By Jim Hopf
At this site in January, I made the case that there is significant and persistent prejudice against nuclear power among both the public and policymakers. In February, I discussed several approaches to ameliorating nuclear’s current and future problems (which are largely due to said prejudice) and the limitations of each approach. This month, I will explore one last possible option: challenging the biased and unfair treatment of nuclear under current policies and regulation—in court.
Why a court challenge?
One might ask why a court challenge is necessary, as opposed to slowly building political support and winning over the hearts and minds of the public. The reason is that public prejudices and policy biases appear to be persistent, and show no signs of going away for the foreseeable future (i.e., decades). The regulatory imbalance between nuclear and fossil fuels in particular shows no signs of going anywhere. Even with ostensible support of nuclear by a majority of the public, nuclear will not go anywhere under the current, extremely unlevel regulatory playing field.
The point is that the cost to public health, to the environment, and perhaps to the economy are simply too high to justify such patience, and waiting multiple decades for the needed change—if such change ever comes at all. Current policy biases result in the use of fossil fuels instead of nuclear, which comes at a cost of tens of thousands of American lives each year and hundreds of thousands of lives worldwide, as well as the potential altering of the earth’s climate. Over decades, the lives lost worldwide will run into the millions. The stakes are simply too high to let the current situation continue for a long time.
There are examples in other areas, particularly the area of civil rights, where a decision was made to turn to the courts, as opposed to waiting for public prejudice to subside, or waiting for legislative or political change. In retrospect, few now regret those decisions. Back then (in the 1960s) and again today, the courts have mandated fair policies and equal treatment, even in the face of significant public and political opposition (e.g., in the case of recent federal court rulings that have overturned state laws prohibiting gay marriage).
The general idea
The idea would be to challenge current energy policies and the current regulatory playing field (which holds nuclear to requirements thousands of times as strict as those applied to fossil fuels), perhaps under the equal protection clause of the constitution. The argument would be that having energy policies that place a given energy source at a significant disadvantage, or subjecting that energy source to regulations that are far more strict (and expensive) than the regulations applied to competing sources—simply because that energy source is politically unpopular or does not have much political influence—is unjustified and violates the principles of fairness and equal protection under laws.
The public has the right to decide how much money will be spent on public health, safety, and the environment. That is a question of values. If the public wants to place a higher (economic) value on human life, longevity, or a clean environment, that is our right.
However (it would be argued), the public does not have the right to arbitrarily require one industry to spend enormous amounts for little benefit, while arbitrarily allowing other industries to avoid spending much smaller amounts for much larger benefits (e.g., requiring nuclear to spend billions of dollars per life saved while rejecting fossil pollution requirements that amount to only ~$10,000 per life saved). That is a case of pure, demonstrable policy prejudice.
Values are one thing. Being demonstrably, mathematically, and scientifically wrong is another. We get to decide questions of values, but on questions of fact, science must be respected. Saying that “I am not willing to spend as much to avoid 1,000 fossil-related deaths as I am to avoid a single nuclear-related death” is not a legitimate value judgment.
Precedent (or lack thereof)
There is precedent of successful legal challenges under the equal protection clause of the U.S. Constitution, but so far they have been only on behalf of individuals or groups of people (e.g., ethnic or minority groups). I haven’t found any cases where an industry has successfully sued under the equal protection clause, as a remedy for unfair treatment such as an unlevel regulatory playing field.
In fact, the text of the actual equal protection clause of the Constitution specifically refers to “persons” receiving “equal protection of the laws”. The clause has also come to be interpreted as applying to classes of people. Thus, application of the clause to an industry would constitute an expansion of its current scope.
To be honest, there is reason to believe that the courts would be loath to go down that path. There are endless examples where it could be argued that things (in life) are “unfair.” With respect to laws and regulations, almost any law or policy could be shown to be not completely even handed. Creating policies and laws that are completely neutral, and give absolutely no advantage to any industry over any other, would be all but impossible.
This may be part of the reason why the equal protection clause has (so far, at least) been applied only to individuals or classes of people, and only in cases in which there is substantial evidence of mistreatment and discrimination. Also, in most cases, the courts have intervened only after some significant degree of political support has been created on behalf of the affected group (recent gay marriage rulings being a prime example).
