Nevada's 20-year fight against Yucca Mountain will come down to three hours of arguments before the U.S. Court of Appeals in Washington today.
The state's legal team will argue that three federal agencies and Congress moved a proposed nuclear waste repository at Yucca forward while violating a variety of federal laws and the U.S. Constitution. Lawyers for the agencies say there were no violations.
The state has already lost its battle in Congress, which approved the site in 2002, so now it turns to the legal arena where a new set of rules applies.
"The beginning of our legal fight marked the end of Yucca Mountain being a political pawn and placed the issue of Yucca Mountain, of nuclear waste, into the hands of federal court that does not have the bias of the nuclear industry," Rep. Shelley Berkley, D-Nev., said. "We can be treated no worse by the judges than we have by the Department of Energy and President Bush."
The state, along with Las Vegas and Clark County in some cases, has challenged the Environmental Protection Agency, the Nuclear Regulatory Commission and the Energy Department on several legal issues, trying to stall or kill the construction and operation of Yucca Mountain as a nuclear waste dump.
The appellate court is expected to hear six lawsuits during a three-hour hearing Wednesday morning. The state and other groups are claiming that the government has violated the Constitution by forcing the nuclear dump on Nevada; has violated several laws regulating clean water and nuclear waste; and has changed the rules about Yucca Mountain to put the repository in Nevada.
It's a case that could break the government's case or further pave the wave for nuclear waste to come to Nevada.
The state has spent at least $100 million fighting Yucca Mountain and has been preparing for these cases since 1982.
"We didn't just throw something at the ceiling and see what would stick," said Joe Egan, the Washington-area attorney who will argue three of Nevada's six legal challenges. "We had a lot more things we could have done, but we picked what we thought we would have a chance of winning."
Egan said if the court sides with the state in any instance it could mean the end to the Energy Department's plans to store 77,000 tons of nuclear waste at Yucca, 90 miles northwest of Las Vegas. Nevada's attorneys expect a decision sometime before the end of the year, and regardless of the outcome, expect the issue to move to the Supreme Court.
"I think this is a serious forum in which Nevada and the environmental community can raise their objections to a process that has been governed by politics rather than by law and science," said Geoffrey Fettus, an attorney with the Natural Resources Defense Council.
Fettus will argue the case against the Environmental Protection Agency the NRDC and six other environmental groups filed.
Egan, appointed Nevada's Special Deputy Attorney General in September 2001, spent the last few days making final preparations for the courtroom appearance, but he was extremely confident he was more than ready for the case.
"We are like track athletes in the starting block, we are ready," Egan said.
All the attorneys arguing for Nevada's six legal challenges held an all-day practice session Monday to make sure everything was in place.
The length of the argument, before federal Judges Harry Edwards, Karen LeCraft Henderson and David Tatel, is a rare occurrence. The court was originally supposed to hear the case in October, but then pushed the hearing back and put the cases on the "complex" docket, which allow for more time in the courtroom.
"I'm personally not aware of the court having ever considered a greater number of cases dealing with the same issue," Egan said.
The state's constitutional case was filed a little over a year ago, but some cases against the Energy Department were brought in December 2001.
Nevada has lost previous attempts to get judicial relief. Bob Loux, executive director of the Nevada Agency for Nuclear Projects said the deemed earlier arguments too premature since the Energy Department had not reached all its conclusions yet. But now with the department's recommendation and Congress' approval of the plan almost two years old, the court will have to wade through complex legal questions to determine if the site can move forward.
Rep. Jim Gibbons, R-Nev., described the politics behind nuclear waste as "incredibly complex" since no one wants to keep the waste in their state. "The court doesn't look at politics, it doesn't look at the emotional side of the issue," he said. "It looks at compliance with the law. The effort with the court has a much better chance because the facts and the law are on our side."
Rep. Jon Porter, R-Nev., called Wednesday a "pivotal day" for Nevada.
" We are in good hands and I am confident that the attorney general will make a compelling and convincing argument to defeat Yucca Mountain from becoming the nation's repository for nuclear waste," Porter said in a prepared statement. "The political expediency of the past and callous disregard of science, health and safety will not prevail."
Nevada officials are expecting a crowd at the hearing.
Loux, Nevada Attorney General Brian Sandoval, Senior Deputy Attorney General Marta Adams along with the seven members of the Governors Commission on Nuclear Project, which include Las Vegas Councilman Larry Brown, Clark County Commissioner Myrna Williams and former U.S. Sen. Richard Bryan, D-Nev., all plan to attend the arguments.
Judy Treichel, director of the Nevada Nuclear Waste Task Force, will also be in the courtroom Wednesday. The task force is a party in the case against the EPA.
"We've been on the front lines for a long time and I want to see the battle," Treichel said. "We'll finally be able to get answers on the legal aspects of what's been going on here."
Peggy Maze Johnson, executive director of Nevada-based Citizen Alert, also a party on the EPA case, will also be there. She said she felt "really positive" about the case and wanted to be sure to be in the courtroom to share the what happens with other people during town hall meetings planned for the spring.
"It's been so long coming that I want to hear the arguments firsthand what the attorneys are saying," Johnson said. "I want to hear for myself what their arguments are."
Meanwhile, the nuclear industry is watching the cases just as closely and is just as confident Nevada will not prevail.
"This is another step in a long journey," said Bob Bishop, general counsel for the Nuclear Energy Institute. "No matter what happens, the result is not going to be the cancellation of the Yucca Mountain project and the naming of another site elsewhere."
The NEI, whose membership is made up of commercial nuclear facilities, has lobbied in favor of Yucca Mountain. The nuclear plants want the government to take the spent nuclear fuel as promised decades ago.
Bishop said Nevada thought it was going to prevail in Congress in 2002 but did not.
"I anticipate Nevada will seek every avenue to make sure this doesn't happen," Bishop said. "Any time any agency takes an action they will likely sue."
Bishop points to Nevada v. Watkins, a case decided in the 9th U.S. Circuit Court of Appeals more than 10 years ago. The suit challenged the '87 law that singled out Yucca as the only site to be studied as the spent fuel storage site.
Nevada lost that case because the court rejected its constitutional arguments on the law. The Supreme Court denied an appeal.