Standing in Nuclear Waste: Challenging the Disposal of Yucca Mountain

Meagan Easly

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Introduction

For more than two generations, the United States has generated more electricity from nuclear energy than any other country. So how is there still no long-term solution to the well-understood problem of nuclear waste management? This Note examines the nation’s failure to adequately implement a plan for the safe disposal of radioactive waste, as encapsulated by the decline of Yucca Mountain, Nevada. Although nuclear power plants storing nuclear waste on-site are present in the majority of American states, until now, much of the debate over spent nuclear fuel storage has unfolded behind closed doors. In the wake of the March 2011 earthquake in Japan and the subsequent damage to the Fukushima Daiichi nuclear power plant, the critical issue of safe radioactive waste management has been awakened in the public consciousness.

I. Basics of Nuclear Power in the United States

Nuclear power plants generate approximately 20% of the United States’ electricity supply. Since the 1940s, when Congress created the Atomic Energy Commission (AEC) to both control and advance the industry, public view of nuclear power has been shaded by doubts over its beneficial uses and fears of its potentially destructive capacity. This national distrust eventually led Congress to abolish the AEC in favor of creating the Nuclear Regulatory Commission (NRC), to regulate the industry, and the Energy Research and Development Administration (ERDA), to promote the industry. Today, the ERDA is a part of the Department of Energy (DOE).

Despite nuclear power’s prominent position in the energy sector, the problem of nuclear by-products was largely ignored until the late 1970s and the Three Mile Island nuclear generating station meltdown. Following the accident (and after prodding from the D.C. Circuit Court of Appeals), the NRC issued a Notice of Proposed Rulemaking to consider the possibilities for permanent disposal of nuclear waste.1 Subsequently, Congress passed the Nuclear Waste Policy Act (NWPA), officially establishing federal responsibility for the permanent disposal of all civilian radioactive waste in a deep geologic repository.2

Under the NWPA, nuclear utility companies entered into Standard Contracts with the DOE that provided for the utility companies to make payments to the Nuclear Waste Fund, effectively financing the government’s development and construction of the geologic repository. The NWPA required the government to accept civilian-generated nuclear waste for permanent disposal by 1998. But even after Congress officially selected Yucca Mountain in Nevada as the designated site for the repository in 1987, it quickly became clear that the DOE would not be prepared to receive spent nuclear fuel even a decade later. Delays were further compounded by the State of Nevada’s relentless efforts to prevent the federal government from storing the nation’s nuclear waste within its borders.

Since the utility companies were unable to dump spent nuclear fuel on the government, temporary storage facilities were constructed at power plants across the country. Many of these are already full and still others are leaking. The utility companies have brought dozens of lawsuits against the government over the DOE’s failure to accept radioactive waste on schedule. As of mid-2010, the government had paid damages of approximately two billion dollars; the 2009 estimate of future liability hovered at roughly thirteen billion dollars. Of course, this estimate may severely underestimate real future liability due to the recent halt in developing the geologic repository at Yucca Mountain.

II. Reversing Position on Yucca Mountain

Ten years after the appointed deadline for commencing operation of the repository, the DOE finally submitted its licensing application for Yucca Mountain to the NRC, as required by the NWPA. However, less than two years later, the DOE moved to withdraw the application with prejudice. This rapid change in position is traceable to the 2008 Democratic primary campaign and to President Barack Obama’s subsequent national victory.

Like Senator Harry Reid (D-Nevada)—the Senate Majority Leader at the time of the 2008 primaries and a consistent voice in the fight against Yucca Mountain—all of the

democratic nominees expressed their intent to stop the Yucca Mountain repository from being realized. President Obama later appointed Gregory Jaczko, a former aide to Senator Reid, to serve as the Chairman of the NRC, and nominated a new Secretary of Energy whose views toward Yucca Mountain were less than favorable. In January of 2010, the administration directed the DOE to establish a Blue Ribbon Commission on America’s Nuclear Future to review and evaluate “technological and policy alternatives” to managing nuclear waste. Less than three months later, the DOE moved to withdraw the licensing application from the NRC.

The NRC was not so easily swayed. Its independent trial-level adjudicatory body delivered a resounding denial of the DOE’s motion to withdraw. The Atomic Safety and Licensing Board Panel (ASLBP) determined that the DOE did not have the sole authority to “single-handedly derail the legislated decision-making process by withdrawing the Application.” Although the ASLBP’s decision is subject to review by the full Commission, Chairman Jaczko made no immediate move to disrupt or uphold the result. Instead, Jaczko directed the agency staff to operate in accord with the agency’s fiscal year 2011 budget request, which contemplates the termination of Yucca Mountain.

The intervening petitioners before the ASLBP (including South Carolina and Washington, as well as several individuals) chose not to await the full Commission’s review and promptly filed suit in the D.C. Circuit Court of Appeals seeking to prevent the DOE from withdrawing the license application and arguing against the administration’s decision to terminate Yucca Mountain. Members of Congress also reacted to the NRC’s actions by writing insistent letters to the Secretary of Energy and by holding hearings designed to interrogate members of the DOE. The status of Yucca Mountain was complicated, however, by the NRC’s refusal to release the results of its vote over the ASLBP decision; more than a year later, the NRC finally revealed that it had deadlocked two-to-two.

III. Standing Doctrine in the Context of Independent Agency Action

Despite the lack of Congressional amendment to the NWPA, the administration—operating via the DOE and the NRC—has undermined the stated intent of legislation and prevented public engagement. Because the administration utilized an independent agency (the NRC) to achieve its goals, the political process alone is insufficient to provide adequate redress to injured parties. However, that is exactly where the courts typically direct petitioners who seek to challenge the government’s failure to adhere to law. The chaotic history of the NWPA provides a rare opportunity to scrutinize the borders of the Supreme Court’s prudential standing limitations on petitioners claiming generalized grievances in the context of independent agency action.

