Why We’re Taking a Hard Look at Nuclear Power Plant Closures

Posted on November 13, 2018 by Kenneth Kimmell

Last month the Intergovernmental Panel on Climate Change (IPCC) issued a sobering report. Based on the most up-to-date scientific evidence, the report warns that we are rapidly losing any appreciable chance of meeting the Paris climate agreement goal of keeping temperature increases to “well below” 2 degrees Celsius above pre-industrial levels.

The report also makes clear that if we fail to meet this goal, the consequences will not only be severe, but they will be experienced sooner than expected. (For more information on the IPCC report, see our blog series)

In stark defiance of science, here in the United States the federal government has abdicated its leadership role and is now taking a wrecking ball to the pillars of progress—the Clean Power Plan, our nation’s first limits on CO2 from power plants; fuel economy/greenhouse gas emission limits for cars and trucks; and rules to limit methane emissions from oil and gas operations.

While a number of states, cities, businesses, universities and others have stepped up admirably, many observers have concluded that there is a high degree of uncertainty about whether we will meet or even get close to the pledge we made as part the Paris Agreement—a 26 to 28 percent reduction from 2005 levels by 2025. This graph, adapted from a study performed by the Rhodium Group, depicts this:

US projected emissions compared to the US Paris pledge. Source adapted from Taking Stock 2018, Rhodium Group

These sobering realities dictate that we keep an open mind about all of the tools in the emissions reduction toolbox—even ones that are not our personal favorites. And that includes existing nuclear power plants in the United States, which currently supply about 20 percent of our total electricity needs and more than half of our low-carbon electricity supply.

A new UCS report, The Nuclear Power Dilemma: Declining Profits, Plant Closures, and the Threat of Rising Carbon Emissions, indicates that more than 22 percent of total US nuclear capacity is unprofitable or scheduled to close over the next five to 10 years. The report also indicates that without new policies, the electricity generated by these and other marginally economic nuclear plants is likely to be replaced in large part with natural gas-fired generation (although this will vary from plant to plant). If this occurs, cumulative carbon emissions in the electric sector could increase by up to 6 percent between 2018 and 2035.

While a 6 percent increase in emissions doesn’t sound that sizable, emissions from the electric sector must decrease, rapidly and substantially. The National Research Council has found, for example, that power plant emissions must decrease by 90 percent by 2040 to meet US climate goals.

Most of that reduction will be achieved by using electricity more efficiently, expanding increasingly cheap solar, wind, and energy storage, modernizing our grid, and building more transmission lines to connect these renewable sources to load centers. We are counting on these approaches to replace capacity as coal plants close; cut down on an overreliance on natural gas in the short term and displace it over time; and increase overall electricity supply to pave the way for the electrification of transportation, space and water heating, and industrial processes.

But if nuclear power plants close prematurely, we add a fourth task—replacing lost nuclear capacity. While efficiency, renewables, transmission and storage may be up to the task, governments must adopt policies that assure that we will decarbonize even if these resources fall short of our expectations.

Factoring all of these considerations in, our new report calls for proactive policy to preserve nuclear power from existing plants that are operating safely but are at risk of premature closures for economic reasons or to ensure that lost nuclear capacity is replaced with carbon-free sources.

The best policy is an across-the-board national carbon price, which UCS has been advocating for years. Another policy solution that hasn’t received as much attention is a national low carbon electricity standard. This policy builds on the success of state renewable electricity standards but would include other low or zero carbon energy technologies. Either option would help the existing nuclear fleet, substantially boost solar and wind energy, and substantially decrease natural gas and coal use, while reducing US power sector carbon emissions by up to 28 percent cumulatively by 2035. These are durable policy solutions. Rather than a temporary fix that throws money at the problem, these policies address a systemic market failure that will help level the playing field for nuclear and other low carbon technologies in the long-run.

