Elizabeth Brubaker
Borealis Energy Research Association on behalf of Energy Probe
February 28, 1996
Part 3 of Energy Probe’s Submission on The Adequacy of Atomic Energy of Canada Limited’s Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste. Submitted to the Federal Environmental Assessment Review Panel.
Introduction
As part of its review of Atomic Energy of Canada Limited’s Environmental Impact Statement on
the Concept for Disposal of Canada’s Nuclear Fuel Waste (AECL’s EIS), Energy Probe commissioned Borealis Energy Research Association to examine approaches to siting. In Part I of Energy Probe’s submission, dated July 28, 1995, we addressed the adequacy of the EIS. In this paper, Part III of Energy Probe’s submission, we address the merits of the opinions and conclusions of the EIS and recommend alternatives.
A successful siting process will be one that works and is fair. The process proposed by AECL, which excludes many affected parties from decision making, meets neither requirement. We propose alternatives that will help shield communities and individuals from the costs and risks of proposed facilities, making the process more equitable and increasing its prospects for success. To protect communities, we recommend obtaining informed consent from all potentially affected communities; to protect individuals, we recommend preserving common law property rights.
Protecting Communities: The Importance of Identifying and Consulting All Affected Communities
In Procedures for Public Hearings, The Environmental Assessment Panel poses a key question: “Who would be selected to participate substantially in decision-making, and how?” More generally, the panel promises “to examine and develop criteria by which . . . acceptability should be evaluated.”
AECL has contributed little on the subject of who, beyond a host community, should participate in decision making. Focussing on obtaining a host’s acceptance of a proposed facility, it has remained vague about the roles of other potentially affected communities. It has neither defined such communities nor specified the nature or extent of their participation. It has merely stated, “Potentially affected communities that are not potential host communities would establish with the implementing organization methods for consultation that would provide opportunities for their views to be taken into account in decision making.”
Experience with voluntary siting processes in both Canada and the United States points to the importance of broadly defining affected communities and of gaining acceptance from all of them. Agencies siting controversial facilities have generally defined affected communities too narrowly. While they have sought volunteer hosts, they have rarely made sure that neighbouring communities or those along transportation routes also benefited from and supported their proposals. The resulting conflicts between potential host communities and their neighbours have frequently poisoned, or derailed, the siting processes.
Communities in Conflict
One study of low-level radioactive waste disposal in the United States, Canada, and Europe referred to “the ‘spatial differentiation’ of opposition to repository siting plans.” Local communities, which are more likely to gain economically from disposal sites, may welcome proposals that surrounding regions, which are less economically dependent on the projects and less likely to be compensated for associated risks, oppose.
Examples of such “spatial differentiation” abound. In the U.K., consultations about the siting of low-level radioactive waste have pitted supportive host localities against opposing surrounding regions. Likewise, in Alberta, while 77 per cent of the voters in Riley would have accepted a hazardous waste facility, a majority of the residents in the surrounding county voted against the proposal, discouraging the province from continuing to seek a site there. Attempts to site low-level radioactive waste in Nebraska have met with similar divisions, with the village of Butte, the beneficiary of a compensation package, supporting the proposal and neighbouring communities and the surrounding county registering strong opposition. In Tennessee, both the City of Oak Ridge and the County of Roane supported hosting a proposed temporary storage facility for high-level radioactive waste, while the state opposed the plan.
The host communities that get financial benefits in exchange for accepting hazardous facilities are not necessarily the communities that bear the various costs of the facilities. Facility impacts may be sufficiently widespread to affect people in many jurisdictions. But even narrow impacts may affect neighbours more than hosts: Communities frequently locate hazardous facilities near their borders, subjecting those in other jurisdictions to their effects. In such cases, those bearing considerable economic, environmental and social costs may have had no power over the siting of the facility.
Siting Low-Level Radioactive Waste in Ontario
Ontario’s low-level radioactive waste siting process exemplifies the problems that result when potentially affected communities do not participate in decisions that may affect them. In September 1995, over 72 per cent of the voters in a Deep River, Ontario, referendum approved an agreement-in-principle to accept low-level waste from Southern Ontario. Deep River Council had negotiated a benefits package in return for agreeing to take the waste. Job security headed the council’s list of demands: It would accept the waste only if the federal government agreed to maintain 1995 employment levels at AECL’s nearby Chalk River Nuclear Laboratories for 15 years. The council also demanded $8.75 million in economic diversification funds.
Both Deep River residents and neighbouring communities were deeply split on the issue of whether the proposed waste facility would benefit or harm them. The community liaison group for the third phase of the siting exercise recommended opting out of the process. In 1994, its successors resigned en masse, with the group’s chairwoman complaining of “deceit and manipulation” in the siting process.
Nearby communities-especially those downstream and downwind of the proposed facility who would likely suffer from any toxic releases from the site and subsequent contamination of the Ottawa River, along with those who were concerned about transportation risks-also expressed considerable opposition to the proposal. In 1994, when five nearby municipalities placed questions about the proposal on municipal election ballots, 80 per cent of the voters opposed the proposal. Several municipal councils also passed resolutions condemning the proposal.
