Vol. 15 No.5 (May 2005), pp.406-410

NUCLEAR WASTE: LAW, POLICY AND PRAGMATISM, by Peter Riley.  Burlington, VT: Ashgate Publishing, 2004.  324pp.  $99.95/£55.00.  Hardback.  ISBN: 0-7546-2318-1.

Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor of Political Science, University of California, Davis.  Email: gawsmith@ucdavis.edu

Until the recent and for many the alarming and very painful rise in the price of oil, most of what remained of the enthusiasm for nuclear power that used to be prevalent in the industry and among policy makers has been succored by technology changes.  Somewhere in the not too distant future, perhaps, is the prospect of nuclear power stations that are smaller, safer, and smarter than those now in use.  The improvements might even extend to waste production, perhaps by minimizing waste outputs and releases or by feeding back into the fuel cycle whatever waste is inevitably produced as a by-product of electricity generation.

Within the last year, however, as the price of a barrel of crude oil has climbed towards and sometimes beyond fifty dollars, nuclear power has regained some credibility on economic grounds, too.  It is far from clear just how credible nuclear power now is as an energy policy alternative (Portney 2005).  The nuclear option is creeping back into energy policy scenarios, however, including those of the Bush Administration, even though the last nuclear power plant to open in the United States started generating electricity in 1996 and no new plant has been commissioned by electric utilities or brought into the licensing and construction process in America since 1973.

The time may have come, then, to blow the dust off the multitude of books, articles, and reports about nuclear power that have accumulated in the last three or four decades, during the period since American domestic politics took the bloom off the nuclear rose, and take fresh stock of where we stand.  This is certainly the context in which this new book about nuclear waste law and policy by Peter Riley might have value and relevance.

Much can be learned about nuclear waste law and policy in an international and comparative context.  Although nuclear has for all intents and purposes been stymied as viable option in the United States for the last several decades, other countries have pushed ahead with civilian nuclear power programs.  And still others would like to move in this direction, if they can navigate their way through the treaties that now seek to prevent accidents, manage wastes, and keep a lid on weapons proliferation.  Indeed, some nations now take the view that they have a right to the peaceful uses of atomic energy in the context of an argument that few other energy sources have a comparable capacity to contribute to sustainable development.

Writing a book about nuclear waste affords an almost golden opportunity, then, to weave together and make sense [*407] of some of the major themes in domestic and international politics over the last thirty or forty years.  It is also a chance to ask some tough questions about whether and how one of the most complex and sophisticated of modern technologies can be made compatible with the notion of sustainable development.

On the face of it, Riley is well-placed to capitalize on these opportunities.  He worked for a time, so he tells us in his Preface (p.vi), in the nuclear construction industry.  More recently, he has taught a postgraduate course in environmental law at DeMontfort University in Leicester, England.  Moving through the various chapters of NUCLEAR WASTE, it becomes clear that Riley brings from these experiences a strong grounding in the scientific and technical aspects of nuclear power, which he takes up in the first two chapters of his book.

American readers will also be impressed with the breadth of the descriptive detail Riley provides in this book about law and policy.  Standard treatments of the law of nuclear power do not come anywhere close to the richness of detail Riley offers about international nuclear law, European law, and the relevant statutory and case law at the national level in the United States, Britain, France, Finland, and Korea.

In the fourth and current edition of a classic work on environmental law in the United States, for example, nuclear power receives four and one-half pages (Schoenbaum, Rosenberg, and Doremus 2002).  In the most widely respected treatment of international environmental law written by American authors (Hunter, Salzman, and Zaelke 2002) nuclear power is relegated to one small section of a larger chapter (Ch. 12) on hazardous wastes and materials.  And in the international environmental law book most sensitive to developments in Europe (Sands 2003) nuclear power gets scattered and limited treatment in three chapters (Chs. 12, 13, and 18) out of twenty-one.

By contrast, Riley details case law from Britain, the United States, and other jurisdictions (pp.vii-viii).  He presents tables of international and European instruments (pp.ix-x).  And he identifies the primary and secondary national legislation relevant to the development and regulation of nuclear power in Britain, the United States, Finland, France, and Korea (pp.xi-xiv).  Much of the book is then taken up with fleshing out the details of these legal materials, and mixed in with this there is some sporadic commentary on how the law works and what difference it makes in various contexts.

Riley considers national and international policy (Ch. 3), the attitudes and influences of various nuclear power stakeholders and how these are shaped by policy (Ch. 4), the different sources of law relating to nuclear waste and how these interrelate (Ch. 5), and national nuclear laws and the regulatory regimes they have spawned in his four case study countries (Ch. 6).  The country case studies are not well-balanced, however.  Much more attention is paid to Britain and the United States than to France, Finland, and Korea.

All in all, this is a substantial diet and there is a lot to digest after reading this book.  Given its astonishing price, [*408] however, it is impossible to imagine than many individuals will buy the book, and it surely has no future whatever as a student text.  It will probably find its way into some libraries, where scholars looking for a quick factual overview of the law and policy pertaining to nuclear waste might find the book a useful starting point and reference.

