June, 04 2020, 12:00am EDT
For Immediate Release
Contact:
Diane Curran, Harmon, Curran, Spielberg + Eisenberg, LLP, (240) 393-9285, dcurran@harmoncurran.comÂ
Mindy Goldstein, Director, Turner Environmental Law Clinic, Emory University School of Law, (404) 727-3432, mindy.goldstein@emory.eduÂ
Kevin Kamps, Radioactive Waste Specialist, Beyond Nuclear, (240) 462-3216, kevin@beyondnuclear.orgÂ
Stephen Kent, KentCom LLC, (914) 589 5988, skent@kentcom.com
Beyond Nuclear Files Federal Lawsuit Challenging High-Level Radioactive Waste Dump for Entire Inventory of U.S. "Spent" Reactor Fuel
Petitioner charges the Nuclear Regulatory Commission knowingly violated U.S. Nuclear Waste Policy Act and up-ended settled law prohibiting transfer of ownership of spent fuel to the federal government until a permanent underground repository is ready to receive it.
WASHINGTON
Today the non-profit organization Beyond Nuclear filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit requesting review of an April 23, 2020 order and an October 29, 2018 order by the U.S. Nuclear Regulatory Commission (NRC), rejecting challenges to Holtec International/Eddy-Lea Energy Alliance's application to build a massive "consolidated interim storage facility" (CISF) for nuclear waste in southeastern New Mexico. Holtec proposes to store as much as 173,000 metric tons of highly radioactive irradiated or "spent" nuclear fuel - more than twice the amount of spent fuel currently stored at U.S. nuclear power reactors - in shallowly buried containers on the site.
But according to Beyond Nuclear's petition, the NRC's orders "violated the Nuclear Waste Policy Act and the Administrative Procedure Act by refusing to dismiss an administrative proceeding that contemplated issuance of a license permitting federal ownership of used reactor fuel at a commercial fuel storage facility."
Since it contemplates that the federal government would become the owner of the spent fuel during transportation to and storage at its CISF, Holtec's license application should have been dismissed at the outset, Beyond Nuclear's appeal argues. Holtec has made no secret of the fact that it expects the federal government will take title to the waste, which would clear the way for it to be stored at its CISF, and this is indeed the point of building the facility. But that would directly violate the 1982 Nuclear Waste Policy Act (NWPA), which prohibits federal government ownership of spent fuel unless and until a permanent underground repository is up and running. No such repository has been licensed in the U.S. The U.S. Department of Energy's (DOE) most recent estimate for the opening of a geologic repository is the year 2048 at the earliest.
In its April 23 decision, in which the NRC rejected challenges to the license application, the four NRC Commissioners admitted that the NWPA would indeed be violated if title to spent fuel were transferred to the federal government so it could be stored at the Holtec facility. But they refused to remove the license provision in the application which contemplates federal ownership of the spent fuel. Instead, they ruled that approving Holtec's application in itself would not involve NRC in a violation of federal law, and that therefore they could go forward with approving the application, despite its illegal provision. According to the NRC's decision, "the license itself would not violate the NWPA by transferring the title to the fuel, nor would it authorize Holtec or [the U.S. Department of Energy] to enter into storage contracts." (page 7). The NRC Commissioners also noted with approval that "Holtec hopes that Congress will amend the law in the future." (page 7).
"This NRC decision flagrantly violates the federal Administrative Procedure Act (APA), which prohibits an agency from acting contrary to the law as issued by Congress and signed by the President," said Mindy Goldstein, an attorney for Beyond Nuclear. "The Commission lacks a legal or logical basis for its rationale that it may issue a license with an illegal provision, in the hopes that Holtec or the Department of Energy won't complete the illegal activity it authorized. The buck must stop with the NRC."
"Our claim is simple," said attorney Diane Curran, another member of Beyond Nuclear's legal team. "The NRC is not above the law, nor does it stand apart from it."
