The NWPA and the Realities of Our Current Situation

• Date: 01 August 2010

8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10795

R E S P O N S E

The NWPA and the Realities

of Our Current Situation

by David R. Hill

David R. Hill was General Counsel of the U.S. Department of Energy from 2005 to 2009. He is currently a

partner at Sidley Austin LLP in Washington, D.C, where he is co-head of the rm’s global energy practice.

Richard B. Stewar t’s a rticle, U.S. Nuclear Waste Law and

Policy: Fixing a Bankrupt System,1 provides a thought-

ful discussion of some of the complex scientic, policy

and legal issues involved with nuclear waste generation and

disposal. It is packed with useful facts, information, and his-

tory, and just the recitation of the history and circumstances

of nuclear wa ste disposal issues and decisions in a readable,

understandable form makes a useful contribution.

Stewart argues that the current system of nuclear waste

law and po licy, primarily as established by the Nuclear Waste

Policy Act of 1982 and amendments to that Act (together,

the NWPA)2 is bankrupt. ere are two ways of reading this

thesis. e rst is t hat the system is so broken and fraught

with problems that it is essentially worthless, and therefore

should be discarded (or “liquidated,” to use bankruptcy ter-

minology). e second is that while it may have signicant

problems and diculties, the system is worth salvaging, per-

haps with some elements put aside and others modied, but

with many of the basic viable elements retained and moving

forward (in bankruptcy terms, a “reorganization”). If Stewart

means the former, then I strongly disagree; but if he means

the latter, as I believe he does, then I agree with him.

is is not to say that I believe that the NWPA’s approach

and the process by which the decisions embodied in the

NWPA were made represent the best possible approach, or

perhaps even a particularly good one, were we only now start-

ing to generate nuclear waste and develop a scheme for its dis-

posal. But of course that is not our current situation. Much

as it might be nice to sit quietly in our oces and libraries

and t hink creatively for a few more decades about what to

do with spent nuclear fuel (SNF) and high-level rad ioactive

waste (HLW) without regard for the consequences of this

delay, I believe that such a course of action would be extraor-

dinarily expensive and complicated, with no prospect at pres-

1. Richard B. Stewart, U.S. Nuclear Waste Law and Policy: Fixing a Bankrupt System,

17 N.Y.U. E. L.J. 783 (2008). is Comment is based on Stewart’s original

2008 published article rather than the version that appears at 40 ELR (E. L.

 P’ A. R.) 10783 (Aug. 2010) and may refer to material that appears

in the original article only.

2. Pub. L. No. 97-425, 96 Stat. 2201 (1982) (codied as amended at 42 U.S.C.

§§10101-10270 (2009)).

ent for producing any better results than those brought about

by the NWPA.

I. Some Problems with the Current System

Regardless, as I will explain below, Stewart is correct about

many of the points he makes in the article, some of which,

although the article was written before the Obama Admin-

istration’s recent attempts to abandon the Yucca Mountain

licensing process,3 serve to highlight the perilous, expensive,

and I believe mistaken course being pursued by the current

Administration with respect to the disposal of SNF and HLW.

I agree with Stewart that congressional short-circuiting in

the 1980s of the process for selecting a nuclear waste disposal

site in the United States may have helped give rise to strong

opposition in Nevada and elsewhere to the selection of Yucca

Mountain as the site for a nuclear waste repository. Americans

often complain about the amount of time it takes to make

decisions and take action in this country—witness the current

hand-wringing over how fast the Chinese can move forward

with building new renewable energy facilities while in many

locations in the United States the construction of almost any

new energy facility can be mired for years in the process of

federal, state and local permitting, National Environmental

Policy Act reviews, litigation, etc. But the American system

involves a signicant amount of permitting and review, stake-

holder involvement, and approvals by dierent government

agencies at various levels of government. e decades-long

opposition to Yucca Mountain, even after Congress in 1987

designated it as the only site to be studied for a repository,

demonstrates what can happen when a congressional (or judi-

cial) desire for “action” overrides what the public has been told

will be the process for making a decision. is is exacerbated

because politicians of both parties often will play the “you

have been wronged” card in an eort to convince the public

that the other party has unfairly taken decisions from the pub-

lic, short-circuited the right process, or otherwise committed

process fouls. It is not hard to think of numerous examples of

this phenomenon, including some in recent months.

3. See supra note 1.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.