PPaaccee EEnnvviirroonnmmeennttaall LLaaww RReevviieeww Volume 30 Article 5 Issue 1 Fall 2012 September 2012 TThhee CChhaannggiinngg PPeerrssppeeccttiivveess ooff UU..SS aanndd JJaappaanneessee NNuucclleeaarr EEnneerrggyy PPoolliicciieess iinn tthhee AAfftteerrmmaatthh ooff tthhee FFuukkuusshhiimmaa DDaaiiiicchhii DDiissaasstteerr Daniel A. Dorfman Pace University School of Law Follow this and additional works at: https://digitalcommons.pace.edu/pelr RReeccoommmmeennddeedd CCiittaattiioonn Daniel A. Dorfman, The Changing Perspectives of U.S and Japanese Nuclear Energy Policies in the Aftermath of the Fukushima Daiichi Disaster, 30 Pace Envtl. L. Rev. 255 (2012) Available at: https://digitalcommons.pace.edu/pelr/vol30/iss1/5 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Environmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. COMMENT The Changing Perspectives of U.S and Japanese Nuclear Energy Policies in the Aftermath of the Fukushima Daiichi Disaster DANIEL A. DORFMAN* I. INTRODUCTION: A TREMOR At 2:46 PM, a tremor strikes off the coast of Honshu Island.1 The 9.0 magnitude earthquake tears the earth apart at its seams, and shockwaves trigger an automatic shutdown of eleven of Japan’s nuclear power reactors.2 Although warned in 2008 that a tremor could occur in the region, it is now too late.3 The quake quickly dismantles its first obstacle, the national electricity grid.4 * Student, Pace Law School. Thank you to Nicholas Goldstein and Adam Weiss for their helpful edits and guidance throughout the writing process. Thank you to Jay Dorfman, Rhonda Herlich, William Frish, Brittany Dorfman, Jennifer Frish, David Frish, Brad Lieberman, Nicholas Switach, Lynley Jane Reilly, Hamutal Ginsburg, and Elliot Weiss for their inspiration and support. 1. Magnitude 9.0 – Near the East Coast of Honshu, Japan: March 11, 2011, U.S. GEOLOGICAL SURVEY, http://earthquake.usgs.gov/earthquakes/recenteqsww/ Quakes/usc0001xgp.php (last visited Sept. 27, 2012); Deadly Earthquake is Strongest in Japan's History, ACCUWEATHER.COM (Mar. 11, 2011, 9:00 AM), http://www.accuweather.com/es/weather-news/deadly-earthquake-is-strongest/ 46859. 2. Josef Oehmen, Fukushima Nuclear Accident – A Simple and Accurate Explanation, ENERGY COLLECTIVE (Mar. 15, 2011), http://theenergyc ollective.com/node/53461; Japan Earthquake: Evacuations Ordered as Fears Grow of Radiation Leak at Nuclear Plant, NEWS.COM.AU (Mar. 12, 2011, 11:43 PM), http://www.news.com.au/world-old/japan-earthquake-evacuations-ordered- as-fears-grow-of-radiation-leak-at-nuclear-plant/story-e6frfkyi-1226020473244. 3. AFP, IAEA Warned Japan Over Nuclear Quake Risk: WikiLeaks, TRIBUNE (Mar. 17, 2011), http://tribune.com.pk/story/133824/iaea-warned-japan-over- nuclear-quake-risk/. 4. Timeline: Japan Power Plant Crisis, BBC (Mar. 13 2011, 4:29 PM), http://www.bbc.co.uk/news/science-environment-12722719. 255 1 256 PACE ENVIRONMENTAL LAW REVIEW [Vol. 30 At 3:27 PM, the first tsunami slams up against Fukushima’s massive walls.5 Tokyo Electric Power Company notifies government officials, and at 7:30 PM Prime Minister Naoto Kan declares a nuclear emergency status.6 Officials reassure the public this is standard procedure and no radioactive material has been detected.7 Then the final strike—a forty-eight foot wave.8 It engulfs the facility, floods the basement, and disables the emergency diesel generators.9 Over the new few days, a three kilometer exclusion zone is established around the power plant and people within a ten kilometer radius zone are advised to stay indoors.10 The United Kingdom, France, and Italy advise their nationals in Tokyo to consider leaving in response to fears of spreading radioactive contamination.11 What looks like a scene from a horror movie is now a harrowing reality. The disaster ranks as the second biggest nuclear accident ever—second only to Chernobyl.12 Many predict the area will not be habitable for decades.13 5. TEPCO Details Tsunami Damage / Waves That Hit Fukushima Plant Exceeded Firm's Worst-Case Projections, DAILY YOMIURI, Apr. 11, 2011, http://www.yomiuri.co.jp/dy/national/T110410003477.htm. 6. Timeline: Japan Power Plant Crisis, supra note 4. 