According to a 1996 D.C. Circuit Court ruling, the NWPA is Congress' "comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants" [Ind. Mich. Power Co. v. DOE, 88 F.3d 1272, 1273 (D.C. Cir. 1996)]. The law establishes distinct roles for the federal government vs. the owners of facilities that generate spent fuel with respect to the storage and disposal of spent fuel. The "Federal Government has the responsibility to provide for the permanent disposal of ... spent nuclear fuel" but "the generators and owners of ... spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of ... spent fuel until such ... spent fuel is accepted by the Secretary of Energy" [42 U.S.C. SS 10131]. Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it has opened a repository [42 U.S.C. SS 10131(a)(5)].
"When Congress passed the Nuclear Waste Policy Act and refused to allow nuclear reactor licensees to transfer ownership of their irradiated reactor fuel to the DOE until a permanent repository was up and running, it acted wisely," said Kevin Kamps, radioactive waste specialist for Beyond Nuclear. "It understood that spent fuel remains hazardous for millions of years, and that the only safe long-term strategy for safeguarding irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation from the living environment. Today, the NWPA remains the public's best protection against a so-called 'interim' storage facility becoming a de facto permanent, national, surface dump for radioactive waste. But if we ignore it or jettison the law, communities like southeastern New Mexico can be railroaded by the nuclear industry and its friends in government, and forced to accept mountains of forever deadly high-level radioactive waste other states are eager to offload."
In addition to impacting New Mexico, shipping the waste to the CISF site would also endanger 43 other states plus the District of Columbia, because it would entail hauling 10,000 high risk, high-level radioactive waste shipments on their roads, rails, and waterways, posing risks of radioactive release all along the way.
Besides threatening public health and safety, evading federal law to license CISF facilities would also impact the public financially. Transferring title and liability for spent fuel from the nuclear utilities that generated it to DOE would mean that federal taxpayers would have to pay for its so-called "interim" storage, to the tune of many billions of dollars. That's on top of the many billions ratepayers and taxpayers have already paid to fund a permanent geologic repository that hasn't yet materialized.
But that's not to say that Yucca Mountain would be an acceptable alternative to CISF. "A deep geologic repository for permanent disposal should meet a long list of stringent criteria: legality, environmental justice, consent-based siting, scientific suitability, mitigation of transport risks, regional equity, intergenerational equity, and safeguards against nuclear weapons proliferation, including a ban on spent fuel reprocessing," Kamps said. "But the Yucca Mountain dump, which is targeted at land owned by the Western Shoshone in Nevada, fails to meet any of those standards. That's why a coalition of more than a thousand environmental, environmental justice, and public interest organizations, representing all 50 states, has opposed it for 33 years."
Kamps noted that the U.S. Court of Appeals for the District of Columbia Circuit has upheld the NWPA before, including in the matter of inadequate standards for Yucca Mountain. In its landmark 2004 decision in Nuclear Energy Institute v. Environmental Protection Agency, it wrote, "Having the capacity to outlast human civilization as we know it and the potential to devastate public health and the environment, nuclear waste has vexed scientists, Congress, and regulatory agencies for the last half-century." The Court found the U.S. Environmental Protection Agency's insufficient 10,000-year standard for Yucca Mountain violated the NWPA's requirement that the National Academy of Sciences' recommendations must be followed, and ordered the EPA back to the drawing board. In 2008, the EPA issued a revised standard, acknowledging a million-year hazard associated with irradiated nuclear fuel and high-level radioactive waste. Even that standard falls short, Kamps said, because certain radioactive isotopes in spent fuel remain dangerous for much longer than that. Iodine-129, for example, is hazardous for 157 million years.
NOTE TO EDITORS AND PRODUCERS: Sources quoted in this release are available for comment. For a copy of the petition filed today, to arrange interviews or for other information, please contact Stephen Kent, skent@kentcom.com, 914-589-5988
Beyond Nuclear aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abandon both to safeguard our future. Beyond Nuclear advocates for an energy future that is sustainable, benign and democratic.
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Supreme Court Urged to 'Rule Quickly' After Trump Immunity Arguments
"It'd be a travesty for justices to delay matters further," said one legal expert.
