The perils of a half-built bridge: Risk perception, shifting majorities, and the nuclear power debate

Ecology Law Quarterly

Volumn 35, Issue 1, 2008, Pages 31-72

  Leiter, Amanda ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 49249135403     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (231)

1. See, e.g., Dan M. Kahan, Paul Slovic, Donald Braman & John Gastil, Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 HARV. L. REV. 1071, 1072 (2006) [hereinafter Kahan et al., Fear of Democracy] ("Risk perception scholars are not of one mind about the prospects for making public opinion conform to the best available scientific information on risk. But no one who aspires to devise procedures that make democratic policymaking responsive to such information can hope to succeed without availing herself of the insights this field has to offer.").
2. See generally Ann Bostrom, Risk Perceptions: "Experts" vs. "Lay People", 8 DUKE ENVTL. L. & POL'Y F. 101 (1997) (discussing "discrepancies between expert assessments and lay perceptions of risk");
3. U.S. EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987) (noting the discrepancy between expert and lay assessments of the risk of indoor radon).
4. See, e.g., Paul Slovic, Howard Kunreuther & Gilbert F. White, Decision Processes, Rationality and Adjustment to Natural Hazards, in THE PERCEPTION OF RISK 26, 26 (Paul Slovic ed., 2000) ("the public seems willing to accept voluntary risks roughly 1000 times greater than involuntary risks at a given level of benefit");
5. Lisa Heinzerling, Political Science, 62 U. CHI. L. REV. 449, 470-72 (1995)
6. (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE (1993)).
7. See, e.g., Melissa L. Finucane, Ali Alhakami, Paul Slovic, & Stephen M. Johnson, The Affect Heuristic in Judgments of Risks and Benefits, in THE PERCEPTION OF RISK, supra note 3, 413, 415-16;
8. see also Cass R. Sunstein, The Laws of Fear, 115 HARV. L. REV. 1119, 1137 (2002) (reviewing THE PERCEPTION OF RISK, supra note 3).
9. See, e.g., Slovic et al., supra note 3; Heinzerling, supra note 3.
10. See, e.g., Cass R. Sunstein, Misfearing: A Reply, 119 HARV. L. REV. 1110, 1119 (2006) [hereinafter Sunstein, Misfearing].
11. CASS R. SUNSTEIN, LAWS OF F4: BEYOND THE PRECAUTIONARY PRINCIPLE 36-39 (2005) [hereinafter SUNSTEIN, LAWS OF FEAR].
12. An alternative view presumes that people assess risks more rationally, by weighing costs and benefits. See W. KIP VISCUSI, RISK BY CHOICE: REGULATING HEALTH AND SAFETY IN THE WORKPLACE 37 (1983).
13. See Sunstein, Misfearing, supra note 6, at 1111-12 ("People should be regarded as boundedly rational weighers.").
14. Kahan et al., Fear of Democracy, supra note 1, at 1072 (reviewing SUNSTEIN, LAWS OF FEAR, supra note 7, and arguing that the book ignores "one of the most important recent advances in the science of risk perception" - the way that "cultural worldviews permeate all of the mechanisms through which individuals apprehend risk").
15. Sunstein, Misfearing, supra note 6, at 1111.
16. Kahan et al., Fear of Democracy, supra note 1, at 1072.
17. SUNSTEIN, LAWS OF FEAR, supra note 7, at 126.
18. See, e.g., Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149, 168-69 (2006) [hereinafter Kahan & Braman, Cultural Cognition]
19. (discussing MARY DOUGLAS & AARON WILDAVSKY, RISK AND CULTURE (1982), and other work by Douglas).
20. See, e.g., Nuclear Power: The Shape of Things to Come, ECONOMIST, July 9, 2005, at Special Report 2;
21. Stephen L. Teichler & Charles W. Whitney, Nuclear Power is Coming Back to Life: While Obstacles Remain, the Industry Sees a Brighter Future, LEGAL TIMES, June 12, 2006, at 28;
22. Mike Stuckey, New nuclear power 'wave' - or just a ripple?, MSNBC, Jan. 23, 2007, http://www.msnbc.msn.com/id/16272910/.
23. See, e.g., John Tierney, No Nukes, No More, N.Y. TIMES, May 17, 2005, at A1;
24. G. Pascal Zachary, The Case For Nuclear Power: Economists, Environmentalists And Energy Consumers Find Incentives To Start Building New Plants, S.F. CHRON., Feb. 5, 2006, at E1;
25. IAE: Build more nuclear power plants, MARKETPLACE, Nov. 7, 2006, http://marketplace.publicradio.org/shows/2006/11/07/PM200611074.html;
26. Peter Schwartz & Spencer Reiss, Nuclear Now! How Clean, Green Atomic Energy Can Stop Global Warming, WIRED, Feb. 2005, http://www.wired.com/wired/archive/13.02/nuclear.html.
27. Institute for Energy & Environmental Research, Summary, Insurmountable Risks 2 (2006), http://www.ieer.org/reports/insurmountablerisks/ summary.pdf (summarizing BRICE SMITH, INSURMOUNTABLE RISKS: THE DANGER OF USING NUCLEAR POWER TO COMBAT GLOBAL CLIMATE CHANGE (2006): "Compared to the other major energy sources used around the world to generate base load electricity . . . nuclear power plants emit far lower levels of greenhouse gases even when mining, enrichment, and fuel fabrication are taken into consideration.");
28. see also John L.R. Proops, Philip W. Gay, Stefan Speck & Thomas Schröder, The Lifetime Pollution Implications Of Various Types Of Electricity Generation. An Input-Output Analysis, 24 ENERGY POL'Y 229, 236 (1996).
