ELR Citation: ELR 21360
No(s). s. 86-7308, 90-70004 (9th Cir. Sep 19, 1990)

The court rules that the 1987 amendments to the Nuclear Waste Policy Act (NWPA) designating Yucca Mountain, Nevada, as the sole site for possible development as a high-level radioactive waste repository do not violate the U.S. Constitution. The court holds that the Property Clause provides sufficient congressional authority to enact the amendments, because Yucca Mountain is federally owned land, subject to Congress' plenary power to regulate its use. The Federal Enclave Clause does not restrict Congress' authority to regulate federal land in Nevada, because state consent is not required when Congress acts pursuant to its plenary authority to regulate public lands. The Equal Footing Doctrine does not limit any of the paramount powers of the United States, such as siting a national nuclear waste repository pursuant to the Property Clause. The Privileges and Immunities Clause limits state, not federal, power. The amendments do not violate Nevada's rights under the Tenth Amendment, because the state cannot point to any defect in the political process under which the amendments were enacted. Assuming arguendo that designation of Yucca Mountain for possible development as a repository for nuclear waste will harm Nevada's tourist trade, the amendments do not violate the Port Preference Clause, because they would disadvantage Nevada only incidentally relative to other states. The court next holds that the Nevada legislature's adoption of resolutions prohibiting storage of high-level nuclear waste in Nevada did not constitute valid notice of disapproval on which Congress failed to act. Under the NWPA, a state must submit notice of disapproval to Congress not later than 60 days after the president recommends a site to Congress. The president has not yet done so. Any claim that this procedure violates the Guarantee Clause is speculative and nonjusticiable. Furthermore, this procedure was not implicitly repealed by the NWPA amendments, because there is no irreconcilable conflict between the procedure and the amendments. Nevada's attempted prohibition of nuclear waste storage in Nevada is preempted by the NWPA under the Supremacy Clause. Finally, the failure of the Department of Energy (DOE) to promulgate regulations governing the timing of decisions to disqualify a site is not subject to judicial review, because DOE has discretion whether to promulgate such regulations.

Counsel for Respondent
Richard B. Stewart, Ass't Attorney General; Peter R. Steenland Jr.; John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Petitioners
Brian McKay, Attorney General; Harry W. Swainston, Deputy Attorney General
Heroes Memorial Bldg., Carson City NV 89716
(702) 885-4170