Apr 25, 2024
After about three hours of oral arguments Thursday on former President Donald Trump's immunity claims, legal experts and democracy defenders urged the U.S. Supreme Court to rule swiftly, with just over six months until the November election.
Trump—the presumptive Republican candidate to challenge Democratic President Joe Biden, despite his 88 felony charges in four ongoing criminal cases—is arguing that presidential immunity should protect him from federal charges for trying to overturn his 2020 loss to Biden, which culminated in the January 6, 2021 insurrection at the U.S. Capitol.
Justices across the ideological spectrum didn't seem inclined to support Trump's broad immunity claims—which critics have said "reflect a misreading of constitutional text and history as well as this court's precedent." However, Citizens for Responsibility and Ethics in Washington (CREW) shared examples of what it would mean if they did.
"Trump could sell pardons, ambassadorships, and other official benefits to his wealthy donors, members of his clubs, or cronies who helped him commit other crimes," CREW warned. "Trump could sell nuclear codes and government secrets to help pay back crippling debts."
"But this isn't just about what Donald Trump could do. It's really about how total immunity for the president would threaten our democratic system of checks and balances," the group continued. "The president could order the military to assassinate activists, political opponents, members of Congress, or even Supreme Court justices, so long as he claimed it related to some official act."
After warning that a president could also order the occupation or closure of the Capitol or high court to prevent actions against him, CREW concluded that "the Supreme Court never should have taken this appeal up in the first place. They should rule quickly and shut these ludicrous claims down for good."
The organization was far from alone in demanding a quick decision from the nation's highest court.
"In the name of accountability, the court must not delay its decision," the Brennan Center for Justice said Thursday evening. "The Supreme Court's time is up. It needs to let the prosecution move forward. The court decided Bush v. Gore in three days—it should act with similar alacrity in deciding Trump v. U.S."
In Bush v. Gore, the case that decided the 2000 election, the high court issued a related stay on December 9, heard oral arguments on December 11, and issued a final decision on December 12.
On Thursday, the arguments "got away from the central question: Is a former president immune from criminal prosecution if he tried to overthrow a presidential election, using private means and the power of his office to do so?" the Brennan Center noted. "The answer is simple: No."
"It is not an 'official act' to try to overthrow the peaceful transfer of power or the Constitution, even if you conspire with other government officials to do it or use the Oval Office phone," the center said. "Trump's attorney was pushing the court to come up with a sea change in the law. That's unnecessary and a delay tactic that will hurt the pursuit of justice in this case."
In a departure from previous claims, Trump's attorney, D. John Sauer, "appeared to agree with Special Counsel Jack Smith, who is leading the prosecution, that there are some allegations in the indictment that do not involve 'official acts' of the president," NBC Newsreported, noting questions from liberal Justice Elena Kagan and conservative Justice Amy Coney Barrett, a Trump appointee.
Barrett summarized various allegations from the indictment and in three cases—involving dishonest election claims, false allegations of fraud, and fake electors—Sauer conceded that Trump's alleged conduct sounded private, suggesting that a more narrow case against the ex-president that excluded any potential official acts could proceed.
Due to Trump attorney's concessions in Supreme Court oral argument, there's now a very clear path for DOJ's case to go forward.\n\nIt'd be a travesty for Justices to delay matters further.\n\nJustice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.\u2b07\ufe0f— (@)
According to NBC:
Matthew Seligman, a lawyer and a fellow at the Constitutional Law Center at Stanford Law School who filed a brief backing prosecutors, said Sauer's concessions highlight that Trump is "not immune for the vast majority of the conduct alleged in the indictment."
Ultimately, he said, the case will go to trial "absent some external intervention—like Trump ordering [the Justice Department] to drop the charges" after having won the election.
At the same time, Sauer's backtracking might have little consequence from an electoral perspective. Further delay in a trial, which Sauer is close to achieving, is a form of victory in itself.
