Will New Mexico’s new law stop a proposed nuclear waste dump?

May 3, 2023
By Hannah Grover and Searchlight New Mexico

This story was written in collaboration with Searchlight New Mexico.

In March, New Mexico lawmakers took their biggest step yet in an attempt to block plans for a nuclear waste storage facility in the scrublands near Carlsbad.

The legislature passed Senate Bill 53 on a largely partisan vote, seeking to block Holtec International’s eight-year effort to build a facility in southeastern New Mexico that would hold 8,680 metric tons of high-level radioactive waste from nuclear power plants across the country.

The state has been challenging Holtec’s plans for years, both in court and before the federal Nuclear Regulatory Commission. But New Mexico’s best chance at stopping the project may come in the form of the new law, which became effective when Gov. Michelle Lujan Grisham signed it on March 17.

Legal and nuclear experts anticipate that the law will face legal challenges, however. And in the end, federal courts will likely determine if New Mexico has the authority to keep Holtec from building its Consolidated Interim Storage Facility on a 1,040-acre site between Carlsbad and Hobbs.

Foes of the project include not only the governor and state legislators, but also the state’s congressional delegation, the All Pueblo Council of Governors, numerous local governments and a wide array of activists and citizens.

Transporting radioactive waste through New Mexico and storing it near one of the world’s most productive oil fields would jeopardize the economy, the environment, and health and safety, opponents say.

“People are deserving of protection for our way of life and our health and well-being,” said Rose Gardner, a Eunice resident and member of the Alliance for Environmental Strategies, who advocated for SB 53 this spring.

Lujan Grisham, for her part, sent a letter to the NRC shortly after she signed the bill, asking the agency to “immediately suspend any further consideration of the Holtec license application.”

The new law, the governor noted, establishes two conditions that must be met before the state can issue permits, contracts or licenses for a high-level nuclear waste storage facility. First, New Mexico must consent to the facility; and second, the federal government must have a permanent nuclear waste repository in place, so that an alternative storage site exists. Neither of those conditions have been met.

If no permanent nuclear repository exists, the Holtec site wouldn’t be “interim storage,” as it’s now billed — instead, it would be forever storage, opponents argue. New Mexico would become the de facto dumping ground for all of the nation’s high-risk nuclear detritus, they say.

Legal questions ahead

In the event of a court challenge, legal experts say New Mexico will need to prove that the new law is not focused on safety concerns. Nuclear safety, including the storage and transport of radioactive waste, falls under the federal government’s purview, as established by the Atomic Energy Act (AEA).

Under the AEA, the federal government reserves the right to regulate safety issues for nuclear power plants and waste. The federal law preempts — or takes precedence over — state statutes, which can be challenged in court if they conflict with federal authority.

“Costly and time-consuming litigation could occur if this bill were challenged,” as the fiscal impact report for the new law puts it.

The measure’s co-sponsor, Rep. Matthew McQueen (D-Galisteo), directly addressed the preemption issue during committee hearings, assuring fellow lawmakers that the bill sidestepped any problems. “Federal law preempts the state’s ability to regulate the safety or handling of nuclear waste,” he told the House Judiciary Committee in March. “So we’re not doing that.”
About half a dozen lawyers and experts, however, said it was unclear whether New Mexico’s law could be considered a preemption.
Nuclear waste storage laws like New Mexico’s are almost always challenged in court, said Geoffrey Fettus, an attorney with the Natural Resources Defense Council. However, he said, “New Mexico took deep pains to sail the ship into the dock without hitting the sides of federal preemption.”

Legal challenges bring mixed results

Nearly two decades ago, Utah enacted statutes to block an interim nuclear waste storage facility, basing them on safety concerns. The U.S. Court of Appeals for the Tenth Circuit struck down Utah’s laws, finding that they were preempted. (The facility was nevertheless never built due to political opposition.)

A more recent case regarding Virginia’s battle to ban uranium mining went all the way to the U.S. Supreme Court. This time, the state prevailed: The high court upheld Virginia’s ban in 2019.

Legislation, meanwhile, has not always paid off. In September 2021, Texas enacted House Bill 7 to block a nuclear waste storage facility much like the Holtec project, located about a mile from the New Mexico border. Days later, the NRC approved a license for it. (The facility is not yet built; the battle against it is ongoing.)

The NRC has not yet issued a decision about whether it will approve a license for Holtec’s venture in New Mexico. The agency recently informed Holtec that its decision would be delayed until about the end of May.

Train crashes and temblors

In the backdrop, safety issues remain a major concern. Among many potential dangers, critics of the Holtec project note that trains transporting radioactive waste could derail or crash, a possibility made more real by the recent train derailment disaster in Ohio.

An accident involving the Holtec project would not only threaten residents and the environment. It could also devastate the economy, according to the legislative fiscal impact report. “A significant accident or attack on a radioactive waste storage facility could significantly disrupt oil and gas activity in one of the most productive oil and gas producing regions in the world,” it stated.

In court documents, New Mexico has argued that the NRC did not consider the costs associated with upgrades to the state’s rail system to accommodate the transportation of large volumes of spent nuclear fuel.

The Permian Basin is also prone to earthquakes, which have been linked to injection wells associated with fracking. New Mexico Environment Department Secretary James Kenney has expressed concern that earthquakes could damage Holtec’s storage canisters, jeopardizing the public and the groundwater.

Another concern is that Holtec could go out of business, leaving the canisters to languish and deteriorate, a prospect that many opponents mentioned during legislative committee meetings.
New Mexico has a history of failed cleanups for radioactive waste, including hundreds of uranium mines on the Navajo Nation that have yet to be remediated.

Defenders cite benefits

Patrick O’Brien, a Holtec spokesman, said the company is deeply disappointed in New Mexico’s new law. The proposed storage facility, he said in an emailed statement, is “safe, secure and does not impact the environment negatively.”

The Holtec facility would create jobs and is desperately needed, proponents argue. The nation’s lack of a nuclear waste repository has forced power plants to store their spent fuel on site, at enormous cost to taxpayers. The expense — covered by the federal government — has already reached $9 billion.

The Holtec facility has local backing, O’Brien added. Supporters include business leaders and public officials in Eddy and Lea counties, whose Eddy-Lea Energy Alliance has been promoting the project for years.The facility “is a tremendous economic opportunity for Southeastern New Mexico,” O’Brien wrote. The company, he said, will continue working “to help provide an interim solution to the spent fuel management impasse in the United States.”

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