In the absence of national carbon price or low carbon electricity standard, the report calls upon states—which have plenary authority over the electric sector—to take proactive measures of their own. For example, California’s strong renewable energy and energy efficiency standards and climate policies mean that it can likely replace the Diablo Canyon nuclear facility by 2025 with clean energy and continue to drive down emissions. New York, Illinois and New Jersey have all adopted policies to provide financial support for distressed nuclear power plants that value their carbon-free power attributes. At the same time, these states have boosted renewables and efficiency, and sought to ensure that preserving existing nuclear power does not in any way undermine expansion of renewables.

The UCS report does not argue for subsidies for any specific plants. That case will have to be made in state-specific forums. Should states decide to support nuclear power plant subsidies, our report calls for them to be temporary and subject to periodic reassessment. And companies seeking subsidies must open their books and allow the public and regulators to make sure that the subsidies are needed and cost-effective, and that the same level of carbon free power cannot be provided during the relevant time period with less costly options.

Finally, our report makes clear that we would never support financial assistance that is tied to also subsidizing fossil-based energy sources, such as the rumored Trump administration proposal to bailout coal and nuclear plants based on spurious national security grounds.

Our report also factors in the critical issue of nuclear safety. Since its founding, UCS has been deeply concerned about the risks posed by nuclear power. An accident or terrorist attack at a US nuclear reactor could severely harm public health, the environment, and the economy. For this reason, UCS has worked as a nuclear power safety and security watchdog for more than 40 years. Consistent with our longstanding advocacy for nuclear safety, subsidies should be considered only for plants that at a minimum earn the highest safety rating from the Nuclear Regulatory Commission. This ensures that subsidies are not used to correct safety problems caused by bad management and gives under-performing plants an incentive to improve to be eligible for subsidies. And our report in no way backtracks from our longstanding insistence that there be strict oversight from the Nuclear Regulatory Commission, and that nuclear power plant operators continue to make their plants safer by expediting the transfer of spent fuel to dry casks, bolstering emergency management procedures, increasing emergency planning zone sizes, and other measures outlined in numerous UCS reports, including Preventing an American Fukushima.

Nuclear power plants are controversial, for legitimate reasons. But the IPCC report reminds us that we are running out of time and will have to make hard choices. Preserving the capacity of safely operated nuclear plants or ensuring that this capacity is replaced with zero carbon alternatives is an imperative that cannot be ignored.

Flint Water, Legionnaire’s Disease, and Corruption in Office

Posted on November 12, 2018 by Jeffrey Haynes

On August 20, 2018, a Michigan state district court judge bound over Nick Lyon, the current director of the Michigan Department of Health and Human Services, for trial on two counts of involuntary manslaughter and one count of misconduct in office arising out of the deaths of two men from Legionnaire’s disease at a Flint-area hospital. In a rambling opinion read from the bench, district judge David Goggins found that two elderly men with prior health problems contracted Legionnaire’s disease at Hurley Hospital and died in 2015 because the health department director failed to give public warnings until January 2016 of outbreaks of the disease in the Flint area in 2014-2015.

Contradictory testimony linked Flint water to the outbreaks generally but did not establish that Flint water was the cause-in-fact of spreading the disease.  The challenge of establishing that Flint water was the specific source of the disease for the decedents was made more difficult by the fact that the hospital was already hyperchlorinating its water supply.  In theory, at least, hyperchlorination should have eliminated the Legionnaire disease toxin.

Apart from the causation question, the result does not easily square with Michigan law. In Michigan, misconduct in office is a common law felony. Caselaw defines misconduct in office as including (1) conduct in the exercise of the duties of the office or done under color of the office; (2) discretionary acts that were either misfeasance or malfeasance; and (3) acts that represent “corrupt behavior.” Examples of corrupt behavior would be enriching oneself or one’s friends while performing duties of one’s office.

The public health statute requires public notice based on the director’s “determination” that an “imminent danger to the health or lives of individuals” exists.  The court found probable cause to believe that the director’s failure to give notice of an outbreak of Legionnaire’s disease was corrupt behavior.

