The revival of nuclear power: An analysis of the legal implications

Journal of Environmental Law

Volumn 19, Issue 1, 2007, Pages 71-87

  Cameron, Peter D ^a  

^a UNIVERSITY OF DUNDEE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

LEGAL RIGHTS; NUCLEAR POWER;

EID: 33847796973     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eql041     Document Type: Article

References (65)

1. HM Government, 'The Energy Challenge: Energy Review Report 2006' (hereinafter 'The Energy Challenge'), Cm 6887, July 2006, 113.
2. For the origins, see the Prime Minister's Speech to the CBI Conference, 29 November 2005: PM addresses six key areas of reform for Britain; Energy policy 'back with a vengeance' says PM'; www.number-10.gov.uk/ output/Page8606.asp
3. Commission of the European Communities, 'Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy', COM (2006) 105 final, 8 March 2006: 'The EU can play a useful role in ensuring that all costs, advantages and drawbacks of nuclear power are identified for a well-informed, objective and transparent debate', 9.
4. P Cameron, L Hancher and W Kühn (eds), Nuclear Energy Law After Chernobyl (Graeme and Trotman, London 1988) App V, 213.
5. For an account of the extra-legal context of the accident see B Edmondson, The Chernobyl Accident and its Causes, in Nuclear Energy Law After Chernobyl,
6. ibid, 205-11.
7. Environmental Agency, Environment and Heritage Service, Food Standards Agency and the Scottish Environmental Protection Agency, 'Radioactivity in Food and the Environment 2005', RIFE-11, October 2006, 10 at www.sepa.org.uk/pdf/publications/rife/rife11.pdf. It are the sheep rather than the farmland itself that are affected.
8. Convention on Early Notification of a Nuclear Accident, 25 ILM (1986) 1370;
9. Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 25 ILM (1986) 1377;
10. for commentary see P Cameron, The Vienna Conventions on Early Notification and Assistance, in Nuclear Energy Law after Chernobyl, 19-32.
11. For a comprehensive review of the diverse instruments introduced in international law post-Chernobyl, see Norbert Pelzer's authoritative review, Learning the Hard Way: Did the Lessons Taught by the Chernobyl Nuclear Accident Contribute to Improving Nuclear Law? in International Nuclear Law in the Post-Chernobyl Period, a joint report by the OECD Nuclear Energy Agency and the International Atomic Energy Agency, OECD, 2006, 73-118. The author is critical of the progress made with respect to nuclear liability (at 100-15).
12. Convention on Nuclear Safety, 33 ILM (1994) 1518.
13. Reports are available on the website of the IAEA at: http://www.ns.iaea.org/conventions/nuclear-safety.htm
14. Joint Convention on the Safety of Spent Fuel and Radioactive Waste Management, 36 ILM (1997) 1436.
15. The European Community acceded to this in January 2006: Commission Decision of 14 June 2005 (OJ L 185 of 16/07/2005, 33).
16. Unfortunately, less than one-third of the states that operate nuclear power plants have joined the regime so far. For background to and analysis of the Convention, see P Cameron: Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, in Contemporary Developments in Nuclear Energy Law: Harmonising Legislation in CEEC/NIS, NLJT Horbach (ed.) (Kluwer, The Hague 1999) 117-28.
17. PW Birnie and AE Boyle, International Law and the Environment, (2nd edn OUP, Oxford 2002) 464.
18. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998: 38 ILM (1999) 517.
19. The principal attempt to secure change in this respect was the proposal by the alternate members of the Convention, Ms Marie Nagy, Ms Renee Wagner and Sir Neil MacCormick, in their Contribution: The Future of the Euratom Treaty in the Framework of the European Constitution, CONV 563/ 03, 18 February 2003 (Secretariat, The European Convention).
20. Case 187/87, Land de Sarre and Others v Ministre de l'Industrie [1988], 22 September 1988, ECR, 5013.
21. See K Lenaerts, Border Installations, in Nuclear Energy Law after Chernobyl, 49-82.
22. In this respect, note the role of the European Commission in the plans to dispose of radioactive waste from Sellafield, discussed in R Churchill and J Scott, 'The MOX Plant Litigation: The First Half Life', 53 ICLQ (2004), 643-76 at 644-45.
23. Commission of the European Communities, 'Amended Proposal for a Council Directive (Euratom) laying down basic obligations and general principles on the safety of nuclear installations', and 'Amended proposal for a Council Directive (Euratom) on the safe management of the spent nuclear fuel and radioactive waste', COM (2004) 526 final, 8 September 2004;
24. and see IP/05/1661: 'Commission proposes reinforced legislation on transfer of radioactive waste and spent nuclear fuel', 21 December 2005.
25. Assistance was forthcoming not only through the EU but also via the IAEA and the OECD, in all of which the UK was an active participant: See the various contributions in Part 3 of Contemporary Developments in Nuclear Energy Law: Harmonising Legislation in CEEC/NIS, NLJT Horbach (ed.) (Kluwer, The Hague 1999) 377-551. The countries concerned were: Bulgaria, Czech Republic, Lithuania, Romania and Slovakia.
26. See 'The Energy Challenge', 113-25, 134-48, 161-81.
27. CoRWM, 'Managing Our Radioactive Waste Safely: CoRWM's recommendations to Government', CoRWM Doc 700, July 2006 (hereinafter 'CoRWM Report') 15.
28. DTI, 'Managing the Nuclear Legacy: A Strategy for Action', July 2002, cm 5552. There have been many other reports into this subject: Eg Department for Environment, Food and Rural Affairs (Defra) et al, 'Managing Radioactive Waste Safely - Proposals for developing a policy for managing solid radioactive waste in the UK' Defra, September 2001;
29. Defra, 'A Public Consultation on Policy for the Long Term Management of Solid Low Level Radioactive Waste in the United Kingdom', Defra, 2006;
