Several moderate senators who may ultimately decide the fate of Brett Kavanaugh's nomination to the Supreme Court — such as Susan Collins (R-Maine) and Doug Jones (D-Ala.) — declined to go to the White House to hear President Trump make the announcement.
In attendance, however, was the Republican facing perhaps the toughest election race of any sitting GOP senator: Nevada's Sen. Dean Heller. Seeking to publicly align himself with Trump's positions, Heller lauded Kavanaugh's "record of adherence to the Constitution."
But there is one spot in that record that may haunt Heller: an opinion penned by Kavanaugh compelling the federal government to move forward with a nuclear waste storage project deeply unpopular in his home state of Nevada.
Five years ago, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ordered the Nuclear Regulatory Commission to consider an application to store nuclear waste within a remote mountain about 100 miles northwest of Las Vegas.
Writing for the majority, Kavanaugh wrote the NRC is "simply flouting the law" by refusing to consider the plan for a nuclear waste repository at Yucca Mountain. "The underlying policy debate is not our concern," Kavanaugh added.
The decision adds new fodder to the razor-close Senate race in Nevada, a swing state that two years ago Hillary Clinton won by just 2 percentage points.
Like most elected officials in Nevada, both Heller and his Democratic opponent, Rep. Jacky Rosen, oppose storing nuclear waste within its borders. They argued that a state without a single nuclear power plant should not be forced to host the nation's spent nuclear fuel. But proponents of the Yucca project counter that without a central repository for the cesium, plutonium, strontium and residual uranium produced as byproducts of nuclear generation, that radioactive waste remains scattered at temporary holding facilities across the country.
Rosen latched onto the "pro-Yucca ruling" as another in her "list of concerns" about Kavanaugh. "Senator Heller should have the backbone to ask Judge Kavanaugh these tough questions and not just rubber stamp yet another nominee from President Trump," Rosen, who represents the southern suburbs of Las Vegas, said in a statement.
When reached for comment, Heller's office noted that Kavanaugh did not weigh in on the merits of storing nuclear waste in the Nevada mountain.
“The court clearly stated in its decision that it did not take a position on Yucca Mountain and simply ruled that the law must be followed if the project is funded by Congress," Heller spokeswoman Megan Taylor said. Heller has yet to meet with Kavanaugh, who is going around Capitol Hill seeking support for his nomination, and ask the judge about the decision.
The latest survey from Nevada, conducted by the nonpartisan pollster Gravis in June, shows a tight race with Rosen only 4 points ahead of Heller.
Congress greenlit using Yucca as a nuclear waste repository in 1982, but for decades political opposition has stalled the project.
Both Heller and Rosen take credit for halting recent efforts to fund the Yucca project. But the most consequential opponent to the nuclear waste repository was former Senate Majority Leader Harry Reid (D). During the 2008 presidential race, Barack Obama adopted a position against the project and won Reid's support in the race.
However, that year the Energy Department under President George W. Bush had applied to the NRC for permission to begin construction on the Yucca repository. But Obama canceled the project in 2010 before the commission's review was complete.
The Government Accountability Office later dinged the Obama administration for ending the project without citing "technical or safety issues." Instead, the administration had reasoned, the Yucca facility was simply too unpopular in Nevada to work there.
Dissenting in the D.C. Circuit case was Judge Merrick Garland, the Supreme Court nominee for whom Senate Majority Leader Mitch McConnell refused to even hold a hearing. Garland countered that courts should make such orders only for "extraordinary causes." He argued Congress had not appropriated enough money for the commission to carry out the work to approve the Yucca project.
The ruling was unusual for a conservative jurist such as Kavanaugh who normally seeks to curtail the exercise of judicial power. "What Judge Kavanaugh wants to do here is a fairly activist thing to do," said Thomas McGarity, a professor of administrative and environmental law at the University of Texas. "It is not so consistent with a theory of judicial restraint, which you hear the Federalist Society talk about."
But environmental groups say the decision fits with an environmental record of which they are already suspicious. Senate Democrats highlighted his pro-business approach to environmental regulation as a cause for concern during a press conference Tuesday.
"There is every reason to be gravely concerned about Brett Kavanaugh," said Sen. Sheldon Whitehouse (R.I.), a member of both the Environment and Public Works and the Judiciary committees.
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