Deep River Council’s decision to exclude neighbouring communities from its 1995 referendum exacerbated local ill will. A former community liaison group representative for the townships complained bitterly about a process that defined community by map boundaries. In denying its neighbours the right to vote in the referendum, she went on, Deep River Council treated them as second class citizens.
Indeed, a number of Deep River’s neighbours continue to criticize the referendum process. Some, feeling disempowered by the process, despair of making a difference and have no plans for further action. Others, however, are calling for a full federal environmental assessment of the proposed facility-a course of action that could delay the project considerably.
The discord created by Deep River’s approach illustrates the importance of adequately defining an affected community. The siting process violated the fundamental principle that those most likely to be affected by a proposed project should have the greatest say in whether or not it goes ahead. Perversely, only people living upwind and upstream from the proposed facility had the opportunity to vote in the deciding referendum. Those most likely to be adversely affected by the facility-those living downstream and downwind from it, or those living along transportation routes-had no voice.
Siting a Monitored Retrievable Storage Facility in New Mexico
The siting process for the Monitored Retrievable Storage (MRS) facility for high-level radioactive waste in the United States similarly illustrates the importance of involving all affected communities in controversial siting decisions. The federal MRS negotiator sought only a willing host community; although he promised to consult surrounding jurisdictions, he did not require their approval. Furthermore, the Department of Energy awarded study grants only to those interested in hosting a facility; it made no monies available to those who might be affected by a facility hosted by another community.
After the Mescalero Apache Tribe applied for an MRS study grant in 1991, it began consultation with the larger New Mexico community. In the following months, the Mescaleros consulted the governor’s office, a state representative, and members of the New Mexico Congressional delegation. They arranged an informational briefing for representatives of three nearby counties and three villages, and meetings with local economic development groups.
While consulting affected parties may have led to a greater understanding of the proposed project, it did not ensure that those consulted were willing to accept the proposed risks. As the federal MRS negotiator noted, “Public understanding does not automatically mean public agreement.” Serious concerns about the Mescaleros’ plan existed at all levels of government. New Mexico’s governor, its state legislators, and its national representatives and senators adamantly opposed the project. Local politicians worried that their tourism-dependent economies would suffer if the project went ahead. In 1991, the Lincoln County Commission, representing the county surrounding the Mescalero reservation, voted to oppose the siting of an MRS facility in their county.
The Mescaleros promised that those affected by the proposed facility would benefit. A Tribal Council representative explained, “fundamental fairness dictates that every community which would be impacted by an MRS located on Mescalero lands is not only entitled to be compensated for those impacts, but should also share in whatever benefits might be negotiated.” He did not limit beneficiaries to immediate neighbours: “Residents of the state of New Mexico deserve to reap tangible rewards from an MRS sited in their state.”
But the Mescaleros didn’t back up their promises of benefits with promises of control. They didn’t offer their neighbours the opportunity to negotiate their own benefits, or to veto a project that, in their estimation, left them worse off. In the end, only tribal members would be able to vote in the Mescaleros’ referendum.
Disempowered by the siting process, those fearing they would be affected by the MRS turned to the political process. Opposition from New Mexican politicians became so strong that in 1993 the Senate voted to prohibit funding for the next phase of feasibility studies. The official siting process soon fell apart, to be replaced by private negotiations between the Mescaleros and 33 nuclear utilities. In 1995, the Mescaleros voted to go ahead with the project. The tribe prevented those opposed from further obstructing the siting process by invoking tribal sovereignty.
Siting High-Level Radioactive Waste in Nevada
While not a voluntary process, the U.S. Department of Energy’s (DOE’s) efforts to site a permanent high-level nuclear waste repository at Yucca Mountain in Nevada again demonstrate the clashing interests of various affected communities. The strongest opposition comes not from the local officials who are directly involved in negotiations but from those who are further removed-those with less power to influence the terms and conditions of any arrangement.
Local communities’ support or opposition to the Yucca Mountain proposal reflect, in part, their potential to benefit financially from it. Many neighbours to the west, who will likely profit from the facility, approve of it. Their counterparts to the east, who are too far away to earn income from the repository, are more suspicious of it.
The greater Nevada community is concerned about the negative effects of a repository on the state economy; polls indicate that over 75 per cent of Nevadans strongly oppose the proposed facility. Many professional and trade associations have also registered their opposition. And virtually all political bodies-including Nevada’s governor, the state legislature, the state’s congressional delegation, and most local governments-are opposed. Their concerns have disrupted the siting process. The State of Nevada, for example, at one point refused to issue necessary licences, leading to a DOE court challenge.
