What's New | Court Ruling | Nevada Protection Fund

Introduction:United States Court of Appeals District of Columbia Circuit

Over the past decade, the State of Nevada has filed multiple lawsuits against the federal government regarding the Yucca Mountain Project. Most of these lawsuits were consolidated into four cases that were heard at the District of Columbia Court of Appeals on January 14, 2004. The judges dismissed most of Nevada's claims, but they did rule in favor of the State's complaint against radiation standards for the nuclear waste repository. The ruling poses a significant setback for the project.

In addition to the major Yucca Mountain lawsuits, the State of Nevada has filed other claims against the Department of Energy (DOE) regarding oversight funding, the public Yucca Mountain information database, and DOE's plan to build a rail line for waste shipment in Southern Nevada. The Energy Department, for its part, has been fighting the State in court for water rights at Yucca Mountain.

On this page, you'll find What's New in Litigation, an article about the Court of Appeal's ruling on the major Yucca Mountain lawsuits, information about the Nevada Protection Fund, downloadable lawsuits in PDF format, and recent press coverage of Yucca Mountain lawsuits.

Other yuccamountain.org pages on legal issues:
Major Yucca Mountain Lawsuits – a case-by-case breakdown of the consolidated lawsuits and more about the January 2004 court hearing.

LSN Certification – information about Nevada's July 2004 case filed at the NRC over DOE's inadequate Yucca Mountain public database (Nevada won the case but DOE has appealed).

Caliente Rail Line – information about Nevada's most recent lawsuit against DOE over the proposal to build a 319-mile rail line in Southern Nevada for shipping nuclear waste to Yucca Mountain.

Water Rights – more on the DOE's struggle with Nevada over water rights at Yucca Mountain.

What's New in Litigation

On September 3, 2004, the U.S. Court of Appeals in Washington, D.C. denied an appeal to the Nuclear Energy Institute (NEI). The Nuclear Energy Industry has since issued notice of their intent to appeal to the Supreme Court.

The NEI, a lobbying group for nuclear energy industries, appealed the court's July ruling that struck down a 10,000 year radiation containment standard for the proposed waste repository at Yucca Mountain. After the appeal failed, the NEI filed a motion with the court asking it to extend the stay on the radiation ruling pending outcome of the Supreme Court appeal.

What's next? The NEI has until November 30 to file a petition for writ of certiorari asking the Supreme Court to accept the case. If the appeal fails, the EPA will have to promulgate a new safety rule. The only other option would be for Congress to pass legislation allowing the 10,000 year standard.

On September 8, 2004, the State filed suit against DOE over the proposed Caliente Rail Line in Southern Nevada. The State Attorney General says DOE did not follow federal environmental policy and ignored important railroad regulators while making the decision.

On August 31, 2004, a Nuclear Regulatory Commission Board ruled in favor of the State of Nevada, finding the Yucca Mountain information database to be insufficient and incomplete. The Department of Energy must now work to improve the internet database, called the Licensing Support Network (LSN). LSN must be certified by the Nuclear Regulatory Commission in order for licensing proceedings to move forward. The ruling could cause a significant delay in the Yucca Mountain project's schedule; however, DOE has appealed the ruling. For more, go to our LSN Certification page.

Nevada's funding lawsuit, which involves State access to federally-granted oversight money for the project, is set to be heard in federal court on January 10, 2005.

The Court's Ruling:

On July 9, 2004, the Court of Appeals ruled on Nevada's Yucca Mountain Lawsuits. The judges dismissed almost all of the State's claims except a key challenge against the Environmental Protection Agency (EPA). The Court ruled that the EPA's 10,000-year safety standard on radiation containment at the site was arbitrary and inconsistent with the congressionally-mandated recommendations of the National Academy of Sciences. The Court also struck down the Nuclear Regulatory Commission's licensing standards insofar as they include a 10,000 year compliance limit. (Read the Court's decision).

The National Academy of Sciences said the radiation safety standard should be set at a higher limit, when the waste would be at its peak radiation levels - at least 300,000 years from the time the waste is sent to Yucca. The EPA was required by law to base its rule on NAS' recommendation, but chose to set the standard at 10,000 years instead.

State officials believe the ruling will significantly delay or even scrap the project. State Attorney General Brian Sandoval claimed a sound victory for Nevada, saying that the EPA would have to form a new rule with a tougher standard - a standard the Energy Department would not be able to meet due to Yucca Mountain's inferior geology. This "is a fatal blow to the repository," Sandoval said. (Read the Office of the Attorney General's Press Release).

