Judge Rejects Nuclear Shipment Demand Lodge Says Risk To Citizens Outweighs Government’s Claim Of National Security Threat

U.S. District Judge Edward Lodge rejected the federal government’s demand Tuesday to immediately resume high-level nuclear waste shipments to the Idaho National Engineering Laboratory to preserve national security.

“Without having more time to evaluate the record in detail, the risk of irreparable damage to all citizens of the United States with increased shipments of hazardous waste is greater than the risks claimed by the United States relating to the Navy’s national security interests,” Lodge wrote in 13-page order that repeatedly criticized government maneuvering.

Lodge, at one point clearly skeptical of the government’s credibility, said it is not unreasonable to give the state more time than the government desired to evaluate the adequacy of the environmental study that determined 1,950 additional shipments of nuclear waste could be made to Idaho safely.

Absent a reversal by an appeals court, Lodge said the ban would remain in effect until at least Sept. 1, when final briefs on the state’s environmental challenge are due. He promised a final decision on the state’s claims by Oct. 1.

The Navy, which took its case to the 9th U.S. Circuit Court of Appeals on Monday without first notifying Lodge, claimed operation of its nuclear warships would be undermined if it were not allowed to dump at least 12 more shipments of spent nuclear fuel at INEL by the end of this week.

But on simply a cursory review of the environmental assessment and no review of the 100,000-page record implementing it, the state argued the assessment was faulty and the Navy was not revealing its real on-site storage capacity.

Lodge pointed out that while he had banned resumption of shipments on May 19 until the state’s challenge to the environmental study is considered, the government, on behalf of the Navy, had waited until June 15 to seek emergency relief from that ban and then wanted to give the state only two days to respond and him two days to rule.

“While the court cannot substitute its judgment for the military’s judgment, the court has a duty to evaluate whether the United States’ certification of national security interests overrides the potential irreparable injury if an agency fails to evaluate thoroughly the environmental impact of a proposed action,” Lodge wrote.

He acknowledged that his ban against resumed shipments is being appealed and said his order is intended to let the appellate court understand why the case had reached the stage it had.

The federal government maintained that Lodge’s original May 19 order was improper because it had ignored a 1993 order by the late U.S. District Judge Harold Ryan that essentially authorized resumption of shipments once the comprehensive environmental assessment of all INEL waste management operations showed additional shipments could be handled safely.

But Lodge said the resumption of shipments was contingent on filing not just an environmental assessment but an acceptable one, and that gave him the authority to entertain a review of its adequacy.

Lodge, who took over the case after Ryan’s death this spring, criticized the Navy for dragging its feet in first filing its challenge to the May 19 order and then demanding such swift action from the state and the court.

The judge, in one footnote, disputed the Navy’s implication that he was purposely delaying action on its petitions and pointed out that as the only district judge in Idaho he “has other equally pressing matters to rule upon.”

And in another footnote, he recalled Ryan’s harsh criticism of the federal government when he said it had demonstrated in the case “disregard for the law and lack of candor for the court.”

“While this court is new to this cases,” Lodge added, “the undersigned judge has also experienced a case where the Department of Energy was less than forthright with the court.”