Empowering All Communities of Interest
One principle behind voluntary siting is the inherent value, in a democratic society, of informed consent. The principle surfaced a number of times in AECL’s treatment of the social aspects of nuclear fuel disposal, particularly in its discussions of ethical decision making. AECL proposed an ethical framework that includes the principles of voluntarism and shared decision making-principles that, in its words, “incorporate . . . the achievement of informed collective consent.” But the principles of voluntarism and informed collective consent should not be limited to a host community. On the contrary, they require that a facility, before it may proceed, earn broad support from whomever it may affect, regardless of their political jurisdiction. Whenever possible, risks, whether to immediate neighbours, to those living downwind or downstream of a proposed facility, or to those living along transportation routes, should be voluntarily assumed.
To ensure that risks are accepted willingly, it is necessary to identify all potentially affected communities and to invite all such communities to vote on, and support, the proposed project. Only if majorities in all affected communities support the project should it go ahead. Requiring separate votes will avoid problems associated with a larger community “selling out” a smaller or less powerful community.
As political boundaries do not determine who will be adversely affected by a proposal, they should not determine who falls within the voting communities. Instead, the boundaries should reflect “communities of interest,” or groups of people who are likely to experience similar impacts. Communities of interest need not be mutually exclusive: An affected individual could fall within a number of communities of interest, and be eligible to vote with each of those communities.
In order to obtain the approval of all communities of interest, the implementing organization will have to approach each one to ensure that those who may be affected will on balance benefit from the project. Defining real communities of interest will make it easier for the implementing organization to negotiate appropriate compensation, and to ensure that those bearing specific risks will enjoy comparable benefits. The most directly affected communities will insist on effective mitigation and generous benefits; less adversely affected communities will have more modest demands. Ultimately, if a majority in any community of interest rejects a facility, if it cannot be persuaded through enhanced mitigation or increased compensation to change its mind, and if no alternatives exist that will spare it from impacts and risks (therefore eliminating its right to vote), the project should not go ahead. Such opposition indicates that the costs or risks remain unacceptably high.
The definition of communities of interest will inevitably be somewhat arbitrary. The federal or provincial government could identify communities of interest, or communities could present themselves to a regulatory body. Alternatively, the implementing organization could propose a definition that would then be subject to an environmental assessment. Whatever the method, if approached with honesty and fairness, the definition used thus far in voluntary siting processes can be much improved. Possible communities of interest could include: close neighbours; those within a certain radius; those living downwind or downstream of the facility; or those within one or more “risk perception shadows”-areas influenced by public awareness of the facility and by the number, directness, significance, and duration of any impacts.
Those living along transportation corridors should also make up a community of interest. AECL has not proposed applying the principle of voluntarism to this group. But its members, subject both to ongoing nuisances and to the threat of accidents, are clearly potentially affected by a facility. Transport Canada noted that the transportation of nuclear waste will increase the current risk level and potentially affect the safety of those living along transport routes. According to the author of one book about nuclear waste facility siting, “environmental risks in the transportation of hazardous wastes are at least as great as those in storage and disposal.” “Accidents,” he continued, ” are an inevitable feature of any system of transportation. On average, trucks [in the United States] are in accidents once every 400,000 miles of travel. Between 1971 and 1985, trucks carrying radioactive materials were in 167 transportation accidents (mostly on highways) involving 2,602 packages of radioactive materials; a total of 67 packages experienced some release of their contents.” Rail accidents involving spills of dangerous goods also occur frequently.
Past siting experiences suggest that to satisfy the potentially affected transportation community the implementing organization may have to agree to strict procedures regarding schedules, training, maintenance, rest stops, or weather conditions. It may have to assist communities in upgrading fire or safety services. Or it may have to financially compensate those living along transportation routes, as Browning-Ferris Industries has done at its Ridge Landfill near Blenheim, Ontario, or as the Ontario Waste Management Corporation considered doing for those living along access routes to its hazardous waste facility.
Protecting Individuals: The Importance of Preserving Property Rights
The siting process proposed above, while protecting the rights of the majority in all communities of interest, does little to protect minority rights. Only a purely voluntary system-one in which an implementing organization would have to gain permission from every potentially affected individual-would perfectly protect all individuals. But such a system would likely be unworkable in the context of nuclear waste, given the virtual certainty of some irreconcilable opposition to any proposal regarding the use, transport, or disposal of radioactive materials.
Over the centuries, our political and legal systems have evolved to accommodate both majority and minority rights. While our political tradition promotes democratic decision making (decision making by majorities) our common law tradition emphasizes individual rights. Empowered with common law property rights, those in the minority may protect themselves against abuses by the majority.
In siting a nuclear waste facility, it will be essential to protect the interests of those who were wrongly excluded from the communities of interest voting on the proposal, those who voted against the proposal, and those who did consent but who may experience unforeseen-and thus uncompensated-problems. The best way to protect such individuals is to explicitly protect their common law property rights.
If those affected by the transportation or disposal of nuclear waste maintain their traditional common law property rights, they may be able to obtain injunctions against hazardous operations or damages for injuries suffered. They may be able to take action not only against actual harms but also against potential harms, or risks.
For centuries, courts have heard cases about risky activities that have not yet harmed anyone. They have often determined that merely exposing others to risk constitutes a nuisance which should be enjoined (i.e. stopped by a court injunction), or if it has already occurred, compensated or punished.
