Skull Valley: Nuclear Waste, Tribal Sovereignty, and Environmental Racism
The following article is revised and excerpted from a book co-authored with Robert L. Stivers, Christian Environmental Ethics: A Case Method Approach, Orbis Books, 2003.
 The energy bill that President Bush signed into law this summer included several features designed to benefit the nuclear power industry. For example, the legislation authorized research, development, and construction of a new test reactor at the Idaho National Laboratory and established a $2 billion risk insurance program for up to six new reactors based on this design. In addition, the legislation also extended for twenty years the Price Anderson Act, which limits the nuclear power industry's liability in the case of an accident. It also cleared the way legally for the reprocessing of nuclear waste from commercial reactors and for the use of plutonium to generate commercial energy.
 Most readers of Journal of Lutheran Ethics may also know the Bush administration wants to establish the nation's permanent underground repository for high-level nuclear waste at Yucca Mountain in Nevada. Few, however, may be aware that the Nuclear Regulatory Commission recently issued a license to establish an interim storage facility for this waste on the Skull Valley Goshute Indian Reservation in Utah. Once constructed, up to 4,000 casks, each storing 10 metric tons of spent nuclear fuel (SNF) with a radioactive half life of at least 10,000 years would be stored above ground for up to forty years on a portion of the tribe's reservation. Located approximately 50 miles from Salt Lake City, the storage facility would be large enough to accommodate about eighty percent of the SNF produced by commercial nuclear reactors to date.
 This unprecedented project raises important ethical questions about the use of tribal sovereignty, environmental racism, and the fairest way to share the burden of storing high-level nuclear waste. Normative guidance from recent mainline Protestant ethical reflection appears to cut both ways on this question. In the 1990s, the Evangelical Lutheran Church in America and the Presbyterian Church (U.S.A.) incorporated the concept of "ecojustice" in environmental policy documents.1 Both churches addressed this concept in relationship to four moral norms: Sustainability, sufficiency, participation, and solidarity. While all four norms pertain to the situation in Skull Valley, this article focuses only on the applicability and apparent conflict between participation and solidarity.
Participation and Tribal Sovereignty
 The ecojustice norm of participation emphasizes that the interests of all forms of life are important and must be heard and respected in decisions that affect their lives. The norm is concerned with empowerment and seeks to remove all obstacles to participation constructed by various social, economic, and political forces and institutions. The norm places an importance on open debate and dialogue and seeks to hear the voices or perspective of all concerned.
 The Skull Valley Band of the Goshute Indians is one of 554 Indian nations within the boundaries of the United States. They trace their claim to tribal sovereignty back to the peace treaty they signed with Abraham Lincoln in 1863 and the executive orders that Woodrow Wilson signed forty years later establishing their reservation. Like other tribes, the Goshutes had to give up vast swaths of land and other concessions in order to gain the right of self-governance on tribal homelands and reservations. Anthropologists think that originally there may have been as many as 10,000 Goshutes roaming the Great Basin between Nevada's Ruby Mountains and Utah's Wasatch Range. After the first settlers arrived in 1847, the Goshute population dropped to less than 1,000, besieged by hunger and sickness. Today the Skull Valley Band has dwindled to approximately 125 adult members, with less than 30 living on the reservation.
 Early in the 1990s, the Goshutes were one of seventeen Native American tribes that expressed interest when the federal government invited communities around the United States to consider hosting a monitored retrieval storage (MRS) facility for the interim storage of spent nuclear fuel. Over the course of six months in 1996-97, the Goshutes negotiated a lease agreement with Private Fuel Storage (PFS), a consortium of eight utility companies that own and operate 33 nuclear reactors around the United States. In December 1996, more than two-thirds of the tribe's General Council signed a resolution authorizing the tribe's executive committee to sign the lease agreement with PFS. While the financial terms of the lease agreement are not available to the public, a similar though now scuttled agreement with the Mescalero Apaches would have brought up to $250 million to that tribe.
 Shortly after the NRC commenced its review of the lease agreement in 1997, several members of the tribe publicly expressed their opposition to the plan. Some unsuccessfully sued the Bureau of Indian Affairs for supporting the lease agreement. Others complained that the tribe's leadership distributed "dividends" from PFS only to members of the tribe that supported the proposal. In September 2001, thirty-eight dissident members elected new leadership for the tribe. Even though the election was eventually deemed illegitimate because it did not include a majority of the adult members, this did not stop the falsely elected leadership from asserting their legitimacy. With the assistance of an attorney, the group persuaded local bank officials to give them access to tribal funds. In December 2003, the Federal Bureau of Investigation charged these individuals with bank fraud and theft from tribal organizations. At the same time, the FBI filed separate charges against the chairman of the tribe for fraud and theft from tribal funds. Faced with up to three years of imprisonment, the chairman recently pled guilty to reduced charges and agreed to make restitution to the tribe; the trials of other members of the tribe, however, are still scheduled for this fall.