Why would a challenge from the nuclear industry have any chance of succeeding, given the above considerations? I believe that the nuclear industry (specifically) may have a compelling case because the regulatory playing field is so clearly unlevel, and to such an enormous degree. The outright double standard between nuclear’s requirements and treatment, versus that of other industries (most notably its fossil fuel competitors), is so clear that it should be impossible to ignore.
There is also some precedent for the notion that there should be a level playing field among competing industries. The World Trade Organization has firm policies against protectionist tariffs. In addition, of course, there is the European Union’s policy against “state aid” (i.e., subsidies) for specific industries or energy sources—with the exception of renewable energy, apparently.
Standing—Who’s got standing?
Another barrier to any successful nuclear lawsuit is that the plaintiff must have “standing.” That is, they need to show that some tangible harm (financial or otherwise) is being inflicted on them as a result of the policies in question. The question is, how can the “nuclear industry” claim standing?
Who, specifically, would represent “nuclear”? The Nuclear Energy Institute couldn’t claim standing—no financial impact. Also, as has been pointed out by others, it’s not clear that economic fortunes of utilities or plant construction firms are specifically tied to nuclear’s success. If nuclear is unprofitable, they can simply turn to something else (i.e., build or operate other types of plants). True nuclear companies may be limited to uranium miners and a few nuclear-specific firms such as Westinghouse or Areva. It’s possible that utilities could claim financial harm from excessive regulations hurting the profitability of their existing nuclear plants. Challenging excessive costs of new plant construction would be a harder case to make, since utilities don’t have to choose to build them.
So, who else might have “standing”? Can nuclear advocates like myself claim “emotional duress”? Perhaps a class action suit on behalf of all the people who’ve suffered health impacts or had family members die as a result of coal plant pollution? That may be a high bar to meet. Although Environmental Protection Agency statistics point to tens of thousands of annual deaths, individual risks are relatively low, and usually such claims require a high probability of impact. Also, the courts’ remedy would likely be to require coal pollution reductions, as opposed to a fundamental evaluation of nuclear’s requirements and the levelness of the nuclear vs. fossil playing field. It is also very likely that the courts would say that we should seek remedy in the political sphere.
Whatever the chance of success, there are several remedies that the industry could pursue that would make a dramatic difference in nuclear’s future costs and competitiveness with other energy sources in the future.
The Nuclear Regulatory Commission would be required to perform a cost/benefit analysis on all of its existing and proposed regulations, as the EPA is currently required to do. The NRC currently has no such requirement. Furthermore, a significant difference in the relative cost (in dollars per life saved or environmental impact avoided) of regulations among different, competing energy sources would not be allowed. The principle could even be expanded to apply the principle of ~equal-cost regulation to all industries.
There is some precedent for this principle. Many government agencies apply a monetary value to a human life, when deciding on how much money to spend on regulations, building codes, clean up requirements, etc. This is done to ensure that money is spent in the most cost-effective manner, in a world where there is not an infinite amount of money to apply to public safety. Requirements that are more costly than the set value are rejected. Typically, the value of a human life is somewhere between $5 million and $10 million.
Under a possible court remedy, the NRC would be required to apply a similar criterion (at most $10 million per life saved) to all of its regulations. Conversely, the EPA would be required to also apply a similar criterion to its coal plant pollution regulations, regardless of political pressure (or even legislation) from the coal industry and its congressional allies. (Despite the human life value quoted for the EPA in the New York Times article linked above, proposed pollution regulations that are far more cost effective than $9 million per life saved have been shelved or put on hold, due to political pressure.)
Nuclear as a Clean Energy Source
As I pointed out in last month’s post, a primary problem is that nuclear is essentially required to be a clean energy source, but it is treated, under policy, like a dirty energy source. It must spend almost whatever it takes to reduce even the chance of pollution to near zero. If there is ever a release, massive compensation and cleanup is required. Meanwhile, fossil plants get to pollute the environment, and inflict enormous public health and environmental costs, for free. And yet, current policies give nuclear no credit for its non-polluting nature, and place it in direct economic competition with dirty sources. Other clean sources (renewables) receive large subsidies and (more importantly) outright mandates for their use, regardless of cost, practicality, or even if new generation is needed at all.
