more ammunition and hope to Nevadans that plans to bury nuclear waste here, just 90 miles away from Las Vegas, are faltering. If Braden were to rule that the contracts should be voided, and the utility awarded tens of millions of dollars, the net effect could be to have the waste at Sacramento -- and possibly other utilities -- safely stay where it is located instead of being shipped to Nevada.

Nevada scored a huge legal victory last year when a federal appeals court ruled that a federal radiation standard for a dump at Yucca Mountain wasn't stringent enough to meet federal law. The ruling very well could doom Yucca Mountain. We're also closely following a lawsuit by the Western Shoshone Indian tribe that claims building a dump there would violate federal law and break a treaty between the tribe and federal government. In short, a successful legal strategy by Nevada and the scandal developing over the fabricating of scientific work at Yucca Mountain add even more weight to taking the most sensible course: Leave the waste at the reactors until a safe way of disposing of man's deadliest waste can be found.