7. Id.; AFP, supra note 3 (ranked only a four out of ten on the International Nuclear Event Scale, the Japanese Atomic Energy Agency classified the event as an “accident with local consequences”). 8. Fukushima N-Plant Hit by Giant Waves as High as 48 Feet, ECON. TIMES, Apr. 10, 2011, 12:37 PM, http://articles.economictimes.indiatimes.com/2011-04- 10/news/29403378_1_power-plant-reactors-highly-radioactive-water. 9. Timeline: Japan Power Plant Crisis, supra note 4; Fukushima Radiation Sizzling at 10 Sieverts in Flooded Basement of Unit 1, JAPAN TIMES ONLINE, June 29, 2012, http://www.japantimes.co.jp/text/nn20120629a7.html. 10. Timeline: Japan Power Plant Crisis, supra note 4. 11. Justin McCurry & Robert Booth, Britain Joins Countries Urging Their Citizens to Leave Tokyo, THEGUARDIAN, Mar. 16, 2011, 5:49 PM, http://ww w.guardian.co.uk/world/2011/mar/16/britain-urging-citizens-leave-tokyo. 12. How Does Fukushima Differ From Chernobyl?, BBC (Dec. 16, 2011, 5:11 AM), http://www.bbc.co.uk/news/world-asia-pacific-13050228 (noting that while Fukushima ranks a distant second to Chernobyl in that the Japanese government estimates the radiation released at Fukushima was one-tenth the radiation released from Chernobyl, Fukushima is arguably far more complicated than Chernobyl because six reactors were involved. Both accidents are the only level seven accidents in history). 13. Martin Fackler, Large Zone Near Japanese Reactors to Be Off Limits, N.Y. TIMES, Aug. 21, 2011, http://www.nytimes.com/2011/08/22/world/asia/ 22japan.html?_r=0. https://digitalcommons.pace.edu/pelr/vol30/iss1/5 2 2012] CHANGING NUCLEAR ENERGY POLICIES 257 In the aftermath, questions emerge: Why? How? Could it happen here? Both ends of the political spectrum voice opinions and sides are taken. Some countries, like Germany, jump ship, abandoning all plans for a nuclear future. Others, like the United States (U.S.), experience a more complicated dynamic— the populace frightened, agencies unshaken, and a President eager to push forward. Still some, more cautious, feel that the issue is somehow less simple, not black or white, but a balancing act: the future of non-renewable resources in a scientifically advancing world versus the potential risks of harnessing the powerful unknown. The Fukushima disaster, while devastating, offers profound insight into the world of nuclear energy law around the globe, and may promulgate a foundational shift on the international perspective of nuclear energy into the future. This Comment examines the aftermath of the Fukushima Daiichi nuclear disaster, and its impact on American and Japanese nuclear energy policies. The second section of this Comment provides a brief history of the United States’ nuclear energy policy, describes U.S. nuclear policy in response to the Fukushima disaster, and offers recommendations for U.S. nuclear policy in the future. Section three provides a brief history of Japanese nuclear energy policy, describes Japanese nuclear policy in the wake of Fukushima, and offers recommendations for Japanese nuclear policy in the future. Section four concludes with a synopsis of American and Japanese nuclear energy policies and makes a prediction for these countries’ policies in the future. II. UNITED STATES NUCLEAR ENERGY POLICY A. The Atomic Age The history of nuclear energy in the U.S. began with a more purposeful disaster. In August 1945, television sets and radios blared news that the Japanese cities of Hiroshima and Nagasaki were flattened by a new kind of weapon—one that leaves cities devastated and ends wars without ground troops.14 Newspapers 14. J. SAMUEL WALKER & THOMAS R. WELLOCK, U.S. NUCLEAR REGULATORY COMM’N, A SHORT HISTORY OF NUCLEAR REGULATION 1946-2009 1 (2010), 3 258 PACE ENVIRONMENTAL LAW REVIEW [Vol. 30 across the country declared our ascendance into the “atomic age.”15 Shortly after World War II ended, many scientists, scholars, and politicians alike suggested that the technology used to cripple Japan could be used for more peaceful purposes.16 Alvin M. Weinberg, a nuclear physicist, told the U.S. Senate’s Special Committee on Atomic Energy that “[a]tomic power can cure as well as kill. It can fertilize and enrich a region as well as devastate it. It can widen man’s horizons as well as force him back into the cave.”17 While scientists and scholars