Riley has not made a lasting and significant contribution with NUCLEAR WASTE, however, partly because the rich descriptive detail he presents will quickly become dated, but chiefly because the book lacks a clear and consistent critical stance.  One senses early on, for example, that Riley thinks the world needs more nuclear power plants.  He is a technological optimist, a strong believer in the ability of well-meaning scientists and technicians to solve or minimize any problem that the further development and expansion of nuclear power might bring to light.  He is sensitive to and very self-consciously patient with the legal and policy constraints imposed on the nuclear industry, around the world and at every level of government, in the last three or four decades.  In the end, however, although Riley seems willing to tolerate some semblance of public and stakeholder participation in nuclear decision making, his real message, which he never quite summons the courage to state as boldly and explicitly as he should, is that policy makers and the public should put themselves in the hands of those who know the science and technology of nuclear power, and do what they say is feasible.

This is a very old and by now very shopworn refrain from technocrats who are caught up in the politics of energy and environmental issues: “We know what we’re doing.  We are the only ones who really know what we’re doing.  Trust us.”  The single most astonishing and disappointing feature of NUCLEAR WASTE, therefore, is that Riley never once pauses to question this claim.

He never asks how and why it was that civilian nuclear power was sold (most would now say oversold) as an energy policy panacea after World War II.  He never asks how and why the mighty nuclear power industry in the United States was stopped in its tracks in the early and mid-1970s by what in the beginning, certainly, was a rag-tag-and-bobtail collection of public interest scientists and litigators.  There has to be a fascinating and important story there, but Riley does not tell it.  And most astonishingly of all, given that this is a book about the law and policy of nuclear waste, Riley never explains the absolutely critical role that the high-level nuclear waste disposal problem played in forcing a fundamental public, regulatory, and legislative reappraisal of the promise of nuclear power.  The critical waste disposal problem is still with us, and it is still far from being resolved, despite legislation Congress passed to try to address the issue in 1982.

This avoidance of history could conceivably be excused on the grounds that Riley did not want to make the writing of this book an occasion to revisit and stir up again conflicts and controversies that have been expensive and painful over several decades for everyone involved.  But by avoiding history Riley leaves his readers adrift without knowing how he would answer some very basic questions.  [*409]

Towards the end of the book, for example, in a section where Riley seems to want (finally) to explain his own point of view, he writes about the prudence of building more nuclear plants.  He sees this, certainly in the British context, as a strategy that will help make the transition from reliance on non-renewable energy sources, like coal and oil, to renewables.  “To ensure that new nuclear plants can be installed without valid opposition,” he writes, “and to meet justification requirements two problems remain to be resolved: the first is the question of economics and the second is the management of radioactive waste” (p.257).

This is a disconcerting sentence, coming as it does at the end of a three hundred page treatise.  Where at this very late stage in the book did the concept of valid opposition come from?  Was any of the opposition previously expressed to nuclear power valid?  Was it valid to put an effective moratorium on new nuclear plant construction in the United States in the early 1970s?  Or was that a grievous error?  Other obvious questions occur, too, although plainly at this stage too late for them to be satisfactorily addressed.  What, for example, is the difference between valid and invalid opposition to nuclear power?  And who is qualified and on what basis to express valid opposition?

The other troubling aspect of the sentence I have quoted is that, notwithstanding everything Riley has said in six earlier chapters about nuclear waste management – that it is moving forward slowly but basically on the right track in the United States (p.186), for example, and that it is an impressive success story in Finland (p.205) – the final verdict actually seems to be that it is a problem still awaiting resolution.  So, which is it?  And in a book this long (and expensive) and written by someone whose perspective presumably is valid, are we not entitled to know how to answer that question, or to be able to read, at least, the author’s best judgment about whether we have a good, firm handle on the nuclear waste management problem?

What I think Riley really values in law and policy is clarity and certainty.  He wants law makers and regulators to create a context for nuclear waste management in which scientific and technical experts can calculate parameters for risk, exposure, safety, and liability without being forced back to first principles to ask what any of these terms mean, or what consequences ensue for various affected populations if the parameter estimates are off the mark.  History shows that such a scenario is highly improbable.  But, as I said earlier, history is not one of Riley’s strong suits.

REFERENCES:

Hunter, David, James Salzman, and Durward Zaelke. 2002.  INTERNATIONAL ENVIRONMENTAL LAW AND POLICY (2d ed). New York: Foundation Press.

Portney, Paul R. 2005.  “Nuclear Power: Clean, Costly, and Controversial.” 156 RESOURCES 28-30.

Sands, Philippe. 2003.  PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2d ed).  New York: Cambridge University Press. [*410]

Schoenbaum, Thomas, Ronald Rosenberg, and Holly Doremus. 2002.  ENVIRONMENTAL POLICY LAW (4th ed).  New York: Foundation Press.

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© Copyright 2005 by the author, Geoffrey Wandesforde-Smith