NUCLEAR ENERGY LAW UNIVERSITY OF HOUSTON LAW CENTER FALL 2010 SEMESTER (AUGUST 23, 2010) INTRODUCTION

Size: px

Start display at page:

Download "NUCLEAR ENERGY LAW UNIVERSITY OF HOUSTON LAW CENTER FALL 2010 SEMESTER (AUGUST 23, 2010) INTRODUCTION"

Randolf Quinn
6 years ago
Views:

1 NUCLEAR ENERGY LAW UNIVERSITY OF HOUSTON LAW CENTER FALL 2010 SEMESTER (AUGUST 23, 2010) Course No Section No (3.0 Credit Hours) MW; 6:00-7:30 p.m. Room 215 TU2 Robert S. Ballentine, LL.M. 711 Louisiana, Suite 1701 Houston, Texas (713) INTRODUCTION With 104 reactor units at sixty-six sites around the country, the nuclear power industry generates nearly 20% of the electricity consumed in thirty-one states within the United States. But construction has not commenced on any significant new commercial nuclear power reactor since prior to the 1979 incident at Three Mile Island in Pennsylvania. Although capacity factors, safety and other performance indicators have improved dramatically over the past two decades, time is running out on the aging fleet of reactor units constrained by their 40-year licensing authority. Even with 20-year license extensions, replacements will be needed in the foreseeable future or else nuclear power s contribution to electric power demand will start to decline just when demand is projected to increase significantly. Global climate change and concerns over carbon emissions have helped nuclear power advocates promote its worth to power generators contemplating how they will meet the demand for electricity in the future. But with little or no guidance from policy-makers, the nuclear industry is forced to speculate not just with regard to what the economic and regulatory landscape will look like for the next few years, but what it will look like every year between now and at least Decisions regarding fuel and technology selection, plant siting, project finance, purchases of long-lead time materials and products, and personnel selection and training must be made based upon the requirements of applicable laws and regulations, starting from the outset of the decision-making process and continuing for several decades thereafter. It is a virtually impossible task for electric utilities and other nuclear power generators, thus making knowledge of those laws and regulations, as well as the policies supporting them, essential to the decision-making process. In Texas, applications have been filed with the Nuclear Regulatory Commission for the construction and licensing of four new nuclear reactors two at NRG Energy s South Texas Project, and two at Luminant Power s Comanche Peak installation. Exelon has sought an early site permit of two new reactors in Victoria County. But while reactor construction is proceeding around the world at a rapid pace, the United States as a whole seems poised to engage in only a modest round of new reactor construction. Students in this class will explore why that appears to be the case and whether public policies, state and federal laws and regulations, and other factors, including the current Congress and presidential administration, are encouraging or impeding the development of future commercial nuclear power in the United States. Students in this class will become conversant with statutory and regulatory authorities governing commercial nuclear energy generation. Emphasis will be placed on the laws of the 1 of 10

2 United States, including the Atomic Energy Act of 1954, 42 U.S.C. 2011, et seq., and the regulations administered by the federal Nuclear Regulatory Commission, and where relevant, applicable state laws, including particularly those of the state of Texas. Valuable insights will be gleaned from detailed reports and other materials published by academic institutions (e.g., University of Chicago and Massachusetts Institute of Technology), governmental bodies (e.g., Energy Information Administration and Government Accountability Office), industry participants (e.g., Luminent Power, Progress Energy and General Electric), trade groups (e.g., Nuclear Energy Institute), public interest groups (e.g., Federation of State PIRGs and InterAcademy Council); and others (e.g., Nuclear Energy Agency, International Energy Agency and World Nuclear Association). Other resources to be consulted will include public statements made by industry participants regarding their business plans and concerns, such as news releases, SEC filings and permit applications. Students will become familiar with the legal arguments advanced by both the advocates and the opponents of nuclear power generation. CLASS SCHEDULE/OUTLINE 1 Class No. Date Topic(s) First Class: 8/23/10 Review Syllabus 1 Introduction to Nuclear Power Introduction to Electricity; Historical Development of the Regulated Utility Bosselman, pp /25/10 Early Licensing of Nuclear Power Plants Introduction to Electricity Bosselman, pp (cont d) 2 Supplemental Class Materials, p. 1: Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) 1 Subject to change; additional materials will be handed out over the course of the semester. Bosselman refers to the primary text, F. Bosselman, et al., ENERGY, ECONOMICS AND THE ENVIRONMENT (Foundation Press 3 rd ed. 2010), available in the UHLC bookstore. Citations to Supplemental Class Materials refer to the particular item s starting page number in the packet of supplemental materials handed out at the start of the semester. 2 of 10

