Obama lacks authority to shutter Yucca site, court told

McClatchy NewspapersMarch 22, 2011 

WASHINGTON — Lawyers for Washington state and South Carolina on Tuesday accused President Barack Obama of having exceeded his constitutional power in shuttering the Yucca Mountain nuclear waste repository.

Washington Assistant Attorney General Andrew Fitz told a federal appellate court that Obama's refusal to fund continued development of the Nevada disposal site violates the 1982 Nuclear Waste Policy Act.

"He's acting unconstitutionally under the separation of powers doctrine because he doesn't have the authority under the statute," Fitz told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. "He had no authority to reverse it."

In 1987 amendments to the nuclear waste law, Congress designated Yucca as the central site for radioactive debris from the nation's 104 commercial reactors — and from nuclear weapons sites that have held even more toxic waste since the Cold War.

The government has spent $10 billion developing the Yucca site, but Obama has stripped funding for it from his last two budget proposals to Congress.

Republicans, who have crafted legislation to revive the repository, accuse Obama of making a political gesture to Senate Majority Leader Harry Reid of Nevada, whose residents dislike the notion of burying radioactive debris from across the country at a subterranean site 90 miles northwest of Las Vegas.

Washington, home to the Hanford nuclear reservation in the eastern part of the state, and South Carolina, which hosts the Savannah River Site on its border with Georgia, filed suit against Obama. Aiken County, S.C., where Savannah River is based, and three businessmen in Washington state, also joined the suit.

Other large former nuclear weapons complexes include the Idaho National Laboratory and the Oak Ridge National Laboratory in Tennessee.

Chief Judge David Sentelle and Judge Brett Cavanaugh repeatedly challenged Fitz on whether the lawsuit by Washington and South Carolina is premature.

Sentelle and Cavanaugh said three administrative judges within the Nuclear Regulatory Commission in June had rejected a bid by Energy Secretary Steven Chu to withdraw the Energy Department license to build and operate the Yucca repository.

The case has been before the NRC since then, with no indication of when the full commission will rule on the license withdrawal.

The judges and lawyers didn't address the substantive merits of the case, avoiding the complex scientific and environmental issues tied to the Yucca site.

South Carolina Attorney General Alan Wilson echoed Fitz's courtroom claims in comments after the hearing.

"The government's decision to arbitrarily break federal law and derail Yucca Mountain is wrong and unconstitutional," Wilson said. "Congress passed laws to build Yucca Mountain as a safe repository for America's nuclear waste."

At Obama's direction, Chu set up the Blue Ribbon Commission on America's Energy Future in January 2010 and gave it two years to come up with an alternative to drilling deep tunnels beneath Yucca for nuclear waste disposal.

"Nuclear waste storage at Yucca Mountain is not an option," said Lee Hamilton, the panel's co-chairman and a former Indiana congressman. "The commission will be looking at better alternatives."

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