The Law and Nuclear Power

At this cross-roads in the history of nuclear power, most of us agree it is time to commence a probing re-examination of the map of nuclear promises and dangers. From a legal perspective, two features of our nuclear system seem especially worthy of public attention in light of the sordid events at Harrisburg.

First, and most alarming, is the Price Anderson Act's nuclear power plant liability ceiling of $500 million. This was foisted on us in the 1950s when the public knew next to nothing about the dangers of nuclear power. Since $500 million would never come close to paying for the rupturing and defilement of a region caused by a nuclear exodus of over a million people, the act makes a shambles of our commitment to the principle of just compensation for deprivations of life and property.

The Price Anderson Act undermines the safeguards that a regime of full liability is intended to create. The prospect of liability builds into our conduct a salutary vigilance and solicitousness roughly commensurate to the perceived costs of a lack of vigilance. Under the influence of exaggerated claims of nuclear safety we dismantled the system of liability in precisely that technological sector where the utmost vigilance is needed.

Nuclear power plants have been operating in a make-believe world, where the real costs of the risks (eg. relocation and personal injury costs) were never given full weight, for the corporation would never have to pay in full. Is it any surprise that a generation of corporate scientists have snuggled into the comfortable illusion of total safety when Congress long ago took away the economic significance of the dangers that nuclear critics have been pronouncing?

Unfortunately, the history of Congressional neglect, of public rights toward the nuclear power industry has been exacerbated by the Supreme Court and the Nuclear Regulatory Commission. Writing for the majority in Vermont Yankee Nuclear Power v. Natural Resources Defence Council (1978), Justice Rehnquist held that community and environmental representatives had no right to question either private industry spokesmen or agency officials about the quality and meaning of their data and findings at NRC licensing hearings. Rehnquist rode roughshod over the public, turning the administrative hearing procedure into an empty exercise where the hallmark of due process, the right to question adverse parties, was insensitively and rashly dispensed with.

The words of Justice Bazelon's Court of Appeals opinion in the same case, though reversed by the Supreme Court, now resonate with a special prescience: "To the extent that uncertainties necessarily underlie predictions of this importance on the frontiers of science and technology, there is a concomitant necessity to confront and explore fully the depth of such uncertainties." The Supreme Court thought otherwise and gagged the public.

We have cause to worry. Many of our nuclear power plants were designed and constructed by corporate decision makers who knew they didn't have to give full weight to risks of damage in excess of $500 million. Many nuclear power plant licenses were approved at hearings which lacked robust and vigorous inquiry.

By exempting the nuclear power industry from the salutary effects of full liability, by denying the American public its rights to just compensation, and by countenancing hearings which wouldn't pass muster in a county courthouse, Congress and the Supreme Court are degrading and endangering the public's rights to safety and participation.

William August is a second-year student at Harvard Law School.

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