Saturday, March 24, 2012

U.S. Nuclear Energy at the Epicenter

Just over a full year after the earthquake and tsunami struck the Fukushima Daiichi plant in Japan on March 11, 2011, U.S. nuclear energy has found itself at the epicenter of a new legal storm that is quietly brewing here at home. The storm is far-reaching. It raises some new issues previously not faced domestically, or not faced as sharply as they are about to be, and also resurrects many that have dogged nuclear power for years.

One emerging problem is what to do with aging plants. Of the 104 reactors running in the United States, 52 have been in operation for 30 or more years. Another 42 have been running for at least 20 years. With no new reactors built here for over a decade, the U.S. nuclear fleet is quickly getting older. Nuclear engineers will tell you that most of these plants can operate safely for many years to come. That may be true -- and necessary, if we are serious about climate change mitigation. But it raises the question of what our approach to nuclear power should be. And for those facilities that do shut down, how quickly should they be decommissioned? The New York Times reported this week that many facilities lack sufficient funding to decommission, in part because of the economic downturn.

Related is the question of whether existing plants should be relicensed. The Atomic Energy Act allows plants to have initial licenses of 40 years, and many facilities whose initial licenses have begun to run have sought permission to extend the life of their plants. This last Wednesday, the 40-year initial license for the Vermont Yankee facility expired. The plant continues to produce energy under a 20-year extension granted by the NRC last year. But, citing Fukushima as a reason to shut down the plant, protests over the facility's continued operation have grown, including 130 arrests of protestors that were made at the facility this week.

This itself re-raises the longstanding dilemma of who decides whether we have nuclear power in the U.S. Vermont is trying to shut down Vermont Yankee, and politicians have made similar threats for other plants in the U.S., including in New York. The Vermont effort is now in federal court, with an initial decision in January that found Vermont's law preempted and, thus, allowed Vermont Yankee to continue running. Certainly that lawsuit is worth watching, but going forward it highlights how divisive nuclear power can be. Three decades after it was handed down, the Supreme Court's decision in PG&E v. State Energy Resources Conservation & Development Comm'n, in which the Court ruled that federal authority over radiological safety is exclusive and that states can foreclose nuclear plants only for non-radiological safety-related concerns, is as pertinent as ever.

This all is on top of other continuing disputes over nuclear power in the U.S., including whether the DOE can withdraw its license application for Yucca Mountain, what regulatory changes should be made to eliminate safety concerns exposed by Fukushima, and, more broadly, whether the Carter-era ban on fuel repocessing should be abandoned or an entirely different solution to storing spent nuclear fuel should be pursued.

A year out, Fukushima's ripples continue to spread.

-Lincoln Davies

http://lawprofessors.typepad.com/environmental_law/2012/03/us-nuclear-energy-at-the-epicenter.html

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