Nevada Attorney General files constitutional challenge over nuclear waste dump

Las Vegas Review Journal Editorial

1/13/03

Nevada - Newly inaugurated Attorney General Brian Sandoval opened his term of office by filing a constitutional challenge to the federal government's siting of its nuclear waste dump at Yucca Mountain. In part, this lawsuit restates arguments made in other filings, dealing with the insistence of the federal government to relocate nuclear waste to Nevada, even though the site has failed to meet the government's own scientific guidelines for suitability.

Fortunately, this suit goes farther, arguing that under the Constitution and its system of federalism, a single state cannot be forced to take on the burden of "resolving a serious problem of national scope" unless the state grants its consent or Congress imposes the burden using "neutral, rational and objective" criteria. The lawsuit states that neither instance applies: Nevada doesn't want the dump and Congress used the brute force of legislation, rather than any objective standards, when it decided to store nuclear waste here.

In principle, the lawsuit draws heavily on the 10th Amendment, which guarantees the sovereignty of state governments in matters not explicitly spelled out in the Constitution. And Nevada's legal team will rely extensively on a 1992 U.S. Supreme Court decision, which used the 10th Amendment to overturn a federal law forcing states to "take title" of low-level nuclear waste, in its arguments in the Yucca Mountain challenge.

If there's a downside here, it's that the filing nowhere cites the 10th Amendment directly. Presumably, amicus briefs filed in support of the lawsuit will do that. Because the state's ultimate success here depends upon a forceful defense of Nevada's 10th Amendment rights -- and the willingness of federal courts to take the amendment's language and intent seriously.