29. See, e.g., HELEN CALDICOTT, NUCLEAR POWER IS NOT THE ANSWER (2006);
30. Thomas B. Cochran, Christopher E. Paine, Geoffrey Fettus & Robert S. Norris, Position Paper: Commercial Nuclear Power (Oct. 2005), http://www.nrdc.org/nuclear/power/power.pdf; Institute for Energy & Environmental Research, supra note 17, at 4-21 (discussing nuclear power's economic and safety and environmental costs).
31. That is, the sweeping policy choice is not whether, for individual companies, the marginal benefits of constructing one, two, or ten new nuclear plants over the next few decades exceed the marginal costs of that approach, but whether we should, as a nation, turn to nuclear power as a significant part of our climate strategy - and make the regulatory changes that such a sweeping shift in energy policy would entail. Although the discussion in this Article has implications for the former choice, the Article itself is directed only at the latter.
32. See, e.g., DAVID REINER ET AL., AN INTERNATIONAL COMPARISON OF PUBLIC ATTITUDES TOWARDS CARBON CAPTURE AND STORAGE TECHNOLOGIES 6 (2006), available at http://sequestration.mit. edu/pdf/GHGT8_Reiner.pdf (citing poll results that suggest far less than half of the U.S. public thinks nuclear power should be "use[d] to address global warming");
33. Eugene A. Rosa, Public Acceptance of Nuclear Power: Déjà vu All Over Again?, PHYSICS & SOC'Y (American Physical Soc'y/Forum on Physics & Soc'y, College Park, Md.), Apr. 2001, at 20, http://units.aps.org/units/fps/newsletters/2001/april/aptoc.pdf (discussing poll results from 1999) ("Past accidents, misrepresentations by the nuclear industry . . . and a growing mistrust of many institutions, especially institutions associated with nuclear power, such as the DOE, have made the public apprehensive about the technology. And all signs indicate that this apprehension runs deep. On the other hand, Americans support the idea of leaving the nuclear option open, perhaps as a trump card against future energy shortages or as the only demonstrated energy alternative for dealing with global warming. In summary, while the public may support this technology in the future; there is little basis to say that the future is now.").
34. The relatively new suggestion of "debiasing through law" offers another potential approach, see generally Christine Jolls, Behavioral Law and Economics (Yale Law School, Public Law Working Paper No. 130, 2006), http://ssrn.com/abstract=959177 (summarizing the approach), though it is not immediately obvious how one could employ such a strategy in the specific context of nuclear power.
35. Importantly, this Article does not advocate nuclear power and avoids taking a position on the actual sizes of the nuclear and climate change risks because this hypothetical exercise has important implications whatever one's views about the relative safety of nuclear technology.
36. See supra note 13 and accompanying text.
37. This Article does not attempt to answer this question. In particular, it avoids entering the debate among those who advocate strict adherence to experts' assessments of which risks are "real," see, e.g., STEVEN G. BREYER, BREAKING THE VICIOUS CIRCLE 55 (1993) ("I assume a kind of 'general will' - a public that 'really' wants an overall result" (greater risk reduction at present cost or equal risk reduction at lower cost) "that differs from its substance-specific preferences revealed on particular occasions"),
38. those who acknowledge that even misplaced public fears may exact a cost sufficient to justify regulation, see, e.g., FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING 135-36 (2004);
39. Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L.J. 61, 103-04 (2002), and those who would give great weight to the many value judgments implicit in public perceptions of risk, see, e.g., ACKERMAN & HEINZERLING, supra, at 136, 151 ("When people worry about risks that are unfamiliar, unknown, and potentially catastrophic, they are expressing, in part, a distaste for a special kind of uncertainty: one in which the worst-case harmful potential of a hazard is unknown and unlimited. . . . The context of risk, the fairness of burdens and benefits - all these characteristics, which are all-important in real decisions, are priceless. They cannot be forgotten in making effective public policy, but they cannot be remembered with a number.");
40. Paul Slovic, Trust, Emotion, Sex, Politics and Science: Surveying the Risk-assessment Battlefield, in THE PERCEPTION OF RISK, supra note 3, at 390, 392 [hereinafter Slovic, Trust, Emotion, Sex] ("[M]any of the public's reactions to risk . . . can be attributed to a sensitivity to the technical, social and psychological qualities of hazards that are not well-modeled in technical risk assessments.");
41. See Kahan et al., Fear of Democracy, supra note 1, at 1097 (suggesting that market solutions soften some cultural cognition barriers to recognition and regulation of environmental problems).
42. Kahan & Braman, Cultural Cognition, supra note 14.
43. Indeed, Madison all but predicted this latter dynamic in Federalist 10, when he advocated a large republic as a means of limiting the power of unruly factions. "To state the Madisonian proposition . . . broadly, the danger of a stable coalition increases as the size of the political unit decreases because the areas of disagreement become fewer and the divisions in the population consequently become more fundamental and permanent." Note, City Government in the State Courts, 78 HARV. L. REV. 1596, 1597 (1965). This insight, salutary in the context of factional rebellion, poses a thorny problem for sensible, stepwise regulation of multilayered risks facing large polities.
44. E.g., W. Kip Viscusi, Monetizing the Benefits of Risk and Environmental Regulation, 33 FORDHAM URBAN L.J. 1003, 1004-05 (2006) ("Because no risk or environmental benefit warrants an infinite expenditure, the practical policy issue is what level of monetary cost is justified to obtain the benefit.").
45. E.g., ACKERMAN & HEINZERLING, supra note 24, at 9 ("To say that life, health, and nature are priceless is not to say that we should spend an infinite amount of money to protect them. Rather, it is to say that translating life, health, and nature into dollars is not a fruitful way of deciding how much protection to give them. A different way of thinking and deciding about them is required.").