The preliminary examination transcript is thick with evidence of negligence of department staff in responding to local health department requests for help. The evidence also showed that the director was concerned about panic from a public notice and saving the state money by not addressing the disease outbreak.  But the transcript is thin on whether corruption was the basis for the misfeasance.  The misfeasance was surely bad judgment.  But there was no evidence that corruption motivated the director in exercising his discretion in the timing of the notice.

The result may not be surprising in view of the desire of Flint citizens to punish state actors involved with the crisis, combined with the pressure that may be created on judges who are elected by the same citizens. The current attorney general ran for governor in part based on the state spending over $26 million prosecuting state actors in the Flint water crisis. He lost. His successor, the Democratic attorney general-elect, must now decide whether she wants to continue spending similar amounts prosecuting members of a Republican former administration or work with the Democratic governor-elect to spend the state’s money fixing the Flint water system. The state may not have money to do both.  And if that is true, perhaps prosecutorial discretion will give way to fixing the water system once and for all.

The Rubber Begins to Hit the Road on Adaptation

Posted on November 6, 2018 by Seth Jaffe

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake, since my wife and I are about to move to Fort Point Channel, ground zero for climate change flooding impacts in Boston), what’s really amazing is the granularity of both the analysis and the recommendations.

If you want to understand just how granular the analysis must be in order to develop specific recommendations, you might take a look at this figure from the full Climate Ready South Boston report.  Don’t just skim the Executive Summary on this one.

I find this work both inspiring and discouraging.  There is so much to do.  Among other tasks, environmental lawyers have to figure out how to make these recommendations feasible in light of existing environmental regulations that would actually prevent implementation of some of the recommended adaptation measures.

I had thought of closing with a nice climate-inspired haiku.  Instead, I think I’ll leave you with this:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

A Time to Pivot, Reset, and Recommit to Core Principles

Posted on November 5, 2018 by Scott Fulton

These past months have been turbulent times for my old agency, EPA. Shortly before this writing, Scott Pruitt resigned in a cloud of allegations about ethical and judgment lapses, proving once again that, in Washington, D.C., process fouls are often more undoing than policy choices. And, of course, if your policy choices are provocative, all the greater the need to, as my mother would say, “Keep your nose clean,” as the sharp knives will no doubt be out, ready to slice and dice if the opportunity is presented.

The charges against Pruitt are still under investigation by EPA’s Office of Inspector General and other bodies, so I’ll not go too far in speaking to them other than to say that they are striking — and likely unprecedented — in their number and pattern. Whether or not Pruitt is ultimately found to have violated the law, operating in a manner that creates openings for issues of this kind is itself problematic. These are unforced errors in the classic sense.

With this as backdrop, I thought I might take the occasion to offer some suggestions to Acting Administrator Andrew Wheeler, or to whomever the next confirmed administrator might be, about possible ways to help EPA recover its footing and put some separation between the turbulence of these past months and where the agency goes from here.

First, there would be value in some messaging that reinforces EPA’s core mission — environmental protection — and the environmental quality goals behind it. There are different ways to achieve the mission, and of course the work needs to be undertaken in a manner that envisions environmental quality and economic development as compatible objectives. But clarity is important in terms of the unique contribution EPA makes in ensuring that development occurs in a way that also satisfies the environmental quality guarantees embedded in our laws. This is a vital and difficult calling, and one with respect to which clarity is important.

One way to get this message out is to do so through the budget. I and many others have been baffled by budgets from this administration that propose cutting both EPA and the categorical grants to the states. Such budgets project a fundamental questioning of the need for an environmental protection enterprise anywhere in government, begging the need for some remessaging on this front.

Second, make adherence to the Standards of Conduct for Executive Branch Employees a personal and organizational priority. A successor coming in the wake of allegations of this kind always has the opportunity to distinguish him or herself on the basis of adherence to the highest ethical standards. This is of course a time-limited opportunity, but you will likely be remembered most for how you navigate a shift in this arena.

