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A battle over a planned nuclear waste storage facility in Yucca Mountain, Nev., that has spanned almost two decades will reach what could be a final legal showdown in a federal appeals court on Jan. 14. A panel of the U.S. Court of Appeals for the D.C. Circuit is set to hear three hours of oral argument on a federal government proposal to bury 77,000 tons of waste from the nation’s nuclear power plants in the area 90 miles northwest of Las Vegas. Nevada decries the proposal — first made by Congress in 1987 and currently backed by President George W. Bush’s administration — as unsafe, poorly designed, unnecessary, and unconstitutional. The state has put together a team of lawyers, at a cost of $4 million in 2003, to try to defeat the project in the appeals court. The Yucca Mountain controversy has created work for years for scores of Washington lawyers and lobbyists. In 2002, the state spent $6 million on advocates, hiring former White House Chiefs of Staff Kenneth Duberstein and John Podesta in a futile effort to head off final congressional approval. On the other side, the nuclear power industry has spent up to $25 million a year to promote approval of the toxic waste site, now slated to open in 2010. Since the early 1980s, the question of how to dispose of the highly radioactive and potentially hazardous byproducts of nuclear energy has led to a classic instance of the “not in my back yard” phenomenon in American politics. No state wants to be the one that ends up holding the waste for millennia. Soon after Congress initially selected the Yucca Mountain site in 1987, Nevada politicians from both parties began a campaign to kill the plan. Fifteen years of scientific studies and political maneuvering, complete with a 42-million-page docket at the Nuclear Regulatory Commission, ensued. In 2002, Congress, acting under a statute that designated Yucca Mountain as the disposal site but gave Nevada’s governor a chance to initially disapprove the project, overrode the veto of Gov. Kenny Guinn and gave the project the go-ahead. The D.C. Circuit has consolidated six separate cases about Yucca Mountain and has placed the whole matter on its “complex docket,” thus granting the issues more time and attention than are given to ordinary cases. “This is the first time in the 20-plus-year history of the Yucca Mountain project that a federal court has been allowed to hear the merits,” says Joseph Egan, a McLean, Va., nuclear regulatory lawyer who heads the Nevada team. “Up until now, the process has been largely a political one.” Egan, 49, is a Massachusetts Institute of Technology-trained nuclear engineer and former partner at Shaw Pittman who opened his three-lawyer shop, Egan Fitzpatrick and Malsch, in 1994. For the Yucca Mountain appeal, Egan assembled an informal group of attorneys with a wide assortment of specialties — a team that he says is “as strong as I could possibly find.” Their task is to make an array of arguments before Judges Harry Edwards, David Tatel, and Karen LeCraft Henderson. Edwards, a Jimmy Carter appointee considered a centrist on the court, and Tatel, a Bill Clinton appointee and a liberal, are both known for posing tough questions at oral argument. Henderson, a George H.W. Bush appointee, is a less vocal questioner. Among those who have signed on to Egan’s team are Charles Cooper of Cooper & Kirk, a constitutional expert and former Reagan administration official and Shaw Pittman partner; Howard Shapar, former Shaw Pittman counsel and former executive legal director of the Nuclear Regulatory Commission; and William Briggs, a well-known litigator at D.C.’s Ross, Dixon & Bell and a former NRC solicitor. The Nevada team is arguing that the government has never adequately proved that it is safe to store nuclear waste in the mountain. A catastrophic release of radioactivity could result from slow leakage or from sabotage or terrorism, Nevada’s lawyers say. The Energy Department, which is in charge of the project, “committed the most egregious procedural violations of the National Environmental Policy Act in the 31 years of that statute’s existence,” Egan says. SAFE HARBOR The government, represented in the appeal by Department of Justice lawyers, denies this. It replies in court briefs that, in fact, exhaustive analyses have been completed that rule out any possible harm to the public. The Energy Department’s “scientific and technical investigations, conducted over 20 years,” have examined every possible source of danger and concluded that the storage site is safe, the government wrote in a brief. Blain Rethmeier, a Justice Department spokesman, declines to discuss the case beyond the arguments made in the government’s briefs. Ronald Spritzer and John Bryson, the department lawyers working on the appeal, did not return calls for comment. Nevada is also making a broad, and somewhat novel, constitutional argument — that by singling out one state without adequate justification to store the nation’s nuclear waste, Congress violated the 10th Amendment and other principles of federalism. Cooper, who has advocated federalism concerns in other cases, will argue this aspect of the case at the circuit court. “If a state is to be forced to bear a national burden that poses a threat to the health and safety of its citizens, the state’s sovereign interest at least requires that its selection from among its sister states was owing to neutral, rational criteria,” Cooper wrote in his brief. Cooper, in an interview, said his argument is not based on one single dictate of the Constitution but rather on “all the provisions that support the sovereign nature of the states.” The federal government replies that Congress has broad power to manage federal lands such as Yucca Mountain and that Nevada was given an extraordinarily large role in the selection process, including the provision that permitted its governor to veto the site, subject to an override by Congress. The federal government also says there’s nothing in the U.S. Constitution that prohibits Congress from treating one state differently than the others. “A law providing that a federally constructed facility shall be located on federal land within a State’s boundaries cannot be deemed discrimination,” the Justice Department lawyers wrote in a brief. “If it were, Congress would enact such ‘discriminatory’ legislation every time it authorizes a military base, a federal penitentiary, a storage or disposal facility, or any other use of federal property within a State.” Nevada is also arguing that in the past 20 years, waste-disposal technology has improved, making a project like Yucca Mountain unnecessary. “I don’t think there’s any crisis at all in nuclear waste disposal,” Egan says. “And neither does the industry. There are now 22 dry-storage facilities, with 19 more on the way, that permit byproducts to be stored on the site of the nuclear facility. And the NRC says this is safe. The DOE’s inaction has prompted the innovation of this new technology.” Even if the D.C. Circuit permits the Yucca Mountain project to proceed — and if Nevada loses, it will almost certainly try to take the case to the Supreme Court — the Energy Department still has to complete the lengthy process of obtaining a permit at the NRC. In a separate but related decision last October, a D.C. Circuit panel, which by coincidence also included Judge Tatel, threw the Energy Department a curve. It found that the DOE had not fully examined allegations that Winston & Strawn, the firm it had used from 1999 to 2001 as outside counsel for the NRC permit process, had a disqualifying conflict. The circuit sent the case, which was brought by LeBoeuf, Lamb, Greene & MacRae, a competing bidder for the DOE legal work, back to the U.S. District Court and raised the possibility that that court should award the contract to LeBoeuf. As litigation continues to swirl around the complex Yucca Mountain matter, Nevada counsel Egan is now optimistic that the state’s efforts to kill the project will eventually succeed. “I think that, at the end of the day, there will never be an ounce of nuclear waste put into the Yucca Mountain repository,” Egan says.

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