30. House of Lords Select Committee on Science and Technology, 'The Management of Nuclear Waste', The Stationary Office, March 1999.
31. Ibid, 63.
32. CoRWM Report: www.corwm.org
33. DTI News Release, 25 October 2006, 'Miliband announces radioactive waste disposal plan'.
34. The idea is that the waste is retained by a combination of engineered containments inside a geological barrier. Over long periods of time the levels of radioactivity decline. Depth is typically between 200 and 1000 metres, and is a less important factor than geology: CoRWM Report, 116.
35. For an overview of the OSPAR strategy and monitoring, see ch 6: Radioactive Substances, in the Annual Report of the OSPAR Commission 2002-2003, vol 1;
36. for earlier developments in this area, see the Royal Commission on Environmental Pollution, 'Nuclear Power and the Environment', HMSO, 1976.
37. CoRWM Report, 14.
38. CoRWM Report, 125.
39. Preliminary Report, at 4.
40. Ibid.
41. OECD Nuclear Energy Agency, Annual Report 2005, 9. The report also notes the emergence of safety standards to apply to repositories by, for example, the US Environmental Protection Agency for its planned repository at Yucca Mountain in Arizona.
42. In this connection, see the Swedish 'Guidance for Geological Disposal of Nuclear Waste', Decision SSIFS 2005: 5, 5 September 2005, Nuclear Law Bulletin, No 76 (2005) 87-8.
43. Ibid.
44. http://www.nea.fr/html/nlparis_conv.html
45. P Reyners, 'The Nuclear Liability Conventions as Applied to Radioactive Waste Geological Repositories: The Test of Time', 24 March 2004 (unpublished speech delivered at the Stockholm International Conference on Geological Repositories, December 2003).
46. See also the publication of the OECD Nuclear Energy Agency: The Handling of Timescales in Assessing Post-closure Safety (2004).
47. DTI, 'Our Energy Future - Creating a Low Carbon Economy', Cm 5761, February 2003. However, it notes the possibility that "at some point in the future" new nuclear plants might be required to meet UK carbon targets: 12, 61-2.
48. The Energy Act established the Nuclear Decommissioning Authority (NDA) as a new public body with the primary role of ensuring the decommissioning and clean-up of Britain's civil public sector nuclear sites; created a new Civil Nuclear Police Authority to oversee a reconstituted nuclear constabulary that would be directly accountable to the Secretary of State; amended the Anti-terrorism, Crime and Security Act 2001 (ch 24) to extend the regulation of the security of uranium enrichment technologies and sensitive nuclear information; provided statutory authority for the Secretary of State to spend money under his options to acquire British Energy's power stations and/or its stake in Nirex, a company owned by the major nuclear industry waste producers and tasked with investigating the feasibility of a deep intermediate and low level waste disposal. By contrast, the US Government was introducing extensive support measures for nuclear new build at roughly the same time in the Energy Policy Act 2005, ss 601-57.
49. 'The Energy Challenge', 2006, 113.
50. HSE, 'The Health and Safety Risks and Regulatory Strategy Related to Energy Developments', 28 June 2006; 'The Energy Challenge', 121-2.
51. Government thinking seems to be that the inquiry mechanism should focus on the relationship between the proposal, the local plans and the local environmental impacts, and weigh up these considerations against pre-established national strategic goals. It should take into account local benefits expected to accrue from the development and how specific local impacts of the plant construction and operation could be minimised: See 'The Energy Challenge', 122.
52. Ibid, 121.
53. Loi du 2 février 1995 on environmental protection, as amended by the law of 2002 on local democracy. The procedural requirements are set out in décret no. 2002-75 du 22 October 2002.
54. Commission particulière du débat public, 'Projet EPR, Sur le projet de centrale electronucleaire à Flamanville', Communique de presse, 13 October 2005: www.debatpublic-epr.org/presse/ communiques_presse.html
55. The following is based on the account in 'Nuclear Installation Licensing and Democratic Decision-making in Finland - A Case Study regarding the Olkiluoto 3 Nuclear Power Plant Unit and the Final Disposal Repository for Spent Nuclear Fuel', Jyrki Javanainen, a paper presented at Nuclear Inter-Jura 2005, Slovenia, 9-14 October 2005.
56. A point emphasised by the House of Commons Environmental Audit Committee in its Sixth Report of Session 2005-06: 'Keeping the Lights On: Nuclear, Renewables and Climate Change', HC 584-I, 16 April 2006: 'The current highly liberalised UK electricity market structure is too short term and fails to provide such a framework (for investment)' at 4.
57. Key Scottish Environmental Statistics (2005) - gives the energy mix for 2000-03 as 32-37.2% nuclear but notes that the nuclear sector has been generating less during the period due to refurbishment. The figure would be higher if they were all running and before some had closed down.
58. Schedule 5, Pt 2, Head D, under (4).
59. See s 63.
60. The Scottish Parliament, 'Fact Sheet on Sewel Motions/Legislative Consent', 10 March 2006;
61. see also Memorandum submitted to the Scottish Affairs Committee by the Scottish Executive, 8 February 2006.
62. See for example, DTI, Managing the Nuclear Legacy: A Strategy for Action, July 2002, cm 5552, 63.
63. Defra, 'Response to the Report and Recommendations from the Committee on Radioactive Waste Management (CoRWM) by the UK Government and the devolved administrations', 2006.
64. But note some recent negative developments in this respect: Economist, 12 August 2006: 'Reacting badly to summer heat'.
65. House of Commons, Minutes of Evidence before the Trade and Industry Committee, 'Nuclear New Build: Issues to be addressed', HC 1122-I, 16 May 2006, Q.37-8, 19.