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Sovereign Immunity and the National Nuclear Security Administration: A King That Can Do No Wrong?

January 2001

Citation: ELR 10111

Author: K.C. Schefski, Shelby Perkins, and James D. Werner

The 1999 National Nuclear Security Administration Act (NNSA Act)2 threatens to reverse 20 years of reforms and court decisions intended to bring the U.S. Department of Energy (DOE) into compliance with environmental laws and regulations. The NNSA Act, enacted in the wake of allegations of spying at Los Alamos nuclear weapons laboratory in New Mexico,3 established a semi-autonomous agency within DOE—the National Nuclear Security Administration (NNSA).4 The NNSA operates nine laboratories and facilities within the U.S. nuclear weapons complex.5 The National Association of Attorneys General (NAAG), former DOE officials, members of Congress, and the public have all raised concerns regarding language in the NNSA Act, which, they argue, erodes existing waivers of sovereign immunity in environmental laws.6 If correct, such an interpretation could effectively shield the NNSA from environmental law enforcement; thus, the Act takes a step backward toward a structure that many argue produced the significant environmental problems found at DOE facilities today.7

For over 40 years, DOE and its predecessors—the Atomic Energy Commission (AEC) and the Energy Research and Development Administration (ERDA)—operated the U.S. nuclear weapons complex in secrecy and essentially devoid of environmental oversight and regulation.8 Largely as a result, DOE is now faced with an enormous environmental [31 ELR 10112] cleanup problem—1.7 trillion gallons of contaminated groundwater and 40 million cubic meters of soil and debris; 18 metric tons of weapons-usable plutonium; more than 2,000 tons of intensely radioactive spent nuclear fuel; and about 4,000 facilities to decontaminate and decommission.9 From the beginning of the Manhattan Project in 1942 through 1995, the U.S. government spent more than $ 300 billion researching, producing, and testing nuclear weapons.10 In comparison, DOE estimates that cleanup through 2070 will cost over $ 200 billion, and has already spent nearly $ 60 billion on its environmental management program.11