South Africa’s nuclear deals unlawful, court rules http://www.bbc.com/news/world-africa-39717401 26
April 2017 A South African court has annulled initial agreements the government reached with three countries to help it build nuclear power stations.
Back to square one for Eskom as judge sets nuclear decisions aside https://www.businesslive.co.za/bd/national/2017-04-26-court-rules-on-nuclear-plans-and-it-is-not-good-news-for-eskom/ In a major reversal for Eskom’s nuclear plans the Western Cape High Court has set aside the two determinations issued by former minister Tina Joemat-Pettersson which lay the basis for the nuclear procurement.
It is back to square one for the utility as the court found that the determinations relating to the construction of 9,600MW of nuclear plants were unconstitutional and invalid.
It also declared the nuclear co-operation agreement signed between the South African and Russian governments to be unconstitutional and unlawful. This agreement is widely seen as laying the foundation for the involvement of Russian energy giant Rosatom in the South African nuclear build programme.
The first determination which was set aside was issued under section 34 of the Electricity Regulation Act and ruled that 9,600MW was required and should be acquired by the Department of Energy. It was signed in November 2013 by then energy minister Ben Martins but gazetted only in December 2015. The second determination was signed in December 2016 by Joemat-Petterson and identified Eskom as the procurer of new nuclear energy.
The determinations were approved by the National Energy Regulator of SA but the court found that the regulator’s concurrence with them was procedurally unfair, irrational and in breach of the National Energy Regulator Act as there was no public participation.
Judge Lee Bozalek, with the concurrence of Judge Elizabeth Baartman, also found that the request for information issued by Eskom in December last year was unlawful and unconstitutional and it was set aside.
The request for information, which closes at the end of this month, would form the basis for a request for proposal and for the procurement of 9,600MW of nuclear energy.
In a written judgment handed down Wednesday Judge Bozalek declared that the manner in which Joemat-Pettersson had tabled the nuclear co-operation agreements with the US, Russia and South Korea in Parliament was unconstitutional and unlawful, and set aside them aside.
The nature of the agreements meant they had to be tabled in terms of section 231 (2) of the Constitution, which requires the approval of both houses of Parliament, and not section 231 (3), as the minister irrationally decided to do, the judge said. Tabling in terms of Section 231 (3) does not require parliamentary endorsement.
There were joyous scenes outside the court after the judgment was handed down in the case, which was brought by Earthlife Africa and the Southern African Faith Communties’ Environment Institute against the Minister of Energy, President Jacob Zuma, the National Energy Regulator of SA, speaker of the National Assembly Baleka Mbete, chairperson of the National Council of Provinces Thandi Modise and Eskom.
Spokespersons for the two organisations said the judgment would ensure there was proper oversight by Parliament and the people in the process of procuring of nuclear energy, which would have to be undertaken in an open and transparent process.
The two NGOs argued there had been no proper public participation or consultation process over the determinations, which were “irrational and unreasonable”. The government rejected these arguments on the ground that these determinations amounted to “executive policy”.
Judge Bozalek, however, said the determinations – which would have far-reaching consequences for the country – were not merely administrative decisions, and a “rational and fair decision-making process” was required before Nersa decided whether or not to concur with the minister’s proposed determination.
The National Energy Regulator Act required that decisions that materially and adversely affected the rights of others had to be procedurally fair. The regulator decided to concur with the 2016 ministerial determination by means of a round-robin exercise a mere three days after being asked to do so by Joemat-Pettersson.
“In taking the decision Nersa was under a statutory duty to act in the public interest and in a justifiable and transparent manner but also to utilise a procedurally fair process giving affected persons the opportunity to submit their views and present relevant facts and evidence. These requirements were clearly not met by Nersa in taking its far-reaching decision to concur in the minister’s section 34 determination,” Judge Bozalek said.
