INTRODUCTION II. NUCLEAR ENERGY USE WAS A CONTENTIOUS PUBLIC ISSUE BEFORE CLIMATE CHANGE EMERGED AS A PROBLEM III. INCLUSION OF NUCLEAR ENERGY IN INTERNATIONAL CLIMATE AGREEMENTS REMAINS CONTENTIOUS IV. CLIMATE CHANGE HAS NEVERTHELESS REVIVED THE CIVILIAN NUCLEAR ENERGY OPTION V. THE FOUNDATION FOR NUCLEAR ENERGY HAS BEEN LAID: INDIA AS AN EXAMPLE VI. ENGAGING INDIA IN NUCLEAR ENERGY SHOWS LOCAL AND GLOBAL ENVIRONMENTAL PROBLEMS A. Increasing Nuclear Energy Will Not Solve India's Short Term Emissions Problem Because of Domestic and International Regulatory and Administrative Uncertainties B. Transferring Nuclear Technology to India Sets the Stage for Future Environmental Issues VII. CONCLUSION: ACKNOWLEDGING AND ADDRESSING THE CLIMATE-NUCLEAR LINK I. INTRODUCTION
Climate change is launching a nuclear energy future because nuclear power generation produces low greenhouse gas emissions. (1) Nations are therefore reviewing their nuclear energy portfolio and expanding international cooperation on civilian nuclear energy. (2) India is a notable example. Recognizing India's energy demands and the climate mitigation problems associated with fossil fuel use, the Nuclear Supplier's Group, at the behest of the United States, removed nuclear trade sanctions imposed on India. (3) India has subsequently been negotiating and signing numerous bilateral agreements aimed at expanding its domestic nuclear power generation facility. (4) The apparent advantages of nuclear energy in mitigating climate change are however significantly marred by international and domestic regulatory and governance gaps in assessing and managing the environmental impacts of nuclear energy. (5)
Although partially promoted to mitigate climate change, nuclear technology is not featured as an energy alternative in international climate treaties because of persisting environmental, safety, and cost concerns. (6) The Indian government's assessment of the legal framework to manage environmental and safety impacts of nuclear expansion, including waste management, does not match its alacrity in concluding nuclear agreements. (7)
In this article it is argued that India's nuclear policy represents an upcoming challenge to environmental law for two reasons. First, it shows that the international community's support for India's civilian nuclear program, despite the exclusion of nuclear energy for safety, security, and cost reasons, will not yield timely emissions reduction benefits because of sketchy international and domestic energy policy and poorly aligned emissions reduction and energy diversification goals. Second, the expansion of India's civilian nuclear program demonstrates that nations have given scant attention to developing an adequate legal framework for managing serious associated environmental problems such as waste management, siting, and liability. Without a comprehensive and cohesive international regime on nuclear energy, these issues present serious environmental concerns both locally and globally.
This case study demonstrates that a meaningful strategy to mitigate climate change must, without exacerbating other environmental problems, align national and international law and policy on three indivisible aspects of the problem: emissions, energy, and economics. The current approach to climate mitigation focuses primarily on emissions reduction goals, which may actually drive nations to pursue environmentally detrimental energy alternatives such as nuclear energy. This reality cannot be wished away by excluding a particular type of energy from the climate treaties. Instead, nations may have to take a more stringent approach and establish a climate assessment system under which certain types of energy will be phased out. A mechanism to simultaneously assess the environmental impacts of energy alternatives such as nuclear power must also be considered to ensure that alternatives achieve the requisite steep emissions cuts.
This article proceeds in seven parts. Part II discusses the general lassitude of nations towards nuclear energy. Part III examines the continuing opposition to including nuclear energy within the purview of the international climate regime of treaties. Part IV analyzes the resurgence of nuclear energy on the coattails of climate change despite its exclusion from the international climate regime. Part V presents a case study of India's civilian nuclear program to demonstrate that the foundations for a nuclear energy future have been established. Part VI presents arguments showing that India's nuclear energy program will not help address climate change and that regulatory and administrative gaps in nuclear energy management may in fact set the stage for future local and global environmental governance problems. The final and concluding section proposes that, in light of lessons from nuclear energy expansion, nations must not only focus on changing time-bound emissions reduction targets but also on phasing out or regulating technologies that affect the environment. A failure to seriously reconsider both climate mitigation and energy deployment strategies may result in further deterioration in environmental governance, in addition to a potential climate catastrophe.
