October 20, 2004

Marks the Spot: Ongoing Legislative and Legal Issues

The State of Nevada, Clark County, the City of Las Vegas, the Nuclear Energy Institute (NEI), a nuclear energy lobbying firm, and environmental groups challenged the Yucca Mountain siting in lawsuits against the Environmental Protection Agency (EPA), the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE), which were consolidated into one case, Nuclear Energy Institute, Inc. v. EPA, et al. While the DC federal court of appeals rejected most of the claims in the case, it upheld Nevada's challenge to the EPA's 10,000-year radiation containment standard and determined that the State could challenge DOE or NRC's Environmental Impact Statement (EIS) for Yucca Mountain in a July ruling. The Energy Policy Act requires EPA to promulgate site-specific standards for Yucca Mountain that are based upon and consistent with the findings and recommendations of the National Academy of Sciences (NAS). In a study of the Yucca Mountain plan, NAS found no scientific basis for a 10,000-year compliance period or any other value.

Finding that EPA's standard was inconsistent with these findings, the Court vacated all EPA and NRC regulations that were based on the 10,000-year standard. EPA has said it will not appeal the ruling, and that it will address the matter through regulatory channels. Spencer Abraham stated in a press release that DOE will work with Congress to address the issues raised in the ruling. The parties have until the end of November to seek Supreme Court review of the Appeals Court decision. In an October 8, 2004 ruling, however, the DC federal appeals court rejected NEI's petition to delay the implementation of regulatory changes pending the outcome of a Supreme Court decision on the standard.

The proposed Yucca site has faced numerous additional legal challenges that are currently pending. These include the State of Nevada's lawsuit against DOE challenging the proposed rail line, the State of Nevada's challenge before the NRC seeking de-certification of DOE's public Yucca document database, a worker lawsuit against the contractor hired to study the safety of the Yucca project, and the State of Nevada's challenge to DOE's decisions regarding the state's access to federal funding to monitor the proposed repository.

The DC Court of Appeals ruling as well as the outstanding legal challenges may affect future Congressional action on the proposed Yucca repository. For instance, the Congress could amend the Energy Policy Act to change NAS-contingent safety standard or to specifically allow a 10,000 year standard, Congress may enact new laws to address the recently struck-down regulations, Congress may legislatively determine the question of Nevada's access to federal funds to monitor Yucca, and it must approve overall funding for the project to proceed to completion.


  1. Nuclear Energy Institute, Inc. v. EPA, et al., 373 F.3d 1251 (D.C. Cir. 2004). PDF
  2. Nuclear Energy Institute, Inc. v. EPA, et al., 01-1258, October 8, 2004 Order (Edwards, Henderson and Tatel, Circuit Judges).
  3. Benjamin Grove, Las Vegas Sun, "EPA Won't Appeal Radiation Standard," September 9, 2004.
  4. U.S. Department of Energy, "DOE Statement on U.S. Court of Appeals Decision Regarding Yucca Mountain," July 9, 2004.