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Water Key To Stopping Nuclear Waste Dump and NSA Spying

Republicans in Congress apparently want to revive the Yucca Mountain nuclear waste dump fight, but they still have a major water problem.

While the political wrangling may well continue, from a practical standpoint, the federal government’s inability to secure water permits for its work at the Nevada site creates hurdles that will likely still make the project a no-go.

This provides a blueprint for confronting NSA spying. By denying water to the spy agency’s data center in Utah, the state can effectively shut it down, just like Nevada shut down construction of the proposed nuclear waste site.

The feds pushed to put a massive nuclear waste dump on Yucca Mountain, less than 100 miles from Las Vegas, for decades. The project was wildly unpopular in the Silver State, and the Nevadans fought it for years.

The Yucca Mountain nuclear waste site was left for dead after Obama took office in 2008. A recent report at Slate.com follows conventional wisdom, asserting that the president killed the project as a political favor to fellow Nevada Democrat Sen. Harry Reid, and the official excuse was lack of funding.

But this narrative doesn’t tell the true story. The feds shut down the project because the state of Nevada successfully blocked it by refusing to grant water rights for the dump’s construction and operation.

The Yucca Mountain saga started in 1984 when the DOE selected it, along with nine other locations, as potential nuclear dumping grounds. After a great deal of political maneuvering by powerful state interests that didn’t want a nuclear waste dump within their borders, Congress short-circuited the selection process and designated Yucca Mountain as the sole location for consideration.

It soon became clear Yucca Mountain could not meet EPA guidelines.  Instead of pulling the plug on the location, Congress exempted Yucca Mountain from EPA radiation standards and directed the agency to create new “reasonable” standards specific to Yucca Mountain. In other words, the feds scrapped their own regulations, ostensibly put in place for public safety, in order to keep their pet-project moving.

As an Idaho Law Review study of the project put it, “Each time DOE uncovered a new hurdle relating to the unsuitability of Yucca Mountain, the nuclear industry and Congress attempted to fix it through legislation. Rather than addressing the repository project in an objective, technically sound way, politics held sway.”

Pres. Bush submitted a recommendation to designate Yucca Mountain as the dump location in 2002 and Congress quickly approved it. Nevada Gov. Kenny Guinn immediately filed an Official Notice of Disapproval, vetoing the site selection. Congress overrode it.

But there was another hurdle thrown up by the state that would prove much more effective in stopping the nuclear dump project at Yucca Mountain. In 1997, the Department of Energy filed five water permit applications in anticipation of congressional approval of the facility. The state refused to grant the permits, calling the project detrimental to the public interest, a violation of Nevada water law.  The permit denials set off a squabble over water rights that lasted several years.

The state did approved water use at the site for basic functions such as showers, restrooms, and fire emergencies, but the DOE ignored these parameters and began using water to drill bore holes. In the summer of 2007, State Engineer Tracy Taylor issued a cease-and-desist order blocking further water use for drilling. The feds filed an emergency injunction challenging the order based on what they termed “federal preemption.” The DOE motion asserted that the state wasn’t just protecting its water rights, but trying to block a federal project.

However, in this particular instance, the state is using the water permit process to attempt to veto a federal project. Such action is contrary to law and, if allowed to continue, will not only stand as an obstacle to congressional intent, but will also place great hardship on the United States.

The judge denied the DOE motion.

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 the judge 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.”

The feds appealed, but when Pres. Obama officially scrapped the project in 2010, the DOE withdrew the applications for water.

Now the Republicans want to revive the project. They claim Obama “illegally” killed Yucca Mountain. The newly seated Congress may well resurrect the political debate, but the fact remains, Nevada still doesn’t have to allow the DOE to use its water. Even if they win the political skirmish, the politicos in D.C. still have a practical problem: no water means no waste dump.

State action has effectively blocked the project.

Although the Slate.com article primarily frames the issue in political terms, even it admits the resource issue looms large.

Critics, meanwhile, point to another important finding, one that has more to do with the practicality of building Yucca than with its theoretical performance: that the project can’t proceed without the government acquiring crucial land and water rights, something that appears all but impossible given Nevada’s steadfast opposition to the project.

This proves that Utah can shut down the NSA data center in Utah by denying it the water needed to operate. A bill pending in the Utah legislature would do just that.

The history of Yucca Mountain validates the OffNow project. We not only know that the strategy rests on a legally sound basis (the anti-commandeering doctrine), we know that it works from a practical standpoint.

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