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At a three-hour hearing on Jan. 14, a panel of the U.S. Court of Appeals for the D.C. Circuit expressed doubt about a government plan to build a nuclear waste storage facility in Yucca Mountain, Nev. — questioning whether the plan included adequate environmental safeguards. The three-judge panel was hearing six consolidated cases in a key showdown, part of a nearly two-decade-long battle over the proposed burial site for 77,000 tons of nuclear waste. The fate of the project could well rest with the D.C. Circuit. The judges repeatedly grilled Bush administration lawyers about the Environmental Protection Agency’s decision to approve the site. If the court gives the go-ahead, a regulatory approval process for the project, which is fiercely opposed by the state of Nevada, could start late this year. The proceedings at the Nuclear Regulatory Commission are expected to last several years, and the site would open in 2010 at the earliest. Judge Harry Edwards had particularly tough questions for the government. Edwards said that the EPA, under a 1992 law, was required to base its radiation standards for Yucca Mountain on the recommendations of the National Academy of Sciences, a federal research body. The academy recommended that the site be safeguarded to prevent harm to humans for the next 300,000 years, while the EPA permitted a plan that worked for only 10,000 years. “You’ve turned a statute on its head,” Edwards told EPA attorney Christopher Vaden. “It’s really astonishing what the agency did, compared with what the statute said.” “The [National Academy of Sciences] was absolutely clear that 10,000 is incorrect,” Edwards said. “An agency does not have the power to do whatever it wants, merely because it has rule-making authority. Agencies often argue that, but it’s nonsense. If that’s your argument, you lose.” In response to probing questions by Edwards and Judge David Tatel, Vaden said the EPA’s decision was justified because it “recognized that there are policy matters outside the purview of the NAS that they did not consider.” He also said the requirement in the law that the EPA take steps “consistent with” the NAS guidelines does not mean that it must act “identically to” them. While the judges seemed sympathetic to Nevada’s arguments that not enough had been done to prevent a catastrophic radiation leak, they appeared ready to reject a novel constitutional argument put forward by the state. Charles Cooper of D.C.’s Cooper & Kirk argued that Nevada was in effect a victim of unfair discrimination when Congress passed a law that essentially selected Yucca Mountain as the location for the waste repository. “We assert that there is a fundamental postulate of state sovereignty that limits congressional authority,” Cooper told the court. “It is that Congress must treat all the states alike, in the absence of some good reason not to do so.” Edwards responded that this might be true if Congress were directly regulating a state’s activities. But since Yucca Mountain is on federal land and the state is not the target of the congressional enactment, the judge said, “the foundation of the argument seems wrong.” “This doesn’t flow from your premises,” Edwards said. “You could make it flow in a law review article, but here it doesn’t flow.” Judge Tatel asked Cooper what Congress should do if there were two hypothetical sites — one in California and one in Nevada — that were equally well-suited for dumping nuclear waste: Would Congress have to flip a coin or risk a constitutional violation? Cooper responded that flipping a coin would indeed be a rational response in that case. The third member of the three-judge panel, Judge Karen LeCraft Henderson, asked only a handful of questions in the lengthy argument. The court is expected to rule in the spring or summer.

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