OLYMPIA – Four years after Washington voters overwhelmingly approved a law to force cleanup of the Hanford Nuclear Reservation before any more waste is shipped there, an appeals court said the law oversteps the state’s authority.
“Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297, the Cleanup Priority Act, is pre-empted by federal law,” a three-judge panel of the 9th U.S. Circuit Court of Appeals said.
The ruling – which upheld a lower court’s decision – disappointed the governor, state lawmakers and others who supported the popular ballot measure.
“The initiative was supported by nearly 70 percent of the voters, and we fought hard to defend it in the face of a constitutional challenge brought by the federal government,” Gov. Chris Gregoire said in a statement.
But she said the failure of the initiative wouldn’t limit the state’s efforts to force cleanup under other laws and under the so-called Tri-Party Agreement. The 1989 agreement is a pact signed by the state Department of Ecology, the federal Department of Energy and the U.S. Environmental Protection Agency.
“I will continue to do everything I can to make sure that Hanford is cleaned up in a manner that protects our citizens and the Columbia River,” Gregoire said.
The federal government challenged the measure immediately after it was approved. In June 2006, U.S. District Judge Alan McDonald, of Yakima, ruled the initiative was unconstitutional because it violated federal authority over nuclear waste and the Constitution’s interstate commerce clause.
That’s flat wrong, said Toby Nixon, a former state lawmaker and co-sponsor of Initiative 297. Congress specifically granted states the power to regulate mixed waste in 1992, he said.
Nixon is urging Attorney General Rob McKenna to appeal Wednesday’s decision to the U.S. Supreme Court.
“Unless this appeal is pressed, every state that hosts disposal sites for radioactive waste is at risk of losing its ability to regulate those sites because of the precedent set by this decision,” he said.
The federal government created Hanford in the 1940s as part of the top-secret Manhattan Project to build the atomic bomb. The site continued to produce plutonium for the nation’s nuclear weapons arsenal for 40 years.
Today, it is the most contaminated nuclear site in the U.S., with cleanup expected to continue for decades. Gregoire, who wrestled with the feds over cleanup issues as the state’s attorney general, has repeatedly said she’s worried about waste seeping toward the river.
Under a national plan to clean up all federal sites, nearly every site in the Energy Department complex would export or import waste or do both. The federal government had argued that it has exclusive authority over radioactive waste and that the initiative, if allowed to stand, would slow or impair those cleanup efforts.
In July 2005, the Washington state Supreme Court ruled that parts of the initiative could stand even if a federal judge found other parts unconstitutional. McDonald, however, struck down the entire measure.
Gerald Pollet, executive director of the watchdog group Heart of America Northwest that sponsored the initiative, said he hopes the state will appeal.
“No one in their right mind would trust the Energy Department to clean up on its own,” he said. “It never has, it never will.”
The state is still considering whether to appeal, said Janelle Guthrie, spokeswoman for the state attorney general’s office. But she also said the state may find there are other ways to accomplish its goals as part of its negotiations over the Tri-Party Agreement.
Last year, the Energy Department announced it would be unable to meet some cleanup deadlines in the pact. The state has threatened to sue, but the two sides remain in negotiations to establish new cleanup priorities and milestones.
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