46. See, e.g., SUNSTEIN, LAWS OF FEAR, supra note 7, at 15-18 (summarizing the history of the principle and discussing its "widespread international support").
47. E.g., W. Kip Viscusi, Constructive Cigarette Regulation, 47 DUKE L.J. 1095, 1101-02 (1998) ("The mere existence of a large risk, however, is not a legitimate rationale for government regulation... In a world of rational choice, with full information, there would be no rationale . . . for interfering with [individual] decisions.").
48. E.g., Christine Jolls, Cass R. Sunstein, & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1541 (1996) (describing how bounded rationality may shape a "skepticism about antipaternalism," though not offering "an affirmative defense of paternalism").
49. SUNSTEIN, LAWS OF FEAR, supra note 7, at 126.
50. Id.
51. It is worth noting, however, that having populist or technocratic leanings does not determine one's views on the scientific, economic and political issues that complicate risk regulation. A technocrat who firmly believes that government should respond only to "real" risks must still decide which type and level of response are scientifically and economically justified, and which are politically so. Thus, even if we could "mak[e] public opinion conform to the best available scientific information on risk," Kahan et al., Fear of Democracy, supra note 1, at 1072, numerous hard questions would remain.
52. BREYER, supra note 24, at 33; see also WORLD HEALTH ORGANIZATION, THE WORLD HEALTH REPORT 2002: REDUCING RISKS, PROMOTING HEALTHY LIFE 31 (2006), available at http://www.who.int/whr/2002/en/whr02_en.pdf ("By the early 1990s, particularly in North America and Europe, it became apparent that . . . risk had different meanings to different groups of people and that all risks had to be understood within the larger social, cultural and economic context. . . . In addition it became apparent that public perceptions of risks to health did not necessarily agree with those of the scientists, whose authority was increasingly being questioned by both the general public and politicians. Although there was considerable agreement between the public and scientists on many risk assessments, there were also some, such as nuclear power and pesticides, where there were large differences of opinion. . . . These differences of perception often led to intense public controversy. . . . By the mid-1990s . . . [it was] generally accepted that differences in perceptions of risk had to be understood and resolved.").
53. THE PERCEPTION OF RISK, supra note 3, at xxi.
54. See, e.g., Paul Slovic, Rational Actors and Rational Fools: The Influence of Affect on Judgment and Decision-Making, 6 ROGER WILLIAMS U. L. REV. 163, 180 (2000) [hereinafter Slovic, Rational Actors];
55. Paul Slovic, Melissa L. Finucane, E. Peters, & D.G. MacGregor, The Affect Heuristic, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 397 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds., 2002).
56. See, e.g., Slovic, Kureuther & White, supra note 3; Heinzerling, supra note 3.
57. Paul Slovic, What's Fear Got to Do with It? It's Affect We Need to Worry About, 69 MO. L. REV. 971, 976 (2004) [hereinafter Slovic, What's Fear Got to Do with It?]; see also, e.g., Finucane, supra note 4, at 415-16; Sunstein, supra note 4, at 1137. The affect heuristic helps to explain why "food additives, for example, tend to be seen as very high in risk and relatively low in benefit, whereas . . . antibiotics and x-rays tend to be seen as high in benefit and relatively low in risk." Slovic, Rational Actors, supra note 38, at 180.
58. Slovic, What's Fear Got to Do with It?, supra note 40, at 976.
59. Sunstein, Misfearing, supra note 6, at 1119.
60. Id. at 1118.
61. SUNSTEIN, LAWS OF FEAR, supra note 7, at 36-39.
62. Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CAL. L. REV. 969, 981 (2006).
63. See, e.g., Paula E. Berg, When the Hazard is Human: Irrationality, Inequity, and Unintended Consequences in Federal Regulation of Contagion, 75 WASH. U. L.Q. 1367, 1403-04 (1997) ("Studies of risk perception demonstrate that the media's tendency to focus on sensational, unusual, and catastrophic risks leads the public to overestimate the occurrence of these hazards.").
64. See, e.g., Marian Burros, E. Coli Fears Inspire a Call for Oversight, N.Y. TIMES, Dec. 9, 2006, at B1.
65. SUNSTEIN, LAWS OF FEAR, supra note 7, at 94-98.
66. Id. at 98-102.
67. Nancy Kraus, Torbjorn Malmfors & Paul Slovic, Intuitive Toxicology: Expert and Lay Judgments of Chemical Risks, in THE PERCEPTION OF RISK, supra note 3, at 285, 311-313. Kraus and her co-authors observe, for example, that "[t]oxicologists working for industry see chemicals as more benign than do their counterparts in academia and government." Id. at 311. This observation does not, of course, answer the causation question. Contrary to the assumption in the text, it may be that individuals who are predisposed to fear chemicals choose to work for academic or governmental employers, and those who dismiss such fears find the chemical industry a more welcoming work environment. Once such affiliations are created, however, one would expect the cascade effect and group polarization to solidify them.
68. See SUNSTEIN, LAWS OF FEAR, supra note 7, at 35-37.
69. For example, people charge more to relinquish a good they already have than they are willing to pay to acquire the same good in the first place. Id. at 41-43.
70. Id. at 35.
71. Sunstein, Misfearing, supra note 6, at 1118.
72. Id. at 1115.
73. See SUNSTEIN, LAWS OF FEAR, supra note 7 at 89-104.
74. For the moment, this analysis begs normative questions about the wisdom and morality of such a deliberate "reeducation" campaign. The conclusion of the Article, however, begins to answer the former question.
75. Paul Slovic, Informing and Educating the Public about Risk, in THE PERCEPTION OF RISK, supra note 3, at 182, 183 [hereinafter Slovic, Informing and Educating]; accord Slovic, Trust, Emotion, Sex, supra note 24, at 392.