He also ruled the two-year delay in gazetting the 2013 determination breached the minister’s decision, “thus rendering it irrational and unlawful”. The delay also violated the requirements of open, transparent and accountable government. The minister should have consulted with Nersa again in 2015 before gazetting the determination.
The government’s nuclear plans have been red-flagged by credit ratings agencies, which downgraded SA to junk status.
President Jacob Zuma has been determined to proceed with the nuclear build programme, despite critics saying it is not necessary and beyond the means of a fiscally constrained government. His stance led to the removal of Joemat-Pettersson as energy minister and her replacement by Zuma supporter Mmamoloko Kubayi in the recent Cabinet reshuffle that also removed Pravin Gordhan as finance minister.
The draft 2016 Integrated Resource Plan (IRP) says SA will not need new nuclear power plants before 2037, but until it is finalised, Eskom has been operating on the basis of the 2010 IRP, which proposes the construction of 9,600MW in nuclear plants.
In December, the power utility issued a request for information, which closes on April 28, and by the end of June it planned to issue a request for binding proposals from potential vendors, provided it obtained the approvals to do so.
US prepares charges to seek arrest of WikiLeaks’ Julian Assange – sources | 20 April 2017 | US authorities have prepared charges to seek the arrest of WikiLeaks founder Julian Assange, US officials familiar with the matter tell CNN. The Justice Department investigation of Assange and WikiLeaks dates to at least 2010, when the site first gained wide attention for posting thousands of files stolen by the former US Army intelligence analyst now known as Chelsea Manning.
NextEra, FPL lose lawsuit over $97.5 million in nuclear-related tax refunds http://protectingyourpocket.blog.palmbeachpost.com/2017/03/30/nextera-fpl-lose-lawsuit-over-97-5-million-in-nuclear-related-tax-refunds/Susan Salisbury March 30, 2017 Juno Beach-based NextEra Energy Inc. and Florida Power & Light Co. have lost a lawsuit they filed against the federal government that sought more than $97.5 million in tax refunds.
Man guilty of bomb threats against nuclear plant in Florida | 19 April 2017 | A north Florida man has pleaded guilty to sending bomb threats to a nuclear power plant, a school and other government and private facilities. Acting U.S. Attorney W. Stephen Muldrow said in a news release that 25-year-old David Wayne Willmott Jr. pleaded guilty on Tuesday in federal court to three counts of making threats to use an explosive device. Federal prosecutors say Willmott emailed bomb threats in 2014 and 2015 to the nuclear plant as well as two courthouses, two airports and a sheriff’s office.
Donald Trump being sued by nine-year-old Levi Draheim over his climate policies http://www.abc.net.au/news/2017-04-24/the-nine-year-old-suing-president-trump-over-his-climate-policy/8466946 By North America correspondent Conor Duffy, 24 Apr 17, US President Donald Trump is eight times his age and a much more experienced litigator, but nine-year-old Levi Draheim is looking forward to seeing the leader in court.
Levi lives near Melbourne Beach in central Florida and is part of a group of 21 young people suing the president over his climate policies.
“The reason that I care so much is that I basically grew up on the beach. It’s like another mother, sort of, to me,” Levi said.
His local beach faces the Atlantic Ocean and the flat coastal terrain is one of the areas in the United States most vulnerable to a rise in sea level.
Levi and his family believe they are already seeing the effects of climate change in the local sand dunes, which are nesting territory for sea turtles.
“It makes me really sad seeing how much dune we’ve lost,” Levi said.
“When I went out on the beach after the hurricane, I was just crying because there was so much dune lost.” The young people suing Mr Trump began their legal action under former president Barack Obama, and last November they had a win with a judge dismissing a move from the administration to throw out their court action.
“Exercising my ‘reasoned judgement’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” Federal Judge Ann Aiken wrote.
Last month the Trump administration announced plans to appeal, but Levi is not backing down.
“I was just totally shocked that he doesn’t believe climate change is real,” Levi said.
“It was a little bit scary. It was just a little bit disturbing he didn’t believe that climate change was real.”
