The Washington PostDemocracy Dies in Darkness

The Energy 202: Kavanaugh's court decision on Yucca Mountain could be campaign issue in Nevada Senate race

with Paulina Firozi


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.


— Wheeler rewrites coal ash waste rule: The Environmental Protection Agency on Tuesday finalized a rule easing the requirements for how toxic waste produced by burning coal is handled in a win for industry and state officials who had urged a rollback of the regulations, The Post’s Juliet Eilperin and Brady Dennis report. The rule, the first major one signed by acting administrator Andrew Wheeler, determines how coal ash is stored at the more than 400 coal-fired plants in the nation. The new standards "will extend the life of some existing ash ponds from April 2019 until October 2020, empower states to suspend groundwater monitoring in certain cases and allow state officials to certify whether utilities’ facilities meet adequate standards,” Eilperin and Dennis report. “EPA officials estimate that the rule change will save the industry between $28 million and $31 million a year in compliance costs."

Old boss wants Wheeler to stay in new job: Coal magnate Bob Murray said he is rooting for Wheeler to stay at the helm of the agency for good. “He never wanted that position. He only wanted the No. 2 job,” Murray said during the Politico Pro summit on Tuesday. “But of course he’s in the No. 1 position, and with the election coming he’ll probably be in it for quite some time — I hope permanently.” Murray was formerly a lobbyists for Murray Energy and other companies.

— GOP pushes back on Russian pipeline: Sen. John Barrasso (R-Wyo.), chairman of the Senate Environment and Public Works Committee, said Tuesday he would introduce a bill help lessen the dependence the NATO allies have on Russia for natural gas. He said the bill would aim to do two things: Impose sanctions against those involved with the Nord Stream 2 pipeline to Russia and make it easier for NATO allies to work with the United States for energy needs, creating what he called a “transatlantic energy alliance.” During his trip to Europe, Trump had told German Chancellor Angela Merkel that Germany is "captive of Russia" due to the pipeline.

Meanwhile: Barrasso's committee also began consideration on a bill to overhaul the Endangered Species Act. The bill, Barrasso said, “would bestow more powers and responsibilities to state officials, allowing them to determine how animals and plants should be protected within state lines,” The Hill reports. Senators on the other side of the aisle criticized Barrasso’s proposals on Tuesday for potentially preventing "the best available science from guiding species management," according to Sen. Thomas R. Carper (Del.), the panel's top Democrat. 

"A thinly veiled campaign": Democratic lawmakers also spoke out in a Tuesday hearing against the EPA’s proposed rule to only allow studies with publicly available data to be considered in rulemaking. The Associated Press reports that at the hearing “opponents outnumbered supporters.” Rep. Paul Tonko (D-N.Y.) said the rule was “a thinly veiled campaign to limit research ... that supports critical regulatory action.” Joseph Stanko, a representative of industry trade groups, said such a rule “enables the public to more meaningfully comment on the science” used to make environmental policy. The proposal is open to public comment through the middle of August.

— Environmental groups sue EPA over "glider truck" rule: The Environmental Defense Fund, the Center for Biological Diversity and the Sierra Club filed a lawsuit on Tuesday against the EPA’s move to delay enforcement of an Obama administration rule limiting the sale of high-emission “glider trucks.” On his last day in office, Administrator Scott Pruitt issued an order to stop enforcement of the rule, a move called an "extraordinary decision" by the environmental groups. “The agency’s refusal to implement its own regulations will result in premature mortality on a massive scale, and it threatens to undermine decades of progress in combating diesel-exhaust pollution,” the suit charges.

Can a pro-coal Democrat in West Virginia carve a path for his party? (The New York Times)


— Not all schools are testing for lead: A new report from the Government Accountability Office found that less than half of the school districts in the country test their water for lead. What’s more, more than a third of the schools that do testing found elevated lead levels, the Associated Press reports. The survey assessed 549 school districts in the United States and found 43 percent tested for lead in 2016 and 2017, 41 percent did not test for lead, while 16 percent did not know whether or not the toxin was tested for. The AP adds there is no federal law requiring such testing.

— How climate change can break the Internet: A new study predicts more than 4,000 miles of fiber-optic cables supporting Internet connections will be underwater in the next 15 years, along with more than 1,100 hardware centers that will be surrounded by water if sea levels continue to rise, HuffPost reports. “Buried cables, unlike the transoceanic conduits that ferry data from continent to continent, are not waterproof, meaning those figures could skyrocket by the end of the century if worst-case scenario projections of six feet of sea level rise prove accurate,” per the report. Coastal cities, including New York, Miami, Seattle and Los Angeles are the most vulnerable to such flooding that could lead to Internet outages, and providers CenturyLink, Inteliquent and AT&T are the providers most at risk, per the report.

— California is burning... The fire near Yosemite National Park continued to rage on Tuesday, and the smoke trapped in the area led officials to issue a hazardous air alert, the AP reports. “Air quality monitors showed particulate levels in the park at ‘very unhealthy’ levels, meaning everyone should avoid prolonged or heavy exertion or risk serious health effects such as respiratory problems,” per the report. The blaze was just 5 percent contained on Tuesday as more than 1,400 firefighters continued to try to work through the flames.

...and Texas temps (and power needs) climb: Wholesale electricity prices in Dallas rose to a three-year high on Tuesday as temperatures approached as high as 105 degrees. The price of wholesale power from 5 p.m. to 6 p.m., based on day-ahead trading, jumped to $841 per megawatt-hour, the highest level since August 2015, Bloomberg News reports, adding that grid-wide demand was also expected to best a 2016 record.


— The last straw: McDonald’s is joining forces with Starbucks to come up with a more sustainable and mass-producible cup, a move that follows both companies’ announced efforts to eliminate the use of single-use plastic straws, CNBC reports. Meanwhile, Marriott International became the latest brand to ban plastic straws and drink stirrers, according to the AP. The hotel chain said it would do so by next year.

— The road ahead for Tesla: The head of a top automotive consultant is calling Tesla’s Model 3 electric sedan the most profitable electric car in the industry. “Sandy Munro, president of Michigan-based Munro & Associates, said the car generates net profit margins in excess of 30 percent,” Reuters reports, noting that Munro had previously been critical of the Tesla vehicle. “The Model 3 is profitable, so I have to eat crow. I didn’t think it would happen this way,” he said on television show Autoline on Monday. “No electric car is getting 30 percent net, nobody.”



  • The House Energy and Commerce Subcommittee on Energy holds a hearing on “The Role of Energy Storage in the Nation’s Electricity System."
  • The House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings, and Emergency Management holds a hearing on “Recovering from 2017 Disasters and Preparing for the 2018 Hurricane Season."
Three of the new moons travel in sync with Jupiter's rotation, called prograde orbits, but the others have retrograde, backward orbits. (Video: The Carnegie Institution for Science)

— Astronomers were looking for possible planets beyond Pluto, but instead they found 12 more moons orbiting Jupiter, The Post’s Ben Guarino reports. The discovery brings the total number of natural satellites orbiting the gas giant to 79.