...prior segment

Footnotes

2 Gofman, J.W., Radiation and Human Health (San Francisco: Sierra Club Books, 1981), 23.

3 One concept of the genetic mutation process put forward by the National Academy of Sciences in the 1972 BEIR Report (infra note 14) employed a line of nucleoproteins in a normal sequence something like this: AGT-AGT-AGT-AGT-AGT-AGT-AGT.... In this model the DNA code is read and transmitted in groups of three proteins. Consider what happens if the sequence is disturbed, such as when a speeding electron destroys one protein in the chain. The entire sequence is thrown off until two counterbalancing breaks occur that throw it back into correct order. Until then it is read: AG-TAG-TAG-TAG-TAG-TAG-TAG.... Suppose the AGT sequence was for brain cells, but the TAG sequence was for stomach muscles. You could get something pretty weird happening. It may have been from mutations such as these that all of us evolved. As a species, we arrived at our present form by selection of favorable mutations and elimination of unfavorable mutations, which is not to say it was a pleasant process for those individuals with the unfavorable mutations. The rate of genetic translocations in humans caused by ionizing radiation and estimated in the current the scientific literature ranges from 24 to 1,330 translocations per rad per million live births per generation. See Gofman, supra, note 2, at page 844. Gofman also observes that it could take on the order of 100 generations to eliminate each unfavorable mutation from the human genetic pool. Biostatistician Rosalie Bertell has therefore suggested that elevation of the background level of mutagens in combination with mutations which interfere with normal reproduction could result in sudden species extinction, which we could be powerless to counter. Bertell, R., No Immediate Danger (Summertown, Tenn: The Book Publishing Company, 1986), 44.

4 National Academy of Sciences, Risks Associated with Nuclear Power: A Critical Review of the Literature, Summary and Synthesis Chapter (Washington: Academy Press: 1979), at 148.

5 46 Federal Register 39573, 37579, col 1. (August 4, 1981).

6 "Fuel Cycle" refers to the mining and milling of fissionable ores, the fabrication of fuel, the fission of the fuel in reactors, the disposal of the effluents and waste, and the transportation, storage and handling processes that accompany each of these stages.

7 Nuclear Regulatory Commission, SECY-78-560 (1978), at 14. However, as a number of analysts have observed, the estimate of man-rems per RRY is fraught with controversy. See, e.g.: Gofman, Radiation and Human Health, supra note 2; and Bertell, R. Handbook for Estimating Health Effects from Exposure to Ionizing Radiation 2nd Ed. Revised (Toronto: Inst. of Concern for Public Health, 1986).

8 The NRC's 1976 coefficient of 135 cancer deaths per million person rem (NUREG-0002) lies toward the lower end of a range of estimates used by scientists of from 100 (United Nations Scientific Committee on the Effects of Atomic Radiation [UNSCEAR] Report, 1977) to 7,500 (Mancuso, T.E., Stewart, A., and Kneale, G., Radiation exposures of Hanford workers dying from cancer and other causes, Health Physics 33:369, 1977) cancer deaths per million person rem. This author prefers to rely on the full range of estimates appearing in the current scientific literature to express the potential for harm, although, admittedly, if error bands were assigned, the range might have to be expanded by another order of magnitude. Commonly applied values in the range of estimated cancer effects are:

From the lower end of the range to the top end of the range is a span of 2 orders of magnitude (100 times), which reflects considerable scientific uncertainty.

9 Nuclear Regulatory Commission, Final Generic Environmental Statement of the Use of Recycle Plutonium in Mixed Oxide Fuel in Light Water Reactors (GESMO), NUREG-0002 (1976). See too: 46 Fed. Reg. 15167. By "wastes," I mean to refer to all solid, liquid, and gaseous effluents placed into the environment by all commercial nuclear fuel cycle facilities in the United States.

10 These authorities were reviewed at length in the Honicker Petition for Emergency and Remedial Action on file with the Nuclear Regulatory Commission and published in book form as Honicker v. Hendrie: A Lawsuit to End Atomic Power (Summertown: Book Publishing Company, 1978). However, the staff of the Nuclear Regulatory Commission, responding to the Honicker petition, noted: "If the same assumptions used by the staff in treating long-lived radioactive trace metals were applied, the stable trace metals would remain in the biosphere forever, with calculated health effects approaching infinity. Clearly, such calculations have little meaning and only serve to obscure real problems in need of solution today." It is not my intention to exclude stable metals from consideration, but rather to focus this article on the radioactive component of the wastestream. I am, nonetheless, equally concerned with our cultural decision to bequeath many non-radioactive environmental hazards to future peoples.