But courts have disagreed over what constitutes an actionable risk. Some have required proof of actual, immediate danger. Others have required proof of a likelihood of harm. Still others, particularly in the United States, have ruled that whether the disputed activity is actually dangerous or likely to be dangerous is irrelevant: What matters is whether the public believes it to be dangerous. Such courts have treated perceived risks as nuisances that should be enjoined on the grounds that they frighten neighbours, interfere with their quiet enjoyment of their property, and lower their property values.
Quia Timet Injunctions
Canadian courts tend to issue injunctions against proposed or ongoing activities if they pose a real and substantial risk of harm, if the harm would be irreparable, and if a monetary payment could not adequately compensate for the harm. A plaintiff who sues quia timet (“because he fears”) must demonstrate that his apprehension is well founded, or reasonable; unfounded apprehension does not justify an injunction.
In their decisions, Canadian courts often repeat the description of the quia timet injunction found in Attorney-General v. Corporation of Manchester, an 1893 case regarding a proposed smallpox hospital in Manchester, England. The judge in that case specified that “the Court does not require absolute certainty [that injury will arise] before it intervenes; something less will suffice.” He explained, “The principle which I think may be properly and safely extracted from the quia timet authorities is, that the plaintiff must shew a strong case of probability that the apprehended mischief will, in fact, arise.” In 1918 the Supreme Court of Canada approved this principle; contemporary courts continue to follow it.
The judge deciding Attorney-General v. Corporation of Manchester referred to a number of quia timet precedents. Several involved activities that posed public health risks. In one case, for example, a court indicted a woman who carried her smallpox-infected son on a public highway. Other quia timet precedents cited in the Manchester case involved the risk of explosion or fire. Neighbours, fearing that such events would cause them irreparable injury, convinced the courts to prevent them from occurring.
When considering quia timet injunctions, courts often weigh both the probability and the consequences of the apprehended danger. In the often cited Earl of Ripon v. Hobart, one judge noted the practicality of “balancing the magnitude of the evil against the chances of its occurrence.” The law, the judge went on, will “provide against a somewhat less imminent probability in cases where the mischief, should it be done, would be vast and overwhelming.”
Accordingly, if the injury feared were extensive, the court would be more likely to issue an injunction: “[T]he only means of attaining certainty, amidst the discrepancy of learned opinions, is actual experience. If the waiting for that might, by any proximate possibility, occasion such irreparable and extensive damage as some of the witnesses speak of, the inducement would be strong to grant an injunction in the meantime.”
As the above passage suggests, a consideration of the consequences of a threat materializing includes an assessment not only of the magnitude of the harm but also of its reparability. A British judge explained in 1974 that an injunction would not be premature if probable damage could not be prevented or repaired at a later date. The judge cited an earlier decision to that effect: “[I]f the damage is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action.” Another judge summed it up this way: “I think the origin of quia timet may be an illustration of the rule that prevention is better than cure, and in a case of this kind the cure may be uncertain.”
Injunctions against Perceived Risks
Many U.S. courts have pursued an even tougher line of reasoning about threatened harms-one that treats perceived risks as actual harms, either because they interfere with people’s quiet enjoyment of their property or because they reduce property values. This approach, epitomized by a series of decisions made by the Supreme Court of Washington, favours those who fear the adverse effects of proposed developments.
In a 1910 case, Everett v. Paschall, the Supreme Court of Washington issued an injunction against a small tuberculosis sanitarium in a residential neighbourhood of Seattle. Although medical science insisted that a well-run sanitarium posed no threat, the public feared infection. The dread inspired by the facility disrupted its neighbours’ “mental quiet,” interfering with their comfortable enjoyment of their property. The facility also reduced their property values.
Arguments that the public’s fear was “unsustained by science” did not move the court. In one judge’s words, “The theories and dogmas of scientific men, though provable by scientific reference, cannot be held to be controlling unless shared by the people generally.” He explained, “we question our right to say that the fear is unfounded or unreasonable, when it is shared by the whole public to such an extent that property values are diminished. The question is, not whether the fear is founded in science, but whether it exists; not whether it is imaginary, but whether it is real, in that it affects the movements and conduct of men.”
The judge also acknowledged the reasonableness of the public’s safety concerns. Even careful management could not ensure security: “[T]he security of the public depends upon proper precautions and sanitation, which may at any time be relaxed by incautious nurses or careless or ignorant patients.”
The court concluded that the sanitarium constituted a nuisance. Citing the ancient maxim, “use your own property so as not to harm another’s,” it ordered the facility to shut down.