The possible court remedy would require that nuclear be treated as a clean energy source under all energy policies, at both the federal and state level. All clean sources (e.g., nuclear and renewables) must have roughly equal subsidies. The terms of any loan guarantees would have to be similar. And, most importantly, any mandates or portfolio standards, on both the state and federal level, would have to include nuclear along with renewables.
Alternatively, the court remedy could demand that fossil sources pay some financial penalty to reflect the health (and economic) costs of their pollution. That could include CO2. A third possibility would be to require that fossil plants be treated like nuclear, with full containment of all toxins/wastes/pollutants required, and compensation or other penalties if they are ever released.
Nuclear Industry vs. Natural Radiation Exposure
As I discussed last month (in the linear no-threshold model/LNT section of the post), public doses from the nuclear industry are treated completely differently than doses from other sources, such as natural or medical exposures. If one assumes the LNT, health effects scale with collective exposure (man-Rem). However, natural and medical sources produce collective exposures that are many orders of magnitude larger than any from the nuclear industry, including even those that would result from a severe meltdown scenario. And yet, nothing is done, and almost no money is spent, on reducing those public exposures, while current policies would require astronomical sums to be spent in the event of a plant meltdown to avoid a much smaller public collective exposure.
Under a possible court remedy, such different treatment of exposures from different sources would be disallowed. All means of reducing public collective exposures would have to be evaluated equally. The NRC or the EPA could not impose cleanup standards that cost a large amount of dollars per man-Rem avoided if other, far cheaper options for reducing man-Rems (e.g., from natural or medical sources) existed.
One way this principle could be applied would be the use of offsetting public exposure reductions. Often, when an industrial facility is built, it is impossible (or cost prohibitive) to avoid having any environmental impact. So, the applicant offers to perform an offsetting environmental service, such as restoring a wetland at some other location, the argument being that there is then no net impact for the project.
In the case of a plant meltdown, the utility could argue (under this court remedy) that instead of spending an exorbitant sum to bring radiation levels in surrounding areas down to some extremely low level (e.g., the International Commission on Radiological Protection’s standard of 100 mrem/year), it will provide an equivalent amount of public exposure (man-Rem) reduction by some other, far cheaper means (e.g., radon abatement or providing low-dose medical equipment to hospitals). The EPA or the NRC could not oppose such a proposal, as they would not have a leg to stand on. Dose is dose.
Finally, this principle (and court remedy) could be used to require that there be no distinction between industry and other sources of radiation when determining limits on dose rates. The EPA or the NRC would not be able to establish dose rate limits that only apply to industry sources. Instead, they would have to determine what a “safe” level of radiation is, period, regardless of source.
Lower limits for normal operations and routine emissions could possibly be justified, not on the basis of “safe dose,” but as “good industry practice” and to prevent long-term buildup of radiation levels. But limits for accident conditions and for cleanup standards should be based on public safety, and limits lower than natural background would be indefensible. Unless they are willing to declare large sections of the country “unsafe” or “uninhabitable” (and perhaps even proceed with evacuation of those regions), agencies would not be allowed to establish dose rate limits that are within (or lower than) the range of natural exposures. Any public dose rate limits under ~1 Rem/year (such as the ICRP’s 100 mrem/year) would be hard to justify. Higher medical doses would probably still be justifiable, given that there is a tangible health benefit related to the exposure.
Environmental Impacts of Nuclear Plant Closures
I’ve argued that stringent nuclear regulations that result in plant closures or prevent new nuclear construction probably actually increase public health risks and environmental impacts, at some point, since the fossil fuels that are (or will be) used instead have a far greater impact. When a coal plant closes, it’s clear that whatever replaces it will have a lower health and environmental impact. When a nuclear plant closes, it is likely that whatever replaces it will have a higher environmental impact.
Under a possible court remedy, such impacts would have to be considered when drafting nuclear regulations, when evaluating existing regulations, or when making a decision to keep a nuclear plant closed while improvements are being made. The NRC kept the Ft. Calhoun nuclear plant in Nebraska closed for nearly three years, in order to install flood protections, make various other improvements, and improve its “safety culture.” Over that time, the plant’s output was mostly replaced with fossil fuels, including some amount of coal (probably). At the risk of being overly blunt, based on fossil plant pollution health statistics, it is almost certain that the NRC’s decision/policy killed a fair number of people, as well as dumping a large amount of CO2 into the air.