The case has seen Levi and his fellow young climate activists face some rather adult language on social media, but his mother Leanne Draheim said she was not worried.
“Some people are saying like, ‘Why are you letting your kid get involved? What does he know? He doesn’t know enough to get involved’,” Ms Draheim said.
“But really he knows that he cares about the environment, he cares about being outside, and we’ve talked about how that’s not going to happen in the future for his kids if things keep going the way things are going.”
Climate change spending slashed
President Trump has not yet said whether he will stick by his pledge to “cancel” the Paris Climate Accord, but he has moved swiftly to curtail government spending on climate.
The Environmental Protection Agency (EPA) stands to lose almost a third of its funding under Mr Trump’s draft budget, and climate programs in other agencies will not be funded.
“Regarding the question as to climate change, I think the president was fairly straightforward: ‘We’re not spending money on that anymore,'” Mr Trump’s budget director Mick Mulvaney said.
The applications are for exemptions from the rules governing government procurement as set out in the Public Finance Management Act.
Eskom chief nuclear officer, Dave Nicholls, told Business Day that much of the work on the nuclear procurement had been done before the promulgation of the regulations over the last year.
He reportedly said Eskom wanted Treasury to assure it that the work already done would be seen as compliant with regulations, to avoid having to start the process from scratch.
He said there was nothing untoward with the applications.
“We believe the work that has already been done is adequate and is equivalent to what Treasury is asking for,” he told the paper.
DA energy spokesman Gordan Mackay told Business Day the party objected to any “unacceptable” attempts to rush through the procurement process.
Lawsuit Warns $234B In Aid To Israel Violates US Law Against Supporting Secret Nuclear States, Mint Press, By Follow on Facebook | @KitOConnell | August 16, 2016|
The lawsuit warns that the U.S. gave Israel about $234 billion in foreign aid since the passage of the International Security Assistance and Arms Export Control Act of 1976, despite a ban on support for secret nuclear weapons programs.
Filed Aug. 8 by Grant Smith, director of the Institute for Research: Middle East Policy, or IRMEP, in the U.S. District Court for the District of Columbia, the suit alleges that U.S. aid to Israel violates two amendments to the 1961 Foreign Assistance Act, known as the the Symington and Glenn Amendments, which collectively ban support for countries engaged in clandestine nuclear programs.
In the lawsuit, Smith alleges that violating these amendments means that Israel has received approximately $234 billion in illegal aid since the passage of the International Security Assistance and Arms Export Control Act of 1976.
The lawsuit reads:
“This lawsuit is not about foreign policy. It is about the rule of law, presidential power, the structural limits of the U.S. Constitution, and the right of the public to understand the functions of government and informed petition of the government for redress.”…….
Israel’s dangerous ‘nuclear ambiguity’
The IRMEP lawsuit argues that Israel’s policy of official secrecy on its nuclear weapons program perfectly fits the definition of the 1976 Export Control Act, and that the U.S. government broke the law through its “failure to act upon facts long in their possession while prohibiting the release of official government information about Israel’s nuclear weapons program, particularly ongoing illicit transfers of nuclear weapons material and technology from the U.S. to Israel.”
Smith wrote that the U.S. offers material support to Israel’s nuclear program while helping suppress information about the program. He continued:
“These violations manifest in gagging and prosecuting federal officials and contractors who publicly acknowledge Israel’s nuclear weapons program, imposing punitive economic costs on public interest researchers who attempt to educate the public about the functions of government, refusing to make bona fide responses to journalists and consistently failing to act on credible information available in the government and public domain.”
This policy of secrecy goes by many names, he noted. “These acts serve a policy that has many names all referring to the same subterfuge, ‘nuclear opacity,’ ‘nuclear ambiguity,’ and ‘strategic ambiguity.’”
