Texas' Lawsuit Over Radioactive Waste Could Bring That Same Waste to Texas

Mar 16, 2017

Texas Attorney General Ken Paxton is suing the federal government over the way it regulates nuclear waste storage.

If you read that a few months ago, it wouldn’t be much of a surprise. Texas sued the Obama administration over environmental regulations all the time. But now that Donald Trump is in office, the move is a bit more unexpected. And it has some Texas environmentalists worried.

In 1982, the Nuclear Waste Policy Act said the government needed to find a permanent storage repository for radioactive waste. It settled on Yucca Mountain in Nevada. But, after a lot of resistance, the plan was scrapped, so high-level waste still sits at nuclear power plants.

That’s what the Texas lawsuit is about. It says the government is breaking the law by not settling on a repository site. 

“Paxton is essentially asking the Fifth Circuit Court of Appeals to begin the license process for the Yucca Mountains repository,” Tracy Hester, a lecturer on environmental law at the University of Houston, said.

If Yucca Mountain is approved as a repository, some Nevadans and others opposed to the plan are sure to be angered. But the case has also sent a shiver down the spine of Texas environmentalists. To understand why, you’ve got to remember who now leads the U.S. Department of Energy, which oversees nuclear waste – former Texas Gov. Rick Perry.

Environmentalists worry Perry may take the lawsuit as an opportunity to increase storage of nuclear waste in Texas. 

It’s a fear that was perhaps stoked by a statement Perry made during his confirmation hearing.

“There are some other places in this country that are willing to have this [nuclear waste] conversation. I think we need to have an open conversation...I was for bringing high-level waste into the state of Texas while I was the governor.”

“We suspect, as do many others, that this may be a backdoor way to dump the nation’s high-level nuclear waste on Texas permanently,” said Tom “Smitty” Smith, director of the Texas office of Public Citizen, a watchdog group.

Smith opposes the Yucca Mountain site, but he worries that if it is not approved, Texas could become another option to host a waste repository. And if the Yucca Mountain plan goes forward, he said, it could bring Texas closer to housing high-level waste on a short-term basis. The state already has a low-level waste storage site in West Texas that opened with Perry’s support when he was governor.

“A storage site is designed to be a place where you can put the waste above ground, and keep it secure for 50 to 60, or maybe 100 years at the outset. And, eventually, this waste will have to be moved a second time,” Smith said.

Hester said the lawsuit could go a few different ways. If the Trump administration wants to consider storing waste at Yucca Mountain, it could choose not to fight the lawsuit and settle.

“In that situation we would have a court-enforceable instrument restarting the clock on getting that license reviewed and decided on,” he said.

Given the Trump administration's budget outline, that outcome seems most likely. Released today, the White House budget suggests a $120 million investment to "restart licensing activities for the Yucca Mountain nuclear waste repository and initiate a robust interim storage program."

However, he said, if the administration fights Paxton, the case could end up at the Supreme Court.