Nuclear injustice served: three objectionable rulings in three days on Davis-Besse, Yucca Mountain, and Vermont Yankee

So much for separation of powers, checks and balances. As it is with the executive and legislative branches, wooed by the corporate cash of nuclear lobbyists and campaign contributors, it seems the U.S. judicial branch is not immune when it comes to the politically and economically powerful nuclear industry and its armies of high-priced lawyers.

A kangaroo court at the U.S. Nuclear Regulatory Commission's (NRC) Atomic Safety and Licensing Board (ASLB) ruled on August 12th against a petition filed by Toledo-based attorney Terry Lodge on behalf of an environmental coalition, including Beyond Nuclear. The coalition is seeking open, transparent license amendment proceedings on the FirstEnergy Nuclear Operating Company (FENOC) plan to replace the steam generators at its problem-plagued Davis-Besse atomic reactor near Toledo next year.

FENOC is taking the same short cuts on safety that led to the dangerously botched steam generator replacements at San Onofre, CA, which put 8 million southern Californians at risk, and caused the permanent shutdown of two atomic reactors, a $2.5 billion boondoggle. Arnie Gundersen, Chief Engineer at Fairewinds Associates, Inc., serves as the environmental coalition's expert witness at Davis-Besse, just as he has for Friends of the Earth at San Onofre. The environmental coalition will not give up, and is currently considering its next steps at Davis-Besse, in its ongoing resistance to the risky steam generator replacements, the atomic reactor's severely cracked concrete containment, as well as FENOC's proposed 20-year license extension. The Toledo Blade has reported on this story.

By a split decision, on August 13th, a panel at the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the States of Washington and South Carolina et al., ordering the U.S. Nuclear Regulatory Commission (NRC) to resume the Yucca Mountain, Nevada high-level radioactive waste dump license application proceeding. But the ruling amounts to "the doing of a useless act," for NRC has only $11.1 million remaining in its coffers with which to conduct the proceeding.

The dissent was filed by the Circuit's Chief Judge Garland, who argued that what little money NRC has remaining should be used to preserve the existing records from this largest ever licensing proceeding in the agency's history. Garland reasoned:

"In short, given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again."

Garland also pointed out that Yucca's ultimate price tag would require Congress to approve not just over $100 million per year in licensing support, but, if the application is ultimately approved, many tens of billions of dollars to carry out construction and operation (DOE's last estimate for the total cost of Yucca, should it proceed, made several years ago, was nearly $100 billion). Congress has not seen fit to increase NRC's licensing proceeding funding in a number of years.

U.S. Senate Majority Leader Harry Reid (D-NV), the Silver State's bipartisan U.S. congressional delegation, Nevada's state government, and grassroots environmental groups have all vowed to continue their successful resistance against the Yucca dump, despite the absurd, largely meaningless court ruling.

Then, on August 14th, a three-judge panel at the Circuit Court of Appeals in New York City ruled in favor of Entergy Nuclear, and against the State of Vermont, in the marathon battle over the fate of the Vermont Yankee atomic reactor. The appeals court judges agreed with a lower court's Orwellian determination that Vermont state legislators had really meant "safety" when they passed laws regulating energy economics, the need for (or lack thereof) Vermont Yankee going forward, and the atomic reactor's impacts on the Connecticut River from thermal water discharges, impacts on tourism and recreation, etc. 

While radiological safety has been deemed the "sole province" of the federal Nuclear Regulatory Commission under the Atomic Energy Energy of 1954 (never mind the agency is asleep at the Geiger counter, derelict in its duty to protect public health, safety, and the environment!), the U.S. Supreme Court ruled in the 1983 PG&E case that states retain jurisdiction regarding nuclear power in all those other areas.

As documented in the classic 1975 book We Almost Lost Detroit by John G. Fuller (about the Oct. 5, 1966 partial meltdown at the Fermi 1 experimental plutonium breeder reactor in Monroe County, MI), a half-century ago, a strongly worded dissent in the U.S. Supreme Court case United Auto Workers v. U.S. Atomic Energy Commission described the Atomic Energy Act as a dark day for our democracy. Ironically, in spite of yesterday's New York City appeals court ruling, one of the judges pointed out that Congress probably didn't intend to so undermine state's rights when it passed the Atomic Energy Act six decades ago!

The silver lining, however, is that the court did not order Vermont taxpayers to pay for Entergy's multi-million dollar legal bills. Also, the authority of the State of Vermont's Public Service Board to rescind the "rogue corporation" Entergy's Certificate of Public Good, its license to do business in the Green Mountain State, seems to be retained intact. The PSB, which can consider the company's character in its deliberations, is set to rule in late autumn or early winter. Not only Vermont's Governor and Attorney General seem determined to fight on, but so does the grassroots environmental resistance.

To paraphrase U.S. Representative Ed Markey (D-MA), recently elected to the U.S. Senate, Franz Kafka is spinning so fast in his grave, he should be hooked up to a turbo-generator and connected to the electric grid!