Gov. Mike Leavitt is vowing to appeal a federal court ruling that struck down Utah laws designed to block the storage of 40,000 tons of nuclear waste on Goshute tribal lands and to impose rigid state regulations and taxes if the waste should come here.
Although disappointed in the ruling, it was somewhat expected.
"We figured it would ultimately end up in an appellate court," said Natalie Gochnour, Leavitt's spokeswoman. "And we look forward to continue our challenge and make our case. This is just one of the many strategies."
U.S. District Court for Utah Judge Tena Campbell ruled Tuesday the state's laws designed to block a consortium of nuclear power utilities from shipping waste to Utah were in conflict with federal law, and the state cannot interfere with the sovereign rights of the Goshute tribe.
"Clearly, Utah may not prevent radiological waste from entering Utah because of safety concerns," Campbell wrote in a 30-page summary judgment. "Nor may Utah create a separate state licensing process for spent nuclear fuel."
Private Fuel Storage and the Skull Valley Band of Goshutes filed suit last year to void various state laws, steered through the Legislature at Leavitt's behest, claiming they were unconstitutional and violated federal supremacy. The laws included an outright ban on spent nuclear fuel, a requirement the facility post a $150 billion bond and a $10,000 a day fine for anyone who provided services to the facility.
The laws were but one of Leavitt's strategies to keep the spent nuclear fuel out of the state. The state is also challenging the federal licensing process, now before the Atomic Safety and Licensing Board, which is expected to rule on the license by the end of the year.
Utah's congressional delegation is seeking to block the consortium by designating access routes into the reservation as federal wilderness, meaning a railroad spur could not be built.
Campbell's ruling drew praise from PFS. "What it really does is take away the hurdle of unconstitutional legislation, and it sends a message the state cannot be allowed to pass unconstitutional laws to try and achieve their purposes," said Mike Bailey with Parsons Behle and Latimer, the Salt Lake firm representing PFS.
"It allows us to proceed through the licensing process with the assurance these state laws will not get in the way," added Sue Martin, spokeswoman for PFS.
Campbell made it very clear in her ruling that federal law pre-empts state law, citing earlier court rulings that the "federal government has occupied the entire field of nuclear safety concerns," and "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject."
"The question of whether plaintiffs have a right to own and operate a spent nuclear fuel facility will be resolved by the Nuclear Regulatory Commission, with the right of appeal to the appropriate court of appeals, and not by this court," Campbell wrote.
Hearings before the NRC's Atomic Safety and Licensing Board were held in April, May and June on the PFS environmental impact statements, the final step before the NRC grants a license.
The consortium of mostly Eastern nuclear power utilities is proceeding with the licensing phase despite congressional action that designated Yucca Mountain, Nev., as the permanent repository for spent nuclear fuel. Six of the eight members say they will not participate in the Skull Valley project if the federal government moves swiftly on Yucca Mountain.
E-mail: donna@desnews.com