Legal challenges to new nuclear: can we trust government?

These moves come at a very delicate point in the negotiations between the Department of Energy and Climate Change (DECC) and the French nuclear corporation EDF over the mounting cost of nuclear electricity.

At the very least, if the application for judicial review is granted for either challenge, proposed French nuclear projects in England and Wales will inevitably be hit by very long delays.

An Taisce (the National Trust for Ireland) is arguing that Energy Secretary Ed Davey's decision to grant planning permission for two nuclear reactors at Hinkley Point was unlawful, since the Irish people were not consulted on the proposals. The Trust wants a judicial review at the High Court in London. The Court's ruling is bound to impact on future proposals, including plans for a nuclear power plant in Anglesey, which is even closer to Ireland.

In a separate case, Greenpeace is challenging the UK Government's decision to grant planning permission for the reactors because it hasn't found a site to store the new nuclear waste, following Cumbria's resounding rejection of a national nuclear waste site in the area.

National Trust for Ireland

The Trust is challenging new nuclear under the EU's Environmental Impact Assessment Directive, which requires that affected EU members states are informed and consulted during the planning stage of infrastructure projects that "could have a significant impact on the environment".

The United Nations Economic Commission for Europe ‘Convention on Environmental Impact Assessment in a Transboundary Context', signed in Espoo (Finland), lays down the obligation of EU states to consult each other on all major projects, such as nuclear reactors, that could have significant adverse environmental impacts across national boundaries. The Convention has been ratified by the EU, which means that the UK is legally bound by it.

So it seems that, by not consulting the Irish people about plans for two very large French EDF AREVA EPR reactors at Hinkley Point (each containing twice the radiological inventory of the UK's largest nuclear station at Sizewell B), the UK Government may well have breached these European Regulations. For example, in legal papers issued to the court, the Trust points out that Finland, Lithuania, the Netherlands and the Czech Republic - unlike the UK - have all consulted their neighbouring countries on plans to develop nuclear power.

The Trust says that, "the first time many Irish people learned about the nuclear power plant proposal was when the decision was announced. Their views were not therefore taken into consideration as part of the UK Government's decision and assessment process. This case is not about interfering with the right of the UK authorities to make their own decisions, nor about being pro or anti nuclear. It's about ensuring that the rights and interests of the Irish public and their concern for their environment are not excluded from those decisions, and that the Irish public is properly consulted in accordance with the law on a project of this nature."

It also points out that Ireland's agriculture, food, fishing and tourism "are critically dependent on the quality of our environment, as is the health of our people. This is therefore a matter of considerable importance and concern for Irish people, and for our interest in our environment."

In response, it's likely the UK Government will argue that, as they state in a key Scoping Report: "The probability of a radiological impact is considered to be low on the basis of the regulatory regimes in place." In other words, despite the lessons learned from recent events at Fukushima (that accidents are, by nature, accidental), they maintain that the "high-tech methods proposed during construction/operation of the development, and mitigation measures are expected to be in place to address any potential adverse impacts". On this basis, the UK Government is reassured that any environmental or health impact from an accident "will not be significant."

This optimistic view is rehearsed by French nuclear corporation EDF, which states that trans-boundary impacts from accidents during operation or decommissioning will be "so low as to be exempt from regulatory control". Here, it's also interesting to reflect that EDF/AREVA are clear that for the very worst reasonably foreseeable event, including terrorist attack, the maximum radiation release from their reactors would be no more than 0.03% of the reactor core per day - quite a heroic safety claim.

Greenpeace

Greenpeace's application for a judicial review of the Government's decision to grant consent for the two reactors at Hinkley Point is likely to rest on the absence of "effective arrangements" for dealing with the nuclear waste that would be generated. In other words, since the UK Government simply doesn't have a proven method to dispose of long-lived nuclear waste, nor is there an agreed site for this waste - it may prove imprudent and even unjustifiable to generate significant quantities of extremely long-lived radiologically toxic nuclear waste.

Here it's worth being clear that there is, as yet, no proven technical solution anywhere in the world for the long-term management of radioactive wastes. That being so, it seems difficult to justify the creation of more wastes unless there is a scientifically sound, proven, and socially acceptable solution.

In court papers, Greenpeace argue that Ed Davey "impermissibly put a positive gloss on a number of factual matters and ignored other facts and the context". Significantly, planning permission for the two proposed reactors at Hinkley Point came after the decision by Cumbria Council to reject the long-term storage of UK nuclear waste in its area. And since Cumbria was the only area taking part in finding a national nuclear waste site, this leaves the Government with a very large hole in its waste policy process.

This is important because the Government's own policy on nuclear power commits it to be satisfied that "effective arrangements exist or will exist to manage and dispose of waste" from new nuclear power plants before giving planning permission. Here, Greenpeace argue that Cumbria's decision meant this test could not have been met and the Government "failed to take into account or recognise the true significance of Cumbria's decision".

As Greenpeace say, "over nearly 40 years governments have found it impossible, no matter the gloss it puts on it and despite intensive and expensive efforts to find any site specific solution to, or to make any real progress on finding any such solution, to the problem of ‘disposing' safely of legacy waste."

Public Trust

At the end of the day, given the uncertainties around nuclear risk, public trust is key. Here, two-way communication between those who regulate nuclear risk and those people who are affected by radiation releases is essential.

Decision-making without proper public consultation or sufficient information wastes time and can seriously undermine people's trust. The extent of mistrust of the institutions and the institutional culture underpinning nuclear power underlines that this is a public mood that, although not immutable, has been deeply entrenched by long and discouraging experience.

In order for the public to be able to invest trust in the governance of nuclear technology, science and risk; consultation must be a truly involving process, forwarding important problems, rather than preordained solutions based on incomplete information. And any decision to create more high-level waste needs to be backed by concrete proof, rather than optimistic rhetoric, that we can actually dispose of it.

Dr Paul Dorfman is Joseph Rowntree Charitable Trust Nuclear Policy Research Fellow, Founder of the Nuclear Consulting Group, and a lead author of the European Environment Agency report: 'Late Lessons from Early Warnings' Vol.2

Image courtesy of www.shutterstock.com

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