Slate's Mark Joseph Stern pointed out that when Barrett similarly questioned Michael Dreeben, the U.S. Department of Justice lawyer arguing the case for Smith, it seemed like they "were trying to work out some compromise wherein the trial court could distinguish between official and unofficial acts, then instruct the jury not to impose criminal liability on the former."
"It was fascinating to watch Barrett nodding along as Dreeben pitched a compromise that would largely preserve Smith's January 6 prosecution but limit what the jury could hear, or at least consider," Stern added. "That, though, would take months to suss out in the trial court. More delays!"
Stern and other experts signaled that the decision likely comes down to Barrett and Chief Justice John Roberts, with the three liberals seemingly supporting the prosecution of Trump and the other four conservatives suggesting it is unconstitutional.
People for the American Way president Svante Myrick said in a statement that "today's argument brought both good and bad news. It was chilling to hear Donald Trump's lawyer say that staging a military coup could be considered part of a president's official duties."
"Thankfully, the majority of the court, including conservative justices, did not seem to buy that very broad Trump argument that a former president is absolutely immune from prosecution under any circumstances," Myrick added. "On the other hand, it's not clear that there is a majority on this court that will quickly reject the immunity arguments and let the case go forward in time for a trial before the election. That's a huge concern."
Trump was not at the Supreme Court on Thursday; he was at his trial in New York, where he faces 34 counts for allegedly falsifying business records related to hush money payments to cover up sex scandals during the 2016 election cycle. The are two other cases: a federal one for mishandling classified material and another in Georgia for interfering with the last presidential contest.
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'Just the Beginning': 50+ Arrested for Blockading Citigroup Bank Over Climate Crimes
"Through people-powered resistance, we can give money a conscience and stop Citi's destruction of our planet," said one Indigenous campaigner.
Apr 25, 2024
Twenty more demonstrators were arrested Thursday, the second day of Earth Week protests targeting Citigroup's Manhattan headquarters in what organizers called "the beginning of a wave of direct actions to take place over the summer targeting big banks for creating climate chaos that is killing our communities and our planet."
Protest organizers—who include Climate Defenders, New York Communities for Change, Planet over Profit, and Stop the Money Pipeline—said 53 activists were arrested over two days of demonstrations, which included blocking the entrance to Citigroup's headquarters, to "demand that the bank stop funding fossil fuels."
Organizers said this week's demonstrations "were just the beginning" of what they're calling a "Summer of Heat" targeting big banks for their role in the climate emergency and for "polluting our land, air, and water, and threatening the health of children, families, and our planet." Citigroup is the world's second-largest fossil fuel financier.
"We're holding Citi accountable for financing dirty fossil fuels from Canada to Latin America and beyond," said Chief Na'moks of the Wet'suwet'en Nation, one of several Indigenous leaders who took part in the action. "Through people-powered resistance, we can give money a conscience and stop Citi's destruction of our planet."
Jonathan Westin, executive director of Climate Defenders, asserted that "Citigroup's racist funding of oil, coal, and gas is creating climate chaos that's devastating communities of color across the country."
"We're taking action to tell Citi that we won't put up with their environmental racism for one more day," Westin continued. "Our communities have reached the boiling point. Our children have asthma, our city's sky was orange, and our air polluted because of the climate crisis caused by Citi and Wall Street."
"We're going to keep organizing and taking direct action until Citi listens to us," he vowed.
Stop the Money Pipeline co-director Alec Connon said: "To have any chance of reigning in the climate crisis, we must stop investing in fossil fuel expansion. Yet, Citibank is pumping billions of dollars into new coal, oil, and gas projects."
"We're here to make it clear: If they're going to fund the companies disrupting our climate and our lives, we're going to disrupt their business," Connon added.
Activists have repeatedly targeted Citigroup in recent years as the megabank has pumped more than $300 billion into fossil fuel investments around the world since the Paris climate agreement.
According to the protest organizers:
Citi has provided $668 million in funding to Formosa Plastics between 2001-2021, which is trying to build a $9.4 billion plastics facility in a majority Black community in the heart of Cancer Alley in Louisiana.