11 See: Bates, A., Shutdown: Nuclear Power on Trial, 2d Ed. (Summertown: The Book Publishing Company, 1979). I would suggest that the figure could be as high as 1,500,000 deaths per century when uncertainties, not including catastrophic accidents, are taken into account. As of January, 1988, the U.S. had generated 3.5 quadrillion watt hours of nuclear electricity, the equivalent of 500 reference reactor years. There are 109 nuclear power plants presently licensed for commercial U.S. operation or undergoing power-up. My estimate is based on the operation of these facilities alone.

12 "What appears to be a solid wall of meticulously verified empirical bricks proves on closer inspection to be a facade of holes strung together with bits of mortar." Lovins, A. Cost-risk-benefit Assessments in Energy Policy, 45 George Washington Law Review S:911 (1977).

13 Nuclear Regulatory Commission, Office of General Counsel, SECY-79-180 (1980).

14 National Academy of Sciences, National Research Council, Committee on the Biological Effects of Ionizing Radiations (BEIR-I), The Effects on Populations of Exposure to Low Levels of Ionizing Radiation (Washington: Academy Press, 1972), citing McKusick, V.A., Mendelian Inheritance in Man (Baltimore: Johns Hopkins Press, 1971).

15 Id. at 56-58.

16 Bross, I.D.J., and N. Natarajan, Leukemia from low level radiation; identification of susceptible children. New England Journal of Medicine 287:107 (1972); Bross, I.D.J., and N. Natarajan, Genetic damage from diagnostic radiation. Journal of the American Medical Ass'n 237:22-2399 (1977); Bross, I.D.J., and N. Natarajan, Cumulative genetic damage in children exposed to preconception and intrauterine radiation. Investigative Radiology 15:1 (1980).

17 SECY-78-560 at 47.

18 Nuclear Regulatory Commission, Denial of Petition for Revoking Nuclear Plant Licenses, 46 Federal Register 149:39573,39579 (August 4, 1981).

19 It is an unwanted role, as former Commissioner Gilinsky observed: "We shrink from making measurements in terms of an acceptable number of deaths per year. Yet we must have some kind of overall standard or goal; without it each nuclear safety problem is unique, each calls for a handwringing return to square one." Speech at Brown University, November 15, 1979. Former Commissioner Peter Bradford observed: "I know of no other area on this front between risk and technological capability where so many are involved so strongly as in nuclear power, nuclear waste management, and the relevant energy alternatives. It is an area which, handled correctly, will tell us much about what we believe in as a society and how those beliefs can be translated into governmental and technological decisions. Handled less well, it will be a signpost on a road to a level of alienation and frustration and governmental distance from the governed that no truly democratic society can survive for very long." Bradford, "How a Regulatory View of Nuclear Waste Management is Like a Horse's Eye View of the Cart" November 15, 1978.

20 Nuclear Regulatory Commission, Office of Policy Evaluation, Safety Goals for Nuclear Power Plants: A Discussion Paper, NUREG-0880, February 1982, p. 24.

21 Honicker v. United States, (D.C. Cir. No. 80-2006) Appellees Brief at 25, quoting Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory vaccination cases).

22 46 Fed. Reg. 39579.

23 Quoted in: R.S. Summers, Lon L. Fuller (Stanford: Stanford Univ. Press, 1984), 154.

24 For a discussion of discounting, see: Ramsey W., and M. Russell, "Time Adjusted Health Impacts from Electricity Generation," Harvard Journal of Public Policy 26-3: 387-403 (Summer, 1978).

25 Schell, J., The Fate of the Earth (New York: Alfred A. Knopf, 1982), 116.

26 Mortimer Adler, with much greater attention then I can devote here, draws upon John Locke, Thomas Aquinas, David Hume, Immanuel Kant, Epicurus, John Stuart Mill, Benedict de Spinoza, A.J. Ayer, Bertrand Russell and Aristotle before arriving at this conclusion. Adler, M.J., Ten Philosophical Mistakes (New York: MacMillan, 1985).

27 Adler, Id., 127.

28 Id. 134-135.

29 Adler also made this observation in a filmed seminar at the Aspen Institute in 1982. Moyers and Ewing, Six Great Ideas, (New York: WNET, 1982) Show #3, transcript at 12. Acknowledging Locke's second essay on civil government, Adler goes on to conclude that "Any action on [an individual's] part that injures the welfare of the community or another person is an illicit action, it is‹should be in some sense‹criminal action, and therefore prohibited. Id., Show #4, transcript at 5.

