Slow Way Is Right Way on Ward Valley

On Monday the U.S. Fish and Wildlife Service designated 6.4 million acres of desert as critical habitat for the threatened desert tortoise. Ward Valley, a part of the Mojave Desert near Needles that will be included in the protected tortoise habitat, is also the proposed site for a low-level radioactive waste dump. Construction of the dump may not automatically be prevented by the inclusion of Ward Valley in the protected habitat, but inclusion brings the Endangered Species Act and the Federal Land Policy Management Act into play, laws that environmentalists have promised to invoke against the dump.

Dump proponents will continue to argue that the subtraction of 1,000 acres for a radioactive waste dump would leave more than enough room for the tortoise, but this argument was considered and rejected by the U.S. Fish and Wildlife Service when it made its decision: Habitat protection does not always work by simple arithmetic, and we applaud the inclusion of the Ward Valley site in the protected habitat.

Less noticed was a limited ruling made Monday by California Superior Court Judge Robert H. O’Brien in a Ward Valley-related suit brought against California’s Department of Health Services by the Ft. Mojave Indian tribe, Physicians for Social Responsibility, the Southern California Federation of Scientists and the Committee to Bridge the Gap.

This suit claims that the department violated the California Environmental Quality Act, the Radiation Control Act, the Atomic Energy Act and the California Administrative Procedure Act and also disregarded state licensing standards when it licensed U.S. Ecology Inc. to operate the proposed dump.

Interior Secretary Bruce Babbitt has promised not to transfer the federally owned land at Ward Valley to state ownership until the conclusion of this and other litigation. Only then, depending on what kind of inquiry the courts may require, will Babbitt be able to determine how much remains to be done before the safety of the site can be assured.

Judge O’Brien ruled that an “adjudicatory” hearing was not required for the issuance of the license, deferring to an earlier appellate court ruling. However, the judge did not rule that earlier hearings were adequate or that the license had been properly issued. Further arguments in as many as two dozen courts will be necessary to decide the propriety of the license. Whichever side wins, the other will appeal; and once the case reaches the appellate level, the question of the full-fledged “adjudicatory” hearing surely will be reintroduced.

At this point, the safety of the Ward Valley site has by no means been established. Babbitt was wise to postpone his own action until the pending civil suits are resolved. We are counting on him to act appropriately when the time comes but--no less important--to wait appropriately until that time.