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Three years ago, the nuclear energy bar comprised a small cadre of relatively peace-loving attorneys. It’s not such a chummy group anymore. The reason: the federal government’s troubled search for outside counsel in the Yucca Mountain case. In 1999 the U.S. Department of Energy announced that it was taking bids for a multimillion-dollar contract to help prepare its licensing application for the construction of a radioactive waste dump at Yucca Mountain, Nev. Four firms had enough critical mass of talent to apply: Washington, D.C.’s Shaw Pittman; Philadelphia’s Morgan, Lewis & Bockius; New York’s LeBoeuf, Lamb, Greene & MacRae; and Chicago’s Winston & Strawn. The contract promised a rich payload of $15-20 million over 10 years. Right away, half of the field was disqualified. Shaw Pittman and Morgan Lewis had represented utility companies in a total of 18 suits against the Energy Department. Jay Silberg, a partner at Shaw Pittman, says that his firm intended to fight the department’s decision to bar it from the bidding process, but, on the day the appeal was due, a computer system meltdown caused his firm to turn in the appeal papers “two minutes” too late. “We asked them if they could cut us some slack and they said, ‘No, you’re too late.’ ” Silberg and his firm reluctantly bowed out. Morgan Lewis didn’t challenge the decision, and a $16.5 million contract was awarded to Winston in September 1999. That’s where the fourth firm comes back in: LeBoeuf Lamb, which had bid $2 million more than Winston, filed suit in March 2000 against the Energy Department and Winston. The suit charged that Winston should have been disqualified from the job for its representation of TRW Environmental Safety Systems Inc., a Yucca Mountain contractor. Michael McBride, LeBoeuf’s lead nuclear energy lawyer, says that the Energy Department required his firm to certify that it didn’t have any involvement with TRW, and contends that Winston wasn’t even asked about its relationship with the contractor. Energy Department spokesman Joe Davis says that the department is “confident [that it has] in place a process to review bids that produces a fair outcome … notwithstanding some of the claims, which I would characterize as simplistic, by LeBoeuf.” Winston’s worries were just beginning. By last summer, after the firm had logged about 9,000 attorney-hours, for which it was paid close to $2 million, the Las Vegas Sun revealed another potential conflict: Winston’s representation of the Nuclear Energy Institute (NEI), a trade group with an interest in seeing the Yucca Mountain plans materialize. Investigations ensued, and in late November 2001, Winston resigned from the Yucca contract, walking away from more than $14 million in potential additional fees. The Energy Department and Winston then moved to get LeBoeuf’s suit dismissed, arguing that it’s moot because the original Yucca contract no longer exists. A decision is expected by mid-April. Meantime, the Energy Department claims that it hasn’t yet decided whether to hire a new outside counsel for the Yucca job. But in mid-December, LeBoeuf’s Michael McBride says, his firm received confidential information that the department was planning to give the work to — of all firms — the previously conflicted-out Morgan Lewis. George Edgar, head of Morgan Lewis’ energy group, says that he has not had any contact with the Energy Department about the project. The department, for its part, is hoping to put this issue to bed. “This is something we inherited,” says spokesman Davis. “We weren’t here prior to 2001.” At this rate, and with the state of Nevada fighting the project, even an optimistic timeline has nuclear waste disposal at Yucca Mountain not starting until 2010. Maybe by then more than four firms will be qualified to fight over the legal work.

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