In its decision, the court referred to a number of other cases in which activities provoking fear-substantiated or not-had been deemed nuisances. In one, Stotler v. Rochelle, the Supreme Court of Kansas issued an injunction to prevent a cancer hospital from opening. A neighbour had argued that the hospital would emit offensive smells, threaten public health and reduce property values. The court agreed that the hospital would constitute a nuisance. In its words, “In the present state of accurate knowledge on the subject, it is quite within bounds to say that, whether or not there is actual danger of the transmission of the disease under the conditions stated, the fear of it is not entirely unreasonable. . . . The question is not whether the establishment of the hospital would place the occupants of the adjacent dwellings in actual danger of infection, but whether they would have reasonable ground to fear such a result, and whether, in view of the general dread inspired by the disease, the reasonable enjoyment of their property would not be materially interfered with. . . . However carefully the hospital might be conducted, and however worthy the institution might be, its mere presence, which would necessarily be manifested in various ways, would make the neighborhood less desirable for residence purposes, not to the oversensitive alone, but to persons of normal sensibilities.”
In Baltimore v. Fairfield Improvement Co., also referred to in Everett v. Paschall, a Maryland court similarly enjoined a family from housing a leper, citing the public’s terror and dread of leprosy. It explained, “There are modern theories and opinions of medical experts that the contagion is remote, and by no means dangerous; but the popular belief of its perils . . . cannot, in this day, be shaken or dispelled by mere scientific asseveration or conjecture. It is not, in this case, so much a mere academic inquiry as to whether the disease is in fact highly or remotely contagious, but the question is whether, viewed as it is by the people generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located.”
In the intervening years, courts have both followed and criticized the decision in Everett v. Paschall. Courts have cited it when contemplating a variety of nuisances, including a cemetery, a public beach, a trade school, and a sewage lagoon.
In 1922, the Supreme Court of Washington issued an injunction against a proposed hillside reservoir that could have menaced nearby homes. The court found that the potentially affected property owners had a “reasonable apprehension of danger.” Those complaining, it explained, were “men and women who, in the ordinary business of life, are not to be charged as victims of hysteria, nor ready dupes of conjectural and imaginary fears, having a very real and present apprehension that their lives and properties will be jeopardized by the hanging of this modern sword of Damocles above their heads, and that fear is bolstered by the testimony of expert witnesses, and confirmed by the common sense of any one to whom the facts come. It does not take the testimony of experts, although that was produced, to advise one that the proposed structure would cause a most serious depreciation of property values within the affected area. It is an obstruction to the free use of property as it interferes essentially with the comfortable enjoyment of life and property. It is a nuisance, for it annoys, injures, and endangers the comfort, repose, health, and safety of these respondents and renders them insecure in life and the use of their property.”
In determining whether the reservoir posed an enjoinable risk, the court examined both the probability of an accident occurring and the consequences of such an accident. While experts differed on whether a large embankment would successfully impound the water, it was clear to the court that, should an accident occur, not only property but also lives would be in danger. In the words of the Chief Justice, “If the breaking of the proposed reservoir would probably result in comparatively small damage and no loss of life, I would not demand proof of its safety with a high degree of certainty; but, in view of what now seems to me would be the appalling result of such breaking, I would want the necessity of its location there, and its safety, to be proven beyond all doubt, before withholding the injunctive relief prayed for.”
In a 1946 decision prohibiting the establishment of a psychiatric institution in a residential neighbourhood, the Washington Supreme Court affirmed a lower court’s decision that specialists’ disagreement about the threats posed by such operations validated neighbours’ fears. “If,” it repeated, “there is this difference of opinion among those skilled in the profession, can this court say that the fear expressed by a layman for his safety and that of his family is unfounded or imaginary?” Occasioning such fear and reducing nearby property values, the institution constituted a nuisance. In order to prevent it from depriving “property owners of that repose and comfortable enjoyment of their homes to which they are entitled,” it should be enjoined.
Many recent cases about perceived risks have pertained to the transportation or disposal of hazardous wastes. One 1977 case involved a chemical waste disposal site in Wilsonville, Illinois. The host community, fearing that the site was unsafe even though it had acquired necessary permits from the Environmental Protection Agency, went to court and asked for an injunction.
The trial court determined that the site constituted both a present and a prospective nuisance. Although it acknowledged the need for hazardous waste disposal, it noted that such need could not justify the creation of a nuisance: “[N]uisance cannot be justified on the ground of necessity, pecuniary interest, convenience or economic advantage. . . . [W]here disposal of wastes create a nuisance said disposal site may be closed through legal action.” The court granted an injunction against the site’s operation, and ordered its owners to exhume and remove the toxic waste that had already been buried and restore the site.
Several years later the Supreme Court of Illinois upheld the lower court’s decision. The court confirmed that an injunction could be granted against the threat of harm-a prospective nuisance-where harm is highly probable. The waste disposal site in question could, under a number of scenarios, contaminate neighbouring air, water or ground. “A court does not have to wait for it to happen before it can enjoin such a result. . . . Under these circumstances, if a court can prevent any damage from occurring, it should do so.”
