Nevada last week rebuffed the U.S. Nuclear Regulatory Commission’s assertion that it is covered by the federal government’s sovereign immunity against a state request that a federal judge block Commissioner David Wright from participating in adjudicating the license application for the Yucca Mountain nuclear waste repository.
Sovereign immunity was one aspect of the federal agency’s motion earlier in October that Nevada’s petition in the U.S. Court of Appeals for the District of Columbia Circuit be dismissed.
“NRC argues … that Nevada’s petition for review must be dismissed because sovereign immunity has not been waived. But NRC fails to recognize that … the Administrative Procedure Act waives sovereign immunity for actions like this where no money damages are sought. NRC fails to distinguish here between sovereign immunity and jurisdiction,” according to an Oct. 24 filing by Nevada Attorney General Adam Paul Laxalt and other attorneys representing the state.
Nevada leaders have long opposed the federal government’s plans to ship tens of thousands of tons of radioactive waste for permanent disposal under Yucca Mountain. The Department of Energy license application before the NRC has been moribund for the better part of a decade, but the Trump administration has sought congressional appropriations – so far unsuccessfully – to revive the proceeding.
The state government in June asked Wright to recuse himself from the adjudication, saying he had shown himself in word and deed to be unfairly biased toward Yucca Mountain. Wright declined, saying he favored nuclear waste disposal rather than any specific location. Nevada then took the case to court.
Laxalt’s team also fought back against the NRC’s assertion that the recusal petition should follow “final agency action,” which in this case would be an NRC ruling on the license application. Instead, relevant federal regulations do not mandate “finality” before judicial review sought by the state, according to the latest filing.