Third, after Pruitt’s stumbles, recommit to openness. A renewed commitment to transparency will help the agency in turning the corner. Therefore, Wheeler’s issuance of his own “Fishbowl Memo” in the tradition of William D. Ruckelshaus is more than welcome. “This memorandum reaffirms those commitments,” the Acting Administrator told agency staff. “I encourage all EPA employees to uphold the contents of this memorandum and conduct themselves and their business in a manner worthy of the public’s trust and confidence. Our success as an agency depends on it.”

Fourth, hit the reset button in the relationship with career leadership and staff. The word in the hallways of EPA is that the career folks have thus far been relegated to the distant sidelines during this administration and have rarely been present for administrator briefings and consultations. There are also rumblings — some of them exposed in the media coverage — that Pruitt had a tendency to act first and consult with the agency’s career experts only after a problem relative to the action emerged. This is how mistakes are made. All and all, the relationship between the political leadership under Pruitt and careerists at EPA has left a serious morale issue that needs to be addressed if the career workforce is to be put to productive use by this administration.

It is common for a new administration to come in suspicious of the loyalties and biases of the career institution that they inherit. But at some point, and usually long before where we are now, the administration comes to see the career institution as an expert support function that is ready and willing to help implement its policy agenda.

Can the Trump EPA recover from its stumbles? Sure, but likely only if it makes some pivots. Maybe by the time you read this, some of the steps suggested here will already have been taken. I hope so.

[This piece originally appeared in the September-October 2018 issue of The Environmental Forum® and is reprinted with permission

Presidential Memo to Boost Western Water Projects—Can it Succeed?

Posted on November 1, 2018 by Rick Glick

On October 19, President Trump issued a “Memorandum Promoting the Reliable Supply and Delivery of Water in the West.”  The Memorandum calls for streamlining federal water infrastructure development and operations, apparently by skirting environmental and other administrative processes.  As previously noted here, the Administration is intent on weakening the laws controlling federal water projects, but that cannot be accomplished by executive fiat alone.

At the core of the Memorandum is a directive to the Secretaries of the Interior and Commerce to designate, within 30 days, “one official to coordinate the agencies’ [Endangered Species Act (ESA)] and [National Environmental Policy Act (NEPA)] compliance responsibilities” and to “develop a proposed plan, for consideration by the Secretaries, to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden the project beyond the degree necessary to protect the public interest or otherwise comply with the law.” 

This directive evinces a misapprehension of the legal framework, and continues a failed approach to regulatory change by shortcutting federal law.

First, Cabinet departments are not monolithic entities; they are made up of multiple sub-agencies, each with its own statutory guidelines.  Among others, Interior includes the Bureau of Reclamation, which builds and operates the water projects, and the U.S. Fish and Wildlife Service, which has responsibility for resident fish and terrestrial species.  BOR is the lead agency for NEPA, while the FWS is a reviewing agency of BOR’s work, and serves an independent consulting role under the ESA.  The only role of Commerce is through NOAA Fisheries, an agency within Commerce with responsibility for anadromous fish and marine mammals. 

While the agencies can and do coordinate to a certain extent, they have discrete legal functions and responsibilities.  A single officer to coordinate these disparate activities seems impracticable.

Second, the Administration’s overarching approach to loosening environmental rules is to rescind, suspend or delay implementation of environmental regulations that it believes impede the economy.  However, time and again the courts have found such actions to violate the Administrative Procedures Act or other statutes.  See, for example, the decision of a federal judge in South Carolina earlier this year invalidating “suspension” of the Waters of the U. S. (WOTUS) rule, or the D. C. Circuit’s rejection of extending the effective date of the Chemical Disaster Rule.  Implementation of the Memorandum is likely to meet the same fate.

Bringing efficiency to a convoluted, expensive and protracted process is a laudable goal, but one that has eluded previous administrations.  The problem is that the APA and the environmental protection laws are not designed for efficiency, but to make sure that the government has considered the potential impacts of its actions before implementation.  Without an act of Congress, efficiency gains will be at the margin.