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Volume 40, Issue 8 — August 2010

Articles

Solving the U.S. Nuclear Waste Dilemma

by Richard B. Stewart

I. Introduction

Current U.S. nuclear waste law and policy is bankrupt. The 1982 Nuclear Waste Policy Act (NWPA) set a 1998 deadline for opening a deep geologic repository to receive spent nuclear fuel (SNF) and high-level waste (HLW) from reprocessing. In 1987, Congress amended the Act to designate Yucca Mountain in Nevada as the only potential site, and severely restricted the development of any federal facility for consolidated storage of nuclear waste. Nevada's unrelenting opposition to the Yucca repository eventually succeeded with the election of Barack Obama as President. The Obama Administration has withdrawn funding for Yucca and withdrawn its application for licensing by the NRC. The bankruptcy of the highly prescriptive and preemptive NWPA leaves large volumes of defense nuclear wastes and mounting inventories of spent nuclear fuel without a destination pathway. The failure of Yucca contrasts with the success of the Waste Isolation Pilot Project (WIPP) repository in New Mexico, which was developed entirely outside of the rigid NWPA framework. WIPP, the only operating deep geologic nuclear waste repository in the world, emerged over a twentyyear period through a largely unplanned process of contestation and negotiation between the federal government and the State of New Mexico. WIPP opened in 1998 and has been receiving substantial volumes of certain defense wastes from Department of Energy (DOE) facilities.

At the same time as it cancelled Yucca, the Obama Administration has proposed massive government assistance for the construction of large numbers of new nuclear power plants. The failure of the federal government to honor its promises to dispose of spent nuclear fuel, which continues to accumulate at existing power plants, is a potentially potent political weapon for those who oppose expansion of nuclear power. Obama is looking to the distinguished Blue Ribbon Commission on America's nuclear future recently appointed by Energy Secretary Chu to solve his nuclear dilemma.

The tale of the two repositories--failed Yucca and successful WIPP--has important lessons for future policy. The development of one or more repositories for the wastes once destined for Yucca, as well as arrangements for interim consolidated storage, must be based on a step-by-step approach to decisionmaking that includes the informed assent of the public and of host localities rather than unilateral federal fiat.

Rethinking the ESA to Reflect Human Dominion Over Nature

by Katrina Miriam Wyman

My basic critique of the Endangered Species Act (the ESA) is that it is built on an untenable premise that there is something natural--whether called species, ecosystems, or biodiversity--out there that we can save from humanity's reach. The Act's problems ultimately are rooted in a denial of the extent of human domination of nature and a failure to recognize our limited ability to halt and reverse the decline of species, ecosystems, and biodiversity given our pervasive impact on the planet. The ESA's mixed track record in helping species, the overburdened listing process, the poor targeting of the limited public funding for species recovery, and the debate about how much we are spending on species all reflect the triumph of human interests over the interests of species. The central contemporary challenge in protecting biodiversity is recognizing the vast scale of human impacts and the consequent need to prioritize our protection efforts given limited resources.

Today, policy-oriented scientists and legal academics who acknowledge our impact on the earth are discussing two main approaches for managing biodiversity: the ecosystem services paradigm and the biological hotspots paradigm. Both of these approaches offer ways of deciding which aspects of nature to protect, given the pervasiveness of human impacts on the earth and the limited funds available to safeguard biodiversity.

Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future

by Richard J. Lazarus

During the next four years, the new President, Barack Obama, and the new Congress are expected to join together in the first serious effort in the United States to enact sweeping national legislation to address global climate change. If they are successful, federal climate change legislation will be the first major environmental protection law in almost two decades, dating back to the Clean Air Act Amendments of 1990. Given the enormity of the undertaking necessary to address climate change, the passage of federal climate change legislation will rival in historic significance one of the nation's greatest lawmaking moments--the passage in the 1970s of a series of extraordinarily demanding and sweeping pollution control and natural resource conservation laws. The inherent problem with such lawmaking moments, however, is just that: they are moments. What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so in environmental law.

This Article's central thesis is that making it easy for subsequent lawmakers to unravel, undermine, or even formally change existing law is not always desirable, and it is certainly not an essential feature of our democratic lawmaking system. Lawmakers should instead be understood as possessing the authority to anticipate and respond in the first instance to the dynamic nature of lawmaking and its related challenges. To be sure, current lawmakers may well be making it more difficult for future legislators and agency officials to substitute their views of sound policy for the judgment of past lawmakers. Current lawmakers would not be doing so to enrich themselves at the expense of future generations. Instead, given the potentially catastrophic consequences of failing to reduce greenhouse gas emissions over the longer term, they would be acting for the very different purpose of safeguarding the ability of future generations, including their elected representatives, to have far greater control over their own lives. This is an especially legitimate basis for imposing lawmaking restraints notwithstanding their undemocratic effects.

Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAS)

by Judith Resnik, Joshua Civin, and Joseph Frueh

I. Changing the Contours of American Law and of Federalism

During the last decades, domestic policies in the United States on global warming have been shaped through iterative interactions among transnational lawmakers, the national government, and hundreds of subnational entities. Exemplary are the activities of the U.S. Conference of Mayors (USCM), which crafted a Climate Protection Agreement endorsed by some 800 localities. As a result, although the United States has not ratified the Kyoto Protocol on climate change, localities throughout the country have affiliated with the principles that Kyoto embodies.

This essay, a much-condensed version of a longer article and a book chapter, places translocal action on climate change in the contexts of two more general phenomena-- subnational importation of "foreign" law and the impact of translocal organizations on American federalism. Entities such as USCM resemble in some respects nongovernmental organizations (NGOs) but gain their political capital from the fact that their members are government officials or employees such as mayors, attorneys general, governors, or legislators. To distinguish such entities from governmental bodies and private sector groups, we offer the term "translocal organizations of government actors," with the acronym "TOGAs."

The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States

by Sara C. Bronin

In 1971, The Quiet Revolution in Land Use Control inspired numerous scholarly debates about the states' role in land use regulation. In that book, Fred Bosselman and David Callies recognized that localities have long borrowed states' police power to regulate land use. They nonetheless argued that certain land use issues, such as those involving the environment, transcended local government boundaries and competencies. A quiet revolution, the authors claimed, should occur to shift governmental authority from local governments to entities that could more adequately address "extralocal" issues. They turned not to regional authorities or the federal government, but to the states, arguing that states should take back their police power to regulate extralocal issues in a manner that maintained two core values of the quiet revolution: the preservation of the existing land use system and the respect for local autonomy.

Thirty-seven years later, their anticipated transformation has not yet occurred. Carol Rose has noted that since the quiet revolution was first heralded, state and regional governments have not limited--and in fact, may have expanded-- local discretion with respect to land use decisionmaking. In 2002, David Callies himself acknowledged that localities play an increasingly important role in, among other areas, environmental protection.

It is time, however, to revive the call of the quiet revolution for states to become more involved in regulating land use, particularly in light of growing evidence of the negative externalities of conventional construction. As written and enforced, "traditional" local land use laws such as zoning ordinances and design controls hinder efforts to build green. This Article examines this conflict and suggests reforms to our land use regulatory system that would facilitate sustainable design.

Comment(s)

NRDC's Perspective on the Nuclear Waste Dilemma

by Thomas B. Cochran & Geoffrey H. Fettus

While we agree with Richard B. Stewart, in his Article, Solving the U.S. Nuclear Waste Dilemma, on some crucial issues--most notably that the national process for developing a geologic repository for disposal nuclear waste is currently a mess--we have a substantially different perspective on the reasons for the mess and the path forward.

I. Background on Geologic Repositories

As Stewart describes, efforts to geologically isolate high-level nuclear waste began more than forty years ago. The National Academy of Sciences in 1957 reported that a number of geologic disposal alternatives were possible, but indicated a preference for disposal in salt. In 1967, the Atomic Energy Commission (AEC) proposed Project Salt Vault, a plan to develop a geologic repository in the Carey salt mine at Lyons, Kansas. This plan was abandoned by the AEC in the early 1970s after the Kansas Geological Survey mounted a strong campaign against the site, pointing out that the area had been subjected to extensive exploratory drilling for oil and gas deposits, and noting that an adjacent salt mine could not account for the loss of a large volume of water used during solution mining of the salt.

The NWPA and the Realities of Our Current Situation

by David R. Hill

Richard B. Stewart's article, U.S. Nuclear Waste Law and Policy: Fixing a Bankrupt System, provides a thoughtful discussion of some of the complex scientific, policy and legal issues involved with nuclear waste generation and disposal. It is packed with useful facts, information, and history, and just the recitation of the history and circumstances of nuclear waste disposal issues and decisions in a readable, understandable form makes a useful contribution.