imagined a world with atomic powered airplanes and personal nuclear heating units for the home, the U.S. government remained hesitant to relinquish absolute control of this new and powerful technology before first testing to see what it could do for the military.18 As a result, six months after the bombing of Hiroshima and Nagasaki, President Harry Truman signed the Atomic Energy Act of 1946 (also known as the MacMahon Act), the first U.S. law outlaying precisely how the federal government would control this new and powerful resource.19 While the Act did not allow for the private use of atomic energy, it did rule that nuclear weapon development and power management would be governed by the newly created five-member Atomic Energy Commission (AEC), a non-military agency.20 Because the Atomic Energy Act of 1946 is the preeminent law on the United States’ stance on nuclear energy, an enormous degree of insight can be garnered from its diction and tone. This analysis is informative for two key reasons. First, the Act is the foundation of U.S. nuclear energy policy, and therefore, plays an important role in the way the U.S. views nuclear energy today. Second, the Act provides insight into the early beliefs and available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures/ br0175/br0175.pdf. 15. Id. 16. Id. 17. Id. 18. Id. 19. Id. at 1-2; see also Atomic Energy Act 1946, Pub. L. No. 79-585, 60 Stat. 755 (1946). 20. Atomic Energy Act 1946, Pub. L. No. 79-585, 2 (1946). https://digitalcommons.pace.edu/pelr/vol30/iss1/5 4 2012] CHANGING NUCLEAR ENERGY POLICIES 259 stigmas regarding nuclear energy, many of which are still prevalent today. The strongest underlying message in the Act is the idea that nuclear power stemmed from U.S. military secrecy, and should thus continue to be kept the military’s secret weapon.21 The Act’s introduction supports this message with statements such as, “[t]he significance of the atomic bomb for military purposes is evident” and “[t]he effect of the use of atomic energy for civilian purposes upon the social, economic, and political structures of today cannot now be determined.”22 Setting a tone of secrecy, the Act goes on to say, “[i]t shall be the policy of the Commission to control the dissemination of restricted data in such a manner as to assure the common defense and security.”23 As a result, the 1946 law did not allow for the commercial use of atomic energy; it did, however, allow for “private research” in order to “encourage maximum scientific progress.”24 The federal government seemed uncomfortable relinquishing its monopoly over nuclear power until it passed The Atomic Energy Act of 1954.25 This act proudly sanctioned privatized commercial nuclear power use for the first time.26 Over the eight years between the two acts, projections for future energy requirements fueled a desire to master the new technology. Even more important, however, was the fear that the United States would fall behind other countries, namely Britain and the U.S.S.R, in developing nuclear technologies.27 21. See id.; see also Oscar M. Ruebhausen & Robert B. von Mehren, The Atomic Energy Act and the Private Production of Atomic Power, 66 HARV. L. REV. 1450 (1953). In fact, many were convinced that the United States’ dropping of atomic bombs in Hiroshima and Nagasaki was evidence of the United States’ military invincibility. Id. 22. Atomic Energy Act 1946, Pub. L. No. 79-585, 1 (1946). 23. Id. 24. Id. 25. See Atomic Energy Act 1954, Pub. L. No. 83-703, 68 Stat. 919 (1954) (codified as amended at 42 U.S.C. §§ 2011-2297 (2006)); see also Todd Garvey, State Authority to Regulate Nuclear Power: Federal Preemption Under the Atomic Energy Act, CONG. RES. SERV. 1 (2011), available at https://www.hsdl.org/ ?view&did=718958. 26. Id. 27. WALKER & WELLOCK, supra note 14, at 3. 