The Court’s traditional standing doctrine derives from separation of powers principles and the Article III requirement of a case or controversy. The constitutional core of judicial standing doctrine mandates a concrete injury fairly traceable to the challenged government action or inaction that is likely to be redressed by a favorable judicial decision. The Court has also developed a set of prudential controls limiting claims that fall outside the zone of interests the relevant statute is intended to protect, as well as generalized grievances for which harm is too widely dispersed. The latter category is particularly important in the context of nuclear waste disposal.

Generalized grievances are typically viewed as an improper basis for judicial involvement because the political process is a more appropriate vehicle for citizens seeking to voice collective dissent. However, in the context of independent agency action, the safeguards designed to sever the agency from total control by either the executive or legislative branch result in a body that is unresponsive to the electorate. As a result, the Court’s traditional objection to granting standing to individuals with widely shared injuries is inappropriate. Instead of closing the courtroom doors in the name of separation of powers, the judiciary has an obligation to provide an outlet for public challenge.

IV. Seeking the Best Challenger

To fulfill its role in ensuring the balance, the judiciary should grant standing to at least one of the likely classes of challengers: states, individuals, or utility companies in contract with the government under the NWPA. Currently, the first two of these groups are represented in the In re Aiken County litigation in the D.C. Circuit—filed by the intervening petitioners after the ASLBP order.3 The question is not only which set of petitioners is most likely to achieve standing but, instead, which class is in the best position to solicit a judicial decision competent to reinstate the government’s obligation to follow through with Yucca Mountain.

First, the utility companies should have standing because of their unique connection to the government as parties to the DOE contracts entered into pursuant to the NWPA. These utility companies have already pursued damages for the government’s failure to complete the geologic repository on schedule on the basis of a partial breach of contract theory. The utility companies could take their claims a step further by arguing total breach. Because the standard contract is intertwined with the NWPA, this approach is equivalent to arguing that the DOE and the NRC are acting in violation of the NWPA. The problem with this tactic is that a judicial remedy reached on the basis of total breach of contract would effectively release the government from its obligation to dispose of nuclear waste—and leave the utility companies stuck with it. This outcome is unlikely to satisfy these potential petitioners.

Second, states containing temporarily stored nuclear waste should be granted standing on the basis of the lightened requirements laid out by the Court in Massachusetts v. EPA.4 In this recent precedent, the Court afforded Massachusetts unique status due to its quasi-sovereign interest in protecting its coastline from erosion resulting from global warming. On this basis, states containing temporarily stored nuclear waste have a concrete injury (temporary in-state storage of spent nuclear fuel) fairly traceable to the government’s failure to provide a permanent repository. Moreover, a favorable decision need not provide complete redress; based on the Court’s discussion in Massachusetts v. EPA, it would be sufficient if a court ordered the NRC to continue reviewing the license application because this constitutes a step toward lessening the risks currently posed to petitioner-states by nuclear waste.

Third, individuals living in the near vicinity of temporarily stored nuclear waste will likely want to challenge the NRC’s inaction and may have standing to do so. One barrier to individual state residents being granted standing is the generalized nature of their grievances. However, as previously discussed, the existence of a widely shared injury should not restrict access to the courtroom when the political process is an inadequate remedy. The real difficulty in giving individuals standing stems from the inability of a favorable judicial decision to effectively redress the petitioners’ stated harm—living in proximity to nuclear waste. An order directing the NRC to continue reviewing the licensing application for Yucca Mountain constitutes a step in the right direction (which is likely satisfactory when the challenger is a state) but only really cures the individual petitioners’ procedural injury: the failure of the government to follow the law.

For these reasons, states are in the best possible position to seek effective relief from the judiciary. Because the Court would need to reframe individual petitioners’ injuries as procedural in nature, a favorable decision technically only speaks to the harm inflicted by the NRC’s failure to follow its mandate. In the case of the petitioner-states, the risks posed by nuclear waste temporarily stored within state lines will qualify as the relevant injury. This distinction is critical. A favorable decision for a petitioner-state will redress the injury of temporarily stored nuclear waste, while the same result for a petitioner-individual can merely validate the person’s right to hold the government accountable through the courts when the political process does not suffice. Only the former outcome is likely to have any discernible impact on nuclear waste management in this country.

Conclusion

The United States has invested over ten billion dollars and nearly thirty years in preparation to build a geologic repository at Yucca Mountain. Temporarily stored nuclear waste exposes the public to numerous threats including leakage of radioactive material, visible targets for terrorist attacks and possibly much worse, as recently seen in Japan. The judiciary has a key role to play in ensuring that the NWPA and Yucca Mountain do not disappear without the opportunity for debate.

Acknowledgments:

Meagan Easly is a 2012 graduate of Cornell Law School.

This essay is based on the note, Megan Easley, Standing in Nuclear Waste: Challenging the Disposal of Yucca Mountain, 97 CORNELL L. REV. 659 (2012).

Copyright © 2012 Cornell Law Review.

  1. See Notice of Proposed Rulemaking on Storage and Disposal of Nuclear Waste, 44 Fed. Reg. 61372, 61373 (Oct. 25, 1979).
  2. Nuclear Waste Policy Act (NWPA) of 1982, Pub. L. No. 97-425, 96 Stat. 2201 (1983) (codified as amended at 42 U.S.C. §§ 10101–10270 (2006)).
  3. In re Aiken Cnty., 645 F.3d 428 (D.C. Cir. 2011).
  4. 549 U.S. 497 (2007).

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