Nuclear Energy And Environmental Justice In The Biden Era

Since January, the Biden administration has dedicated unprecedented attention to the environmental justice movement — a movement dating back to the civil rights era, that has never before received this much federal focus.

The whole-of-government approach to environmental justice represents the first time the federal government has recognized the breadth and extent of environmental justice issues. Under the Justice40 initiative, the administration has committed to directing 40% of all federal investments in certain areas, including clean energy, to disadvantaged communities.

Meanwhile, on the state level, legislatures and regulators continue to adopt environmental justice legislation and policies, the most encompassing of which inject environmental justice considerations into environmental permitting.

Simultaneously, the Biden administration is advancing ambitious climate-change goals — including achieving net greenhouse gas neutrality for the electricity sector by 2035. Nuclear energy, capable of being generated 24/7 during any weather conditions with a minimal carbon footprint, can and should be a key part of the country's movement toward a carbon-neutral economy.

The U.S. Department of Energy's Office of Nuclear Energy touts nuclear energy as the most reliable source of energy in the U.S., based in part on data indicating that it supplied roughly a fifth of America's power each year since 1990, and produced or produces maximum power more than 93% of the time during each year.

Studies have shown that nuclear energy is actually safer than other energy-generating technologies, such as coal, and even has potential to, and already has, saved lives. By most accounts, nuclear energy will in fact play a pivotal role in the administration's approach to addressing climate change.

For instance, the administration's plans for its Energy Efficiency and Clean Electricity Standard, aimed at boosting clean energy, will include nuclear energy among other clean energy technologies. The American Jobs Plan calls for funding for the development of advanced nuclear reactors, and expressly names nuclear energy as one of several mechanisms that can be used to reduce carbon pollution.

In its international efforts toward fighting climate change, the Biden administration plans to launch the Foundational Infrastructure for Responsible Use of Small Modular Reactor Technology program, designed to provide capacity-building support to partner countries developing their own nuclear energy programs for clean goals.

Members of the administration have also expressed a commitment to keeping existing nuclear reactors operational, even as they age, as long as they are environmentally sound.

The administration's aggressive goals related to greenhouse gas neutrality and environmental justice are certainly not mutually exclusive, and, in many ways, should advance one another. The administration has stated that its promotion of all types of clean energy "will be done while ensuring those facilities meet robust and rigorous standards for worker, public, and environmental safety as well as environmental justice — and all while moving toward 100% carbon-pollution free power by 2035." These two administration goals — clean energy and environmental justice — are especially relevant for nuclear power industry stakeholders to keep in mind.

Increased Focus on Environmental Justice — Implications for the Nuclear Industry

Notwithstanding the administration's ambitious greenhouse gas goals, federal and state authorities will be — and have already started — focusing more heavily on industries with the potential to affect their surrounding communities.

This could implicate and complicate siting decisions, permitting decisions and enforcement discretion decisions. The push to increase the availability and monitoring of environmental justice-related data could also lead to additional requirements being imposed upon energy generating facilities near low-income and minority populations.

For the nuclear energy industry, environmental justice considerations are relevant to every stage of the life cycle of nuclear energy. Uranium mining and processing, the siting and permitting of new nuclear reactors (however rare they may be), the safety of nuclear reactor operations, the management of nuclear waste and the decommissioning of nuclear reactors all have potential to implicate environmental justice issues.

And because of its polarizing nature as a low-carbon energy source with the need for stringent safety requirements, the nuclear energy industry is likely to receive more scrutiny than other renewable energy technologies. Indeed, the administration's inclusion of nuclear energy in its approach to reducing greenhouse gas emissions has not gone without criticism.

For instance, in issuing recommendations on how to truly implement Justice40 equitably, the White House Environmental Justice Advisory Council, a group of respected environmental justice advocates from across the country, specifically listed nuclear energy as an example of a type of project that "will not benefit a community." The recommendations focused primarily on ensuring that the 40% of benefits promised actually reaches overburdened and environmental justice communities.

While the administration has clearly endorsed and incentivized the development and continued use of nuclear energy, what remains to be seen is how the U.S. Nuclear Regulatory Commission will revise its approach to environmental justice.

As the sole authority for licensing both the construction and operations of all nuclear power reactors, the NRC currently represents the gatekeeper to the development of further nuclear energy in the U.S. The NRC is currently undertaking a systematic review of how it addresses environmental justice in all of its operations, and is soliciting public feedback on how to proceed.

Although the commission has received some criticism in the past for not incentivizing public participation in the complex, highly technical and inaccessible licensing process, the agency does have a well-developed framework for addressing environmental justice in the context of the National Environmental Policy Act, and has had an environmental justice policy statement since 2004.

If the NRC ultimately adopts an even a more proactive approach to addressing environmental justice issues, the nuclear industry can also expect to see direct changes to the licensing process and other NRC activities.

Navigating Opportunities, Heeding Neighbors

In the push to reduce greenhouse gases, the entire renewable energy industry, like all industries, will have to continue to be conscious of their neighbors. This includes the nuclear energy sector. As the nuclear industry moves forward and prepares for the additional opportunities this administration may afford, keeping in mind the following best practices may help projects move more smoothly.

Proactively communicate with the community.

Environmental justice presents the nuclear energy industry — as it does any company in any industry — with an opportunity to engage with its neighbors about facility permitting, construction, expansion, operations and safety issues.

Develop a clear plan to engage with neighbors early and often, create relationships with community representatives, and consider establishing dedicated positions within your staff to facilitate effective community communications. Early and frequent communication can help resolve issues before they even arise.

Appoint an advisory committee of people who live and work in nearby communities.

As plans change, make sure the community, through the advisory committee, is aware of the changes and what they mean. Ensure that the advisory committee is representative of the community it serves, and encourage the committee to meet often.

Learn how your facility affects neighbors and adopt appropriate mitigation strategies.

Environmental justice requires companies to be thoughtful and mindful about the potential adverse impacts of their operations on surrounding poor minority communities that may be disproportionately affected by similar operations, and how to mitigate those impacts.

Through the advisory committee, community representatives and/or dedicated staff, talk to the community about how your operations do and could affect them, and strategize how to minimize those impacts. Consider whether there are other ways to best understand community impacts and mitigation strategies, including through technical studies, surveys and learning from industry peers.

Nuclear energy can and should play a role in ameliorating the effects of climate change, the largest environmental justice issue our world currently faces. Listening to the communities surrounding your facilities — through regular, targeted dialogue with neighbors — and taking action as needed, can further environmental justice goals, while smoothing the way to achieving the country's greenhouse gas emission goals.

©2021. Published in Law360, Online, July 16, 2021, by LexisNexis Group. Reproduced with permission. All rights reserved.