In a concurring opinion, one judge suggested that an injunction would be called for even if contamination were not dangerously probable: “[T]here are situations where the harm that is potential is so devastating that equity should afford relief even though the possibility of the harmful result occurring is uncertain or contingent. The Restatement’s position applicable to preventative injunctive relief in general is that ‘[t]he more serious the impending harm, the less justification there is for taking the chances that are involved in pronouncing the harm too remote.’. . . If the harm that may result is severe, a lesser possibility of it occurring should be required to support injunctive relief. . . . Although the ‘dangerous probability’ test has certainly been met in this case, I would be willing to enjoin the activity on a showing of probability of occurrence substantially less than that which the facts presented to this court reveal, due to the extremely hazardous nature of the chemicals being dumped and the potentially catastrophic results.”
Maximizing the Availability of Injunctions in Canada
It is difficult to predict how-or even whether-the American court decisions discussed above could affect the rights of Canadians living along waste transportation corridors or near a nuclear waste disposal site. Historically, American courts have greatly influenced their Canadian counterparts; although not binding, their decisions have often been persuasive. Canadian courts continue to cite American cases in their decisions, especially when they have no Canadian or British precedents to look to.
If Canadian courts do adopt American thinking on perceived risks, the transport and storage of nuclear waste could be prime candidates for the application of the principles. Canadians perceive nuclear waste to be an extremely risky material. In one 1992 survey, 42 per cent of the men surveyed and 54 per cent of the women surveyed considered nuclear waste a high risk to the public. “Nuclear power and nuclear waste rank at the top of perceived personal health risks even when respondents live in British Columbia or the Prairies where nary a nuclear generator exists.”
AECL’s study of the social aspects of nuclear waste disposal confirmed the public’s widespread fear:
[M]any members of the public view nuclear waste as uniquely hazardous and difficult to handle. The risk associated with it is seen by some people to be absolute rather than relative, and some hold the view that unknown catastrophic events are somehow inevitable. . . . Researchers who conducted a word association test in the United States on the words “nuclear waste repository” found that the most frequent single associations were dangerous, danger, death and pollution. In addition, there were a large number of images referring to war, annihilation, weapons, and things military. In short, the responses revealed pervasive dread, revulsion, and anger.
AECL later added that “Canadians feel personally at risk, no matter where they live, from nuclear waste more than from any other health hazard.”
Scientific opinion regarding the risks associated with nuclear waste is more divided than is public opinion. If courts demand proof of a substantial risk of harm before issuing injunctions, trials will inevitably become battlegrounds between conflicting experts and studies. In contrast, if courts need only be convinced of a general public fear of nuclear waste before ruling against its transport or burial, plaintiffs will have a far easier time proving their cases.
Regardless of the standard that prevails (regardless of whether courts enjoin perceived risks or scientifically proven risks), as long as those adversely affected retain their common law property rights, they will have a better chance of enjoining land uses that constitute nuisances than they otherwise would. There remains, however, a major impediment to obtaining injunctions against public works.
AECL has not proposed, nor has the panel or government chosen, an “implementing organization” for a nuclear waste disposal project. We therefore do not yet know who would construct and operate transportation and disposal facilities. If the federal or provincial governments were to assume that role, those affected by the facilities would be unable to obtain injunctions against them: Courts issue injunctions only against private parties, not governments or their agents.
In contrast, if the implementing organization were based in the private sector, those affected by its activities could have access to the full range of common law remedies. Private proposals for nuclear waste disposal have been floated in the past, both in the United States and, to a lesser extent, in Canada. New Mexico’s Mescalero Apaches are negotiating private agreements with utility companies regarding a Monitored Retrievable Storage facility on their land. Similarly, the Meadow Lake Crees’ proposal to dispose of nuclear waste in northern Saskatchewan has been described as “a fully privatized spent fuel disposal system opportunity.”
But even private projects, if government-authorized, may be immune from injunctions. Statutes and regulations override the common law. A statute authorizing a party to take a specific action also authorizes all inevitable consequences of that action, whether or not they would otherwise be permissible. Therefore, if one party damages others as an inevitable result of exercising its statutory authority, its victims don’t automatically have recourse to common law injunctions; instead, they have recourse to the procedures or remedies laid out in the statute that has authorized the damage. Only if the statute explicitly so provides do they maintain their common law rights.
Federal and provincial legislators must therefore ensure that statutes and regulations regarding nuclear waste disposal don’t leave those affected without recourse to injunctions to prevent harm. They must permit activities only on the condition that they do not violate others’ property rights. When wording laws and regulations, they must specify that nothing in them legalizes nuisances or other unlawful acts.
If those adversely affected do retain their rights to injunctions, they will have considerable power over proposed transportation routes and disposal facilities. Under a strict property rights regime, the courts might consider either element to be an enjoinable nuisance. If so, the implementing organization could proceed only with its neighbours’ full approval. Facilities that did proceed would thus be not only “acceptable” but also accepted.
Damages or Compensation for Harms or Risks
If injunctions are unobtainable, damages would be the common law remedy available to those adversely affected by the transportation or disposal of nuclear wastes. While governments and their agents are immune from injunctions, they are not exempt from ordinary tort liability; courts can therefore assess damages against them if their activities harm others or put them at risk. As noted above, those authorized to construct public works may or may not be immunized from liability for the inevitable results of their activities, depending on the wording of the authorizing statute. Again, it is essential that the legislation authorizing public works specify that it is not authorizing any nuisances, and that those adversely affected by the works retain their common law remedies. If the legislation does permit activities that would otherwise be considered nuisances, against our recommendations, it should at least specify that those affected acquire broad compensation rights.
