Appeals Court Blocks N-Waste Shipments But Congress Could Override Order Requiring Environmental Review

A federal appeals court refused Thursday to let the federal government ship nuclear wastes into Idaho over the state’s objections while a federal judge reviews the government’s environmental study.

The 9th U.S. Circuit Court of Appeals ruled 2-1 that it had no authority to rule on the government’s request to lift a ban on the shipments until U.S. District Judge Edward Lodge decides whether the Energy Department has properly assessed the environmental effects.

Lodge has said he plans to rule shortly. His ruling is likely to be appealed, an action that could further delay the shipments.

On another front, legislation pending in both houses of Congress would require Idaho to accept shipments of spent nuclear fuel from the Navy, which contends it urgently needs to ship the wastes so it can keep carrier refueling on schedule.

“I am pleased that the injunction against waste shipments will remain in place,” Gov. Phil Batt said in a statement. “However, it appears that Congress is on the brink of overriding the court and forcing Idaho to take shipments of Navy waste.

“I continue to work tirelessly to reach an agreement that will head off this dictate from Congress.”

Batt agreed in January to accept eight additional Navy waste shipments but, after widespread criticism, said the state would accept no shipments besides those eight without a court order.

Energy Department spokeswoman Jane Brady declined comment, saying the department hadn’t yet seen the ruling.

Besides Navy fuel, the waste is to include shipments from the Fort St. Vrain nuclear plant in Colorado, which was shut down in 1989. A waste storage facility at the Idaho National Engineering Laboratory, built by the federal government, received waste from the plant through 1986.

Idaho has been fighting renewed shipments, saying it wants assurances that the material eventually will be removed. The state also contends the Energy Department’s recent environmental impact study failed to fully consider potential safety and health hazards.

The late U.S. District Judge Harold Ryan issued an injunction against shipments in June 1993 until the department produced an environmental study that survived legal challenges.

After state-federal negotiations, Ryan issued a new order in December 1993 allowing several shipments, to which the state had consented. The new order, which the government agreed not to appeal, said the earlier injunction would stay in effect until 30 days after the Energy Department prepared the required environmental study.

The department issued the study in April and was immediately challenged by the state. Lodge, who took over the case after Ryan’s death, ruled that the injunction would stay in place until after legal review of the environmental report.

The government appealed, saying the earlier injunction should have expired 30 days after the study was issued. The government argued that Lodge’s order was a new injunction, which an appeals court can review.

The court disagreed, saying Ryan’s original June 1993 injunction was still in effect and would not expire until after the environmental study was fully reviewed and all challenges resolved.

Ryan did not intend to lift his injunction whenever the government issued “any (environmental report), however flawed,” said the opinion by Judge William Canby. “We reject a reading that would leave the injunction that toothless.”

Judge Eugene Wright agreed. Judge Arthur Alarcon dissented, agreeing with the government’s view of the expiration of the injunction and concluding that the shipments should resume.