Although long denied by both American and Israeli politicians, Israel’s nuclear program was first revealed by whistleblower Mordechai Vanunu, who spent 16 years in prison for sharing secret details of the program with Britain’s Sunday Times in 1986, and has been repeatedly arrested for continuing to publicly speak out.
Although the program is still not officially acknowledged, a November report by the Institute for Science and International Security suggested the Israeli government has amassed enough material to create at least 115 nuclear warheads. That would put Israel, a country roughly the size of New Jersey, on nearly equal nuclear footing with India and Pakistan…….http://www.mintpressnews.com/lawsuit-warns-234b-aid-israel-violates-us-law-supporting-secret-nuclear-states/219502/
Court rulings permitting restart of NPPs are irresponsible http://www.japan-press.co.jp/modules/news/index.php?id=10497 April 5, 2017 Akahata editorial
The Osaka High Court and the Hiroshima District Court permitted in quick succession the restart of the currently-suspended Nos.3 and 4 reactors at the Kansai Electric Power Takahama Nuclear Power Plant (Fukui Pref.) and the continuation of operations at the No.3 reactor at the Shikoku Electric Power Ikata Nuclear Power Plant (Ehime Pref.). A point that must not be overlooked is that the two courts determined that the go-ahead for these reactors given by the government based on the Nuclear Regulation Authority standards is “not unreasonable”. In short, the judicial institutions relinquished their legal role of handing down their own decisions by just confirming governmental approvals. Cases over reactivation of offline reactors are pending in many courts in Japan. The courts should fulfill the judicial authorities’ role to protect the daily life and livelihoods of the general public.
‘Safety myth’ may again run rampant
If deeming that as long as the NRA gives a green light to resuming operations of nuclear reactors, courts do not need to judge whether or not such operations are appropriate, they would no longer be judicial apparatuses independent from the government. The Abe Shinzo Cabinet in principle reactivates NPPs which meet the NRA regulatory standards. It is tantamount to reinforcing the “safety myth” about the NRA screening itself.
Courts formerly did not make judgements about the “state policy” of NPPs as the policy is a government decision. However, the “safety myth” of NPPs completely collapsed after the dangers of NPPs came to light, especially after the 2011 nuclear meltdowns at the Tokyo Electric Power Fukushima Daiichi Nuclear Power Plant (Fukushima Pref.) occurred. In lawsuits filed in the wake of the Fukushima accident, the district courts in Fukui and Otsu issued a temporary injunction order stopping operations of Nos. 3 and 4 reactors at the Oi NPP (Fukui Pref.) and Nos.3 and 4 reactors at the Takahana NPP, both operated by Kansai Electric Power Company.
Both of the court rulings state that people have the right to seek to protect their lives and livelihoods from NPP-related risks as the Constitution guarantees “personal rights”. The two judgements point out that the investigation into the cause of the 2011 Fukushima nuclear meltdown is totally insufficient. Concerning the NRA quakeproofing and tsunami-proofing criteria that the state used in approving the restart of NPPs, the court decisions criticized the criteria as “too lax”, which is of grave significance. The Fukui and Otsu district courts refused to blindly follow the government’s pro-nuclear policy and made independent decisions, clearly highlighting the collapse of the “safety myth”.
However, the recent decisions by the Osaka High Court and the Hiroshima District Court were completely unlike the previous two courts’ decisions. Regarding the nuclear safety standards that the NRA employed in allowing the reactivation of the reactors, the rulings by the two courts acknowledged the safety standards as “not unreasonable”, claiming that they reflect lessons learned from past accidents as well as the latest scientific and technical knowledge”. The Hiroshima ruling not just followed the state policy but abandoned the principle of judicial independence. It asserted that inconsistencies among court judgements will lead to confusion and that the Hiroshima court made the decision in line with the April 2016 decision by the Fukuoka High Court Miyazaki Branch which allowed the operation of Nos 1 and 2 reactors at the Kyushu Electric Power Company Sendai NPP (Kagoshima Pref.). If the judiciary keeps taking such a stance, it will be unable to protect people’s lives and their human rights.