Many court cases about compensation have been launched by people who have had some of their land expropriated for public works, or who live in the vicinity of such works. If part of someone’s property is expropriated, the value of the remaining (non-expropriated) property may decline. The owner may obtain compensation for “injurious affection” caused by the expropriation itself or by the actual or anticipated use of the expropriated land. In some cases, others living near a public work may also obtain compensation if its construction interferes with their property rights or decreases the value of their land. Neighbours of highways, hospitals, fire stations, sewage lagoons, airports and other “obnoxious” land uses frequently fall into the latter category.
In Toronto v. J. F. Brown Co., for example, the Supreme Court of Canada ordered the city to compensate a store owner for a decline in the value of his property resulting from the construction and operation of public lavatories nearby. As one judge explained, “the presence of such conveniences makes the property less desirable from the point of view of possible purchasers and lessees, and therefore diminishes its selling and letting value.” Since the statute authorizing the project didn’t specify that those affected retained their rights to common law remedies, the owner couldn’t seek an injunction or traditional damages for nuisance. He could, however, claim compensation for injurious affection.
Neither federal nor provincial expropriation acts guarantee full compensation for injurious affection by the construction and use of public works to those whose land has not been expropriated. The federal act includes no such provisions; many provincial acts limit compensation to the damages caused by the construction, rather than the operation and maintenance, of public works. If the specific statutes governing a public work do not contain compensation provisions, the inadequate provisions of the general expropriation acts apply by default. To avoid disempowering potential victims, it is therefore essential that laws regarding the transportation and disposal of nuclear waste provide for compensation for both the construction and the use of any facilities.
Damages for Perceived Risks
In a number of recent U.S. cases, courts have awarded damages to landowners who, after partial expropriations, have been left with land of reduced market value, thanks to the public’s fear of the use to which the expropriated land would be put. When deciding whether or not to compensate for diminished values resulting from fear, courts have disagreed over how reasonable that fear must be, with some courts requiring a rational basis for the fear and others completely disregarding the fear’s reasonableness. Texas Electric Service Company v. Nelon exemplifies the former approach, while Santa Fe v. Komis illustrates the latter. Both cases addressed the transportation of nuclear waste.
In 1975, Texas Electric Service Company acquired an easement on a strip of Mr. and Mrs. Burlyn Nelon’s peanut farm. The public utility planned to construct a railroad line which would carry nuclear waste away from its nearby nuclear generating station. Upon expropriation, the market value of the Nelons’ remaining land plummeted from $800 to $500 per acre-a change attributed in part to potential buyers’ fear of radiation escaping from transported waste.
In affirming a lower court’s decision to compensate the Nelons for the loss of value in their remaining land, the Court of Appeal reviewed one witness’s testimony regarding the danger of accidents or sabotage. The court determined that the witness need not prove that an accident was probable, or that similar accidents had occurred in the past: The rule established in previous cases “does not require that an accident of the type feared already [has] occurred; it is sufficient if there is a basis in reason for the fear.”
Other courts have not required that the public’s fear be reasonable in order to justify compensation. In 1988, the City of Santa Fe, wanting to construct a bypass on which to transport nuclear waste going from Los Alamos to the Waste Isolation Pilot Project near Carlsbad, expropriated 43 of the 674 acres owned by John and Lemonia Komis. The Komises sought compensation for reduction in the value of their remaining land. Public perception of the hazards of nuclear waste transportation, they claimed, reduced their land’s market value, either as subdivided residential land or as recreational land, by one million dollars.
In support of their claim, the Komises commissioned a public opinion poll indicating that 71 per cent of those polled believed that property values near the new bypass would decrease. Forty-one per cent of the county’s residents predicted decreases of between 11 and 30 per cent on residential properties near the bypass.
The case went to the Supreme Court of New Mexico, which agreed with the lower court that in the case of a partial expropriation for a land use that frightened potential buyers and diminished the value of any remaining land, compensation would be required regardless of whether the public’s fear was well-founded. It confirmed the jury’s award of $337,815 for public-perception damages.
In its decision, the court referred to a number of cases regarding high voltage transmission lines that reduce the value of lands through which they run. It favoured an approach holding public fear of the lines to be compensable regardless of its reasonableness, since even unfounded fears affect market value: “[I]f loss of value can be proven, it should be compensable regardless of its source.”
The same, the court found, would apply to a highway used to transport nuclear waste. Arguments about the safety of radioactive waste transport were of no interest: “Whether the transportation of hazardous nuclear materials actually is or is not safe is irrelevant; the issue is whether public perception of those dangers has a depressing effect on the value of the property not taken.”
