Bruce R. Huber.
Systems of political checks and balances, so prominently featured in the U.S. Constitution, are also commonly installed in statutory and regulatory regimes. Although such systems diffuse political authority and may facilitate participation and accountability, they come with a price. If exercised, political checks—even those that appear trivial—can obstruct statutory processes and saddle a policy system with an unintended default policy outcome. Policies that are neither debated nor chosen, but that emerge as unbidden defaults, exhibit the very democratic deficits that checks and balances are intended to remedy.
This is precisely the situation of nuclear waste policy in the United States. The Nuclear Waste Policy Act of 1982 established a process for siting and constructing repositories for nuclear waste. When Nevada’s Yucca Mountain emerged as a likely repository site, that state’s officials and allies exercised the numerous political and legal checks afforded by the Act and appear, at least for the time being, to have defeated the selection. But Nevada’s victory may well be the nation’s loss. In the absence of a national waste repository, nuclear power plant operators have no choice but to store spent nuclear fuel on site, where it presents a number of risks not contemplated by the 1982 legislation. This outcome was not chosen or anticipated by legislators, plant operators, state and local siting authorities, or host communities.
This Article argues that lawmakers must take more realistic stock of their own institutional behaviors. Although certain corrosive incentives are intractably embedded in our constitutional system, lawmakers can and should write statutes with full awareness of the risks of relying on statutory checks and balances. In particular, legislators should assess carefully the default policy that will dictate outcomes when statutory processes fail.