DOE itself has expressed doubts in the past about being able to meet a longer time limit. As quoted by the Court, former project director Lake Barrett wrote in 1999 that a safety standard significantly longer than 10,000 years would be "unworkable and probably unimplementable."

Nonetheless, DOE remains positive about the Court of Appeal's ruling. "I am pleased with today's decisions handed down by the Court," said Energy Secretary Spencer Abraham in a July 9 statement. "The Court dismissed all challenges to the site selection of Yucca Mountain." As for the 10,000 year safety standard, Abraham said, "DOE will be working with the EPA and Congress to determine appropriate steps to address this issue."

The rest of Nevada's challenges, including the Constitutional case claiming Nevada's sovereign rights as a state were being violated, and the Recommendations case claiming DOE and President Bush acted illegally in recommending Yucca Mountain, were dismissed by the judges.

However, the last pages of the court's ruling contained a concession giving Nevada the power to challenge DOE's Environmental Impact Statement for Yucca Mountain in any DOE or Nuclear Regulatory Commission proceeding. "This means issues such as DOE's rejection of the "no-action" alternative (continued on-site storage), its transportation plan, and its violation of Nevada's hazardous waste laws are now fully addressable in courts of law," said Attorney General Sandoval.

The ruling came 7 months after a 3 Ĺ hour hearing in D.C.

  More on the court hearing
  More on the consolidated lawsuits

Nevada Protection Fund

With all of these lawsuits, Nevada hopes to defeat, or at the very least, stall the Yucca Mountain project indefinitely. But what chance does Nevada really have in the courts?

Seal of the State of NevadaGovernor Kenny Guinn has described it as a David versus Goliath fight, pointing out that the federal government and the nuclear energy industry are formidable opponents with deep financial pockets. "These people are just unbelievable," Guinn told the Las Vegas Sun, referring to the nuclear energy industry. "They don't have a budget and they've hired the best law firm they can."

To help finance Nevada's anti-Yucca battle, Guinn has established the Nevada Protection Fund. The Fund so far totals over $6 million: the 2001 Nevada Legislature appropriated $4 million, and the rest was donated by Nevada cities, counties, and individuals. The funds are being used to hire lawyers and lobbyists and to pay for opposition to the Yucca repository program in states likely to be negatively affected by waste transportation routes.


If you would like to contribute to the Nevada Protection Fund, visit Governor Guinn's Nevada Protection Fund at the State of Nevada Agency for Nuclear Projects, or send donations to:

Nevada Protection Fund
1802 N. Carson St.
Suite 252
Carson City, NV 89701
(make checks payable to "Nevada Protection Fund")

Nevada Protection Fund news articles
       Press Articles 2001-2002

Litigation Links and Downloads:

The Major Yucca Mountain Lawsuits

LSN Certification – Yucca Mountain public
          internet database issues

Water Rights at Yucca Mountain

Southern Nevada Rail Line Lawsuit

Petition for Review on the Selection of the Caliente Corridor ("Rail Line" lawsuit) 174KB

Opinion of the United State Court of Appeals in Washington, D.C. July 9, 2004. (100 page brief, 245KB)
Nevada Attorney General's Reaction
Department of Energy's Reaction

For more case-related documents and information:
Nuclear Waste Project Office
Office of the Nevada State Attorney General

Lawsuits in the Press:

September 16, 2004 – YUCCA MOUNTAIN PROJECT: U.S. Supreme Court intervention sought Nuclear industry group wants ruling reversal WASHINGTON -- The Nuclear Energy Institute has served notice it intends to ask the U.S. Supreme Court to reverse a ruling that threw the Yucca Mountain Project into turmoil when it was issued in July – By STEVE TETREAULT STEPHENS WASHINGTON BUREAU

September 13, 2004 – DOE appeals database rulingThe Energy Department filed an appeal on a Nuclear Regulatory Commisson Board's August 31 decision regarding the Licensing Support Network (LSN). LSN, an internet database on the proposed Yucca Mountain waste repository, is required to be certified as complete and available to the public six months before the NRC can begin to review DOE's Yucca license application. In August, an NRC board ruled the database was incomplete and needed to be re-certified – yuccamountain.org
Read DOE's appeal brief (PDF, 302KB )