 Grace Thorpe, a Native American activist, complains that tribes like the Goshutes are "selling our sovereignty" to utilities who will benefit from it. Thorpe writes: "The issue is not sovereignty. The issue is Mother Earth's preservation and survival. The issue is environmental racism.2" It would be false, however, to give the impression that all Native Americans share Thorpe's views. In fact, several tribes refuse to take a stand on the issue and affirm the sovereignty of the Goshutes to make decisions with which they may disagree.
 Clearly some Native Americans inside and outside of the tribe believe this is a misuse of tribal sovereignty, but a majority of the Skull Valley Goshutes thinks locating a temporary storage facility for spent nuclear fuel on their reservation would be an appropriate use of their tribal sovereignty. Does it matter what others think? Does the norm of participation require support for all uses of tribal sovereignty? Or are the Goshutes, in fact, victims of environmental racism-whether they realize it or not?
Solidarity and Environmental Racism
 The ecojustice norm of solidarity emphasizes the kinship and interdependence of all forms of life and encourages support and assistance for those who suffer. The norm highlights the fundamental communal nature of life in contrast to individualism and encourages individuals and groups to join together in common cause and stand with those who are the victims of discrimination, abuse, and oppression. Underscoring the reciprocal relationship of individual welfare and the common good, solidarity calls for the powerful to share the plight of the powerless, for the rich to listen to the poor, and for humanity to recognize its fundamental interdependence with the rest of nature. In so far as solidarity leads to the equitable sharing of burdens, the norm manifests the demand for distributive justice.
 There are two key ethical issues in this case related to the norm of solidarity. The first is whether the PFS proposal to store spent nuclear fuel temporarily on the Skull Valley Goshute Indian Reservation is an example of environmental racism and environmental injustice. The second key issue is how the burden of storing this waste and disposing of it permanently should be shared fairly among the citizens of the United States.
 Environmental Racism and Environmental Justice. The term, environmental racism, was coined in 1982 by Benjamin Chavez, the future director of the National Association for the Advancement of Colored People, while protesting the dumping of highly toxic polychlorinated biphenyls (PCBs) in Warren County, North Carolina. Evidence of environmental racism can be found in the disproportionate number of waste facilities and polluting industries located in communities of people of color. Evidence of environmental racism can also be found in the way environmental laws have been enforced, or not enforced, in white communities and communities of people of color. Environmental racism pertains not only to actions that have a racist intent, but also to actions that have a racist impact. It occurs when people of color are either targeted or bear a disproportionate level of the burden created by the disposal of toxic wastes or the pollution produced by industry. Environmental justice broadens the scope of this concern to include people of any race, class, or income level.3 President Clinton signed an executive order in February 1994 establishing environmental justice as a national priority.4
 The Bureau of Indian Affairs (BIA) in the Department of the Interior reviews contracts related to the lease of Indian trust lands. As such, it is required under the executive order to conduct an environmental justice review of projects that may adversely impact Native American tribes. NRC staff worked together with staff from the BIA and other cooperating federal agencies to conduct an environmental justice review of the PFS/Goshute project. This environmental justice review featured "an analysis of the human health and environmental impacts on low-income and minority populations" resulting from activities related to the PFS/Goshute MRS facility. Following NRC policy, the staff focused their impact assessment primarily within a four-mile radius around the Skull Valley Indian reservation, though a fifty-mile radius was utilized to examine the impact local transportation routes to the facility could have on low-income and minority populations. The study concluded "the cumulative effect of the proposed [storage facility] and other activities on environmental justice concerns… issmall.5"
 Despite this official finding with regard to environmental injustice, there are good reasons to suspect that the PFS storage agreement constitutes a case of environmental racism. In many respects, storage of spent nuclear fuel rods on the reservation of a Native American tribe could be viewed as the completion of a painful circle of death and exploitation. The vast majority of the mining and milling of uranium in the United States since 1950 has taken place on or adjacent to Indian reservations. Approximately 25 percent of the 15,000 workers employed in these activities were members of various tribes, especially Navajos. A large number of these workers were eventually diagnosed with diseases and other health problems caused by their exposure to radiation. In addition, Native Americans not directly engaged in uranium extraction and processing have been exposed to dangers posed by groundwater contamination, radon exposure, and pollution of the air via tailings dust. Studies indicate that Indians living near uranium mines face the same health risks as those engaged in mining.
