Two weeks ago, a Federal court upheld one of Nevada's legal claims against the Yucca Mountain nuclear repository. Nevada officials, activists and commentators practically danced in the streets, saying that the ruling "effectively kill[s] the project" (Sen. Harry Reid); that it poses a "monumental obstacle" (Rep. Jim Gibbons); and that "Yucca Mountain is dead" (State Attorney General Brian Sandoval).
But few are reading the fine print.
For those of you who missed it, the D.C. Circuit Court of Appeals ruled that the Environmental Protection Agency violated the law when it adopted a standard that requires radiation releases from the repository be limited for up to 10,000 years. Under the 1992 Energy Policy Act, the EPA was supposed to adopt a standard "based on and consistent with" the recommendations of the National Academy of Sciences. A 1995 NAS report specifically rejected the 10,000-year standard as inadequate and without scientific basis, finding that radiation risks would extend much longer, perhaps hundreds of thousands of years after disposal. The EPA went ahead with the 10,000-year standard anyway, ignoring the NAS report. And that broke the law.
But the Feds have an out: the court acknowledged that the EPA can get around its decision if it "return[s] to Congress and seek[s] legislative authority to deviate from the NAS report." It's as I wrote two months ago ("GOP Radiates Honesty," May 13): "[I]f the courts do in fact rule in Nevada's favor and block Yucca, all Congress has to do is explicitly exempt the repository from [the relevant] laws and regulations, and Yucca's back on."
Curiously, those analysts who've thought ahead to this point suggest, as Citizen Alert's Peggy Maze Johnson did last week in a CityLife op-ed, that "Congress may not go along this time around." How's that? Congress authorized the Yucca siting rather handily in 2002, with a 306-117 vote in the House and a 60-39 vote in the Senate. Given the Republican gains in the 2002 Congressional elections, the pro-Yucca margins have only increased. If and when Congress votes to explicitly allow the 10,000-year standard, then, at least a dozen Senators would have to change their minds on Yucca. (Changing the minds of 100 House members would be even more daunting, but all opponents need is for one house of Congress to vote no.)
Do we honestly think that that's going to happen? Congress was fully aware of the contentiousness surrounding the debate, including Yucca opponents' charges that the 10,000-year standard was inadequate. They voted for it anyway. They wanted Yucca Mountain up and running as soon as possible. They're not going to vote it down now because they're miffed that the EPA didn't follow their initial instructions. Congress doesn't work or think that way.
Nor do they think in terms of thousands of years down the road. It's an event if Congress thinks ten years down the road. Of course, few people look 10,000 years into the future—and Congress will reflect that when Yucca proponents argue, almost certainly successfully, that the here-and-now public-safety/national-security/desire-of-my-constituents-to-get-this-stuff-away-from-them-ASAP aspects of nuclear waste storage take precedence, and not a future period unfathomable to most. (Look also for the argument that in 10,000 years, we'll probably have made the technological strides to handle the radioactive material—an argument that isn't easily dismissed.)
Make no mistake: given the opportunity to do so, Congress will authorize the 10,000-year standard.
There is a bright spot, though. Apparently content to await pending appeals of the court's decision rather than take action itself, Yucca proponents have yet to introduce any legislation backing the EPA standard. Even if they did, the August recess is fast approaching, and upon its return, Congress will only have about six weeks to wrap up its pressing business—like, say, the thirteen appropriations bills that fund the entire federal government—before it's set to adjourn to go home and campaign for re-election. Getting a bill of this relatively low-priority status fast-tracked in the 108th Congress' waning days would be an improbable feat.
Make that nigh impossible: any such attempt would assuredly be impeded by a certain Nevada senator who is also Assistant Senate Democratic Leader. It would be very easy for Harry Reid to make life difficult for members of Congress who don't want to find themselves stuck in Washington during election season. (By the way, do you think Reid's presumptive opponent, Richard Ziser, could exercise such power?) No one's going to want to be held up by a niggling little bill codifying an EPA standard.
So if and when Congress gets around to authorizing the 10,000-year standard, it won't be until after the 2004 elections. Then the bill would have to be approved by whoever's president—and herein lies the opening to effectively stop Yucca. We know that President Bush will gladly sign this law and speed Yucca on its way. But a President Kerry could veto the bill and, without a veto-proof majority in the Senate (i.e., 67 votes), that could be Yucca's death knell. Indeed, John Kerry has pledged to keep Yucca from opening under his would-be administration.
Nevadans are overwhelmingly opposed to the Yucca site, yet Bush still polls in the state slightly ahead of Kerry. As in 2000, this presidential race is shaping up such that any and every state may determine the outcome—even one with a mere five electoral votes. If Nevada helps re-elect President Bush, we'll have only ourselves to blame for Yucca Mountain.
Jeremy Parker writes about politics biweekly. His website is lasvegasweblog.blogspot.com.