3 3 4 8/30/10 9/1/10 Current Structure of the Industry; Evolving New Topics Bosselman, pp Supplemental Class Materials, pp. 19 and 33: Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3 rd Cir. 1980) United States v. Eurodif S.A., 129 S.Ct. 878, 172 L.Ed.2d 679 (2009) Early Licensing of Nuclear Power Plants Introduction: The Importance of Energy; Government Regulation; Energy Law Into the Future; Climate Change Bosselman, pp /6/10 HOLIDAY LABOR DAY 9/8/10 Public Utility Regulation; Historical Origins Bosselman, pp /13/10 9/15/10 9/20/10 Supplemental Class Materials, p. 41: Twp. of Lower Alloways Creek v. Pub. Serv. Elec. & Gas Co., 687 F.2d 732 (3 rd Cir. 1982) The Rise of Market Power and the Traditional Tasks of the Regulatory Commission; Cost of Service Regulation Bosselman, pp Problems with Rate Regulation and Alternatives Bosselman, pp Supplemental Class Materials, pp. 58 and 67: State of Minnesota v. Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979) United States v. Newmont USA Limited, Slip Op., No. CV , 2008 U.S. Dist. LEXIS (E.D. Wash. Oct. 17, 2008) Handout(s). The Early Development of Nuclear Power Bosselman, pp Supplemental Class Materials, pp. 116 and 132: Carstens v. Nuclear Regulatory Commission, 742 F.2d 1546 (D.C. Cir. 1984) 3 of 10

4 /22/10 9/27/10 9/29/10 10/4/10 10/6/10 10/11/10 Calvert Cliffs Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971) Worldwide Growth of Nuclear Power; The Status of Existing American Nuclear Power Plants Bosselman, pp Handout: NRC Backgrounder: Nuclear Power Licensing Building New Nuclear Reactors in the United States Bosselman, pp Building New Nuclear Reactors in the United States (cont d) Bosselman, pp Atomic Energy Commission/Nuclear Regulatory Commission Statutory Framework Supplemental Class Materials, pp. 154 and 174: Natural Resources Defense Council v. Nuclear Regulatory Commission, 539 F.2d 824 (2 nd Cir. 1976) Commonwealth of Massachusetts v. United States, 522 F.3d 115 (1 st Cir. 2008) Building New Nuclear Reactors in the United States (cont d) Bosselman, pp Disposal of Nuclear Wastes Bosselman, pp Atomic Energy Commission/Nuclear Regulatory Commission Statutory Framework (cont d) Current Licensing; NRC laws and regulations, including 10 CFR 2.1, et seq. and 50.1, et seq.; Design Certifications (DC); Early Site Permits (ESP); Combined Construction and Operating Licenses (COL) Disposal of Nuclear Wastes Bosselman, pp Supplemental Class Materials, p. 192: In re TMI Litigation, 193 F.3d 613 (3 rd Cir. 1999) Disposal of Nuclear Wastes Bosselman, pp of 10

5 Supplemental Class Materials, pp. 252; 259 and 266: Acuna v. Brown & Root Inc., 200 F.3d 335 (5 th Cir. 2000) In re Berg Litigation, 293 F.3d 1127 (9 th Cir. 2002) In re Hanford Nuclear Reservation Litigation, Slip. Op., No , et seq., 2008 U.S. App. LEXIS (9 th Cir. Jul. 29, 2008) 10/13/10 Nuclear Waste Fund; Nuclear Decommissioning Costs; Price-Anderson Act 15 Supplemental Class Materials, pp. 285 and 301: Rainer v. Union Carbide Corp., 402 F.3d 608 (6 th Cir. 2005) Whittaker Corp. v. American Nuclear Insurers, 671 F.Supp. 2d 242 (D. Mass. 2009) 10/18/10 Advanced Nuclear Technologies; Effect of Electricity Restructuring Federal Preemption of Nuclear Safety Regulation 16 Nature of Nuclear Waste; Uranium Mill Tailings; Military Radioactive Waste; Low Level Radioactive Waste /20/10 10/25/10 Supplemental Class Materials, p. 313 Cook v. Rockwell International Corp., 273 F.Supp.2d 1175 (D. Colo. 2003) Supplemental Class Materials, pp. 350; 359 and 363: Smith v. Carbide and Chemicals Corp., 507 F.3d 372 (6 th Cir. 2007) Smith v. Carbide and Chemicals Corp., Slip Op., No. 5:97-CV-3, 2009 U.S. Dist. LEXIS (W.D. Ky. Sept. 15, 2009) Smith v. Carbide and Chemicals Corp., Slip Op., No. 5:97-CV-3, 2009 U.S. Dist. LEXIS (W.D. Ky. Dec. 21, 2009) Damages for Government s breach of standard contract for waste disposal Supplemental Class Materials, pp. 367; 379; 390 and 426: Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008) Pacific Gas and Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008) Dairyland Power Cooperative v. United States, Slip Op., No , 2009 U.S. Claims LEXIS 685 (Fed. Cls. Dec. 23, 2009) Dairyland Power Cooperative v. United States, Slip Op., No , 2010 U.S. Claims LEXIS 14 (Fed. Cls. Feb. 22, 2010) 5 of 10