 The Skull Valley Goshute Indian Reservation is ringed by toxic and hazardous waste facilities. (See Figure 1) To the south lies the Dugway Proving Grounds where the U.S. Army conducts tests on biological and chemical weapons like anthrax, nerve gas, and bubonic plague. To the west is the Utah Test and Training Range, a vast swath of desert the U.S. Air Force uses for bombing runs and target practice by B-52 bombers and F-16 fighter jets. North and west of the reservation a private company, Envirocare, landfills 97 percent of the nation's low-level nuclear waste. East of the reservation sit the Tooele Army Depot, one of the largest weapons depots in the world, and the Deseret Chemical Depot-home to nearly fifty percent of the nation's aging stockpile of chemical weapons. Here the military is working around the clock to incinerate over a million rockets, missiles, and mortars packed with sarin, mustard gas and other deadly agents.
 Trapped in this desolate and degraded landscape, the financial situation of the Goshutes is dire. The tribe has looked into selling bottled water from springs on the reservation, but concluded that few will want to buy water they fear may be laced with toxic substances released by the nearby chemical weapons incinerator. The tribe has also considered vegetable farming but the land may still be polluted by a Dugway nerve gas experiment in the 1960s that went awry. The only avenue that promises any economic viability is the storage of waste on the reservation. Recently the tribe signed an agreement to landfill municipal waste generated in and around Salt Lake City on a portion of the reservations. The tribe's leadership believes the interim storage of high-level nuclear waste is the best way to ensure the tribe's survival.
 Sharing the Burden of Nuclear Waste Disposal. Currently, 103 commercial nuclear reactors produce 20 percent of the nation's electricity and serve approximately 50 million people. Over 90 percent of these reactors are located east of Utah at 66 locations in 31 states. Through 2004, these commercial reactors had produced approximately 55,000 metric tons of spent nuclear fuel (SNF). By 2046, the Nuclear Regulatory Commission projects that these reactors will have produced 105,414 metric tons of SNF.
 The federal government is legally obligated under the 1982 Nuclear Waste Policy Act to store all high-level nuclear waste and spent nuclear fuel in a permanent underground repository. Until the federal government opens such a facility, however, the generators and owners of this waste have the responsibility to both provide and pay for the interim storage of it. To date, 21 reactor units have run out of room to store spent nuclear fuel in cooling ponds. Many of these utilities have received approval from the NRC to store the fuel in casks above ground, normally on the grounds of the reactor facility. By 2010, 74 reactor units will have run out of storage space in their cooling ponds. Some of these reactors will also have run out of storage space above ground, which may require the utilities to cease reactor operations even before 2010. These are the driving factors behind the PFS/Goshute storage proposal.
 To date, the federal government has spent over $7 billion studying the scientific feasibility of establishing a permanent repository for high-level nuclear waste and spent nuclear fuel at Yucca Mountain in Nevada. This project has been mired in scientific and political controversy since 1987 when Congress mandated that the Department of Energy focus solely on the Yucca Mountain location. In December 2001, the General Accounting Office (GAO) issued a report about the status of the project. The nonpartisan, investigative arm of Congress concluded that the Department of Energy is not ready to make a site recommendation because 293 scientific and technical issues remain unresolved. As a result, the report encouraged the Bush Administration to postpone any decision to build a permanent repository at Yucca Mountain.
 Ignoring the GAO's advice, President Bush decided early in 2002 to accept the Department of Energy's recommendation that a permanent geological repository for high-level nuclear waste be established at Yucca Mountain. Shortly afterwards, the governor of the state of Nevada vetoed the President's decision under rules established in the Nuclear Waste Policy Act. Under the same rules, the U.S. House of Representatives and the U.S. Senate voted by large margins to override Nevada's veto in the summer of 2002. These votes in Congress cleared the way for the Department of Energy to request a license from the Nuclear Regulatory Commission to operate a permanent repository at Yucca Mountain. This licensing review process is currently estimated to take at least five years. Legal battles will also likely delay the construction and opening of the facility. As a result, it is not likely that Yucca Mountain will be open by 2010.