Stewart argues that the current system of nuclear waste law and po licy, primarily as established by the Nuclear Waste Policy Act of 1982 and amendments to that Act (together, the NWPA) is bankrupt. There are two ways of reading this thesis. The first is that the system is so broken and fraught with problems that it is essentially worthless, and therefore should be discarded (or "liquidated," to use bankruptcy terminology). The second is that while it may have significant problems and difficulties, the system is worth salvaging, perhaps with some elements put aside and others modified, but with many of the basic viable elements retained and moving forward (in bankruptcy terms, a "reorganization"). If Stewart means the former, then I strongly disagree; but if he means the latter, as I believe he does, then I agree with him.

This is not to say that I believe that the NWPA's approach and the process by which the decisions embodied in the NWPA were made represent the best possible approach, or perhaps even a particularly good one, were we only now starting to generate nuclear waste and develop a scheme for its disposal. But of course that is not our current situation. Much as it might be nice to sit quietly in our offices and libraries and think creatively for a few more decades about what to do with spent nuclear fuel (SNF) and high-level radioactive waste (HLW) without regard for the consequences of this delay, I believe that such a course of action would be extraordinarily expensive and complicated, with no prospect at present for producing any better results than those brought about by the NWPA.

NWPA Is Still a Viable Option for Solving the Nuclear Waste Dilemma

by Daniel T. Swanson

In his article, Solving the U.S. Nuclear Waste Dilemma, Richard B. Stewart analyzes the history of the failure of the U.S. to manage the recycling and disposal of spent nuclear fuel (SNF) and high-level radioactive waste (HLW) from the nuclear fuel cycle associated with the production of electricity. He then develops some insightful suggestions to rectify the problem, recognizing that our current government policy is not moving the country toward a viable solution for disposal of SNF and HLW.

Stewart is correct in concluding that the current arrangement of onsite storage of civilian nuclear waste provides a relatively safe near-term option. However, there are very real security considerations attendant to indefinite storage of waste at locations never selected or constructed to store waste, with the potential for terrorists to target well-known quantities of low-level radioactive waste (LLRW) and HLW at reactor sites. As politicians become complacent with the lack of serious security incidents resulting from their failure to take decisive action to find disposal solutions, it becomes easier for them to ignore this volatile issue.

Comment on <MI>Rethinking the ESA to Reflect Human Dominion Over Nature<D>

by Wm. Robert Irvin

Above my desk at work, I keep a button that reads "Save the Ugly Animals Too." It is a reminder that more than just the charismatic megafauna, such as wolves and bald eagles and grizzly bears and whales, are worth conserving. From the standpoint of protecting the web of life, including the ecosystems that benefit us all by providing services such as water purification, flood control, nurseries for our fish and shellfish, and opportunities for outdoor recreation, it is often as important to conserve the lesser known species, the cogs and wheels that drive those ecosystems.

The commitment to conserve threatened and endangered species, and the ecosystems upon which they depend, is the grand promise of the Endangered Species Act (ESA). Enacted in 1973, the ESA has done a remarkable job of saving from extinction charismatic and "ugly animals" alike. In doing so, it has engendered enormous controversy at times, such as the debate in the mid-1970's over the snail darter and the Tellico Dam, the battles in the 1980's and early 1990's over the northern spotted owl and logging of old growth forests in the Pacific Northwest, and the current flare-up over the Delta smelt and water for California's Central Valley farmers. Despite these controversies, the ESA has endured, testifying both to the value Americans place on preventing extinction and the flexibility of the ESA.

Above All, Try <MI>Something<D>: Two Small Steps Forward for Endangered Species

by Richard P. Johnson

In a recent essay, Katrina Wyman suggests four substantial reforms aimed at improving implementation of the Endangered Species Act (ESA) and furthering species recovery: (1) decoupling listing decisions from permanent species protection;3 (2) requiring the Fish & Wildlife Service (FWS) to implement cost-effective species protection measures;5 (3) prioritizing funding for biological hotspots;6 and (4) establishing additional protected areas. Although Wyman does not specifically frame it this way, these four proposals amount to a grand legislative bargain: ESA critics would get a regulatory mechanism that specifically requires the FWS to take costs into account, while environmentalists would get more funding for species recovery and more land, both federal and nonfederal, on which development is restricted or prohibited.

These are bold proposals. Wyman correctly perceives that the most likely way forward from the current sterile debates over the ESA will involve some form of painful legislative compromise. However, her proposals reach so far that they stand little chance of immediate enactment. Two more modest types of compromise focused on federal lands may offer greater prospects for near-term progress.