76. Slovic, Informing and Educating, supra note 58, at 187.
77. Id.
78. See STEVEN PINKER, HOW THE MIND WORKS 344, 348 (1997).
79. Paul Slovic, Informing and Educating, supra note 58, at 190.
80. Id. at 190-91.
81. Id.
82. Jon Palfreman, A Tale of Two Fears: Exploring Media Depictions of Nuclear Power and Global Warming, 23 REV. POL'Y RES. 23, 38 (2006).
83. Id. at 38.
84. Id. at 38-39.
85. Kahan et al., Fear of Democracy, supra note 1, at 1072.
86. Id.
87. Kahan & Braman, Cultural Cognition, supra note 14, at 153-54.
88. Ellen Peters & Paul Slovic, The Role of Affect and Worldviews as Orienting Dispositions in the Perception and Acceptance of Nuclear Power, 26 J. APPLIED SOCIAL PSYCHOL. 1427, 1430 (1996).
89. Kahan et al., Fear of Democracy, supra note 1, at 1073-74.
90. Id. at 1084.
91. Kahan & Braman, Cultural Cognition, supra note 14, at 154.
92. Id. at 168.
93. Id.
94. Id.
95. Id. at 169.
96. Id.
97. Id. at 169.
98. Id.
99. See supra note 16 and accompanying text.
100. See, e.g., Felicity Barringer, Old Foes Soften to New Reactors, N.Y. TIMES, May 15, 2005, at A1 (citing articles and statements by Stewart Brand, founder of the Whole Earth Catalog; Fred Krupp, Executive Director of Environmental Defense; Jonathan Lash, President of the World Resources Institute; and James Gustave Speth, Dean of the Yale School of Forestry and Environmental Studies);
101. James Lovelock, Our Nuclear Lifeline: Go Nuclear? A Leading Environmentalist Says the Greens Are Plain Wrong to Oppose It, READERS DIG., Mar. 2005, at 2;
102. Patrick Moore, Going Nuclear: A Green Makes the Case, WASH. POST, Apr. 16, 2006, at B1;
103. Peter N. Spotts, Simpler - and Safer, CHRISTIAN SCI. MONITOR, June 2, 2005, at 13 ("[F]aced with global warming, some groups, such as the Pew Center on Global Climate Change and Environmental Defense, appear willing to give nuclear energy a reluctant second look.");
104. Amanda Griscom Little, Green vs. Green: The Environmental Movement, Once Staunchly Antinuclear, Is Facing Resistance From Within, WIRED, Feb. 2005, http://www.wired.com/wired/archive/13.02/nuclear. html?pg=5.
105. See, e.g., CALDICOTT, supra note 18; Press Release, U.S. Public Interest Research Group, Nuclear Power Not Needed to Reduce Global Warming Emissions (May 25, 2005), available at http://www.commondreams.org/news2005/0525-03.htm ("Nuclear power is the most dangerous and expensive of all energy sources. . . . [N]one of the nuclear power industry's financial, security, safety, waste, or proliferation problems has been solved.");
106. Greenpeace USA, Nuclear Power's Extreme Makeover, http://www.greenpeace. org/usa/campaigns/nuclear/nuclear-power-s-extreme-makeov (last visited Feb. 26, 2008);
107. GREENPEACE USA, NUCLEAR ENERGY - NO SOLUTION TO CLIMATE CHANGE (2004), http://www.greenpeace.org/raw/content/usa/press-center/reports4/ nuclear-energy-no-solution-to.pdf ("The nuclear industry's disingenuous claims to a role in alleviating climate change must be rejected for what they are: dangerous and self-serving fantasies which would create a serious legacy of deadly radioactive waste, increase the risks of catastrophic nuclear accidents and also vastly increase the threat of nuclear weapons proliferation.").
108. Elke U. Weber, Experience-Based and Description-Based Perceptions of Long-Term Risk: Why Global Warming Does Not Scare Us (Yet), 77 CLIMATIC CHANGE 103 (2006);
109. see also INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS 4, 5, 8 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1- spm.pdf [hereinafter IPCC, PHYSICAL SCIENCE] ("Warming of the climate system is unequivocal.");
110. NICHOLAS STERN, THE ECONOMICS OF CLIMATE CHANGE vi (2006), available at http://www.hm-treasury.gov.uk/media/3/2/Summary_of_Conclusions.pdf [hereinafter STERN REVIEW] ("The scientific evidence is now overwhelming: climate change presents very serious global risks, and it demands an urgent global response.").
111. Indeed, some sea level rise has already been observed. IPCC, PHYSICAL SCIENCE, supra note 85, at 5, 7. Interestingly, this sea surface rise results not just from an increase in ocean volume as polar icecaps melt, but also from a decrease in the density of ocean water as average water temperatures rise. NASA Jet Propulsion Laboratory, What's up with Sea Level (June 2006), http://sealevel.jpl.nasa.gov/newsroom/features/ 200606-1.html ('"Global sea level can rise for one of two reasons,' says JPL oceanographer Dr. Josh Willis. 'One is when water gets hotter, it expands. The other is when water is added to the ocean, which changes its mass. That happens, for example, when glaciers melt.'").
112. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY 15-18 (2007), available at http://www.ipcc-wg2.org/ (follow "Summary for Policymakers" hyperlink) [hereinafter IPCC, IMPACTS]; see also Institute for Energy & Environmental Research, supra note 17, at 12-36.
113. See generally IPCC, IMPACTS, supra note 90 at 10-12; Institute for Energy & Environmental Research, supra note 17, at 12-36; STERN REVIEW, supra note 85, at vi (summarizing likely effects on the human environment).
