Persistent Prejudice Against Nuclear—Can Anything Be Done? Part 3

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?

court gavel 150x96One 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

equal justice under law c 220x65The 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)

coal and nuclear 220x107There 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.

Potential remedies

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.

Cost/Benefit Analysis

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?

supreme court seal 150x150While I believe that current policies are sufficiently unjust to warrant court remedies, I’m not sanguine about the chances of success, for many reasons I discussed earlier in this post.

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.

_____________________

Hopf

Hopf

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.

22 Responses to Persistent Prejudice Against Nuclear—Can Anything Be Done? Part 3

  1. James Greenidge

    Re: “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.”

    A slam-dunk argument — but does the public have any clue?? Why not??
    From the very first “Earth Day,” the green founders got royally over by hammering on the public that a healthy clean world was a great idea for your kids and lifestyle and won over them and media long before hitting the courts route. Politicians and the courts will echo the public calling. The Corvair and Edsel didn’t zap car use or the car industry, and neither should Fukushima be cited as an example of the average nuclear plant — but it is! The difference here is GM and the car industry didn’t stand still and let the critics define what their products were based on lemons but got aggressive on cleaning up their image and addressing public perceptions. No magic. Just aggressive public education. The nuclear industry/community score negative zeroes in the public image department for ages. Why does nuclear energy’s image suck? Check out any newspaper or TV channel hours over over hours for months on end. Nothing about nuclear? Duh, the answer! But that’s not totally correct of course. There is a little about nuclear on the mass media — all dark and Doomsday, from news broadcasts to “science” programming., all fostered and fanned by totally unchallanged and unchecked antis and Greens running amok like wild field mice. This is insane. That nuclear power is in the plight it’s in despite all the aces in its deck is a travesty in utter lack of self-promotion. Anyone who has a hand in anything nuclear has a self-interest obligation to help promote a positive public perception of nuclear energy, be it the nuclear industry itself, or atomic workers unions or nuclear professional organizations or manufacturers or schools or publications. Nuclear energy doesn’t need the Judge Judy route; it needs to go the “Mad Men” route. Watch that excellent show and see how aggressive self-promotion can pull your bacon from the fire and have half of America eating off your fingers over it. Will the nuclear community ever get it? When there’s a public windmill planted front your house maybe.

    James Greenidge
    Queens NY

  2. Jim, thank you again for your creative and thoughtful approach. It is obvious that you’ve done an immense amount of work here. And its obvious that you are enthusiastic about the legal approach.

    I think we both share an appreciation of technology, used appropriately. It is clear that we also share an understanding of the benefits of nuclear technology as well as the hypocritical perception that exists in the public mind and in the government law books.

    I think the legal approach could work. I’m certain it would take a long time – maybe decades – and cost quite a bit.

    I appreciate your work in developing and putting to ink your thesis. I remain convinced however, as James Greenidge has conveyed, that the single most-effective course of action is education along with shifts in public perception to more closely match facts and data.

    I the past few months I have contacted a few people in the field to invite a conversation along these lines. The silence has been deafening and the explanations for such non-response elude me.

    In my view, in any system —political, biological, mechanical — to correct course or to resolve an errant symptom, attention to the root or cause is 95 percent more effective and efficient than attention to the effects and causes.

    In other words, spend $200 million in legal fees for 10 years or spend $10 million in education and awareness.

    My initial thought was that NEI or ANS might have the greatest self-interest for such a project. I’m not so sure anymore. I also thought that every corporation that was heavily involved in the nuclear industry would have great self-interest for such a project. I’m not so sure anymore. I wonder if they lack the cultural capacity to think outside of the box they have been in. I wonder if they are unable to innovate and engineer new communication strategies that would benefit the entire industry.

    Perhaps there is a place for something new.

    Steven B. Krivit
    Publisher and Senior Editor, New Energy Times
    Editor-in-Chief, 2011 Wiley Nuclear Energy Encyclopedia

  3. Jim,

    I just realized that I missed and did not read your Part 2. A little late, but I wish to respond and add even more clarity to this sentence: “The LNT is not the problem. Its selective application is the problem.”

