Notwithstanding This History . . . Consent-based Siting: What Have We Learned?

The president realized that the nation lacked a clear policy for developing a deep-mined geologic repository for high-level radioactive waste and spent nuclear fuel. New legislation would be required to chart a more promising path forward. The views of multiple parties had to be taken into account. He decided to create a high-level body to ventilate the issues involved and to make recommendations. He charged the group with holding public meetings and soliciting comments on draft documents to make the deliberations as transparent as possible. Especially notable was the group’s recommendation that the United States adopt a consent-based policy for siting a repository. Such a policy would walk a fine line between outright federal preemption of any state role in siting a repository and an absolute state veto, exercised at one specific moment in time. The time: the late 1970s. The president: Jimmy Carter. In February 1980, President Carter laid out the administration’s views on how to manage high-level waste and spent nuclear fuel (SNF).1 In particular, the president accepted the recommendation of the Interagency Review Group (IRG) to use “consultation and concurrence” to guide the siting process: “[A] state would be in agreement with each step of the [repository development] process before the next activity [would begin].”2 Although most of the IRG’s advice was incorporated into the 1982 Nuclear Waste Policy Act, Congress transformed “consultation and concurrence” into “consultation and cooperation.” Thus, this country’s first venture into consent-based siting was sidetracked, and ultimately aborted, by the passage of the 1987 Nuclear Waste Policy Amendments Act (NWPAA), which limited, for all practical purposes, site selection for an HLW and spent fuel repository to Yucca Mountain in Nevada. In many respects, this nation’s second attempt at consent-based siting was equally disappointing. The NWPAA also established the Office of the Nuclear Waste Negotiator, who was given a mandate to forge agreements with states or Native American tribes to host either a deepmined geologic repository or a centralized spent fuel storage facility. Congress abolished the office in 1995, just as negotiations with the Mescalero Apache Tribe in New Mexico were gaining traction. Subsequently, private efforts to site a centralized spent fuel storage facility on the Goshute Reservation in Utah ran into determined political opposition at the state and local levels. This opposition prompted legislation and administrative actions at the national level that first placed the project into a prolonged state of limbo and then forced its cancellation.3