Safeguard people’s rights
In the first place, the Constitution guarantees people’s right to go to court. It is a matter of course that judges should make their own decisions without being influenced by the state.
The latest rulings by the Osaka High Court and the Hiroshima District Court had to admit that evacuation plans in case of a serious accident at the Takahama and Ikata NPPs are insufficient. The Fukushima nuclear meltdown proved that an accident at a NPP will cause long-lasting, irreversible damage affecting wide areas. Courts should reject the “safety myth” and fulfil their role to protect people’s lives and livelihoods.
Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments, Opinio Juris, 9 Apr 17, by Julian Ku The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.
Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states. With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal. I’ve gathered a few statements and links below.
China’s Ministry of Foreign Affairs:……….
France and Germany (President and Chancellor):…….
United Kingdom Defence Minister:…….
European Union, President of European Council:….
Turkey, Deputy Foreign Minister:……
Japan, Prime Minister……
This survey is not comprehensive and some large players, like India, have yet to weigh in. But it seems only Russia and Iran have condemned the strikes vigorously. The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here. Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?
On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.
Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues. http://opiniojuris.org/2017/04/07/almost-everyone-agrees-that-the-u-s-strikes-against-syria-are-illegal-under-international-law-except-for-most-governments/
Girl, 9, sues Indian government over inaction on climate change http://news.trust.org/item/20170407113847-vw8c4 by Rina Chandran | @rinachandran | Thomson Reuters Foundation, 7 April 2017 India is home to four of the 10 worst ranked cities in the world for air pollution MUMBAI, – A nine-year-old girl has filed a legal case against the Indian government for failing to take action on climate change, highlighting the growing concern over pollution and environmental degradation in the country.
In the petition filed with the National Green Tribunal (NGT), a special court for environment-related cases, Ridhima Pandey said the government has failed to implement its environment laws.
“As a young person (Ridhima) is part of a class that amongst all Indians is most vulnerable to changes in climate, yet are not part of the decision making process,” the 52-page petition said. The petition called on the tribunal to direct the government “to take effective, science-based action to reduce and minimise the adverse impacts of climate change”.
The tribunal has asked the Ministry of Environment and the Central Pollution Control Board to respond within two weeks.
A spokesman from the Ministry of Environment told the Thomson Reuters Foundation that they would respond as directed by the tribunal.
India is home to four of the 10 worst ranked cities in the world for air pollution. Along with China, India accounted for more than half the total number of global deaths attributable to air pollution in 2015, according to a recent study.
Despite several laws to protect India’s forests, clean up its rivers and improve air quality, critics are concerned that implementation is poor, and economic growth often takes precedence over the environment.
Flash floods and landslides in the Himalayan state of Uttarakhand, where Ridhima lives, killed hundreds of people and left tens of thousands homeless in 2013.
The devastation affected Ridhima, the daughter of an environmental activist, said Rahul Choudhary, a lawyer representing her.
“For someone so young, she is very aware of the issue of climate change, and she is very concerned about how it will impact her in future,” he said. “She wanted to do something that can have a meaningful effect, and we suggested she could file a petition against the government,” he told the Thomson Reuters Foundation.
Ridhima is not the first child in India to take the government to task over inaction to protect the environment.
Last year, six teenagers filed a petition with the NGT over air pollution in New Delhi which has the worst air quality in the country.
India is taking some action to mitigate the damage. As a signatory to the Paris agreement on climate change, it is committed to ensuring that at least 40 percent of its electricity is generated from non-fossil-fuel sources by 2030.
In her petition, Ridhima asked the court to order the government to assess industrial projects for climate-related issues, prepare a “carbon budget” to limit carbon dioxide emissions, and create a national climate recovery plan.
“That a young girl is doing so much to draw the government’s attention is something. We hope the case puts some pressure on the government to act,” said Choudhary. (Reporting by Rina Chandran @rinachandran, Editing by Belinda Goldsmith; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women’s rights, trafficking, property rights, climate change and resilience. Visit news.trust.org to see more stories.)