114. NICHOLAS STERN, THE ECONOMICS OF CLIMATE CHANGE: EXECUTIVE SUMMARY vii (2006), available at http://www.hm-treasury.gov.uk/media/4/3/ Executive_Summary.pdf [hereinafter STERN REVIEW EXECUTIVE SUMMARY]; see also IPCC, IMPACTS, supra note 87, at 12.
115. STERN REVIEW EXECUTIVE SUMMARY, supra note 89, at ix.
116. STERN REVIEW, supra note 85, at vi.
117. STERN REVIEW EXECUTIVE SUMMARY, supra note 89, at xii.
118. See Institute for Energy & Environmental Research, supra note 17.
119. Id.
120. This claim is, of course, tempered by the fact that existing atmospheric greenhouse gas concentrations may make some warming inevitable, Press Release, Nat'l Sci. Found., Climate Change Inevitable in 21st Century (Mar. 17, 2005), available at http://www.nsf.gov/news/news_summ.jsp?cntn_id=103108, and by other countries' growing contribution to the problem, see IAE: Build more nuclear power plants, supra note 16 ("Within two years, [China will] produce more greenhouse gases from human sources than the United States."). This Article focuses on the United States' nuclear industry, however, in part because a worldwide shift to nuclear power is unlikely without significant U.S. involvement.
121. See MASSACHUSETTS INSTITUTE OF TECHNOLOGY, THE FUTURE OF NUCLEAR POWER: AN INTERDISCIPLINARY MIT STUDY 3 (2003), available at http://web.mit.edu/nuclearpower/pdf/nuclearpower- full.pdf.
122. Energy Information Agency, Nuclear Power and the Environment, http://www.eia.doe.gov/cneaf/nuclear/page/nuclearenvissues.html (last visited Feb 27, 2008).
123. See supra note 17 and accompanying text.
124. ENERGY INFORMATION ADMINISTRATION, REP. NO. DOE/EIA-0573(2005/es), EMISSIONS OF GREENHOUSE GASES IN THE UNITED STATES 2005: EXECUTIVE SUMMARY 4 (Feb 2007), available at http://www.eia.doe.gov/oiaf/1605/ggrpt/summary/pdf/0573(2005)es.pdf;
125. see also U.S. EPA, REP. NO. 430-R-06-002002, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990-2004 at ES-13 (April 2006), available at http://www.epa.gov/climatechange/emissions/downloads06/06_Complete_Report.pdf.
126. Stephen Pacala & Robert Socolow, Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies, 305 SCIENCE 968, 969-70 (2004) (describing fifteen so-called "wedges," or potential carbon reduction approaches, any seven of which would be sufficient to stabilize carbon emissions at their current levels for the next fifty years, thereby keeping open the possibility that we could, eventually, develop the additional technologies necessary to reduce emissions still further and stabilize atmospheric carbon concentrations);
127. see also Roger A. Pielke, Jr., What Just Ain't So: It Is All Too Easy To Underestimate The Challenges Posed By Climate Change, 443 NATURE 753, 753 (2006) (reviewing WILLIAM SWEET, KICKING THE CARBON HABIT: GLOBAL WARMING AND THE CASE FOR RENEWABLE AND NUCLEAR ENERGY (2006), and noting that "Pacala and Socolow recognize that what they have proposed is only a start. . . [. E]ven after the successful implementation of seven of their wedges by 2054, 'fossil fuel emissions must decline'. . . by about an additional two-thirds over the subsequent 50 years.").
128. 2 reduction.").
129. This question is important because without some estimate of the mid-century level of greenhouse gas emissions in the absence of a significant nuclear industry, one cannot predict either (1) the level of emissions reductions necessary to abate global warming, or (2) the extent to which a given investment in nuclear power would produce such reductions.
130. For skeptics, it is worth noting here that the MIT study cautiously supports expansion of the nuclear sector. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 1.
131. Id.
132. Id. app. A at 109-15. The authors subdivided developing countries into three categories: more advanced (projected to achieve a benchmark electricity demand of 4000 kWh per person per year by 2050); less advanced (projected to reach "acceptable" levels of energy demand in the range of 1500-4000 kWh per person per year by 2050); and least advanced (unlikely to reach even 1000 kWh per person per year by 2050).
133. Id. at 115. This increase represents an annual growth rate of 2.1%. By comparison, global population is only projected to grow by about 50% in the same fifty year period. Id. at 115 tbl.A-2.1e. As may be obvious, growth in energy demand is projected to outstrip population growth principally because developing countries' energy demand is likely to increase rapidly as their citizens' standards of living improve.
134. Id. at 110. The Energy Information Administration's scenarios end in 2020, but the curve on which the MIT Study's maximum 2050 estimate is based falls between the EIA's "reference" and "low growth" scenarios in the years 2000-2020. See id. at 110 fig.A-2.2. Not surprisingly, much of the predicted expansion in electricity demand is expected to occur in the developing world. Id. at 20.
135. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 25. The authors do not actually expect the nuclear power sector to follow any of these growth scenarios; they merely analyze the scenarios to determine what changes would facilitate the necessary sector growth. That is, they assume a worldwide decision to keep nuclear power at or above its current share of global power production, and analyze what political and technological changes would be necessary to make that happen.
136. One can, of course, quibble about the MIT Study's definition of "significant," but with energy demand growing at the rates predicted by the EIA and others, see supra note 106 and accompanying text, it seems reasonable to assert that if nuclear power is to have any real role to play in a climate change strategy, it must at least maintain its current market share of just under 20%.
137. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 25 tbl.3.1.
138. Id. at 3; see also INTERNATIONAL ATOMIC ENERGY AGENCY, NUCLEAR TECHNOLOGY REVIEW - UPDATE 2005 at 1 (2005), available at http://www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-3.pdf.
139. Large nuclear plants have a capacity of about 1 GWe. If countries chose instead to build smaller facilities, the rate of construction would have to be correspondingly higher.
140. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 25-28. Current capacity is equivalent to 366 1 GWe plants. Achieving a global capacity of 1500 GWe would therefore require construction of at least 1134 new large (1 GWe) facilities. This is an underestimate, however, because some existing plants will undoubtedly need to be replaced by mid-century.
141. Id. at 26 tbl.3.2. This is the rate required to build the 300 1000 MWe plants hypothesized in Table 3.2 over the course of forty years. Given that no plants are currently under construction in the United States, and many existing plants are reaching the end of their lifecycles, however, building rates toward the end of this half-century period would probably have to be considerably higher than ten large plants per year.
142. Id. at 49 (emphasis added).
143. 2 emissions, at least one-third, and perhaps one-half or more of the global growth in electricity demand must be supplied by nuclear power. In any scenario involving two percent or greater global electricity growth, the use of nuclear power will mean the construction of thousands of nuclear power plants in the next four decades. Consider for instance, an electricity growth rate of two percent, which is far less than that occurring in China and India, but more or less typical of recent U.S. trends. To make a substantial contribution to reducing greenhouse gas emissions, we might hypothesize that (i) all present day nuclear power plants will be replaced by new ones, (ii) half the electricity growth will be provided by nuclear power, and (iii) half of the
144. Pacala & Socolow, supra note 99, at 970 tbl.1. As noted above, these authors identify policies that could stabilize emissions by 2050. These policies fall far short of what would be required to stabilize atmospheric concentrations of greenhouse gases, as will eventually be necessary to avert climate change. See Pielke, supra note 99, at 753.
145. To make this calculation, the MIT authors assume that "[d]espite the efforts to promote renewable energy options, . . . a large fraction of the incremental and replacement investments in electric generating capacity needed to balance supply and demand over the next 50 years will, in the absence of a nuclear generation option, rely on fossil-fuels." MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 37. For purposes of this discussion, the important implication of this passage is that for the foreseeable future, it is appropriate to use fossil-fuel emission rates as a conservative baseline in calculating how additional nuclear capacity would affect greenhouse gas emissions. Painting an overly rosy picture of mid-century energy production (e.g., assuming that by 2050, 50% of U.S. electricity will be supplied by wind and solar power) would understate the necessary level of investment in nuclear.
146. Mark Holt, Nuclear Energy Policy 1 (Cong. Research Serv., CRS Report for Congress Order Code IB88090, Oct. 26, 2004), available at http://www.iags.org/CRS_IB88090.pdf.
147. Nuclear Regulatory Commission, Expected New Nuclear Power Plant Applications: Updated April 28, 2008, http://www.nrc.gov/reactors/new-licensing/ new-licensing-files/expected-new-rx-applications.pdf.
148. Matthew L. Wald, Plan to Build Reactors Is Running Into Hurdles, N.Y. TIMES, Dec. 5, 2007, at C1.
149. The last U.S. reactor to come online (the Tennessee Valley Authority's Watts Bar reactor in Tennessee) was ordered in 1970 and licensed in 1996.
150. David Gauthier-Villars, Trials of Nuclear Rebuilding, WALL ST. J., Mar. 7, 2007, at A6.
151. See, e.g., MARTIN CASTELLANO ET AL., UNIVERSITY OF CHICAGO, THE ECONOMIC FUTURE OF NUCLEAR POWER, at xi (2004); Holt, supra note 118, at 2; MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at ix;
152. NATURAL RESOURCES DEFENSE COUNCIL, POSITION PAPER: COMMERCIAL NUCLEAR POWER 5-6 (2005), available at http://www.nrdc.org/nuclear/ power/power.pdf.
153. See, e.g., Holt, supra note 118, at 2; NATURAL RESOURCES DEFENSE COUNCIL, supra note 123, at 6.
154. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 42 tbl.5.1.
155. Id. at 42.
156. See, e.g., MARSHALL GOLDBERG, FEDERAL ENERGY SUBSIDIES: NOT ALL TECHNOLOGIES ARE CREATED EQUAL 3 (2000), available at http://www.crest.org/repp_pubs/pdf/subsidies.pdf ("From 1943 to 1999, cumulative federal government subsidies to [nuclear, wind, photovoltaic, and solar thermal electricity generating technologies] . . . totaled almost $151 billion (in 1999 dollars)," of which the "nuclear industry received $145.4 billion, or over 96 percent."); Holt, supra note 118, at 13, 18, 21 tbl.3 (indicating that in 2007, Congress appropriated almost $800 million to the Department of Energy for civilian nuclear power research and development, and another half a billion dollars for civilian nuclear waste disposal). Note further that these figures do not include the vast sums in indirect subsidies from nuclear research and development activities undertaken in connection with national defense.
157. Pub. L. No. 109-58, 119 Stat. 594 (Aug. 8, 2005).
158. See Notice 2006-40, 2006-18 I.R.B. 855 (Internal Revenue Service, implementing the credit).
159. 42 U.S.C. § 2210 (2006).
160. Holt, supra note 118, at 5.
161. Id.; see also NUCLEAR ENERGY INSTITUTE, U.S. NEEDS NEW NUCLEAR PLANTS TO MEET ENERGY DEMAND, MAINTAIN SUPPLY DIVERSITY (2007), available at http://www.nei.org/filefolder/ U_S_Needs_New_Nuclear_Plants_to_Meet_Energy_Demand_Maintain_Supply_Diversity_ 1007.pdf;
162. David A. Repka & Kathryn M. Sutton, The Revival of Nuclear Power Plant Licensing, 19 NAT. RESOURCES & ENV'T 39 (2005); Nuclear Energy Institute, New Nuclear Plants, http://www.nei.org/ keyissues/newnuclearplants (last visited Mar. 3, 2008).
163. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 47-51.
164. Id. at 48.
165. Id.; see also Holt, supra note 118, at 13.
166. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 48.
167. Jonathan Shaw, Fueling Our Future, HARV. MAG., May-June 2006, at 39, 41.
168. Holt, supra note 118, at 15.
169. Id.
170. U.S. Nuclear Regulatory Commission, Fact Sheet on the Three Mile Island Accident (Feb 29, 2007), http://www.nrc.gov/reading-rm/doc-collections/fact- sheets/3mile-isle.html;
171. see also CHERNOBYL FORUM, CHERNOBYL'S LEGACY: HEALTH, ENVIRONMENTAL AND SOCIO-ECONOMIC IMPACTS 3 (2005), available at http://un.by/pdf/HighlightsRecommendations+Figs-rev-acc.pdf.
172. Holt, supra note 118, at 7 (citing Evelyn O. Talbott et al., Long Term Follow-Up of the Residents of the Three Mile Island Accident Area: 1979-1998, 111 ENVTL. HEALTH PERSP. 341 (2003)). The authors of the study noted, though, that some health effects "[could] not be definitively excluded." Id.
173. U.S. Nuclear Regulatory Commission, Fact Sheet on the Accident at the Chernobyl Nuclear Power Plant (December 2000), http://www.nrc.gov/reading-rm/ doc-collections/fact-sheets/fschernobyl.html.
174. CHERNOBYL FORUM, supra note 140, at 5.
175. China Sets Coal Mine Accident Reduction Goal, PEOPLE'S DAILY ONLINE (ENGLISH), Mar. 1, 2007, http://english.people.com.cn/200703/01/eng20070301_353481.html.
176. U.S. Dep't of Labor, Injury Trends in Mining, http://www.msha.gov/ MSHAINFO/FactSheets/MSHAFCT2.HTM (last visited March 3, 2008).
177. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 48.
178. Shaw, supra note 137, at 41.
179. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 65.
180. Id. at 66.
181. Id.
182. Id.
183. Dep't of Energy, Office of Civilian Radioactive Waste Management, How Much Nuclear Waste Is in the United States?, http://www.ocrwm.doe.gov/ ym_repository/about_project/waste_explained/howmuch.shtml (last visited Mar. 24, 2008).
184. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 61.
185. Dep't of Energy, Office of Civilian Radioactive Waste Management, Yucca Mountain Repository, http://www.ocrwm.doe.gov/ym_repository/index.shtml (last visited Mar. 24, 2008).
186. Nuclear Waste Policy Act, Pub. L. No. 97-425, 96 Stat. 2201 (1982) (codified as amended at 42 U.S.C. §§ 10101-10270 (2006)).
187. Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1259 (D.C. Cir. 2004).
188. Id. at 1260.
189. Id. at 1260-61.
190. Specifically, the court held that the agencies had no reason to select 10,000 years rather than a longer limit that would correspond more closely to the million-year "time scale of the long-term stability of the fundamental geologic regime . . . at Yucca Mountain." Id. at 1267, 1315.
191. Holt, supra note 118, at 19.
192. Statement of Senator Harry Reid Before the Subcommittee on the Federal Workforce and Agency Organization of the United States House of Representatives Committee on Government Reform, "Yucca Mountain Project: Have Federal Employees Falsified Documents?" (Apr. 5, 2005), http://democrats.senate. gov/newsroom/record.cfm?id=236002&
193. see also Yucca Mountain Project: Have Federal Employees Falsified Documents?: Hearing Before the Subcomm. on the Federal Workforce and Agency Organization of the H. Comm. on Government Reform, 109th Cong. (Apr. 5, 2005) (Ser. No. 109-60).
194. See Institute for Energy & Environmental Research note 17, at 15.
195. Dep't of Energy, Office of Civilian Radioactive Waste Management, Yucca Mountain Repository: About the Project, http://www.ocrwm.doe.gov/ym_repository/ about_project/index.shtml (last visited Feb. 28, 2008).
196. Nuclear Waste Policy Amendments Act of 2008, S. 2551, 110th Cong. (2008).
197. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 86.
198. Id. at 85-87.
199. See, e.g., Michael A. Mullett, Financing for Eternity the Storage of Spent Nuclear Fuel: A Crisis of Law and Policy Precipitated by Electric Deregulation Will Face New President, 18 PACE ENVTL. L. REV. 383, 455-56 (2001) ("[E]lectric industry restructuring may be expected to precipitate a crisis for current law and policy, the resolution of which will require significant changes in the structure and financing of the Nuclear Waste Fund.").
200. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, supra note 95, at 28.
201. Gregory N. Mandel, Technology Wars: The Failure of Democratic Discourse, 11 MICH. TELECOMM. TECH. L. REV. 117, 161 n.152 (2005).
202. Paul Slovic, Perception of Risk, in THE PERCEPTION OF RISK, supra note 3, at 220, 229;
203. see also Wouter Poortinga, Nick Pidgeon, & Irene Lorenzoni, Public Perceptions of Nuclear Power, Climate Change and Energy Options in Britain: Summary Findings of Survey Conducted During October and November 2005, at 7 (School of Environmental Sciences, University of East Anglia, Understanding Risk Working Paper 06-02, 2006), available at http://tyndall.webappl.uea.ac.uk/publications/energy_futures_full_report.pdf ("The general stigma, which we know is invariably attached to nuclear power, remains. Many respondents think that it creates dangerous waste (84% agree or strongly agree) and is a hazard to human health (70%).").
