yucca mountain nevada nuclear waste

The view from the top of Nevada’s Yucca Mountain, which was declared unworkable as the site of a nuclear waste repository during the Obama administration. (David Howells/Corbis via Getty Images)

Consent-Based Siting of Nuclear Waste: A Tribal Perspective

By Tansey Moore | Nov. 23, 2021 | State Legislatures News | Print

For decades, the United States and other countries have struggled to find a long-term solution to nuclear waste, specifically spent nuclear fuel. Efforts to create a permanent repository at Yucca Mountain in Nevada have been on again, off again since the 1987 when the site was designated as part of the Nuclear Waste Policy Act. Most Americans are aware of the battles that have played about between Congress and the states, but many don’t know that tribal nations continue to play a role in finding solutions.

This year President Joe Biden issued A Proclamation on National Native American Heritage Month, 2021, and has urged all Americans, as well as their elected representatives at the federal, state and local levels, to observe this month with appropriate programs, ceremonies and activities, and to celebrate Nov. 26, 2021, as Native American Heritage Day. As the nation celebrates and honors the contributions of Native Americans throughout history, many also are reflecting on how tribal nations are and will be impacted by the siting of nuclear waste.

Additionally, a presidential memorandum issued early this year reaffirms executive order 13175, requiring federal agencies to engage in regular, meaningful and robust consultation with tribal officials in the development of federal policies that have tribal implications. Many tribal nations see promise in this reaffirmed approach, because consent-based planning for siting waste facilities aligns with the concepts of improved consultation and coordination with tribal nations. During the Obama administration, Yucca Mountain was declared unworkable, and the Department of Energy launched a consent-based siting initiative to deal with the decadeslong stalemate on the disposal of spent nuclear fuel. The DOE held numerous meetings across the country and solicited input from states, tribal nations and the public. When the administration changed, this effort was discontinued. Once again, the DOE has been charged by Congress with exploring a consent-based siting approach. The approach is built on collaboration with the public, stakeholders and governments at the local, state and tribal levels.

Incorporating Tribal Views

In 2016, the Nuclear Energy Tribal Working Group, which is staffed by the National Conference of State Legislatures through a cooperative agreement with the DOE, developed a white paper on consent-based siting. The working group was chartered by the DOE in 2014 to study activities related to nuclear research and development, the siting of spent nuclear fuel and high-level radioactive waste, and other issues. The group works alongside the DOE to maintain and strengthen the government-to-government relationship between the DOE’s Office of Nuclear Energy and tribal nations, consistent with the DOE’s American Indian Policy Act.

The working group’s white paper highlighted the key concerns of member tribal nations related to the DOE’s consent-based siting approach and serves as a basis for current discussions. These concerns are not necessarily representative of all 574 federally recognized tribal nations.

An overarching theme in the white paper was the lack of consistency in the DOE’s approach to incorporating tribal views and concerns and to taking tribal laws, policies and inherent sovereign rights into consideration. Because of this, there is often a lack of trust and confidence in the department’s decisions. The white paper brings these issues to light and urges the DOE to ensure tribal governments are provided the mindful consideration and legal standing they deserve throughout the federal government’s processes.

To further highlight the concerns noted in the white paper, it’s helpful to review the 2012 report produced by the Blue Ribbon Commission on America’s Nuclear Future. The commission, formed in 2010 and chartered to recommend a new strategy for managing the back end of the nuclear fuel cycle, advanced eight recommendations, including implementing a new, consent-based approach to siting future nuclear waste management facilities. The report acknowledged that the Yucca Mountain project, as a top-down, federally mandated approach, was unsuccessful in part due to objections of state and local governments, stating, “it is clear consideration should be given to potential tribal host communities when responding to the question of what to do with the United States’ nuclear waste.”

According to working group’s white paper, the recommendations of President Obama and the blue ribbon commission, the DOE initiated a national dialogue on a consent-based siting process as a basis for the development of an interim storage facility or a repository for disposal of spent nuclear fuel and high-level waste. The report summarized that successful siting decisions are the result of complex, sustained negotiations between project proponents and potentially affected tribal, state and local governments. The report suggests host states or tribal nations should retain direct authority over aspects of project regulation, permitting and operations.

Cooperation Is Vital

In discussing the DOE’s past efforts to site a repository and strong opposition from the elected leaders of potentially affected parties, the commission’s report states that the cooperation of affected state governments will be vital to the success of the nuclear waste program going forward. The report also mentions that tribal and local support is not sufficient to overcome state-level opposition. The department’s actions are consistent with this language, highlighting the importance of state consent and participation. These statements, however, overlook the intent of the commission and the overarching idea that governments (federal, tribal and state) must work together to solve the country’s nuclear waste challenges.

This played out in the 1990s when the Skull Valley Band of Goshute Indians expressed interest in developing an interim storage facility on its reservation. While the counties around the reservation were generally supportive of the project, the state of Utah strongly opposed having nuclear waste within its borders. State opposition and transportation concerns helped to halt the tribe’s efforts, highlighting the difficulty the DOE faces as it restarts its consent-based siting process.

To work effectively with tribal nations, states are encouraged to establish relationships with the tribal nations within their borders, if they haven’t already done so, and recognize that by working alongside tribal nations, states can play a role in finding solutions that are mutually beneficial.

Tansey Moore is the tribal working group specialist in NCSL’s Environment, Energy and Transportation Program.

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