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!