September 09, 2004 – EPA won't appeal radiation standardWASHINGTON -- The federal government will not appeal to the U.S. Supreme Court to challenge a recent legal setback to Yucca Mountain, the Environmental Protection Agency said Tuesday. The EPA will comply with the ruling from the U.S. Court of Appeals for the District of Columbia Circuit, which on July 9 affirmed a Nevada appeal, the EPA said in a statement – By Benjamin Grove, Las Vegas Sun, WASHINGTON BUREAU

September 08, 2004 – State sues over Yucca rail lineWASHINGTON -- Nevada sued the Energy Department once again today, this time over its plan to build a new rail line in the state to move spent nuclear fuel to Yucca Mountain. Attorney General Brian Sandoval claims the department did not follow federal environmental policy and other laws when it proposed the 319-mile railroad through through Lincoln County and it is shutting out important outside regulators on the project – By Suzanne Struglinski – Las Vegas Sun

September 04, 2004 – Court lets Yucca ruling stand – Appeal denied on radiation safety guideline – WASHINGTON – A federal court ruling that struck a blow against the Yucca Mountain Project will become effective on Wednesday after judges this week refused to take a second look at the case.  The U.S. Court of Appeals for the District of Columbia said it will not reconsider the Yucca matter on appeal from the Nuclear Energy Institute – By STEVE TETREAULT - THE ASSOCIATED PRESS
(More coverage – the Las Vegas Sun)

September 02, 2004 – Yucca complaint points to unsafe toxic dust levelsLawsuit accuses contractors of withholding information, deceiving tunnel workersWorkers and visitors inside Yucca Mountain inhaled unsafe levels of toxic dust in 2002, five years after a tunnel was completed to study whether the mountain can safely entomb nuclear waste, attorneys claim in court papers filed Wednesday – Las Vegas Review Journal

September 01, 2004 – DOE takes another Yucca hit from NRC The Nuclear Regulatory Commission handed Yucca Mountain another setback Tuesday, saying the Energy Department did not have all of its project documents in order when the 5.6 million pages were submitted in June – Las Vegas Review Journal

September 01, 2004 – Yucca database problem criticized Nuclear licensing board rules against Energy Department – WASHINGTON -- The Energy Department was dealt a new blow on Tuesday when a nuclear licensing board ruled DOE mishandled a public database that is supposed to contain all documents for the planned Nevada nuclear waste repository – By STEVE TETREAULT STEPHENS WASHINGTON BUREAU

August 25, 2004 – Feds won't appeal Yucca ruling WASHINGTON – Federal officials say the government will not ask a federal appeals court to revisit last month's ruling on the Yucca Mountain project's radiation standards.  That leaves the Nuclear Energy Institute, the nuclear industry's lobbying and advocacy group, as the only party in the six lawsuits over the project to file a request for rehearing with the U.S. Court of Appeals for the D.C. Circuit. The institute filed its request Monday. – By Suzanne Struglinski Las Vegas Sun WASHINGTON BUREAU

August 11, 2004 – Lawsuit gets Jan. 10 hearing WASHINGTON – Nevada officials will be in court on Jan. 10, when a trio of federal judges is scheduled to hear the state's case to gain easier access to federal money to challenge the Yucca Mountain Project – STEPHENS WASHINGTON BUREAU

July 28, 2004 – Panel hears complaints about Yucca databaseNuclear repository documents unavailable, Nevada critics say WASHINGTON -- Energy Department attorneys faced tough questioning Tuesday on DOE's handling of an electronic document database for the Yucca Mountain Project.  Three administrative judges challenged the department's work to gather millions of documents and make them available on the Internet in preparation for licensing hearings on the proposed nuclear waste repository – By STEVE TETREAULT STEPHENS WASHINGTON BUREAU

July 21, 2004 – NRC may delay its evaluation of YuccaLicensing process up in air as radiation standard sorted out ROCKVILLE, Md. -- The Nuclear Regulatory Commission may have to delay its evaluation of the Yucca Mountain project license application, Commissioner Edward McGaffigan said today – Las Vegas Sun

July 13, 2004 – Yucca project work to proceedRuling on health standards on hold as appeals play out; WASHINGTON -- A one-paragraph court order issued as Nevadans were celebrating a federal appeals court ruling on the Yucca Mountain Project will allow work to continue on the nuclear waste repository, at least for the time being, attorneys said – By STEVE TETREAULT STEPHENS WASHINGTON BUREAU