 If and when Yucca Mountain does open, the facility is designed to store a total of 77,000 tons of spent nuclear fuel and high-level nuclear waste. Storage of commercially produced spent nuclear fuel is limited, however, to 63,000 tons. The remaining space in the facility is reserved for the storage of defense-related nuclear waste.
 In debates about the PFS/Goshute proposal, the state of Utah has strongly expressed its concern that Yucca Mountain cannot accommodate the total amount of commercially produced SNF that the Nuclear Regulatory Commission projects will be produced by 2046. If the Yucca limit of 63,000 is subtracted from the NRC projection of 105,414, the remainder is 42,414 metric tons of SNF for which there is no permanent home. The state of Utah does not believe it is coincidental that this figure is virtually identical to the amount of SNF that PFS wants to store on an interim basis for up to 40 years on the Goshute Reservation. Given the uncertainty about Yucca Mountain, the state fears that the "temporary" storage facility in Skull Valley will become permanent because the waste will have no other place to go.
 In response, PFS has sought to reassure the citizens of Utah that the Department of Energy and the Nuclear Regulatory Commission would not allow the Goshute facility to be converted to a permanent repository. This would be a violation of law because Congress has mandated that permanent disposal must take place deep underground in a geologic repository. In addition, if the Department of Energy did not take possession of the spent nuclear fuel at the end of the forty-year lease, the utilities that own the fuel would still have a legal and financial obligation to take back the fuel and find another interim storage facility. Nothing, however, prohibits PFS from entering into new negotiations with the Skull Valley Goshutes after the initial lease expires if both parties are interested in drafting a new lease arrangement. Any new lease would still have to be approved by the NRC, however.
 From this overview, it is clear that the storage and ultimate disposal of high-level nuclear waste is a major public policy issue on the verge of becoming a national crisis. From California to New York, people all around the nation are saying, "Not in my backyard!" This NIMBY syndrome is behind the decision of Congress to focus solely on Yucca Mountain as a permanent repository. The NIMBY syndrome also fuels political and legal battles around the nation aimed at rejecting pleas by utilities to increase the amount of spent nuclear fuel that can be stored on a temporary basis in casks above ground. All citizens of the United States must shoulder some of the blame for failing to muster the political will to deal with this problem in an effective way. In many respects, U.S. citizens driven by the NIMBY syndrome have helped to drop this issue in the laps of the Goshutes. After all, no other community in the nation has stepped forward to store high-level nuclear waste on either an interim or a permanent basis. Over 50 million people in the nation enjoy the benefits of nuclear power but refuse to accept the burdens associated with its waste.
 Some environmentalists see this waste bottleneck as the most effective way to bring to an end the nuclear energy industry in the United States. When utilities run out of places to store spent nuclear fuel on an interim basis, federal law requires them to shut down the reactors. Over time, this means that people of the United States will have to find other ways to either produce or conserve twenty percent of the nation's current energy supply. Investments in renewable energy production, energy-efficient technologies, and changes in patterns of consumption could go a long way to meet this challenge, but none of these measures resolve the issue of what to do with the nuclear waste.
 Even if nuclear waste is not produced in the future, the United States is still faced with the challenge of storing temporarily or disposing permanently the high-level nuclear waste that has been produced to date. This raises the question of whether it would be better to store existing stockpiles at over seventy locations around the country, or to consolidate these stockpiles in one place. PFS contends that it would be more cost-effective and easier to provide a high level of security if spent nuclear fuel was all stored in one place. The state of Utah, however, argues that if it is safe to store spent nuclear fuel where it is now, then it should remain where it is-presumably in perpetuity.
 There lies the rub. The radioactivity of some elements in spent nuclear fuel has a half-life of at least 10,000 years. Is it morally responsible to store thousands of steel and concrete casks containing this waste above ground at dozens of locations around the nation for thousands of years? Is it safer to entomb such highly radioactive waste in a geological repository deep under ground? Like it or not, and absent any new alternative strategies, disposal underground still appears to be the best option.6 But Yucca Mountain is not open, and it is not clear it will open any time soon. If the NRC awards a license for the PFS/Goshute interim storage facility, this could give the nation forty more years to figure out how to dispose of the waste permanently. At the same time, once the waste has been transferred to an Indian reservation, it is possible that the nation would forget that a long-term disposal problem still exists.