204. Nancy Stauffer, Climate Change Poorly Understood, Not a High Priority, Shows MIT Public Survey, ESD REPORTS (Engineering Systems Division, Massachusetts Institute of Technology, Cambridge, Mass.), Summer 2005, http://esd.mit.edu/esd_reports/summer2005/climate_change.html;
205. see also Jon Palfreman, A Tale of Two Fears: Exploring Media Depictions of Nuclear Power and Global Warming, 23 REV. POL'Y RES. 23, 24 (2006) (detailing the results of focus groups on nuclear power and climate change and asking, "What accounts for such widely differing public attitudes?").
206. E.g., Howard LaFranchi, Iran's Pursuit of Nuclear Power Raises Alarms, CHRISTIAN SCI. MONITOR, Feb. 27 2007, at 1.
207. See supra notes 137 & 147 and accompanying text.
208. Indeed, early results of an effort to use the affirmation effect in this way have been disappointing. See Poortinga et al., supra note 170, at 1-2 ("A recent reanalysis of data linking the issues of climate change and radioactive waste from a national comparative survey and focus groups . . . shows that people do interpret nuclear energy in a different way when it is positioned alongside climate change. In effect, people in the focus groups became more ambivalent and less antagonistic about nuclear power as an energy source. Despite this, few of our participants actively and wholeheartedly supported climate change mitigation through new nuclear build as an acceptable policy position." (emphasis added)).
209. See supra Part II.B.1-.2.
210. See supra Part II.B.2.-.3. Poortinga et al.'s results tend to support this dichotomy, albeit weakly: in a comprehensive empirical survey of British public opinion on future energy options for the United Kingdom, they found that 84 percent of respondents feared nuclear power's waste products, while only 70 percent feared the technology itself. Poortinga et al., supra note 170, at 7.
211. See supra notes 44-48 and accompanying text.
212. See U.S. Nuclear Regulatory Commission, Low-Level Waste, http://www.nrc.gov/waste/low-level-waste.html (last visited Feb 26, 2008).
213. JOHN WEINGART, WASTE IS A TERRIBLE THING TO MIND: RISK, RADIATION, AND DISTRUST OF GOVERNMENT 362 (2001).
214. One possible explanation for this support is that the French are somewhat more hierarchical than Americans, and hence more willing to believe assurances from their leaders that nuclear power is safe. Jon Palfreman, Why the French Like Nuclear Energy, FRONTLINE, July 13 2006, http://www.pbs.org/ wgbh/pages/frontline/shows/reaction/readings/french.html ("[S]cientists and engineers have a much higher status in France than in America. Many high ranking civil servants and government officials trained as scientists and engineers (rather than lawyers, as in the United States), and, unlike in the U.S. . . . these technocrats form a special elite.").
215. Id. ("Things were going very well until the late 80s when another nuclear issue surfaced that threatened to derail their very successful program: nuclear waste. . . . The same rural regions that had actively lobbied to become nuclear power plant sites were openly hostile to the idea of being selected as France's nuclear waste dump. . . . There were riots.").
216. See supra note 27 and accompanying text.
217. Kahan & Braman, Cultural Cognition, supra note 14, at 169.
218. Id. at 170.
219. Sunstein, Misfearing, supra note 6, at 1115.
220. SUNSTEIN, LAWS OF FEAR, supra note 7, at 4.
221. See, e.g., Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 65 Fed. Reg. 30,680, 30,681-82 (May 12, 2000) (to be codified at 49 C.F.R. pts. 552, 571, 585, 595) (describing behavioral and technological changes that have reduced air bag fatalities).
222. Id.
223. Alfred E. Kahn, The Tyranny of Small Decisions: Market Failures, Imperfections, and the Limits of Economics, 19 KYKLOS: INT'L REV. SOC. SCI. 29-30 (1966).
224. Id. at 30.
225. Id.
226. Indeed, cars solved the local pollution problem of horse manure on city streets. Stephen J. Dubner & Steven D. Levitt, Freakonomics: Dog-Waste Management, N.Y. TIMES, Oct. 2, 2005, § 6 at 32.
227. Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
228. See Erik Luna, Drug Exceptionalism, 47 VILLANOVA L. REV. 753, 796 (2002) ("[T]he brunt of [drug-war] violence is shouldered by those who are least able to bear the costs: poor, largely urban and minority communities. . . . With the flight of human and financial capital away from urban blight, these communities are left totally devastated by the drug war.").
229. Kevin J. Zanner, Dispersion Requirements for the Siting of Group Homes: Reconciling New York's Padavan Law with the Fair Housing Amendments Act of 1988, 44 BUFFALO L. REV. 249, 249 (1996) (noting that "[m]unicipalities and siting agencies have struggled to integrate these individuals into residential communities, often encountering the familiar cry of 'not in my backyard'").
230. See, e.g., Nadine Strossen, Women's Rights under Siege, 73 N.D. L. REV. 207, 228 (1997) ("[T]he 'Contract with the American Family,' and many members of Congress who support[ed] it, [sought to deny] low-income women . . . any funding for abortions, even if their pregnancies resulted from rape or incest. . . . Ironically, though, under the welfare 'reform' proposals supported by some of the very same organizations and individuals, many poor women are denied any funding for the babies to whom they give birth."). But see Kahan & Braman, Cultural Cognition, supra note 14 at 168 (suggesting that in France, the affirmation effect resulted in the success of some first- and second-tier efforts to address unwanted pregnancies).
231. See, e.g., Ryan Sager, Purple Mountains: Could the interior West - long seen as an archetypal red region - be turning blue? The fate of the Republican Party may hinge on the answer, ATLANTIC MONTHLY, July-August 2006, at 37, available at http://www.theatlantic.com/doc/200607/purple-west ("[A]s the South has become central to Republican Party strategy, its particular flavor of social conservatism, moral certitude, and activist government has infused the national party's character. This is slowly alienating the other major bloc in the Republican coalition: small-government conservatives, especially those who value individual liberty most highly.").