Academic journal article Vanderbilt Journal of Transnational Law

Nuclear Power, Risk, and Retroactivity

Academic journal article Vanderbilt Journal of Transnational Law

Nuclear Power, Risk, and Retroactivity

Article excerpt

ABSTRACT

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic "dread risk" (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving worldwide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Article sketches the U.S. regulatory response to Fukushima. From a positive perspective, this story provides a useful case study for understanding administrative agencies' responses to disasters and the concomitant role of risk perception. But this story also invites using an administrative law lens to take a fresh look at the issues of retroactivity and stakeholder engagement. This Article concludes by identifying insights as well as research needs for both regulatory responses to disaster and classic administrative law.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. RISK PERCEPTION AND NUCLEAR RISK
     REGULATION
     A. Risk Perception and Nuclear Power
     B. The Nuclear Regulatory Scheme and
        the Backfitting Rule
III. THE REGULATORY RESPONSE TO FUKUSHIMA
 IV. RETROACTIVITY AND PRINCIPLES OF
     ADMINISTRATIVE LAW
     A. Retroactivity
     B. Principles of Administrative Law and
        Stakeholder Engagement
V. CONCLUSION

I. INTRODUCTION

The tragic 2011 Tohuku Earthquake and Tsunami in Japan presented a familiar scenario from a risk perception standpoint. The events combined a classic "dread risk" (radioactivity), a punctuating event (the Fukushima nuclear disaster), and resultant stigmatization (involving worldwide repercussions for nuclear power). (1) The Fukushima disaster revived memories of the Three Mile Island and Chernobyl disasters and provided a reminder of the global interconnectedness of nuclear power. In response, some nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. (2) In the United States, Fukushima coincided with increasing concerns about spent-fuel policy that threatened to dampen recent initiatives aimed at a nuclear resurgence. (3)

With much at stake for nuclear power, the Nuclear Regulatory Commission (NRC) quickly appointed a task force to review its regulations and make recommendations in light of lessons learned from Fukushima. (4) The resulting Near-Term Task Force (NTTF) Report concluded that continuing reactor operation would not "pose an imminent risk to public health and safety." (5) However, it also made a number of recommendations, many of which NRC has begun to implement. Some of the recommendations and resulting regulatory activity are detailed below. For now, the important point is that to carry out the NTTF recommendations, NRC issued a series of orders modifying existing nuclear power plant licenses. (6)

The prospect of modifying existing licenses--termed "backfitting"--raises a host of issues. First, backfitting is a form of retroactivity, which is disfavored throughout American law. To be sure, there are several types of retroactivity. (7) For example, suppose NRC were to adopt a rule requiring all existing operators to install emergency back-up electricity generation equipment. If NRC also imposed penalties for failing to have such equipment prior to the new rule's issuance, it would be imposing new sanctions on past conduct. This type of retroactivity is particularly problematic. (8) But if NRC merely required the equipment going forward, the rule would be only "secondarily]" retroactive in that it would upset operators' expectations by imposing new costs in connection with existing licenses. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.