    You’ve touched on a key point. It immediately invalidates the position taken by PSR about LNT as applied to nuclear. I have found that reminding people of this hypocritical application of LNT brings LNT-based arguments against nuclear to a dead stop.

    In this paragraph, you speak about the character of the mainstream media: “Perhaps I’ve become cynical, but I’ve come to believe that policy, and even public opinion, is significantly influenced by rich and powerful industries. They have significant influence over both government and the media, through lobbying efforts and advertising. Not only do they often advertise directly in the media, but they also exert indirect influence on actual content (news reporting).”

    I have been principally involved in alternative media for 14 years and in direct contact with mainstream media during most of this time. There is a lot of truth to what you say. But there is so much that can be done — even by small organizations — if you understand the media system from the inside.

    You wrote: “The fact is that the nuclear industry, to the extent it even exists at all, is nowhere near as large or as powerful as the fossil industry, or the ‘environmental’ groups that oppose nuclear. Most efforts on nuclear outreach are volunteer (unpaid), as the nuclear utilities or construction firms have shown little interest in a serious effort.”

    I say “phooey.” Not to you, but to the nuclear industry if that kind of defeatist attitude is actually representative of the true mindset of industry leaders.

    See you in Reno.

    Steven

  4. Jim
    Our local plant, Vermont Yankee, never lost a court case or won a public relations battle. In consequence, it is closing.

    (Actually, Entergy did lose some court cases, but it won all the important ones.)

    I think court victories are important and useful, but they can’t turn things around. Locally, I wish I could understand how to start some kind of court case about the fact that Vermont is in a monopoly situation about energy infrastructure. Green Mountain Power is a division of Gaz Metro of Canada. Vermont Gas Systems is another division of Gaz Metro. Between them, Gaz Metro owns almost all of Vermont’s energy infrastructure.

    Once upon a time, another big company, Entergy, was in charge of some major energy infrastructure around here. That will end too soon.

    I don’t even know how to present anti-monopoly legal ideas, and monopoly-restraint-of-trade is a probably a much clearer situation than fighting the massively inconsistent regulations you cite as grounds for lawsuits.

    I agree with James Greenidge: Mad Men, not Judge Judy.

    I wish I agreed with you. I followed the court cases with a great deal of joy, because our side kept winning! But the plant is still closing.

    Mad Men, not Judge Judy.

  5. Brian Mays

    Our local plant, Vermont Yankee, never lost a court case or won a public relations battle.

    Meredith – Please forgive me if I’m wrong, but your local plant and its owner were always on the defensive in these court battles, were they not?

  6. Brian,

    Good question. The answer is “yes and no.”

    The problem is the definition of “on the defensive.” For example, in the federal cases, Entergy was defending themselves against the legislature’s vote to shut them down. However, as every plant opponent will tell you: “Entergy brought the cases. Entergy sued Vermont!”

    Indeed, Vermont was just sitting around quietly, after having voted to shut down Vermont Yankee by denying it a Certificate of Public Good by a Senate vote. There was no appeal from the Senate vote. And then, to the state’s surprise, Entergy sued the state and won. It won because the Senate vote had been all about nuclear safety.

    Was this suit defensive or was it pro-active or…?

    Well, let’s ask a better question. Was this suit significantly different from the types of lawsuits Jim suggests? Are these lawsuits defensive or pro-active?

    I don’t know the answer. As I said, Brian, it’s a very good question.

  7. Meredith,

    I would say that it depends on the lawsuit (i.e., the issue in question and what remedies are being sought). At the risk of being overly simplistic, VY’s court victories essentially prevented the state from directly shutting down the plant. They didn’t do much to level the economic/regulatory playing field, so that the plant could remain competitive.

    It was govt. energy policies and the New England market structure that led to VY’s closure. The degree to which those policies are a product of public opposition to VY (or nuclear in general) is a debateable point. Would somewhat better attitudes in NE towards nuclear (or VY) have changed those policies (or market structures) so that VY would not have closed? Hard to say.

