April 13, 2011
(Editor’s Note: With both Earth Day and Arbor Day falling within the month of April, we’ll be looking at important environmental-related laws and cases throughout the month in an effort to evaluate the current state of environmental law in the U.S.)
To view the first installment of the series on Massachusetts v. EPA, click here.
In the wake of Japan’s nuclear crisis, the United States is also facing a political one of its own.
The dispute is over the Yucca Mountain Nuclear Waste Repository, which was to be the long-term disposal site for nuclear waste from plants across the country.
The conflict involves complex issues of administrative law and constitutional separation of powers.
Construction of the repository, located in Nevada, started in 2002, although it was decades in the making up to that point.
Although the project was opposed by environmental groups and just about every governmental group in Nevada, the real point of conflict started more recently.
Namely, it is because President Obama has opposed the project since his days on the presidential campaign trail.
This opposition does not stem from a disagreement about having a consolidated national repository for nuclear waste. Rather, his position is situated in the same camp as a growing number of concerned scientists who believe that the site is unfit for several reasons.
The mountain itself was formed by a large caldera volcano, creating a very porous igneous structure. This means that it is very likely that radioactive gases would leak from the mountain and into the ambient air.
Additionally, the site is located very close to the Bow Ridge fault line (it was originally located on the fault itself until a 2007 report discovered this and the site had to be relocated). As such, the area sees quite a few earthquakes.
In fact, since 1976, there have been 621 earthquakes of magnitude greater than 2.5 within a 50-mile radius of Yucca Mountain.
As recent events in Japan have illustrated, earthquakes aren’t the most conducive to keeping nuclear materials stable.
After Obama took office, he ordered the Department of Energy, the agency responsible for construction of the site, to stop.
The hierarchy of authority within the government here gets a little muddled.
The license for the DOE to build the repository had to be issued by the Nuclear Regulatory Commission, an independent government agency. The license was issued in 2008.
After Obama ordered the DOE to stop construction, the DOE requested the NRC dismiss its license application with prejudice.
However, this alarmed every state besides Nevada that is anxiously waiting a repository to send its nuclear waste.
That’s where the conflict comes in.
Several of those states, most notably Washington and South Carolina, are suing to prevent the revoking of the DOE’s permit.
As many parties have been joined to each side, the suit has gotten crowded.
Oral arguments were made before the District of Columbia Court of Appeals on March 22, 2011, and the parties are currently awaiting a decision.
While there is still a question as to what effect the ruling will have, the issue remains central to U.S. nuclear policy.
Aside from simple policy concerns, the repository’s location is vital to the health and safety of the U.S.