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November 5, 2003
YUCCA MOUNTAIN DOE loses legal case in wake of scandalFEDERAL APPEALS COURT DECISION COULD FURTHER DELAY ESTABLISHMENT OF REPOSITORY
By STEVE TETREAULT Attorneys said the ruling by the U.S Court of Appeals for the District of Columbia Circuit could keep DOE in court for six months or more while a federal judge sorts out issues raised in the case filed by LeBoeuf, Lamb, Greene and MacRae LLP. Joe Egan, a lawyer who has filed multiple lawsuits against the Yucca Mountain Project on behalf of the state of Nevada, said the ruling opens the project to further scrutiny and signals the federal courts might not look favorably on DOE's handling of the repository program. The ruling "is a very important decision for the state of Nevada because it establishes that the courts are not going to tolerate things that DOE just takes for granted," Egan said. But Egan and other attorneys who follow the Yucca program said it was not immediately clear what impact the ruling might have on DOE's short-term goal of filing a repository license application by December 2004. Mike Bauser, associate general counsel for the Nuclear Energy Institute, described the court's action as procedural in nature. "It all goes to the screen, or the sieve, the department needed to apply in sifting out folks," Bauser said. "It goes to simply whether or not the department dotted all the 'i's' and crossed all the 't's,'" in its contract process. As to whether the ruling could lead to project delays, Bauser said, "it certainly could but I haven't set any odds." DOE lawyers "are reviewing the court's decision. Our plan remains to submit a license application to the (Nuclear Regulatory Commission) by the end of 2004," department spokesman Joe Davis wrote in an email. Davis did not respond to further questions. Ruling unanimously, a three judge panel determined the Energy Department "failed to conduct an adequate examination" before it awarded a $16.5 million legal services contract in 1999 to Winston & Strawn LLP, a Chicago-based firm that had done earlier work on the Yucca program. LeBoeuf, Lamb, Greene and MacRae, whose bid was $3.6 million higher, sued in 2000. It charged Winston's prior work amounted to a conflict of interest that should have been grounds for disqualification. Later, it was reported that Winston & Strawn had registered with Congress to lobby for the Nuclear Energy Institute, the leading industry organization promoting the Yucca Mountain Project, at the same time it was working for DOE. Winston & Strawn left the Yucca program in 2001, in the midst of conflict allegations. DOE since then has been without a legal services contractor to help form its complex license application. "The department knew or should have known that awarding the Yucca Mountain contract to Winston created an apparent conflict of interest for Winston that required further scrutiny," Judge Judith Rogers wrote for the court. The case was remanded to U.S. District Judge Ricardo M. Urbina. He was told to determine whether the Energy Department complied with federal procurement law and department regulations when it awarded the contract. Urbina also was directed to decide whether DOE should be required to award a new legal contract to LeBoeuf, Lamb, Greene & MacRae. Outside attorneys said it would be unusual for a judge to order a federal agency to hire but the tone of the ruling suggested to some it might be possible. The judge also was told to determine whether Nevada's Code of Professional Responsibility, a legal ethics code, might have been violated. The court decision renewed attention on Winston & Strawn, which had been the subject of an ethics complaint filed by Rep. Shelley Berkley, D-Nev., with the District of Columbia Bar Association. Berkley said Tuesday the appeals court ruling "adds even more evidence to allegations that there was a conflict of interest in (Winston & Strawn) working for DOE on Yucca Mountain." A Winston & Strawn spokeswoman had no immediate comment. Egan said Nevada attorneys plan to challenge the work Winston & Strawn performed during its two years as a Yucca contractor, unless DOE has it redone before filing a license application. |