6 /27/10 11/1/10 11/3/10 11/8/10 11/10/10 Supplemental Class Materials, pp. 429; 459 and 465: Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10 th Cir. 2004) Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272 (D.C. Cir. 1996) ( Indiana Michigan I ) Northern States Power Co. v. Department of Energy, 128 F.3d 754 (D.C. Cir. 1997) Permanent Repository Yucca Mountain storage repository in Nevada; State of Nevada s opposition; High Level Radioactive Waste (HLW) and spent fuel Supplemental Class Materials, pp. 473; 534 and 576: Nuclear Energy Institute v. Environmental Protection Agency, 373 F.3d 1251 (D.C. Cir. 2004) Florida Power & Light Co. v. Westinghouse Electric Corp., 826 F.2d 239 (4 th Cir. 1987) Bullcreek v. Nuclear Regulatory Commission, 359 F.3d 536 (D.C. Cir. 2004) Permanent Repository Yucca Mountain (cont d) Environmental Issues in Electric Power Generation Air Pollution Regulation Supplemental Class Materials, pp. 584; 599 and 617; Riverkeeper, Inc. v. Collins, 359 F.3d 156 (2 nd Cir. 2004) Entergy Corp. v. Riverkeeper, Inc., 556 U.S., 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) ConocoPhillips Co. v. Environmental Protection Agency, Slip Op., No , 2010 U.S. App. LEXIS (5 th Cir. Jul. 23, 2010) Economics of Nuclear Power/Competitiveness with Alternatives Tax Credits, Loan Guaranties, Other Subsidies for Nuclear and Alternative Fuels; Public subsidies and other incentives favoring nuclear power; Comparison to those of alternative fuels Economics of Nuclear Power/Competitiveness with Alternatives (cont d) 6 of 10

7 /15/10 11/17/10 11/22/10 11/24/10 to Sat., 11/27/10 11/29/10 Climate Change: Regulating Emissions; Climate Change and the Energy Sector; Bosselman, pp International Climate Control Strategies Bosselman, pp Safety/Acts of Terrorism; Security/Proliferation Supplemental Class Materials, pp.633; 642; 648 and 658: Environmental Law and Policy Center v. Nuclear Regulatory Commission, 470 F.3d 676 (7 th Cir. 2006) New Jersey v. Nuclear Regulatory Commission, 526 F.3d 98 (3 rd Cir. 2008) New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission, 561 F.3d 132 (3 rd Cir. 2009) Public Citizen v. Nuclear Regulatory Commission, 573 F.3d 916 (9 th Cir. 2009) Domestic Climate Change Control Policies Bosselman, pp Supplemental Class Materials, pp. 670 and 688: San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9 th Cir.), cert. denied, Pacific Gas & Electric Co. v. San Luis Obispo Mothers for Peace, 127 S.Ct (2006) Comer v. Murphy Oil USA, 585 F.3d 855 (5 th Cir. 2009), rehearing granted, 598 F.3d 208, order on rehearing, 607 F.3d 1049 (5 th Cir. 2010) Advanced Reactor Design/Fusion Review Practice Exam(s) HOLIDAY - THANKSGIVING No Make-Up Day Class to Permit Final Exam Preparation 7 of 10