I’m not saying that regulations or ordering plant closures is never justified. However, all impacts of such decisions must be considered (and must not be simply dismissed as being outside the agency’s scope). Under the court remedy, the NRC may have to demonstrate that the reduction in public health risk associated with the plant closure more than offsets the impacts of the fossil replacement. Stated more simply, they may have to argue that the plant’s continued operation is more dangerous and/or harmful than a coal plant before ordering its closure. This may result in greater efforts to find ways to make necessary improvements while plants remain in operation. Given the impacts of fossil replacements, closure of a nuclear plant must not be taken lightly.
Challenge to NRC Authority
Perhaps the most aggressive use of a possible court remedy would be an outright challenge to the NRC’s authority to write and enforce detailed, prescriptive regulations, especially in the case of small modular reactors (SMRs).
My understanding is that the NRC’s mandate is to protect public health and safety. That is the basis, and justification, for all of the the NRC’s regulations and enforcement powers. Given what we now know (from Fukushima, etc.) it could be argued that meltdown events do not constitute a significant threat to public health and safety—in the case of SMRs at least.
At Fukushima, we’ve learned that the release of radioactivity from the full meltdown of three large reactors caused no deaths and is projected to have no measurable public health impact. The maximum possible release from an SMR is far smaller than the Fukushima release. In fact, since the core of an SMR does not get as hot, even in the case of complete loss of cooling and subsequent meltdown, the release fractions (for Cs-137, etc.) should be smaller than those of a large reactor. Thus, the maximum possible release is even lower than the ratio of rated power would suggest (probably a few percent of the Fukushima release, at most).
As a result, it is unlikely that any event at an SMR would have any public health impact, and the land area over which dose rates would exceed the typical range of natural background (i.e., ~1 Rem/year) would be very small. Given this, it could be argued that strict NRC regulations and oversight are not justified. An analysis showing the maximum possible release and affected land area should be the only component of the “safety analysis” submitted to the NRC. Instead, the levels of precaution should be between the SMR operators and their insurers. And yes, the idea would be that the industry would give up Price-Anderson liability limits, in exchange for largely eliminating NRC regulation and oversight. (It would be well worth it.) Given the low release probability of SMRs (due to fundamental safety advantages) and the low potential consequences, well-informed rational insurers should offer reasonable rates.
In order for the above idea to work, however, the ground rules for meltdown events (including evacuation, cleanup and compensation criteria) will have to be established in advance. In last month’s post, I mentioned the possibility that a lower release would simply result in lower allowable dose rates being applied to cleanup (because “they can afford it”). That would have to be nipped in the bud, up front. It would have to be firmly established that no measures would be taken to reduce dose rates within the natural range (i.e., under ~1 Rem/year). Many of the other court remedies discussed earlier would do that, automatically.
What are our chances?
I would, however, like to think that, at a minimum, a high-profile court challenge could at least shed some light on the enormously unlevel playing field and outright double standards that nuclear faces. There are many examples of people or organizations issuing court challenges in order to raise the profile of certain issues in the eyes of the public. In this case, a court challenge would, hopefully, open the eyes of the public to the real reasons why nuclear is struggling to compete.
Which of the options I discussed in this post and last month’s post do I think have the best chance to give nuclear a bright future? I would have to say that our hopes primarily rest on the possibility of improved energy policies that give nuclear some credit for its non-polluting nature. These would include some sort of clean energy standard that includes nuclear. That, or the (more likely) CO2 regulations on new and existing fossil plants, which will prevent new coal plant construction and could result in coal’s phaseout. We would then be left to hope for increased natural gas prices, possibly as a result of increased fracking regulations, and as a result of increased demand from declining coal use, gas exports, and increased use of gas in the transport sector. And who knows—maybe someday we will have taxes or limits on CO2 emissions.
Jim Hopf is a senior nuclear engineer with more than 20 years of experience in shielding and criticality analysis and design for spent fuel dry storage and transportation systems. He has been involved in nuclear advocacy for 10+ years, and is a member of the ANS Public Information Committee. He is a regular contributor to the ANS Nuclear Cafe.