William & Mary Environmental Law and Policy Review


Ryan Franklin


Following the drop of the first atomic bomb over Hiroshima on August 6th, 1945, the United States seriously began contemplating the use of atomic energy not just as a weapon, but as an efficient energy source. President Eisenhower delivered his “Atoms for Peace” speech in front of the United Nations eight years later, effectively launching a massive American campaign to build numerous nuclear power plants to generate enough clean energy to power the entire nation. As these plants were being constructed, however, policymakers and lawmakers who were champions of this endeavor failed to consider the problem of nuclear waste generated by these plants. Unlike fossil fuel burning plants, where particulates are emitted into the air following combustion, burning uranium produces numerous volatile isotopes that are released into a retention pool within the confines of a nuclear plant.

Although some of these isotopes can be recycled to produce more energy, a majority of these highly radioactive particles are eventually removed from the pool and stored in concrete casks on the grounds of the nuclear plant where they were produced. The half-lives of these isotopes, like uranium-235 and uranium-238, range from 700 million to four billion years. Despite these alarming statistics, none of the leading technicians or scientists running the “Atoms for Peace” campaign developed a comprehensive plan to contain nuclear waste for millions of years. Only following the partial nuclear meltdown at Three Mile Island in 1979, did the scientific community and prominent lawmakers start to seriously assess long-term challenges associated with nuclear waste storage.

This Note will examine two legal challenges to Virginia that could arise once Yucca Mountain has been finalized as the permanent, highlevel nuclear waste repository for the United States. Regardless of the mode of ground transportation, high-level nuclear waste produced at Surry and Santa Anna will travel through the city limits of Richmond and cross the Blue Ridge Mountains into West Virginia based on current federal guidelines. The legal challenges would either be initiated by the United States in response to the Governor of Virginia declaring a statewide emergency or initiated by Virginia in response to a finalized promulgation of the Nuclear Waste Policy Act (“NWPA”). In either scenario, the first legal challenge would assess whether federal law preempted Virginia law and the second challenge would evaluate whether Virginia’s police power to protect the public health, safety, welfare, and morals of its residents would substantially interfere with the U.S. Constitution’s Commerce Clause. The Court would likely rule that federal laws, like the Atomic Energy Act of 1954 (“AEA”) and NWPA, would not preempt the Virginia Emergency Services and Disaster Law of 2000 (“Emergency Law”). However, the Court would likely strike down Virginia’s attempt to prevent the transportation of high-level radioactive waste within its borders due to preemption by the Hazardous Materials Transportation Act (“HMTA”) and Dormant Commerce Clause violations.

Part I will discuss the history of how Yucca Mountain became designated as the only permanent repository for high-level radioactive waste.

Part II will explore the main dispute over the legal authority of the Governor of Virginia to ban the transportation of nuclear waste within Virginia by an emergency declaration.

Section A will analyze whether a state of emergency declaration in Virginia would be superseded by any federal law concerning nuclear waste, such as the AEA, NWPA, and HMTA.

Section B will analyze whether a Virginia state of emergency declaration would withstand the Dormant Commerce Clause of the U.S. Constitution, assuming there was no federal preemption.

The Conclusion will overview all the legal disputes that could arise of the Virginia Governor’s emergency declaration and reflect upon the current state of nuclear waste in the United States.