30 Declaration of Rights, First Continental Congress, Philadelphia, October 14, 1774.

31 Declaration of Independence, Second Continental Congress, Philadelphia, July 4, 1776.

32 Calder v. Bull, 3 U.S. (3 Dall) 386, 1 L.Ed. 648. See too: A. Hamilton, The Federalist, No. 78 (1788).

33 By the same logic, the world may have become less wholesome when we entered the Age of Industrialization, the Age of Modern Chemistry, or split the gene. Most of us would acknowledge that all of these developments have prolonged and enhanced human life generally, although some, such as the Old Order Amish and the Hopi elders, may disagree. My distinction here is between social benefits, which are consentual, and individual rights, which should not require consent. Insofar as other scientific advances have created transgenerational health injuries, they are equally subject to criticism.

34 See generally: Environmental Protection Agency, Proceedings of a Public Forum on Environmental Protection Criteria for Radioactive Wastes 30 March - 1 April, 1978, Denver, Colorado, EPA CRP/CSD-78-2 (May 1978); Nuclear Regulatory Commission, Workshop on Frameworks for Developing a Safety Goal Held at Palo Alto, California April 1-3, 1981, NUREG/CP-0018 BNL-NUREG-51419 (June 1981); and Nuclear Regulatory Commission, Workshop on a Proposed Safety Goal Held at Harpers Ferry, West Virginia, July 23-24, 1981, NUREG/CP-0020 (Sept 1981).

35 B.A. Ackerman, Foreword: Talking and Trading 85 Columbia Law Review 5:899, 901-902 (1985).

36 Id. See too: S.L. DelSesto, Conflicting Ideologies of Nuclear Power: Congressional Testimony on Nuclear Reactor Safety, 28 Harvard J. of Public Policy 1:39-70 (1980).

37 Executive Order 12291.

38 Donald A. Brown, Ethics, Science and Environmental Regulation, 1987. Environmental Ethics 9:4: 331 at 337.

39 U.S. Nuclear Regulatory Commission, Office of Policy Evaluation, Safety Goals for Nuclear Power Plants: A Discussion Paper, NUREG-0880, February 1982, p 25-26, referencing: J.D. Graham and J.W. Vaupel, "Value of a Life: What Difference Does it Make?" Risk Analysis, 1:89-95 (1981).

40 Applying the full range of cancer risks from the table in footnote 8 to the calculation used in NUREG-0880, we derive this range for possible value per life:

However, the inexact cancer/radiation ratio is only one step in a very long chain of uncertain assumptions which might increase or decrease the values computed.

41 Nuclear Regulatory Commission, Denial of Petition for Revoking Nuclear Plant Licenses, 46 Federal Register 39573, 39580 (August 4, 1981).

42 Similarly, where the possibility of human extinction is raised, as it is with regard to the cumulative effects of genetic injury (see note 3), there can be no realistic counter-benefit raised. The act of self-extinction, unlike an individual act of suicide, renders all previous acts and events meaningless, there being no one left to endow any meaning. There can be no worth in any human effort which leaves no human remaining to derive that worth.

43 Thomas Paine, The Rights of Man, 1791.

44 Edmund Burke, 1803-27. Works, (16 Vols., London: Rivington Edition) V, 78.

45 There can be no doubt that in the United States, nuclear electricity is a governmental activity, despite the creation, in 1954, of our system of licensing public corporations to use fissionable materials commercially. All fissionable materials, patents, and ultimate control originated and still reside with the United States. The federal government likewise retains actual or reversionary ownership of all high-level nuclear waste and complete legal responsibility for its safe disposal. The full extent of federal control became readily apparent in 1979 during the Three Mile Island accident, when the NRC, acting at the direction of President Carter, took effective charge of the two-billion-dollar private facility without any of the legal difficulties faced by President Truman in his seizure of the steel mills more than 25 years earlier.

46 American Bar Association, Code of Professional Responsibility, Preamble (1974). See also: L. Fuller, The Morality of Law, Rev. Ed. (New Haven: Yale Univ Press, 1964, 1969), 39-40.

47 Grad, F.P., Risk assessment and the tyranny of numbers. Journal of Environmental Law and Litigation 1: 1 (1986), at 10.