    The lawsuits that I’m discussing are less likely to succeed, but if any of the remedies I discuss in my post above were implemented, it would have a profound impact on nuclear’s relative competitiveness. It is definitely a case of swinging for the fences. Less chance of success. Far greater impact.

    Also, persuing legal remedies doesn’t in any way preclude persuing public outreach and education efforts as well, in parallel. I’m not suggesting that at all. However, I do think PR efforts will take some time, and for reasons I discuss in the first section of the article, there are reasons why we should persue options that may obtain needed changes faster.

  8. Brian Mays

    Meredith – I don’t know really either. It’s a difficult question.

    My thinking in asking the question, however, was along the lines of the following. Entergy might have brought the suit to court, but it was merely trying to preserve the status quo. To use a military analogy, if someone sends troops marching across your border, I don’t think that you should be considered the aggressor if you attack these troops to force them back — even if you fire the first shot. I think that the general consensus would be that you are fighting a defensive battle.

    Compare that to what Jim suggests, which is filing lawsuits whose purpose is to change the status quo. It seems somewhat different to me, and from what Jim has written above, it appears that he agrees.

    As the old adage goes, “the best defense is a good offense.” Whether it is applicable here is anybody’s guess.

  9. Jim:

    Excellent, thought provoking series of posts. All three should be required reading for nuclear professionals.

    We have a substantial number of very smart people in that category. Unfortunately, most of them have been effectively muzzled by the entities upon whom they depend for a paycheck.

    Those working for nearly all of the government entities that employ nuclear professionals have been taught that nuclear is a secret and should not be discussed with people who do not have a clearance and a specific “need to know.” Those working for electric power utilities or merchant generation companies (there’s a difference, by the way) have been taught that it is unseemly and hazardous to career progression to criticize non-nuclear energy since most of the operating companies have a diverse portfolio.

    The only real nuclear industry in existence right now includes the focused uranium miners, Bruce Power, Westinghouse, Areva, and the entrepreneurs at TerraPower, Flibe, Transatomic, ThorCon, and a host of others who’s names are not yet well known. (Disclosure: I consider Atomic Insights LLC to be an entrepreneurial atomic energy company.)

    The nuclear focused companies have some resources that they can begin to deploy more effectively. Nuclear professionals can speak up and be energized. If they have a reason to worry about their job security as a result of being vocal, they have the option of paying others to speak for them. (Coal, oil and gas interests have been doing that for years with people like Ralph Nader and Amory Lovins, by the way.)

    One more thing – I wonder if a small company that tried for nearly twenty years to get off the ground and found itself stymied at every turn by the current situation of unequal protection under the regulations would have any standing to participate in the court solution that you propose. AAE finally shut its doors in 2010 but its leadership is still alive and kicking. :-)

  10. Jim

    A quick note to echo what others have said. Every nuclear advocate and every nuclear professional should read this series of posts. THANK YOU for writing them. I plan to refer to them often.

    And yes, you are correct. If we can get a legal handle for a level playing field, it would make all the difference. It is worthwhile to try. The opponents try everything, and succeed only sometimes. That’s all it takes: succeeding sometimes can make all the difference.

    Meredith

  11. I’m in! Where do I sign up? :D

  12. Martin Burkle

    Count me in too!

  13. Jeff Walther

    It’s been over twenty years since law school, but I’m pretty sure I was taught a precedent foundational case in which the supreme court ruled that unequal application of regulations is okay and there is no cause of action against the government for more stringently regulating or applying regulations to one party vs. another party.

    I could be hallucinating it, but I’m pretty sure that was taught in the first year.

    I think Jim is on the right track, that it would be more important to target the “renewable” mandates and either repeal them or get nuclear on the list, or modify them so much that high capacity intermittent sources can no longer take precedent over reliable base-load generators.

    In theory, some investigative reporter should already be towing that load by pointing out to the consumer how totally screwed he is going to be by the guaranteed higher prices and lower reliability that killing base load will cause.

    But there’s hardly been a peep. The media is still pushing wind and solar with no acknowledgment that it is guaranteed to lead to higher prices, lower reliability and the government coming into our homes to control our hour by hour energy usage — energy brown and black outs retail instead of wholesale.