NUCLEAR ENERGY USE WAS A CONTENTIOUS PUBLIC ISSUE BEFORE CLIMATE CHANGE EMERGED AS A PROBLEM
Nuclear energy use for electricity generation began at the end of World War II. (8) The United States government established the Atomic Energy Commission (AEC) in 1946 to promote nuclear energy research for peaceful use. (9) By 1954, AEC had launched a vigorous domestic program, including the five-year-long Reactor Development Program, both to boost its civilian nuclear plans and to respond to potential threats of the Cold War. (10) Towards 1957, the United States' foreign policy favored transnational sharing of nuclear technology for peaceful purposes under the supervision of the International Atomic Energy Agency (IAEA). (11) The AEC predicted that by the year 2000 nuclear energy would be a principal source of power generation (12) if it could compete with coal. (13)
Citizens and states concerned about several consequences, such as nuclear fallout, diversion or theft of materials, thermal pollution, radioactive waste management, and the effect of radiation on health particularly after a near meltdown of a nuclear plant in Detroit in 1966, (14) tempered the federal government's civilian nuclear program ambitions. (15) In Calvert Cliffs' Coordinating Committee, Inc. v. U.S. Atomic Energy Commission (16) the D.C. Circuit also established stringent legal checks by holding that under the National Environmental Policy Act (NEPA), the federal agency proposing the project had to consider all environmental impacts of their projects including, in the case of AEC, non-radiological environmental impacts of nuclear plants before
granting construction permits.17 This interpretation of NEPA increased costs of nuclear power construction and led to a decline in the U.S. nuclear energy program, particularly when the U.S. government introduced several energy conservation measures in the 1990s. (18)
Nuclear power plants accidents such as Three Mile Island and Chernobyla (19) considerably slowed down commercial nuclear energy programs. Several nations either imposed regulatory bans on nuclear reactors or adopted policy measures to phase out nuclear reactors (20) because of environmental and public health and safety concerns. In 1998, the International Energy Agency (IEA) predicted in its annual publication, World Energy Outlook (WED), that nuclear energy as a primary fuel would eventually decline in the Organization for Economic Cooperation and Development (OECD) Europe and OECD North America. (21) Nuclear energy expansion was primarily anticipated in the OECD Pacific. (22) However, India's nuclear future at that point was less promising because of international sanctions. (23) Thus, nuclear energy was not considered a good option from an environmental, safety, or cost perspective.
INCLUSION OF NUCLEAR ENERGY IN INTERNATIONAL CLIMATE AGREEMENTS REMAINS CONTENTIOUS
Skepticism about the environmental and health impacts of nuclear energy prevails to the extent that some nations continue to reject its inclusion within the international climate change regime. As illustrated by the United States, persisting public opinion against nuclear facilities reflects serious concerns about security and environmental safety. (24) As the controversy surrounding the designation of Yucca Mountains in Nevada as a permanent nuclear waste repository highlights, nuclear waste management is one critical concern. The D.C. Circuit (25) agreed that nuclear waste management warranted serious consideration when it set aside the Environmental Protection Agency's (EPA) designation for setting its compliance period of safety standards for only ten thousand years instead of the one million years recommended by the National Academy of Sciences. (26) Debate about the storage of nuclear waste continues pending review of the site, and an administrative court has disallowed the Obama administration from withdrawing the site. (27)
A Massachusetts Institute of Technology (MIT) study affirms that public opposition to nuclear energy deters nuclear technology development. (28) Similarly, in a briefing paper submitted to the House of Representatives the United States Energy Information Administration noted that public opposition to nuclear energy impeded proper cost-benefit analysis of nuclear energy in the climate change context. (29) It particularly noted that investor return on nuclear energy could not be assessed because even citizens who favored nuclear energy generally opposed the construction of nuclear reactors in their local communities. (30)
Furthermore, the international climate change regime excludes nuclear energy. Efforts to include nuclear energy as a climate mitigation technology under the Clean...
Environmental challenges of climate-nuclear fusion: a case study of India.
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