5 260 PACE ENVIRONMENTAL LAW REVIEW [Vol. 30 The 1954 law, considered to be “the fundamental U.S. law on both the civilian and the military uses of nuclear materials,”28 articulated the first laws for the development, regulation, and disposal of nuclear materials and facilities.29 This fundamental shift in policy is perhaps best encapsulated by the first line of the Act: “Atomic energy is capable of application for peaceful as well as for military purposes.”30 In a 1953 speech, Thomas E. Murray, the AEC Commissioner, predicted a “nuclear power race” and warned that the “stakes are high.”31 A growing number of high- ranking government officials echoed Murray’s sentiment and believed that a reluctance to allow privatization of nuclear technology would lead to the United States’ surrender in the fight for global scientific dominance.32 As a result, the new act championed a new missive: to “encourage widespread participation in the development and utilization of atomic energy for peaceful purposes.”33 With a larger degree of control now in the hands of the public, however, the Act also instructed the AEC to draft regulations designed to protect communities from the potentially devastating effects of nuclear radiation.34 This new twin aim was somewhat contradictory, and as commercial demand for nuclear power grew, many felt that the AEC favored its promotional duties over protection of the public.35 The dual responsibilities of both developing and regulating nuclear technologies led many to question the AEC’s decision-making process.36 As one critic eloquently phrased the problem, it was like “letting the fox guard the henhouse.”37 28. Governing Legislation: Atomic Energy Act of 1954, as Amended in NUREG-0980, U.S. NUCLEAR REGULATORY COMM’N, http://www.nrc.gov/about- nrc/governing-laws.html (last updated Sept. 25, 2012). 29. See 42 U.S.C. §§ 2011-2296 (1976). 30. Id. § 2011. 31. WALKER & WELLOCK, supra note 14, at 2. 32. Id. 33. 42 U.S.C. § 2013(d). 34. See id. § 2210(h). 35. WALKER & WELLOCK, supra note 14, at 4. 36. Id. at 48. 37. Id. at 48-49; see also Justin Elliott, Ex-Regulator Flacking for Pro-Nuke Lobby, SALON (Mar. 17, 2011, 08:15 PM), http://www.salon.com/2011/03/18/ jeff_merrifield_nuclear_energy_institute/ (in 2007, candidate Barack Obama https://digitalcommons.pace.edu/pelr/vol30/iss1/5 6 2012] CHANGING NUCLEAR ENERGY POLICIES 261 The AEC’s next task was to craft regulations and devise licensing procedures that would be strict enough to prevent accidents, but flexible enough to encourage new discoveries from the private sector.38 Among the most important of these procedures were standards for radiation protection, methods for storing nuclear waste, qualifications for plant operators, and perhaps most critically, procedures for issuing licenses.39 The Act established a two-part procedure for granting licenses.40 First, the AEC would analyze a safety analysis submitted by the plant owner and, if it were deemed satisfactory, would issue a construction permit.41 Second, after the construction of the facility was completed and declared safe, the plant would be granted a license to acquire fuel and begin operation.42 It is worth noting, however, that the AEC did not require a plant owner to submit finalized data or more specialized information on the safety of a facility before receiving a permit.43 The AEC was ready to grant a permit to a facility so long as it had “reasonable assurance” that the plant could operate “without undue risk to the health and safety of the public.”44 The benefit of this system was to allow plant owners to begin the lengthy process of construction while the AEC simultaneously analyzed any remaining safety risks.45 The fact that private development,46 and perhaps other countries, were already rapidly developing nuclear technologies, likely only increased pressure on the AEC to implement nuclear power. Soon, however, it became clear that the AEC’s licensing process was more focused on propelling the private nuclear industry than protecting the public made a similar comparison, saying that the five-member NRC is a “captive of the industries that it regulates.”). 38. WALKER & WELLOCK, supra note 14, at 8-9. 39. Id. at 9. 40. Id.; see also 42 U.S.C. §§ 2011-2296 (1976). 41. See generally WALKER & WELLOCK, supra note 14, at 9; 42 U.S.C. §§ 2011- 2296 (1976). 42. Id. 43. WALKER & WELLOCK, supra note 14, at 10. 