 So, who should bear the burden (and reap the benefits) from storing the nation's high-level nuclear waste, either on an interim or a permanent basis? On the face, it seems clear that those who benefit the most from nuclear energy should also shoulder most of the waste burden. But how realistic is it to expect that millions of people in 31 states will abandon the NIMBY syndrome in order to muster the courage and political will to address this problem in a responsible manner? Isn't it more likely that they will still try to externalize the costs by dumping the problem on others?
 This brings us back to the PFS/Goshute interim storage plan. The Goshutes are no less intelligent than other people in the United States. Whereas most U.S. residents live a middle-class lifestyle or better, virtually all Goshutes on the reservation live below the poverty line. In addition, while most people in the United States are members of the white, dominant culture, the Goshutes are members of a tribe that now constitutes a tiny fraction of its former glory. Once construction begins, some members of the tribe would qualify for jobs building and operating the $3.1 billion facility. Once operational, revenues from the lease agreement would provide private healthcare for tribal members on the reservation who now have to travel over 200 miles to the closest office of the Indian Health Services. In addition, PFS revenues would be utilized to build a religious and cultural center on the reservation to help the band preserve their disappearing heritage. Funds would also be available to encourage members of the band to return to the reservation through subsidized housing construction and other infrastructure improvements. Finally, it is likely that the PFS lease agreement would make members of the band instant millionaires.
 Are members of the dominant culture taking advantage of the Goshutes by tempting them to accept what could amount to virtually the nation's entire stockpile of commercially-produced, spent nuclear fuel? Or are the Goshutes shrewdly taking advantage of the failure of members of the dominant culture to face an environmental problem of their own creation? Now that the NRC has approved the forty-year lease agreement, the Goshutes have good reason to believe that it will be safe to operate the facility for the length of the contract. At the conclusion of the lease agreement, the Goshutes should be much better off financially and will not necessarily have to sign another lease agreement. Nor is it guaranteed that the NRC would approve a new lease agreement, in which case the utilities would have to take back the fuel they had stored temporarily on the Skull Valley Reservation.
 Examining the proposal from these financial and health perspectives, it is clear that there may be significant benefits for the Skull Valley Goshutes. But what about cultural concerns? Is the tribe selling its soul to accept the waste? Is the storage facility an insult or betrayal of "Mother Earth?" Are the Goshutes threatening the foundations of their very culture through this "misuse" of tribal sovereignty? How is it that Christians do not lose sleep over the invention and use of nuclear energy, but they expect Native Americans to maintain a principled opposition to storing nuclear waste on religious terms? Is it possible for Indian cultures to embrace the costs and benefits of certain technologies just as other cultures have done around the world? Is it the case that Christians put Indians on a pedestal and insist that they live up to some environmental ideal?
 In the end, it is clear that those who have produced the waste should bear the burden of dealing with it. This moral responsibility seems to be escaping many today. Is it completely out of the question, therefore, to see the limited good (and harm) this project could do for the Skull Valley Goshutes? Is it beyond the pale of ethical respectability to support the Goshutes in their proposal to store temporarily most of the spent nuclear fuel produced in the United States? Or is this, truly, one of the most egregious cases of environmental racism to date?
1 See, Presbyterian Eco Justice Task Force, Keeping and Healing the Creation (Louisville, KY: Committee on Social Witness Policy, Presbyterian Church (USA), 1989); and Evangelical Lutheran Church in America, Caring for the Creation: Vision, Hope, and Justice (Chicago: Division for Church in Society, 1993).
2 Grace Thorpe, "Our Homes Are Not Dumps: Creating Nuclear-Free Zones," in Defending Mother Earth: Native American Perspectives on Environmental Justice, Jace Weaver, ed. (Maryknoll, NY: Orbis Books, 1996), p. 54.
3 J. Timmons Roberts and Melissa M. Toffolon-Weiss, Chronicles from the Environmental Justice Frontline (New York: Cambridge University Press, 2001), pp. 9-11.
4 President William J. Clinton, Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, section 2-2, http://www.archives.gov/federal-register/executive-orders/pdf/12898.pdf.
5 U.S. Nuclear Regulatory Commission, Office of Nuclear Material Safety and Safeguards, et al., Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah, NUREG-1714, Vol. 1, December 2001, pg. 6-28.
6 A clause in the PFS/Goshute lease agreement leaves open the possibility that the tribe may decide in the future to permit the reprocessing of spent nuclear fuel stored on the reservation.
Journal of Lutheran Ethics
Volume 5, Issue 10