An Ignoble Experiment

2. Half of population eligible for deferred action has applied

The Coast Guard is testing and evaluating oil spill detection and recovery technology in the Arctic Ocean as part of its second summer deployment to the Arctic.

The Coast Guard and Canadian counterparts conducted their first Arctic offshore oil spill drill in a bay near the Bering Strait July 17 and 18, with the Canadian light icebreaker CGC Sir Wilfrid Laurier deploying a skimming vessel, reports the Alaska Journal of Commerce.

Other assets set for the summer deployment, known as Operation Arctic Shield 2013 and focused on Western Alaska and the Bering Strait, include the U.S. medium icebreaker USCGC Healey, which will test the capabilities of remotely controlled vehicles to search for simulated oil spills, the Coast Guard says. Among other vehicles, the test will involve deployment of a Puma unmanned aerial vehicle by the National Oceanic and Atmospheric Administration.

Although Shell Oil suspended drilling operations in the Arctic Ocean off the coast of Alaska after experiencing problems such as losing control of a 226 foot oil drilling barge in late December--and then-Interior Secretary Ken Salazar told reporters in May that Shell will need to undergo additional planning before attempting to drill there again--Arctic oil drilling is mostly considered a matter of time.

The Coast Guard certainly expects the Arctic to become more active with human activity due to climatic warming, issuing a strategy in May calling it an "emerging maritime frontier...significantly expanding our operating area."

Coast Guard Commandant Adm. Robert Papp says the service doesn't plan on building any shoreside infrastructure in Arctic Alaska at least for the next decade, however.

For more:
- go to the Coast Guard release
- go to the Alaska Journal of Commerce article

Read more about: global warming, USCGC Healy
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By Zach Rausnitz

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3. Federal court orders NRC to review Yucca Mountain license application

Nearly a year into the deferred action program for young undocumented immigrants, an estimated 49 percent of the eligible population had applied, a report from the Migration Policy Institute says.

Counting potential beneficiaries--for example, those who could become eligible if they earn their GED--as well, the MPI estimates that 36 percent had applied as of June 30.

Through that date, U.S. Citizenship and Immigration Services had approved (.pdf) 400,562 applicants for deferred action and denied only 5,383. The MPI report (.pdf), published Aug. 12, notes that the high approval rate may decline over time because it may take longer to adjudicate the cases of applicants who are ultimately deemed ineligible.

In August 2012, the Obama administration initiated the deferred action program for young undocumented immigrants who meet certain educational requirements and have not been convicted of a felony or significant misdemeanor. Beneficiaries get a 2 year reprieve from the threat of deportation and are authorized to work.

The MPI report suggests a number of reasons why an estimated 51 percent of the eligible population has not applied. Some may not be able to afford the application fee. Some may fear that the government will become aware of their undocumented family members, possibly risking their deportation. Others may choose to apply only if they are taken into detention, as they're allowed to apply defensively to avoid deportation, the report says.

Based on population statistics and USCIS data, MPI estimates that 60 percent of those eligible for deferred action are bilingual and that 9 percent speak only English, while the rest have limited English proficiency or no English ability.

About one-third of those eligible live in households with income below the poverty line, according to MPI's estimates. Because of the application fee, poverty may be a barrier to some applicants--but the report notes that it may motivate others to apply, since the program grants work authorization.

An estimated 55 percent of the eligible population already works, the report says.

As the program moves forward, the report says future research may wish to examine deferred action's impact on the careers and educational opportunities of its beneficiaries. In addition to receiving work authorization, they qualify for in-state tuition in some states, and all but Arizona and Nebraska allow them to have driver's licenses.

For more:
- download the report, "Deferred Action for Childhood Arrivals at the One-Year Mark: A Profile of Currently Eligible Youth and Applicants" (.pdf)
- download the USCIS data for deferred action applicants through June 30 (.pdf)

Related Articles:
ACLU sues for driver's licenses for deferred action recipients in Nebraska
Most deferred action hopefuls arrived at age 10 or younger
Opponents of prosecutorial discretion have little recourse

Read more about: USCIS, immigration
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By David Perera

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4. Appeals court rules for immigrant arrested in Md. in 2008

A federal court says the Nuclear Regulatory Commission has no choice but to evaluate the Energy Department's license application to open the Yucca Mountain permanent spent nuclear fuel repository facility.

In a 2-1 ruling (.pdf) issued Aug. 13, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus telling the NRC to spend the $11.1 million it has in available funds for licensing evaluation even while acknowledging that the money might not be enough to complete the evaluation.

