New Mexico's history is littered with nuclear fallout, mostly in the form of long-abandoned uranium mines, contaminated groundwater and class-action lawsuits. But while New Mexico's mining belt still needs cleanup from its mining past, a recent ruling by the US 10th Circuit Court of Appeals seems to have green-lighted its mining future.

On March 8, US Appeals Judge David Ebel ruled to uphold a license for uranium mining in northwestern New Mexico. It's a decision that concludes (temporarily, at least) 22 years of legal wrangling between a Navajo community and the US Nuclear Regulatory Commission.

The NRC is the government-created agency charged with safely developing nuclear resources while protecting the environment and public health. In 1998, the NRC issued the license to Hydro Resources for a handful of sites close to Navajo Nation land. Some of the sites had been mined in the past and, in certain areas, radioactive contamination levels already exceeded Environmental Protection Agency standards. Outraged that the NRC would allow additional mining in already-contaminated areas, two groups, Eastern Navajo Diné Against Uranium Mining and Southwest Research and Information Center, filed the first-ever challenge to the NRC's licensing process.

The court, however, sided with the NRC. In his decision to uphold the license, Judge Ebel writes that the NRC's job is to regulate only what contamination would result from the current Hydro Resources license—not what it would mean when combined with contaminants that are already there.

Lead appeal attorney Eric Jantz of the New Mexico Environmental Law Center, which represents ENDAUM and SRIC (two other intervening community members are represented by DNA-People's Legal Services of Window Rock, Ariz.), describes the majority opinion (2-to-1, with a stinging dissent) as disappointing.

"What the NRC did was contrary to its own regulations," Jantz maintains. "The majority passed up the opportunity to watch the watchman, as it were."

Jantz says the plaintiffs are weighing their legal options.

David McIntyre, a spokesman for the NRC, says the agency is "gratified that the court upheld our extensive review and adjudicatory process."

The type of uranium mining Hydro Resources proposes, in-situ leach mining, involves pumping a chemical solution through an underground ore deposit to leach out the uranium. While the in-situ method may eliminate some of the evils of old-style uranium mining, like tailings piles (still-contaminated mining detritus), the NRC itself has admitted in past reports that the new method still "tend[s] to contaminate the groundwater."

For Richard Van Horn, executive vice president of operations at Uranium Resources, Inc. (the parent company of Hydro Resources), the court's ruling is a victory, and he heralds the start of New Mexico's "uranium mining renaissance."

Van Horn, whose company owns approximately one-third of New Mexico's 350 million pounds of known uranium deposits, says such a rebirth would create more than 8,000 jobs in New Mexico alone.

"If we didn't believe in [a renaissance], we wouldn't be here," Van Horn says. "It has to come. In order to address levels of carbon dioxide and greenhouse gases and all this kind of stuff, we should see nuclear power taking a bigger and bigger share" of the US energy supply, he says.

Simply put, uranium is the fuel most commonly used by nuclear plants. And support for an overall nuclear energy renaissance can be heard from a variety of sources. In his State of the Union address this January, President Barack Obama lauded the virtues of nuclear power and, in February, awarded $8.3 million in federal loan guarantees for the construction of two new nuclear reactors in Georgia.

Even the typically liberal New Yorker magazine offered a cautious endorsement of nuclear energy in its latest issue.

Skeptics remain unconvinced.

"It's an inherently dangerous way of generating electricity," Chris Shuey, the director of the Uranium Impact Assessment Program at SRIC (a petitioner in the case), tells SFR.

Leaks at a Vermont nuclear plant prompted state senators to order its closure just last month and, in Shuey's view, the same risks—radioactive contaminants, disposal of radioactive waste and exposure—accompany uranium mining.
Santa Fe Institute professor J Doyne Farmer, a former Oppenheimer Fellow at Los Alamos National Laboratory, questions the economics of nuclear power.

"Nuclear power is expensive relative to fossil fuels and, unlike renewables like wind and solar, where prices have been coming down, with nuclear power they've been going up," Farmer explains.

Why should that matter? Because taxpayers are the ones paying the $8 million loan guarantees—as well as insuring nuclear power companies against large-scale accidents.

"Given that the nuclear power business has been heavily supported now for 50 years," Farmer says, "it seems like they should be weaning themselves from that by now if it's really a viable way to make power."

Farmer is currently working on a nuclear energy article for the journal Nature, and he's the keynote speaker at the upcoming Global New Energy Summit, a conference on energy innovations and policy developments (March 21 to 23 at Buffalo Thunder Resort & Casino). One theory for the rise of nuclear energy, he says, is its popularity among conservatives—a phenomenon Shuey finds strange.

"We hear over and over about how health care is all this socialism," Shuey says. "We don't hear a concomitant outcry about the socialization of our energy infrastructure, which is what the supporters of nuclear power want. They want the government—and they need the government—to put taxpayer money behind private investment."

To Navajo Larry J King, a former miner in the United Nuclear mine in northeast Church Rock and a petitioner in the case against the NRC, paying taxes to the very industry that's proposing to put a mine next to his house is anathema.

"I worry about it every day," King says. "The majority of the former [mine] workers are experiencing respiratory problems." King is one of them, and he's disinclined to trust that things will be different this time around.

"The [contamination] legacy has to be addressed before we can even think about sitting down with these new companies!" King says. He pauses, sighing.

"Nobody from NRC, nobody from [Washington] DC is gonna listen to some Navajo people," King says. "It seems like they don't care what happens to us out here. It really upsets me."

On March 12, New Mexico's congressional delegation—Democratic Reps. Ben Ray Luján, Harry Teague and Martin Heinrich—introduced a bill to make an additional $14.5 million available for cleaning up 137 uranium sites across New Mexico.

The legislation "seeks to reverse the decades of environmental damage caused by uranium mining in New Mexico," Luján's communications director, Mark Nicastre, tells SFR in an email, but "it does not address the specific legal questions" of this particular NRC case.

When it comes to the case, Jantz worries about how the Appeals Court decision will impact licensing and oversight of future uranium operations.

"This opinion has signaled to the NRC that it can regulate however it wants, no matter how lax," Jantz says. "If there's a nuclear renaissance, we're going to have the same situation we had in the last uranium boom: millions of acre-feet of contaminated ground and surface water and whole communities of sick people."

Not if King has anything to do with it.

"As long as I'm here, I'm going to fight that," King says. "It's not over."