Court overturns injunction on Takahama nuclear plant http://www.asahi.com/ajw/articles/AJ201703280059.html March 28, 2017 Kansai Electric Power Co. won a major victory in its bid to restart the Takahama nuclear plant on March 28, with the Osaka High Court overturning a lower court’s unprecedented injunction to shut down the plant in operation.
The decision came after the Osaka-based utility had appealed the Otsu District Court’s March 2016 ruling, in which it was ordered to suspend operations of the No. 3 and No. 4 reactors at the plant in Takahama, Fukui Prefecture.
In the ruling on March 28, the high court sided with Kansai Electric, which argued that its reactors met the regulatory requirements instituted in 2013 by the Nuclear Regulation Authority.
With the decision, Kansai Electric, which relies on nuclear energy more than many other utilities, is expected to begin procedures to restart the Takahama plant.
In the injunction, the district court in Shiga Prefecture concluded that merely fulfilling the new NRA requirements is not enough to secure safety at the plant, saying they were set when the investigation into the 2011 Fukushima disaster was only halfway complete.
The lower court also said a thorough survey of geological faults around the Takahama plant has yet to be conducted, and that Kansai Electric’s claim that its reactors have a sufficient safety cushion to withstand the largest tremors projected there is doubtful.
Kansai Electric countered that the new requirements fully incorporate lessons learned from the triple meltdown at the Fukushima No. 1 nuclear plant by obliging operators to prepare for a more powerful earthquake, tsunami and other natural phenomenon that could trigger an accident.
The court challenge was filed by a group of 29 residents in Shiga Prefecture, which shares a border with Fukui Prefecture, in January 2015. The injunction marked the first time a court in Japan had ordered an operating reactor to be taken offline.
Texas sues feds — including Rick Perry — for failing to license nuclear waste facility MARCH 15, 2017 In a lawsuit filed Tuesday, Texas Attorney General Ken Paxton accuses U.S. agencies of violating federal law by failing to license a nuclear waste repository in Nevada. Texas is trying to take the federal government to task for failing to find a permanent disposal site for thousands of metric tons of radioactive waste piling up at nuclear reactor sites across the country.
In a lawsuit filed Tuesday night, Texas Attorney General Ken Paxton accuses U.S. agencies of violating federal law by failing to license a nuclear waste repository in Nevada — a plan delayed for decades amid a highly politicized fight.
Paxton’s petition asks the U.S. Court of Appeals for the 5th Circuit to force the Nuclear Regulatory Committee to cast an up-or-down vote on the Yucca Mountain plan. It also seeks to prevent the federal Department of Energy from spending billions of dollars in fees collected from utilities on efforts to find another disposal site before such a vote……
Karen Hadden, executive director of the Sustainable Energy and Economic Development Coalition, a group fighting the Andrews County site’s expansion, agreed with Paxton’s criticism of the Yucca Mountain process — “a waste of money,” she said. But Hadden worries that the lawsuit could force the government to permit a site ill-equipped to protect public health and safety.
“It’s really important that we get a permanent repository in place that will isolate this waste so we don’t have cancer effects or deaths from contamination today or into the future,” Hadden said. “My concern is that [Paxton] has another Texas permanent disposal site in mind.”https://www.texastribune.org/2017/03/15/texas-sues-feds-rick-perrys-agency-included-over-nuclear-waste/
New regs for Wednesday: Nuclear, The Hill, 13 Mar 17
“………..The Nuclear Regulatory Commission (NRC) is drafting new rules for nuclear power reactors that are being decommissioned.
The rules will “provide for an efficient decommissioning process” and “reduce the need for exemptions from existing regulations.”
The public has 90 days to comment.http://thehill.com/regulation/323851-new-regs-for-wednesday-prepaid-cards-nuclear-water