(June 13, 1997) The nearly eight-year struggle against the proposed uranium enrichment plant of the US Louisiana Energy Services (LES) is at an end.
(474.4694) NIRS Eight years of hearings, demonstrations, organizing, meetings, and ongoing and unusual solidarity and support among the multi-racial members of Citizens Against Nuclear Trash (CANT) in northern Louisiana have paid off.
On May 2, an NRC Atomic Safety and Licensing Board (ASLB) released its final decision on the proposed LES project.
The unheard-of verdict: license denied.
The ASLB reached its precedent-setting decision on the final, and critical, environmental justice contention.
Earlier (see also WISE NC 463/4.4595), the ASLB had ruled in favor of CANT that the LES consortium was not financially qualified to build and operate the plant, and was essentially a shell corporation apparently intended primarily to avoid potential liability for its parent companies. And the ASLB had ruled that LES had underestimated its likely decommissioning costs by about 50% - enough that its already dubious profit projections were shaken.
But the final decision outrightly denies LES a construction permit/operating license. Unless LES can successfully appeal this decision to the NRC commissioners, which appears highly unlikely, it is all over. LES will become the first entity to which the NRC ever has denied a license, for any reason.
In this case, the reason is environmental racism. CANT and its attorneys, Washington lawyer Diane Curran and Nathalie Walker of the Sierra Club Legal Defense Fund of New Orleans, argued that the LES project was a singular example of environmental racism, and that the NRC had not done its job to ensure that the proposed plant did not have a disproportionate impact on the local poor African- American population.
Dr. Robert Bullard, a professor at Clark Atlanta University and a nationally recognized expert on environmental justice and facility siting issues, testified on behalf of CANT. Bullard argued that the LES siting process clearly zeroed in on minority communities, eventually targeting a community that is nearly 98% African- American; that the citizens of the Forest Grove and Center Springs communities closest to the plant would suffer a disproportionate and negative impact if the plant were built, and that the LES violated its own site-selection criteria in choosing the eventual site, which itself was evidence of environmental racism. The ASLB agreed with all of these contentions.
The ramifications of this decision may be impossible to overstate. This is the first decision, issued by any judicial body in the nation, that directly addresses the environmental justice issue, and does so in a framework that makes clear the responsibilities of corporations and federal agencies. In addition, the decision spells out the responsibilities of federal agencies in complying with President Clinton's 1994 executive order on environment justice - the first such detailing anywhere.
By denying the LES a license, the Board underscored its commitment to environmental justice and laid the groundwork for all future nuclear siting decisions. Every NRC-licensed facility will have to comply with this decision, as will every agreement state facility. Moreover, as the first judicial decision on these issues, the opinion undoubtedly will be cited in other upcoming court cases.
Seemingly aware of the historic nature of the decision, the ASLB stated in unusually clear terms exactly what is required of the NRC, and perhaps all federal agencies in reviewing license applications for hazardous facilities.
In doing so, the ASLB also provided a clear, concise explanation of how environmental racism works, how it is not overt, how it is never admitted, but how it must be ferreted out because that is what the law and the executive order require. The ASLB said that if the executive order is to have any meaning, a thorough investigation must be performed - "In other words, the [NRC] Staff must lift some rocks and look under them."
It is difficult to imagine what options now lie open for LES. The consortium can, of course, appeal the decision. But the only legal recourse would seem to be to attack the NRC's ability to enforce the executive order. As an independent agency, the NRC is not required to implement the order.
But the ASLB seems to have anticipated this line of appeal. It notes that the commission (i.e. former Chairman Ivan Selin) voluntarily agreed to accept the terms of the order. "By voluntarily agreeing to implement the President's environmental justice directive, the Commission has made it fully applicable to the agency and, until that commitment is revoked, the President's order, as a practical matter, applies to the NRC to the same extent as if it were an executive agency."
In other words, to accommodate the LES on this point, the NRC commissioners would have to deliberately state that they no longer intend to follow the President's environmental justice recommendations.
The ASLB denied the license "without prejudice", meaning that the LES can attempt to amend its license application to attempt to prove that its siting policy was not racist. The NRC staff would then have to conduct a "thorough investigation" to validate that. But the ASLB made clear that it believes the process was based on racial issues: The "statistical evidence very strongly suggests that racial considerations played a part in the site selection process. It does not, of course, rule out all possibility that race played no part in the selection process. Nonetheless, the Intervenor's (CANT) statistical evidence clear indicates that the probability of this being the case is unlikely..."
It would seem then that the LES's only opportunity would be to start its site selection process anew - a process that could not possibly lead to the proposed site in Claiborne Parish - and would bring the consortium, eight years later and at least US$40 million poorer, back to square one.
The ASLB decision is essential reading for anyone involved in nuclear or hazardous siting issues. We have here only touched upon the issues it raises. It is available at NIRS' web site (www.nirs.org) or by mail from NIRS for $5.
Said Michael Mariotte of NIRS, "For nearly eight years, we, CANT, Sierra Club Legal Defense Fund, Diane Curran and many others have steadfastly argued that the LES project was the epitome of environmental racism and arrogance. Our arguments have now been accepted as fact. I have never been so proud of a grassroots group as I am of CANT -whose multi-racial membership somehow stuck together and grew even stronger as the years and trials passed. Nor have I ever been so proud of lawyers as I am of Diane Curran and Nathalie Walker, who never gave an inch and poured their entire hearts and souls into this case. This is truly a watershed, it is the first proof that environmental justice is not just an abstract concept, but a reality that from now on must be taken into account. Thus, it is a tremendous victory, not just for CANT, but for our entire nation."
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Excerpts from the ASLB decision: "Racial discrimination in the facility site selection process cannot be uncovered with only a cursory review of the description of that process appearing in an applicant's environmental report. If it were so easily detected, racial discrimination would not be such a persistent and enduring problem in American society. Racial discrimination is rarely, if ever, admitted. Indeed, it is often rationalized under some other seemingly racially neutral guises, making it difficult to ferret out. Moreover, direct evidence of racial discrimination is seldom found....In other words, the Staff must lift some rocks and look under them."