Nuclear waste lasts for tens of thousands of years. On some days, it seems, so does litigation over its disposal. In the latest twist, the United States Court of Appeals for the Fifth Circuit ruled in August on behalf of Texas and two oil companies, determining it was unlawful for the Nuclear Regulatory Commission to license a private, “away from reactor” storage facility for spent nuclear fuel in the Lone Star state.
Welcome to the club, Texas. Storage or disposal sites at Yucca Mountain in Nevada; the Lyons salt mine in Kansas; in Tennessee; and in New England and the Upper Midwest, have all been set adrift via the courts, Congress or in the court of public opinion over the past six decades.
While the decision itself by the Fifth Circuit may be appealed, its immediate effect is crystal clear: There’s no workable path visible on nuclear waste.
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It’s time for a new way forward.
After 60 years of failure, some may question whether it’s even possible to solve the conundrum of siting nuclear waste disposal. We absolutely can solve the problem, but first we need to start with a clear-eyed dismissal of clichéd explanations for why national efforts have failed for so long. For more than a decade, there have been two competing efforts underway on nuclear waste, both fitful and incomplete—and unsuccessful.
On one hand, since 2012’s Blue Ribbon Commission (undertaken after the Yucca Mountain site was deemed unworkable), many policy makers and advocates have said that “consent” is the key to finding a final repository site. But no one has defined how to achieve this consent.
Against this, several of the bills in Congress introduced over the last decade, even if they technically use the word “consent” somewhere in the text, have focused on forcing the waste into the Yucca site in Nevada or establishing consolidated storage sites in New Mexico or Texas. Expedient for the industry, each has been doomed to failure. Bipartisan leaders in the states have loudly expressed no consent, and what just happened in Texas, no matter how it resolves in the courts, will keep happening until we sort this out.
The National Academy of Sciences, federal agencies, courts and independent experts have all come to a clear consensus that nuclear waste is strikingly dangerous and isolating it as remotely as possible from the biosphere via geologic repositories is the best choice. I agree. And developing the criteria to site a repository that isolates waste toxic for a million years is an extraordinary scientific challenge. And that’s just the start. Equally important, there’s no way to ignore the spectacularly difficult institutional hurdles of how society manages and disposes of its nuclear waste.
Who gets to decide? And how do they carry out such a grave responsibility? This is where bedrock environmental law comes into the discussion.
Federalism underlies our environmental statutes, with the Environmental Protection Agency first setting a baseline standard, and then states implementing those rules in an expressly reserved role if they so choose. This is how the Clean Water Act, Clean Air Act and hazardous waste laws work. States generally then have “delegated” authority to enforce those standards with some leeway to impose stricter requirements or different, but no less protective, regulatory mandates.
Nuclear waste, however, is different. The Atomic Energy Act and its progeny, the Nuclear Waste Policy Act, exempt nuclear waste from these bedrock environmental laws. And that’s the central reason we are stuck where we are.
The cooperative federalism of our environmental statutes is the path to state consent and public acceptance of a nuclear waste solution. Specifically, Congress must finally end the exemption of nuclear waste from environmental law. Our hazardous waste and clean water laws must have full authority over radioactivity and nuclear waste facilities so that EPA—and the states—can assert direct regulatory authority.
Given current congressional dysfunction, no one could suggest such a nuclear waste bill will pass imminently. But as the Texas situation illustrates, there’s both bipartisan opposition to the current system and no other viable path forward. Neither Yucca Mountain nor an interim site is going to receive waste under the current legal system. Figuring out how to meaningfully get consent would give lawmakers a constructive pause while providing agencies, states, tribes and independent experts room to debate solutions. Having exhausted every other option, Congress can now go about doing the right thing.
Now, to be clear, this won’t be easy. EPA’s standard setting would be incredibly hard—and hard fought, as the agency would need to define levels of radiation exposure, cleanup standards and protective terms that could apply in a range of proposed geologic settings. States would then have comparably tough decisions to make as they would need to decide whether to site nuclear waste within their borders—and, if so, how much, and on what terms that are protective of their citizens and natural resources. But they would finally have the authority to make those decisions and not be on the hook for the entirety of the nation’s nuclear waste burden. Thus, states could address the nuclear waste in their state or region, and hold all actors accountable, just as they do with other environmental challenges. And having such authority to set scientifically defensible and limited terms can finally allow political actors to not risk careers by simply entertaining the notion. This will take years.
But consider the alternative: We are now stuck in the same place we were 60 years ago, with nuclear waste sitting on the surface at reactor sites around the country and no long-term plan in place to ultimately dispose of it deep underground.
But there is hope, and there are leaders pushing forward. Last Congress Senator Ed Markey of Massachusetts and Representative Mike Levin of California proposed legislation that would establish a task force to examine placing nuclear waste under bedrock environmental law.
The legislation would bring together the stakeholders and necessary expertise to sketch out a broadly acceptable and politically durable solution. And it would analyze the implications of ending nuclear waste’s exemptions from bedrock environmental laws and a time frame for regulations.
The key question of how to define consent, with all ideas, voices and approaches evaluated in the public eye, can finally be tackled.
No one has a perfect crystal ball, but history has shown one thing to be true: trying to force this dangerous waste on states without giving them any meaningful recourse under environmental law has failed time and time again. This new approach would allow us to distill the differences and clarify the precise river crossings Congress, EPA and the states must make to write, at last, a way forward on nuclear waste that can be both scientifically defensible and publicly accepted.
This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American.