July 09, 2004 – Yucca in for long delay; radiation standard too lowFederal appeals court says 10,000 years is insufficientWASHINGTON – A federal appeals court handed Nevada a major victory this morning, ruling that a key standard for the planned Yucca Mountain nuclear waste repository was incorrect, which could set the project back indefinitely By Suzanne Struglinski, Las Vegas Sun, Washington Bureau   (Editorial - Columnist Jeff German - Las Vegas Sun)

July 09, 2004 – Panel to evaluate state's challenge of Yucca database WASHINGTON -- A three-person panel will evaluate the state's challenges to the Energy Department's Yucca Mountain project document database.  Federal law requires only one officer to evaluate them – Las Vegas Sun

July 08, 2004 – Nevada's anti-Yucca attorneys gearing up for license fight – WASHINGTON -- Nevada attorneys plan to file their complaints about the Energy Department's Yucca Mountain document database by the end of the week, now that a person has been appointed to handle the complaints – Las Vegas Sun

March 17, 2004    State sues DOE for loss of Yucca oversight funds CARSON CITY -- Nevada filed suit today in a federal court, charging the Energy Department has shortchanged the state $4 million this fiscal year to oversee the development of a high-level nuclear waste dump at Yucca Mountain – Las Vegas Sun

March 11, 2004 – Lawsuit claims workers at nuke dump in Nevada hurt by toxic dust LAS VEGAS - A former tunnel worker at the nation's nuclear waste dump in the Nevada desert filed suit Thursday against Energy Department contractors, claiming the companies deliberately exposed employees to toxic dust at the Yucca Mountain project – By KEN RITTER AP
Read the Complaint (PDF File 1.07 MEG)

February 26, 2004 – State threatens to sue Energy Department over funds WASHINGTON -- Nevada has threatened to sue the Energy Department if it does not allocate an additional $4 million for the state's work on the Yucca Mountain project.   If the department does not respond by March 15, the state assumes it will not give the state the money it is entitled and "will promptly seek a judicial remedy," Bob Loux, executive director of the Nevada Agency for Nuclear Projects wrote in a letter to the department MondayLas Vegas Sun

February 06, 2004 – Lawmakers welcome anti-nuke help – Legislator from Minnesota opposes waste transportTwo Nevada legislators and an anti-nuclear activist hailed a Minnesota state lawmaker's promise Thursday to fight shipping radioactive waste through Minneapolis Las Vegas Sun

January 26, 2004, YUCCA MOUNTAIN: Nuclear waste lawsuits growUtilities want Energy Department to pay for missing deadline for repository– WASHINGTON -- The Energy Department is facing a new wave of lawsuits that could cost taxpayers billions of dollars because DOE missed a 1998 deadline to have a nuclear waste repository up and running in Nevada – STEPHENS WASHINGTON BUREAU

January 15, 2004 – No knockout on Yucca Nevada's hopes for definitive legal victory fade – WASHINGTON -- Nevada officials said this morning they believe a federal appeals court will allow the Energy Department to pursue a license to build the Yucca Mountain nuclear waste repository – Las Vegas Sun

January 15, 2004 – FEDERAL COURT HEARING: Yucca foes gain hope WASHINGTON -- Federal judges weighing Nevada challenges to the Yucca Mountain Project reacted with skepticism Wednesday to some of the state's key arguments, but suggested they might look favorably on other claims that could slow the proposed repository – Stephens Washington Bureau

January 13, 2004 – Nevada set to make final Yucca stand WASHINGTON -- 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 on Wednesday. – Las Vegas Sun

January 12, 2004 – Yucca case to be heard Wednesday The federal government says entombing the nationís nuclear waste in the Nevada desert will be safe.  Nevada says itís a disaster in the making, and the state shouldnít have to bear the burden of being the nationís nuclear waste dump – AP

January 02, 2004– Critical year for Yucca Court challenges considered pivotal in long battle over nuclear dumpsite   WASHINGTON -- After a 21-year struggle, Nevada may finally know by the end of 2004 whether it can stop the nation's nuclear waste from being stored at Yucca Mountain – Las Vegas Sun

Lawsuits in the Press Archives
      Press Articles from 2003-2001

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Last Updated 09/2004