48 Brown, supra note 38, at 349.

49 Reprinted as Honicker v. Hendrie, note 10.

50 Abstract of Honicker Petition, supre note 10, at 1.

51 46 Fed.Reg. 39573, 39580.

52 51 Fed. Reg. 6:1092 (January 9, 1986).

53 Nuclear Regulatory Commission, Advisory Committee on Reactor Safeguards, An Approach to Quantitative Safety Goals for Nuclear Power Plants, NUREG-0739, October 1980.

54 Mrs. Honicker raised them herself in the licensing hearings and other meetings for the Hartsville, Sequoyah, Watts Bar, Yellow Creek, Bellefont, Phipps Bend, Zimmer and Clinch River projects.

55 At a public forum in Denver, Colorado in 1978, Tennessee nurse Mary Hubbard commented: "I think it's unconstitutional and inhumane to expose anyone to radiation without their knowledge and consent. I don't think most people would want to accept the risk if given the choice." A Kansas grain farmer, Ferdinand Burmeister, said, "The intent of the founding fathers of our federal government and our state government of Kansas was that people and private establishments have a right to obtain, maintain and retain their property as long as this right did not interfere with the rights of others... [A]buse has occurred so often that society tends more and more to become unconcerned about the implications, particularly that segment of society which is not adversely affected. Nevertheless, might does not necessarily make right, and the wishes of the majority are not necessarily best for any society, and the rights of the minority must be protected." Environmental Protection Agency, Proceedings of a Public Forum on Environmental Protection Criteria for Radioactive Wastes, ORP/CSD-78-2 (May 1978), p.110.

56 See: 46 Fed.Reg. 39573, et seq.

57 E.g.: Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980); Ft. Pierce Utilities Authority v. United States, 606 F.2d 986, 995 (D.C. Cir.), cert. denied, 444 U.S. 842 (1979).

58 Honicker v. Hendrie, 465 F.Supp 414, aff'd 605 F.2d 556 (6th Cir.), cert. denied 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed 2d 753 (1980); Honicker v. NRC, 590 F.2d 1207, 192 U.S. App DC 91, reh. denied (D.C. Cir.), cert denied 441 U.S. 906, 99 S.Ct 1995, 60 L.Ed 2d 374 (1979); Honicker v. United States (unreported by order of the court, reh. denied, D.C. Cir. No. 81-2006), cert denied, 459 U.S. 945, 103 S.Ct 260, 74 L.Ed 2d 203 (1982).

59 National Academy of Sciences, Proceedings of an Academy Forum: Radiation, How Dangerous Is It? Sept. 27, 1979 (Washington D.C.: Academy Press 1980).

60 The phrase the NRC frequently falls back upon is the "reasonable assurance of no undue risk to public health and safety" language found in section 182(a) of the Atomic Energy Act (42 U.S.C.§ 2235) and reiterated in 10 CFR§50.35(a)(4)(ii). See, for instance, the testimony of Harold Denton to the President's Commission on the Accident at Three Mile Island on August 23, 1979. That standard has been substantially misconstrued by the NRC to suggest a balancing test to determine what is reasonably "due" and what is "undue." The phrase was actually meant to apply only during facility construction. The standard for facility operation is much more strict: " a reasonable assurance that the activities authorized by the operating license can be conducted without endangering the health and safety of the public." Sec. 185 and 10 CFR§50.35(c)(2). The confusion may have arisen in the Office of Reactor Regulation because most environmental challenges to facilities have come during hearings on the construction permit. The legislative intention is made clearer by examination of the 1946 Atomic Energy Act. Where the 1946 Act used the phrase, "as far as practicable" in Section 1's declaration of purpose to promote the pubic health and welfare, the 1954 version deleted the phrase in favor a simple, mandatory order. In only one section of the Act is "protection" modified by the word "adequate," implying a balancing of interests: in section 182(a), "License Applications?Contents and Form." Upon this use of the word "adequate" alone, the Commission today hinges its entire argument for Congressional authorization to inflict civilian deaths in present and future centuries. Yet, the Senate Report 1699 makes clear that the word "adequate" in section 182(a) is meant only to modify license information, not the public's protection. See Legislative History, "Atomic Energy Act of 1954," Senate Report No. 1699, 83rd Cong. 2d Sess., in U.S. Code Cong. & Admin. News 1954, at 3458. The expectation of the 83rd Congress was that public health could be completely protected by well-engineered design and sufficient shielding. Any assertion that Congress may authorize the intentional deprivation of innocent lives in the general population in the furtherance of other federal objectives, without a strong showing of overriding need, would be constitutionally suspect.