  14. Your sentiments (everyone) are much appreciated!

    The question is what I (or we) can do at this point. I’m not sure I’m in a position where I can do anything significant. My real hope (in writing these articles, posting on news artilce comment threads, etc…) is that some of my ideas might make their way into the minds of people who are in a position to act, and make some meaningful difference. All I can do is hope….

  15. Dr. K S Parthasarathy

    Jim,
    Thank you for the fantastic series of articles. It is a collection worth preserving by discerning professionals in energy industry. The cogent arguments you developed would easily find supporters among nuclear professionals; however they are a microscopic minority . These ideas should reach those in the the higher echelons of decision making whose hearts and minds are closed to any thing nuclear because of preconceived, exaggerated notions on nuclear risks.

    The approach to court you suggested looks very appealing in USA as NRC is expected to exercise the function of justification. In India it is slightly different; the regulator is not duty bound to justify the need for any specific mode of power generation at a location. This duty lies with the Central Government.

    The nuclear industry in India faced several public interest litigations. The industry one all of them. But they were certainly strenuous exercises. The latest one was against the two 1000 MWe VVER being erected in India. There were massive protests by people residing in the villages surrounding the reactor. Several committees and expert groups participated in public awareness campaigns etc. The case finally landed in the Supreme Court which dismissed it after issuing certain directions. Fukushima accident also influenced the decision makers.

    Finally, the apex court has virtually issued judicial sanction to nuclear power. The judgment at 247 pages is too long. You may read the operating parts to get an idea how the apex court handled the petition.

    You can access the judgment at:
    http://judis.nic.in/supremecourt/imgs1.aspx?filename=40374

    I responded to an article against the judgement in MINT, a leading business daily.
    Thus:
    http://www.livemint.com/Opinion/LKfMIkotvuJdcKJh4VY0dL/Kudankulam-a-settled-issue.html
    Once again I thank you for providing priceless insights into the way one has to address controversies related to nuclear power. Each country has to tailor its arguments appropriately while recognizing the common thread which is universal

  16. NewtonPulsifer

    If you want nuclear to get out from under the boot of the NRC, then lobby to get legislation passed that a nuclear reactor that has private disaster insurance of $400 million dollars per MWe can get a different safety track. This can be made revenue neutral by rebating say $10 per MWh generated to the nuclear power plant to account for the fact that “regular” nuclear power plants get major disaster insurance underwritten by the government at the cost of much stricter NRC oversight.

    The impression that any nuclear reactor is just a ticking time bomb only held in check by strict government regulation and eagle eyed public watch groups will evaporate.

  17. I suggest that before using the regulatory imbalance argument for nuclear it would be worth funding such a case for a more photogenic industry. A donkey sanctuary could be helped to make a case that the regulations against them are more onerous than for horse sanctuaries (or vice versa). Then you have the precedent. Personally I think if ethnic groups can count as individual “persons” under the law the convention that a company is a legal person would be stronger.

    Another legal option would be making accusations, possibly before the FCC, that the major media, by their reporting bias are not only wholly corrupt and responsible for murdering anybody who dies while unable to afford all the heating they could need and that every employee is also a wholly corrupt murdering totalitarian fascist liar too. Basically force the media to sue you for slander.

    Or alternately, find one of those excess winter deaths (there are 10s of thousands annually) and help their relatives sue the government/media/eco spokesmen UT Cobley et al for responsibility for the death + punitive damages.

  18. Green Energy’s waste stream of rare earth elements tosses away enough Thorium yearly to power the entire planet. China is walking away with the support of our DoE the ORNL MSR design and will own our IP and the next 100+ years of truly clean energy. How about suing the DoE for equal funding based upon taxpayers being denied US sponsor Reseach on a jobs basis. Sue the EPA on the Thorium rules that have destroyed the Rare Earths industry here & and include the basis of security and WTO violations. Please support US Senate bill S.2006 e National Rare Earth Elements Act, we can’t depend upon China for strategic REEs.

  19. Breck Henderson

    Jim:

    As a former Public Affairs Officer and Reactor Inspector for the NRC I was a consistent maverick in my attitude toward nuclear safety. My colleagues were proud of their work because they believed they were preventing the loss of life — the public health and safety message that is a constant theme at NRC.

