Nuclear Waste Politics: Environmental Justice & Legal Sovereignty in Tribal America

1. Nuclear Waste Politics: Environmental Justice & Legal Sovereignty in Tribal America Annie Shapiro Macalester College University of Maryland Francis King Carey School of Law IUCN Academy of Environmental Law Colloquium 3 July 2014

2. Exploring the Issue of High Level Nuclear Waste in the United States

3. Unstable Times • WIPP explosion in February underscores flawed waste management policy • Explosive cat litter • Missing electronic inventory • 500+ jugs filled with the wrong litter • Yucca Mountain • In 2010, Obama approved 2 new nuclear reactors in Georgia WIPP nuclear waste storage facility, New Mexico

4. Tribal Sovereignty in Practice as it Pertains to Management of Nuclear Waste • Government and private interests frequently abuse the sovereignty position • Political structure of tribes is not representative of democratic sovereignty • Tribal government is not centralized

5. Federal Government Conflicts with Tribal Sovereignty • Even though tribal government is technically sovereign, they are still subject to congressional authority • Nuclear Regulatory Commission • Tuscarora Rule • The Trust Doctrine • “A ward and its guardian” • 1960s and self determination

6. State Government Conflicts With Tribal Sovereignty • Supreme Court: “federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to states” Silkwood vs. Kerr-McGee Corp, 464 U.S. 238, (1984) • The dormant Commerce Clause • Nevada vs. Watkins 1990 (914 F.2d 1545) • Public Law 280 (18 U.S.C. § 1162, 28 U.S.C. § 1360) • Catch 22 • Combating the Commerce Clause • Avoiding the Atomic Energy Association and federal law • The rise of environmental law

7. Mescalero Apache Tribe& Skull Valley Goshute Tribe • The search for monitored retrievable storage • DOE criteria: federal lands, east, land with operating reactors • 9 out of 12 Phase I grants of $100,000 awarded to Native American nations in the Western United States • Support • Self determination • Development on contaminated lands • Protest • Job potential remains unclear • Potential for accidents • Concerns over transition from temporary to permanent • Cost

8. Ethical concerns

9. A case for self determination • Nuclear waste storage is a great source of jobs for economically disadvantaged tribes • Media and environmentalist portrayal of Native Americans as the “guardians of nature” • Success story? • Campo Band of Mission Indians (California) • The danger of a traditional environmental justice approach • Native American’s unique legal status means that unlike other low income communities, they have the power to accept and regulate waste

10. A case for environmental justice • Native Americans and the historical legacy of discrimination • NWPA abuses of tribal sovereignty • Mishandling of waste storage is a national security issue • The need for MRS has not been adequately demonstrated • Tribal members not informed about problems of MRS management • Job opportunities remain unclear • Public opposition • Temporary may become permanent • Sets a precedent for other countries to exploit native groups

11. Blue Ribbon Coalition 2012 • Scientists, academics, industry representatives, elected officials • A comprehensive review of policies for managing nuclear waste and recommendations of new plan • Consent based siting • Modifying existing law • Establishing a new waste management entity

12. Current Solutions: #1: On Site Storage • Proponents • Minimal effort • Transportation risks reduced • Flexibility for federal government to assess options • Opponents • Costs are extensive • National security

13. Current Solutions:#2: Temporary & Permanent Storage • Proponents • Blue Ribbon Coalition recommends • Spent fuel would be consolidated (decreasing complexity of overseeing waste) • Safer • Would allow DOE to meet its obligations to accept waste • Opponents • State and local opposition • Environmental concerns

14. Current Solutions:#3 Reprocessing • Proponents • Efficient • Saves 30% natural uranium and gains 25% energy from fuel source • Success in France and UK • Opponents • Does not eliminate disposal issue • Higher heat content than spent fuel only used once (safety concerns) • Costly • Production of plutonium poses risks for theft and terrorism The New York Times

15. Current Solutions:#4: Non Repository • Ideas • Sub seabed disposal • Prohibited by the 1972 London Dumping Convention (not ratified by US Senate) • Outer space disposal • Costly • Launch safety • Re-entry concerns

16. Steps Forward

17. Recommendations: Reforming NWPA • Incorporate elements of the Blue Ribbon Coalition (BRC) • Continue plans to site nuclear waste in an area that has legally consented • Establish a new waste management organization • Redefine elements of the Blue Ribbon Coalition (BRC) • Involve participants outside of the federal government • Redefine “consent”

18. Recommendations: Tribal and Government Cooperation • Re-alignment of incentives • Grounds for consent based siting should not only include economic incentives but educational and environmental incentives • Joined committees • Department of Energy must involve tribal councils in waste management plans • Aligning health and safety incentives

19. Conclusions

20. Thank you for attending!