Citigroup is also one of the biggest funders of state-run oil and gas companies in the Amazon basin, pumping in over $40 billion between 2016-2020, and a major backer of Petroperú, which has been involved in oil spills and Indigenous rights violations.
"From wildfires, heatwaves, and floods to deadly air pollution and mass drought, Citi's fossil fuel financing is killing us," said Alice Hu of New York Communities for Change. "We've sent polite petitions and had pleading meetings with bank representatives, but Citi refuses to stop pouring billions each year into coal, oil, and gas."
"That's why we're fighting for our lives now with the best tool we have left: mass, nonviolent disruptive civil disobedience," Hu added.
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No Outside Probe, US Reiterates as Gazans Reportedly Buried Alive in Mass Grave
"How does it ever make sense that the United States asks the accused party to examine itself?" asked one incredulous reporter.
Apr 25, 2024
A Biden administration spokesperson once again brushed off calls for an independent investigation into how hundreds of Palestinians found in mass graves near Gaza hospitals died when asked Thursday about new reports that many of the victims were tortured, summarily executed—and in some cases, buried alive by Israeli invaders.
During a Thursday U.S. State Department press conference in Washington, D.C., a reporter noted Gaza officials' claim that mass grave victims "including children were tortured before being killed" and that "some even showed signs of being buried alive, along with other crimes against humanity."
"What's wrong with an independent, scientific, forensic investigation?"
Noting calls by Palestinian officials and United Nations High Commissioner for Human Rights Volker Türk for an independent probe into mass graves, the reporter said that "this administration repeatedly said that it asks... the Israeli government to investigate itself."
"How does it ever make sense that the United States asks the accused party to examine itself and provide reports that you have previously said that you actually trust?" the reporter asked State Department Principal Deputy Spokesperson Vedant Patel. "What's wrong with an independent, scientific, forensic investigation?"
Patel replied: "We continue to find these reports incredibly troubling. And that's why yesterday you saw the national security adviser for this to be thoroughly investigated."
While National Security Adviser Jake Sullivan on Wednesday called reports of mass grave atrocities "deeply disturbing" and said that "we want answers" from Israel, he did not call for an independent investigation.
When the reporter pressed Patel on the legitimacy of asking Israel to investigate itself, Patel said, "we believe that through a thorough investigation we can get some additional answers."
Thursday's exchange followed a similar back-and-forth on Tuesday between Patel and Said Arikat, a journalist for the Jerusalem-based
Palestinian news outlet al-Quds who asked about the mass graves.
At least 392 bodies—including numerous women and children—have been found in mass graves outside Nasser Hospital in Khan Younis, southern Gaza, where Palestinian Civil Defense and other workers have been exhuming victims for nearly a week. Officials believe there are as many as 700 bodies in three separate mass graves.
Based on more recent exhumations, local Civil Defense chief Yamen Abu Sulaiman said during a Wednesday press conference that "we believe that the occupation buried alive at least 20 people at the Nasser Medical Complex."
"There are cases of field execution of some patients while undergoing surgeries and wearing surgical gowns," he stated, adding that some victims showed signs of torture and 10 bodies had medical tubes attached to them.
Gaza Civil Defense official Mohammed Mughier told reporters that "we need forensic examination" to definitively determine the causes of death for the 20 people believed to have been buried alive.
Previous reporting on the mass graves quoted rescue workers who said they found people who were apparently executed while their hands were bound, with some victims missing heads, skin, and internal organs.
Other mass graves have been found in Gaza, most notably on the grounds of al-Shifa Hospital, where Israeli forces last month committed what the Geneva-based Euro-Mediterranean Human Rights Monitor called "one of the largest massacres in Palestinian history."
It's also not the first time there have been reports of Israeli troops burying victims alive during the current war, in which Palestinian and international officials say Israeli forces have killed or wounded more than 122,000 Gazans, including at least 11,000 people who are missing and feared dead. Israeli forces attacking Kamal Adwan Hospital in Beit Lahia last December reportedly bulldozed and buried alive dozens of injured patients and displaced people.
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