8 28 12/1/10 Last Class: Semester Review, Questions, and Take Away Final Exam from Class [29] 12/6 Reading and/or Make-Up Class Day, If Necessary /8/10 Thurs., 12/8/10 (6:00 to 9:00 p.m.) 12/20/10 Final Exam Period Commences Final Examination Room, : Write Exam, with Outline/Notes to be turned in at the end of the examination session along with students answers to the Final Exam Semester Closes PREREQUISITES None; however, some familiarity with governmental regulation, environmental law, and administrative procedure, including the Administrative Procedures Act, will be helpful. FINAL EXAM A take-away final exam (90% of grade) will be administered in this class. The final examination questions will be distributed and taken away during the final class session; the answers will be written at the time and place scheduled for the final examination. Outlines and notes which may be prepared in advance and from which the examination answers may be written shall be submitted along with the final examination answers at the conclusion of the examination session. The balance of the grade (10%) will reflect the degree and quality of class participation and demonstrable familiarity with assigned materials. REQUIRED TEXT F. Bosselman, J. Eisen, J. Rossi, D. Spence, J. Weaver, ENERGY, ECONOMICS AND THE ENVIRONMENT (Foundation Press 3 rd ed. 2010): RECOMMENDED (OPTIONAL) TEXTS Joseph P. Tomain (U. Cincinnati) and Richard D. Cudahy (7th Cir.), ENERGY LAW (Nutshell Series, West Pub. 2004) Robert E. Willett, ELECTRIC & NATURAL GAS BUSINESS - USING NEW STRATEGIES (Financial Communications Co. 2004) Arthur Mazer, ELECTRIC POWER PLANNING FOR REGULATED AND DEREGULATED MARKETS (IEEE Press/John Wiley & Sons 2007) 8 of 10

9 Steven Ferry, THE NEW RULES - A GUIDE TO ELECTRICITY MARKET REGULATION (Pennwell 2000) Ian Hore-Lacy, NUCLEAR ENERGY IN THE 21 ST CENTURY - WORLD NUCLEAR UNIVERSITY PRIMER (World Nuclear University Press 2006) Alan M. Herbst and George W. Hopley, NUCLEAR ENERGY NOW (Wiley 2007) Robert C. Kelly, THE CARBON CONUNDRUM GLOBAL WARMING AND ENERGY POLICY IN THE 3 RD MILLENIUM (CountryWatch, Inc. 2002) RELEVANT STATUTES INCLUDE: Energy Policy Act of 2005 (P.L ) Energy Independence and Security Act of 2007 (P.L ) Atomic Energy Act of 1954, as Amended (P.L ), 42 USC 2011, et seq. Energy Reorganization Act of 1974, as Amended (P.L ), 42 USC 5801, et seq. Reorganization Plan No. 3 of 1970 (EPA) Reorganization Plan No. 1 of 1980 (NRC) Executive Order No , Activation of the NRC OMB Memorandum: Responsibility for Setting Radiation Protection Standards President's Commission on the Accident at Three Mile Island (12/7/79) High Level Radioactive Waste Nuclear Waste Policy Act, as amended (P.L ), 42 USC 10101, et seq. Energy Policy Act of 1992 Provisions Defense Site Acceleration Completion Uranium Mill Tailings (P.L ) MOAB Site Hazardous Materials Transportation Act, as Amended (P.L ) Transportation of Plutonium (Miscellaneous provisions) Administrative Law Statutes: FOIA Privacy Act Government in the Sunshine Act Negotiated Rulemaking Act of 1990 Administrative Dispute Resolution Act, as Amended (P.L ) 9 of 10

10 Chapter 6 The Analysis of Regulatory Functions Chapter 7 Judicial Review Chapter 8 Congressional Review of Agency Rulemaking Federal Advisory Committee Act (P.L ) Federal Vacancies Reform Act of 1998 (P.L ) Truth in Regulating Act of 2000 (P.L ) Alternative Resolution Act of 1998 (P.L ) Federal Civil Penalties Inflation Adjustment Act of 1990, as Amended (P.L ) MISCELLANEOUS STATUTES: Antiterrorism (P.L ) Homeland Security (P.L ) DOE Workers Protection (P.L ; 611) Tritium (P.L ; 3134) MOX Fuels (P.L ) Miscellaneous Nuclear DOE Provisions, Enacted by Public Law , the Energy Policy Act of 2005 (P.L ) Energy & Water Development Appropriations Act, 2006 (P.L ) Clean Air Act of 1977, as Amended (Selected Sections) (P.L ) Federal Water Pollution Control Act of 1972 National Environmental Policy Act of 1969, as Amended (P.L ) 10 of 10

Yucca Mountain and Interim Storage Proposed Appropriation Language

Yucca Mountain and Interim Storage Proposed Appropriation Language Proposed Appropriation Language NUCLEAR WASTE DISPOSAL For Department of Energy expenses necessary for nuclear waste disposal activities to carry out the purposes of the Nuclear Waste Policy Act of 1982,