The Energy Department submitted in 2008 an 8,600 page application to open the Yucca Mountain facility located in Nevada, but filed in March 2010 a motion (.pdf) before the NRC's Atomic Safety and Licensing Board for the application to be dismissed with prejudice.

Then-NRC Chairman Gregory Jaczko ordered (.pdf) NRC staff in October 2010 to close down the license application review, a decision that immediately sparked controversy over its legality. The Obama administration also requested that Congress only appropriate funds during fiscal 2011 sufficient for the orderly closure of the application review. Congress appropriated the requested $10 million--an action that Yucca opponents have said amounts to congressional approval of discontinuing the license process. Opponents say their case is bolstered by the fact of zero dollar appropriations for the process in subsequent years.

But, Judge Brett Kavanaugh, writing for himself and Judge A. Raymond Randolph, says the commission still has $11.1 million dollars available for application processing and cites Supreme Court precedent stating that courts should infer that Congress has repealed or suspended a statutory mandate "based simply on the amount of money Congress has appropriated."

Speculation that Congress will not appropriate further funds the NRC says would be necessary to complete the application process also fail as an argument, the majority says, since "an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates."

Section 114 of the Nuclear Waste Policy Act of 1982 requires the energy secretary to submit the license application to the NRC. Energy has argued that what the secretary does after the application has been submitted--such as petitioning for its dismissal--is a policy choice allowed under the law. But Kavanaugh, now writing only for himself, says the Constitution grants the president and the executive branch the power not to implement unconstitutional laws and to exercise prosecutorial discretion in the enforcement of federal law, but presidential discretion doesn't encompass "the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch." The Obama administration may not support the opening of Yucca Mountain, but that doesn't abrogate the NRC's responsibility to evaluate the license application, he says.

The suit was brought by a host of plaintiffs including the states of Washington and South Carolina, the sites of nuclear waste from the Hanford and Savannah River Sites, respectively. Lack of a permanent repository for spent nuclear fuel has caused it to accumulate in dry casks spread throughout the country. The Government Accountability Office has estimated that even were Yucca Mountain to open immediately, it would still be 15 years before the site could start accepting fuel--and by then, about 50,000 metric tons of spent fuel stored roughly equally in wet and dry storage will have accumulated, assuming that no new nuclear power plants open in the interim.

In the wake of the unraveling of plans for Yucca Mountain, a Blue Ribbon Commission on America's Nuclear Future called for establishment of a new, independent federal organization to establish a consent-based process for siting nuclear waste repositories. A bipartisan bill (S. 1240) primarily sponsored by Sen. Ron Wyden (D-Ore.) would implement the recommendation through creation of an independent agency within the executive branch called the Nuclear Waste Administration.

For more:
- download the Aug. 13 ruling (.pdf)

Read more about: South Carolina, Ron Wyden
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By Zach Rausnitz

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5. Aging infrastructure, climate change don't bode well for grid resilience

Local law enforcement officers can't make arrests for violations of immigration law without the explicit approval of federal authorities, a federal appeals court ruled Aug. 7.

Officers in Frederick County, Md., arrested Roxana Santos in October 2008 after they discovered she had an outstanding Immigration and Customs Enforcement warrant for deportation. At the time, the Supreme Court had not established that state and local law enforcement may not unilaterally decide to arrest someone for an immigration violation.

In the 2012 Arizona vs. United States case, the Supreme Court said that local officers generally lack authority to arrest individuals for civil immigration violations.

"Allowing local law enforcement officers to arrest individuals for civil immigration violations would infringe on the substantial discretion Congress entrusted to the Attorney General," Judge James Wynn of the Fourth Circuit Court of Appeals wrote (.pdf) in a unanimous opinion.

Santos, who worked as a dishwasher at a food co-op, was sitting outside during a break when two officers approach her and asked if she had identification. Santos, who spoke little English, eventually provided her national ID card from El Salvador.

Dispatch notified the officers of Santos' outstanding ICE warrant, and they waited to hear whether it was still active. When one of the officers gestured for Santos to remain seated during this time, "the consensual encounter became a Fourth Amendment seizure," Wynn writes.

It took 45 minutes after Santos was arrested for ICE to confirm the warrant and request that Santos be detained. "It is undisputed that the deputies' initial seizure of Santos was not directed or authorized by ICE," the opinion says.

"Absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law," it says.

For more:
- download the ruling, Santos v. Frederick County Board of Commissioners (.pdf)

Read more about: Frederick County, James Wynn
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By Zach Rausnitz

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