61 435 U.S. 519, 557-558, 98 S.Ct 1197, 55 L.Ed 2d 460,488 (1978).

62 Declassified reports from the Manhattan Project show that senior health physicists knew or suspected that: "... the genetic effect has no threshold and exposure is not only cumulative in the individual, but in succeeding generations. On this basis, there would be no tolerance dose, but rather an acceptable injury limit." (Parker, H.M. Instrumentation and Radiation Protection, Health Physics 38:957, 970, June 1980); and, "Even sub-tolerance radiations produce certain biological changes (cosmic rays are supposed to have some biological effects), and so tolerance radiation is not what one strives to get but the maximum permissible dose." (Morgan, K.Z., The Responsibilities of Health Physics, The Scientific Monthly, 93 , August 1946; reprinted in Health Physics 38:949-952, June 1980). While these views were held privately by many top scientists, the official position of the United States at the time was that there was a threshold or "safe" level of radiation exposure, below which no health damage was anticipated.

63 Joint Committee on Atomic Energy, Atomic Power and Private Enterprise, Summary of Hearing before the Joint Committee, 83rd Cong. 1st Sess., December 1953, p. 17.

64 Although from time to time the matter does come up, as it did in this exchange between Monte Canfield of the General Accounting Office and Congressman Robert Drinan at a hearing before the House Subcommittee on Environment, Energy and Natural Resources on September 12, 1977:

MR. CANFIELD: The issue is whether or not you can develop a sufficient amount of consensus that sufficient precautions have been taken and that the amount of risk is relatively low‹relative to other alternatives. The genie, after all, is out of the bottle. Something has to be done with it ... The issue is one of relative risk and safety.

REV. DRINAN: Would you concede that ultimately the Courts will have to decide that? ...

MR. CANFIELD: I think it is almost inevitable that there will be litigation. Congress may choose to make some statutory changes which would speed up the litigative process, but I think that litigation is inevitable.

REV. DRINAN: I keep wondering: What is the test that should be proposed? How safe is safe? And in a certain sense, since the risk is there for thousands of years, maybe any risk is unwarranted.

MR. CANFIELD: I agree, but ... I think the question is to weigh the relative risks and decide....

65 Nuclear Safety Oversight Committee, Governance of Nuclear Power (September 1981), p. 39.

66 Publius (Alexander Hamilton), Federalist No. 78, June 14, 1788 (New York: New American Library, 1961) pp 464-472.

67 Id.

68 Snyder v. Massachusetts, 291 U.S. 97, 105; Rochin v. California, 342 U.S. 165.

69 Palko v. Connecticut, 302 U.S. 319.

70 See Justice Harlan's dissents in Poe v. Ullman, 367 U.S. 497, 554 and Shapiro v. Thompson, 394 U.S. 618.

71 As the Supreme Court said in Shelton v. Tucker, 364 U.S. 479, 488 and again in Aptheker v. Secretary of State, 378 U.S. 500, 508: "even though a governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purposes." In the case of nuclear energy in the 21st Century, federal dollars spent developing just one alternative, superconducting electromagnets to replace those in existing electrical generators and motors, could obviate all need for additional sources of electricity for the remainder of that century and make many, if not most, electrical generation requirements capable of being met by more benign sources such as wind, photovoltaic arrays and rainfall. See: J. Gleick, Superconductor May Yield Strongest Magnets, New York Times (March 18, 1987), pp. 1,12; and C.P. Shea, Renewable Energy: Today's Contribution, Tomorrow's Promise, Worldwatch Paper 81 (Washington, DC: Worldwatch 1988). As economist Charles Komanoff has observed, "Efforts to exploit our Saudi-size reserves of inefficient energy use will provide the greatest payoff among our energy options." From 1978 to 1986, the U.S. gross national product grew 19% while energy consumption fell 5%. In 1985 and 1986, improvements in energy efficiency contributed the equivalent of 5.1 quads (quadrillion btu) compared with 0.7 new quads from coal and nuclear sources‹a 7 to 1 ratio in favor of substitutes for generation of power. C. Komanoff, Increased Energy Efficiency, 1978-1986, Science 239:128 (1988).

Some other works by Albert Bates available on-line:

• Technological Innovations in a Rural Intentional Community
• Post-Communal Economic Experiments at The Farm
• J.Edgar Hoover and The Farm
• Intentional Community to Ecovillage
• America's Alternate Religions: The Farm
• ENNA Journal