The Corner

Yucca Decision

Jonah — You’re correct that both sides are claiming victory int he Yucca case. The reason I believe the decision is a defeat for Nevada is that the state sought to claim that the federal government could not impose its site selection on the unconsenting state. This was a losing argument, and the Court rejected it. Where Nevada won was on the issue of the radiation standard for the facility. The court found that the EPA had adopted a radiation standard without sufficeintly considering the views of a National Academy of Sciences report on the subject. Without a doubt this requires the EPA and Energy Department to do more work on the regulations governing the facility, and knocks the schedule back, but I believe this merely delays the inevitable. Specific regulatory standards are remanded all the time without invalidating the underlying government program or regulatory initiative, and I believe that is the case here. No doubt Nevada will sue again (and again, and again), and they may even be able to delay the the site’s operation a little more, but unless they find a better legal hook than those they presented to the court in this litigation, or unless Congress changes its mind, I believe Yucca will eventually become the repository for the nation’s nuclear waste.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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