CONCORD, N.H. (Feb. 8, 2019) – A bill introduced in the New Hampshire House would set the stage to block the establishment of a federal nuclear waste dump in the state.
A bipartisan coalition of six legislators introduced House Bill 704 (HB704) on Jan. 17. The intent of the act is “to reaffirm New Hampshire’s unyielding opposition to any effort of the federal government to site a nuclear waste dump anywhere in the state, and to reenact the High-Level Radioactive Waste Act.”
The fight over putting a nuclear waste dump in New Hampshire dates back to 1986 when the U.S. Department of Energy announced it had identified a 78-square mile area centered in Hillsborough, New Hampshire, as a potential site for the burial of the nation’s high-level radioactive waste. That year, the state legislature passed the High-Level Radioactive Waste Act, which formally established state policy in opposition to putting a high-level radioactive waste facility in the state and established official state policy to fight any efforts by the Department of Energy to use eminent domain to take property and build a nuclear waste dump in New Hampshire. That law was repealed in 2011. Passage of HB704 would reestablish an official policy of opposition and create a foundation to block the federal government from placing a nuclear waste dump in the state in the future.
Practically speaking HB704 would establish three committees to evaluate federal plans and guide the state’s response based on its opposition to the placement of nuclear waste dump in New Hampshire. These bodies would review any applications by the U.S. Department of energy, ensure transparency and public input, and make sure that any agreements between the state and federal government adhere to specific criteria established by the act. They would also make recommendations to state legislators and the governor.
Significantly, under the proposed law, any agreement negotiated by the Office of State Planning with the federal Department of Energy under would have to include the following requirement.
“The federal Department of Energy shall comply with all federal laws, state laws and local ordinances and shall respect state sovereignty consistent with the United States Constitution and the Tenth Amendment to the United States Constitution, regardless of the ownership of the land on which the activity takes place.”
HB704 also includes the following language:
“The federal Department of Energy shall be subject to the provisions of this act and subject to all other applicable state laws in effect or which may become effective, including, but not limited to, all state laws relative to mining, surface water and groundwater during all phases of any attempt to site a radioactive waste storage facility in the state, including any preliminary tests or feasibility studies to site such a facility.”
These provisions would set the stage to block the establishment of a nuclear waste dump in New Hampshire.
NEVADA PROVIDES A BLUEPRINT
It may seem farfetched to think that state policy could block the establishment of a nuclear waste facility in New Hampshire if the feds determined they were going to put it there, but that’s exactly what Nevada did.
Yucca Mountain is located about 90 miles northwest of Las Vegas. It was originally selected as a nuclear waste dump site for the country in 1987. In 2002, President Bush and Congress officially approved the site and moved to make the dump a reality. This was not a popular move in Nevada. The governor filed an official Notice of Disapproval of the site selection with Congress, but Congress overrode it.
In the years leading up to 2002, it became clear that Yucca Mountain would not meet EPA standards required for a nuclear waste dump. The area is prone to earthquakes and volcanic activity. Moreover, the nuclear waste repository would be located above the water table in an oxidizing setting that would corrode the waste containers over time. Obviously, Yucca Mountain was not a safe place for nuclear waste. But the federal government apparently had its heart set on the site. Instead of telling the Department of Energy (DoE) to abandon the proposed nuclear waste dumping site, the EPA just changed its standards so the project could move forward.
As a result, Nevada filed several lawsuits against the EPA and the Nuclear Regulatory Commission (NRC) disputing the EPA’s standards for the site, as well as asserting the NRC’s duty to uphold public and health safety standards. But the state didn’t simply count on the federal courts to protect it. It took some action of its own.
In addition to these lawsuits, Nevada denied the DOE’s five applications for the use of water to construct and operate the proposed high-level nuclear waste repository at Yucca Mountain. The federal government wanted to continue taking soil samples from the site despite all of the negative results it had already obtained. To run the drill rigs necessary to take soil samples as well as other operations, the feds needed to pump 430 acre-feet of water to the area each year. But state law governs the use of groundwater. So, the Nevada State Engineer rejected the applications on the basis that the intended repository was detrimental to the public interest. Nevada still allowed DOE officials to use a limited amount of water at the site for showers, restrooms, and fire emergencies, but effectively blocked the drilling operation, slowing progress on the project to a crawl.
Of course, DOE filed suit against Nevada in U.S. District Court in Las Vegas, arguing that federal law preempted state water law.
The court ultimately sided with Nevada. In its 2007 ruling, the court found that the issues presented by the DOE did not involve federal preemption of state water law. In the U.S. District Judge’s opinion, “The validity of Western states’ groundwater rights and the right to regulate water in the public interest is not a right to be taken lightly, nor is it a right that can cavalierly be ignored or violated by a federal agency.” Regarding the federal preemption argument, he wrote, “At present…the only public interest issue is whether state officials can be precluded from exercising their lawfully mandated duties, or whether a federal agency can run roughshod over a state’s rights or interest without specific authority and mandate to do the precise activities it wishes to do.”
In 2010, after many years of legal wrangling, President Obama announced that the federal government planned to kill the project. As a result, the Energy Department withdrew its application to the State of Nevada for access to water at the site. Today, it appears that the Yucca Mountain project is dead.
The Supreme Court has long held that the federal government cannot force states to use their personnel or resources for federal purposes under a well-established legal principle known as the anti-commandeering doctrine. The legal doctrine is based primarily on five Supreme Court cases dating back to 1842. Because the federal government depends on state and local cooperation to implement its programs and enforce its laws, the anti-commandeering doctrine gives states significant leverage over the feds.
Like Nevada, New Hampshire could deny the Department of Energy the state resources necessary to establish a nuclear waste facility in the state. Passage of HB704 would set the stage for this kind of non-cooperation.
HB704 was referred to the House Science, Technology and Energy Committee. A do-pass recommendation from the committee will significantly boost its chances for passage in the full House.
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