    However, I argued (with only half-hearted facetiousness) that since there had never been a death to any member of the public attributed to radiation from a nuclear power plant, and since we had experienced the worst possible accident, a meltdown at TMI (a partial meltdown, I would argue, is as logical as being partially pregnant), without any deaths or ill effects, that we were in fact the cause of an unnecessary loss of life. This would be true for the reasons you outlined — over regulation of a non-life threatening technology makes it vastly more expensive, which prevents new nuclear power plants from being constructed. The resulting growth of coal and fossil fueled power plants causes a known (if you can believe EPA calculations; always a questionable practice) number of deaths each year, which is larger than it might be if we had more nuclear power.

    For some reason, my argument wasn’t popular among my colleagues, especially those with ambitions toward SES paychecks at some point in their careers.

  20. Newton,

    Why should plants have to get $400 million per MW of insurance when the (worst case) meltdowns at Fukushima caused less than $100 million per MW in economic damage? maybe closer to $50 million.

    Also, as I discuss in the article, SMRs should have an even lower potential meltdown cost *per MW*, since there cores cannot get as hot (under any circumstances), with some possibly being meltdown proof.

    I haven’t done any math, but I find it interesting that, even at $400 million/MW, you estimate a cost of only one cent/kW-hr. That is clearly far less than the cost of NRC regulation.

  21. Greetings from the UK. I loved these articles so thanks for writing them.

    I was at a conference on Sustainable Nuclear organised by IChemE. There was an Oxford physicist there who talked about the misunderstandings surrounding radiation. I had chance to speak to him after his talk and raised this article and the possibility of some form of lawsuit.

    He mentioned that the best way of going about it would be to get the Fukushima evacuees to sue the Japanese government for their forced evacuation as its not scientifically justifiable. I think he’s looking to try and get something like this moving.

  22. James Greenidge

    Re: Dave Ward
    “He mentioned that the best way of going about it would be to get the Fukushima evacuees to sue the Japanese government for their forced evacuation as its not scientifically justifiable..”

    …And not just make the Japanese gov’t liable, but didn’t our crackerjack ace nuclear expert NRC chairman “advise” Japan on over-the-top evacuation measures?

    I posed something similar to your mention on AtomicInsights last year and it seems that there’s a bit of tacit intimidation by anti-nuclear groups (and media) over there on the relative few even thinking of taking this action, as though if one can show that three meltdowns in a row in older reactors — provoked by a rare super-event, not by an incident in normal operation — can incur barely any damage outside the plant’s gates and zero mortality by radiation contrary to mega-death Doomsday by just one awry reactor as casually slung around by anti-nuclears and the media, it not only questions media accuracy (agenda) and officials’ off-the-cuff responses regarding the evacuation but debunks the image that nuclear reactors are fragile eggshells of nitro that just can’t wait to blow. My feeling is in an ironic way, Fukushima served as the best FUD-busting real-life test and proof of concepts of the reliance of nuclear reactor construction and just maybe that’s why compared to the years prior Fukushima, confidence and interest and bids in nuclear reactors around the world have perked up since, and why Greens and anti-nukers have been in overdrive on the backs of cowering politicians (hello Germany, etc?..) and will be going after developing countries thinking nuke too. The result of this could question the whole fanatical $$$ rational of dredging up good topsoil and scraping down whole cities and hoarding millions of gallons of filterable water for any speck of radiation (for some reason, I’ve yet heard any research or media mention into the certain contamination of ground water and farmland by seepage from the tsunami’s inland toxic brew of chemicals and sewerage and God knows what else…) This is a golden op for nuclear advocate organizations to royally hit hard at FUD artists and anti-nukers who know that — and I’m not exaggerating or being facetious — almost all the U.S. public far more believe in UFO landings than that there was no public damage and no one injured at Fukushima. Do a man-on-the-street survey posing just that question and you’ll somberly understand what I mean.

    Wish I could John Hancock on such a class action suit myself!

    James Greenidge
    Queens NY