As noted in Santa Fe v. Komis, transmission lines are frequent subjects of perceived risk lawsuits in the United States. Those living near high voltage lines increasingly claim damages for reductions in their property values caused by the public’s fears that the lines’ electric and magnetic fields will cause cancer. Disputes over the validity of such fears, arising from the contradictory or inconclusive nature of many studies on the subject, have not deterred the courts from holding companies liable for the consequences of the fears.
In a 1993 case, Criscuola v. Power Authority of New York, the New York Court of Appeals awarded damages against a utility whose new transmission line lowered neighbouring land values. The court ruled that it was irrelevant whether or not the public’s “cancerphobia” resulted from a genuine danger, since even an unreasonable fear could result in a very real loss of market value: “Whether the danger is a scientifically genuine or verifiable fact should be irrelevant to the central issue of its market value impact.”
The Importance of Maintaining Insurance
Property rights, to be meaningful, must be enforceable. Those who may be harmed by the transport or disposal of nuclear waste must be confident that they will be able to assert their rights should the need arise. To assure people that, should harm come, they will be able to recover full damages, the implementing organization must maintain adequate insurance coverage on both transport and disposal activities. Furthermore, to ensure that victims will be able to obtain justice long after the implementing organization has ceased doing business, provisions should be made to finance future clean-up and compensation.
The Implications of Requiring Consent from Communities of Interest and Maintaining Individuals’ Rights to Injunctions and Damage Awards
Executing the recommendations presented throughout this paper will likely increase the implementing organization’s costs. But such provisions will not actually increase the total costs of nuclear waste disposal; they will simply make visible otherwise hidden risks and costs, redistributing them away from potential victims. They will force the implementing organization to internalize its externalities, to pay any costs it imposes on its neighbours. Such an equitable distribution of costs is an essential element of any ethical waste disposal system.
The implementing organization may be allowed to pass its costs on to taxpayers. Alternatively, it may be required to pass them on to the nuclear industry, possibly affecting the financial viability of nuclear waste generation. Eliminating hidden subsidies to waste generation by requiring the nuclear industry to pay the full costs of waste disposal may encourage power generators to reduce their production of nuclear waste.
Increased liability, backed by sufficient insurance, will increase the safety of the nuclear waste disposal system. Insurers’ exposure will prompt them to demand additional safety measures, procedures, or reconfigurations that will increase the implementing organization’s level of care and improve the safety of both transportation and disposal facilities.
While the costs (to the implementing organization) of executing our recommendations may be high, considerable benefits-both ethical and pragmatic-will result. The siting process, resting on the principles of informed consent and property rights, will distribute costs and benefits far more equitably than its predecessors, or than the process proposed by AECL. The process will be more voluntary, more truly characterized by shared decision making, and more fair-in short, far better able to satisfy the worthy principles of implementation proposed by AECL.
Furthermore, a siting process relying on such principles is more likely to succeed than one that forces people to bear risks. AECL has pointed out that accepted risks tend to be acceptable risks: “[P]eople consider the risk of an activity to be lower or more acceptable if . . . they engage in or accept the activity voluntarily.” Knowing they have a choice, and armed with strong, enforceable property rights, communities and individuals will be more willing to cooperate in the siting process. They will know that they can vote no if they stand to lose more than they will gain. And they will know that they will be able to obtain an injunction or damages if the implementing organization creates (or perhaps even threatens to create) a nuisance. The knowledge that they will be protected by the law will give people the necessary confidence to say yes to a proposal.
Summary of Recommendations
To protect potentially affected communities, Energy Probe recommends that:
Those overseeing the siting process should identify all potentially affected communities and invite all such communities to vote on the proposed project. Only if majorities in all affected communities support the project should it go ahead.
The boundaries of the voting communities should reflect “communities of interest”- groups of people who are likely to experience similar impacts. Communities of interest need not be defined politically, nor need they be mutually exclusive. An affected individual could fall within a number of communities of interest, and be eligible to vote with each of those communities.
Communities of interest could include: close neighbours; those within a certain radius; those living downwind or downstream of the facility; those within one or more risk perception shadows; and those living along transportation corridors.
To protect potentially affected individuals, Energy Probe recommends that:
Laws and regulations regarding the transport and disposal of nuclear waste should explicitly preserve the common law property rights of all who may be affected, thus enabling them to obtain injunctions against hazardous operations or damages for injuries suffered. Such laws must permit activities only on the condition that they do not violate others’ property rights. They must specify that nothing in them legalizes nuisances or other unlawful acts.
If the legislation does permit activities that would otherwise be considered nuisances, against our recommendations, it should at least specify that those affected acquire broad compensation rights. To avoid disempowering potential victims, it is essential that laws regarding the transportation and disposal of nuclear waste provide for compensation for both the construction and the use of any facilities.
To assure people that, should harm come, they will be able to recover full damages, the implementing organization must maintain adequate insurance coverage on both transport and disposal activities. Furthermore, to ensure that victims will be able to obtain justice long after the implementing organization has ceased doing business, provisions should be made to finance future clean-up and compensation.