44. Id. 45. Id. 46. Id. 7 262 PACE ENVIRONMENTAL LAW REVIEW [Vol. 30 from potential safety hazards.47 Outstanding safety issues could be concealed in exchange for promises of big returns on privatized plants.48 Eventually, in 1973, due to growing concerns about the AEC’s ability to regulate itself and in order to expedite the licensing process, President Nixon asked Congress to create a new agency with a primary focus on licensing nuclear plants.49 After many years of deliberation, Congress passed the Energy Reorganization Act of 1974, which abolished the AEC.50 In its place, the Act established the U.S. Energy Research and Development Administration (ERDA) and the U.S. Nuclear Regulatory Commission (NRC).51 While the NRC inherited many of the issues that plagued the AEC, it originally succeeded in prioritizing issues of safety over promotional concerns.52 Other issues, however, began to emerge. The U.S. had become the leading supplier of nuclear fuel for the production of nuclear power overseas.53 The NRC, therefore, had a duty to prevent nuclear fuel and nuclear technologies from falling into the hands of those who might use this new power against the U.S.54 Perhaps most important, though, was the need to address the issue of nuclear safety inside the United States. B. Safety Risks and Fears Opponents of nuclear power believed that nuclear power posed more safety risks than it was worth, in part because nuclear power had not become a financial and technological 47. See id. 48. See STEPHANIE COOKE, IN MORTAL HANDS: A CAUTIONARY HISTORY OF THE NUCLEAR AGE 252 (2009). 49. Id. 50. See Energy Reorganization Act of 1974, Pub. L. No. 93-438, § 104(a), 88 Stat. 1233, 1237 (1974), available at http://science.energy.gov/~/media/bes/pdf/ nureg_0980_v1_no7_june2005.pdf. 51. Id. The Act transferred the AEC's promotional duties to the ERDA. Id. The Act transferred its regulatory and licensing responsibilities to the NRC. Id. § 201(f). 52. WALKER & WELLOCK, supra note 14, at 51. 53. Id. at 52. 54. Id. https://digitalcommons.pace.edu/pelr/vol30/iss1/5 8 2012] CHANGING NUCLEAR ENERGY POLICIES 263 alternative to fossil fuel as quickly as originally promised.55 Shortly after the creation of the NRC, the “Reactor Safety Study” was released.56 It applied new methodologies and complex analysis to determine the likelihood of a serious nuclear accident.57 In 1975, the report concluded that a nuclear emergency was unlikely, and that even if an emergency did occur, the damage would be minimal.58 Soon, however, theories became reality. On March 28, 1979, the greatest single event to shape nuclear energy policy occurred near Middletown, Pennsylvania.59 Half the result of machine malfunction, and half due to human error, a stuck-open pressure relief valve allowed large volumes of reactor coolant to escape from the power core at Three Mile Island.60 Making matters worse, the control panel did not properly convey to the operators what was happening inside the reactor.61 As a result, the operators failed to recognize the signs of a potential disaster.62 The accident resulted in the release of approximately 2.5 million curies63 of radioactive gas, and approximately fifteen curies of radioiodines.64 Over a period of five days, 144,000 people evacuated the surrounding area.65 55. JOHN BYRNE & STEVEN M. HOFFMAN, GOVERNING THE ATOM: THE POLITICS OF RISK 145-49 (1996). 56. U.S. NUCLEAR REGULATORY COMM’N, REACTOR SAFETY STUDY (1975), available at http://www.osti.gov/energycitations/servlets/purl/7134131-wKhXcG/ 7134131.pdf. 57. See id. at 1. 58. Id. 59. See Backgrounder on the Three Mile Island Accident, U.S. NUCLEAR REGULATORY COMM’N, http://www.nrc.gov/reading-rm/doc-collections/factsheets/3 mile-isle.html (last updated Mar. 15, 2011) (explaining that while the accident did more to shape nuclear energy policy than any other single event, it led to no deaths or injuries). 60. Id. 61. Id. 62. Id. 63. A curie is a unit of radioactivity. For a point of reference, the amount of curies produced by a radiotherapy machine is roughly 1,000 curies, and can cause serious health effects with only a few minutes of close-range, un-shielded exposure. Curies: Radiation Protection, U.S. EPA, http://www.epa.gov/radiation/ understand/curies.html (last updated June 29, 2012). 64. MITCHELL ROGOVIN & GEORGE T. FRAMPTON, JR., 1 THREE MILE ISLAND: A REPORT TO THE COMMISSIONERS AND TO THE PUBLIC 153 (1980), available at http://www.threemileisland.org/downloads/354.pdf. 65. WALKER & WELLOCK, supra note 14, at 55. 9