A judicial appeal is widely expected. But it’s unlikely that the government will succeed in overturning the essence of the judgement. And an appeals process will delay any legitimate future nuclear power procurement.
given the prevalent suspicion around the nuclear expansion, the regulator will be hard pressed to show that the nuclear option is in the public interest.
It is therefore unlikely that any nuclear development will succeed in the foreseeable future.
HARTMUT WINKLER: Inside Zuma’s nuclear meltdown https://www.businesslive.co.za/rdm/business/2017-05-02-hartmut-winkler-how-zumas-nuclear-ambitions-have-been-blown-to-pieces/ ‘The judge was unequivocal that by slipping the Russian agreement through parliament as a routine matter for noting, the former Energy Minister Joemat-Petterssen had committed a gross error’ 02 MAY 2017 – 08:01 HARTMUT WINKLER A South African court has ruled that critical aspects of the country’s nuclear procurement process are illegal and unconstitutional. The outcome is a significant setback for a network of entities that had been aggressively promoting a 9.6 GW nuclear expansion programme in the face of popular opposition.
Over the past four weeks controversy over the proposed nuclear build has reached new highs. This was sparked by a major cabinet reshuffle in which President Jacob Zuma ousted both his finance and energy ministers, replacing them with individuals regarded as pro-nuclear.
The reshuffle prompted some of the largest and most diverse street protests since the dawn of the country’s democracy in 1994. While many factors contributed to the outpouring of public anger against the president, the nuclear question was a common motif in the protests.
Opposition to the nuclear expansion programme centred on two points: the first was its prohibitive costs – some estimates put it at R 1 trillion which is roughly equivalent to the government’s total annual tax revenue.
The second is that it has become contaminated by allegations of corruption, with evidence pointing to politically connected groups and individuals benefiting handsomely from it.
Back to the drawing boardThe court’s ruling in effect means that the planners will have to go back to the drawing board. The case in the Western Cape High Court was brought by two civil society organisations, Earthlife Africa and the Southern African Faith Communities’ Environmental Institute (SAFCEI).
The most far reaching aspects of the judgment were that it overturned ministerial proclamations made in 2013 and 2016 that enabled the development of 9.6 GW of nuclear power. It furthermore invalidated the intergovernmental nuclear collaboration agreements South Africa had signed with Russia, the US and South Korea.
The court’s ruling on the promulgations was damning and unambiguous.
South Africa’s Electricity Regulation Act requires the Minister of Energy to promulgate any energy generating capacity expansion through the National Energy Regulator of South Africa (NERSA). The regulator is required to vet the proclamation to ensure that it is in the public interest.
The Minister of Energy issued two promulgations to establish 9.6 GW of nuclear energy generation. The first one was concluded in 2013 but only made public two years later. The second one, which delegated the nuclear procurement to the state electricity utility Eskom, whose leadership is strongly pro-nuclear, was hurriedly and stealthily implemented in 2016 on the eve of the first sitting of Western Cape High Court on the matter.
Neither of these proclamations allowed a public participation process.The court ruled that both promulgations were illegal and unconstitutional. It found that the regulator had failed to carry out its mandate because it had endorsed the minister’s directives uncritically and hurriedly. In doing so it had not allowed public input nor had it considered the necessity of the nuclear build or the consequences of its delegation to Eskom.
The court was equally clear on the collaboration agreements. Unlike the relatively vague agreements concluded with the US and South Korea, the Russian agreement had a great deal more detail in it. It specifically committed South Africa to build nuclear power plants using Russian technology, set out a timeframe and placed specific liabilities on South Africa.
South Africa’s constitution stipulates that international agreements that will have a substantive impact on the country must be approved by parliament. The agreement with Russia clearly falls into this category and therefore needed to be submitted to parliament for debate and approval.
The judge was unequivocal that by slipping the Russian agreement through parliament as a routine matter for noting, the former Energy Minister Joemat-Petterssen had committed a gross error. In his judgment he said: It follows that the Minister’s decision to table the agreement in terms of section 231(3) was, at the very least, irrational. At best the minister appears to have either failed to apply her mind to the requirements of sec 231(2) in relation to the contents of the Russian IGA or at worst to have deliberately bypassed its provisions for an ulterior and unlawful purpose.This could open the door for further action against the minister as well as Zuma, who, according to the court papers, instructed her to sign the Russian agreement.
The US agreement was concluded in 1995 and the South Korean agreement in 2010. But they were only presented to parliament in 2015. The court declared them invalid in view of the inexplicable time delay.
The medium and long term impact A judicial appeal is widely expected. But it’s unlikely that the government will succeed in overturning the essence of the judgement. And an appeals process will delay any legitimate future nuclear power procurement.
Any attempt to re-initiate a nuclear build would have to start from scratch. Based on the judgement it can safely be assumed that the regulator can only endorse nuclear expansion if it can demonstrate that it’s necessary and that it’s a better solution to any other energy option.
But given the prevalent suspicion around the nuclear expansion, the regulator will be hard pressed to show that the nuclear option is in the public interest.
It is therefore unlikely that any nuclear development will succeed in the foreseeable future.
May 3, 2017
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Government will challenge High Court’s nuclear energy ruling Business Tech, 2 may 17 Energy minister Mmamoloko Kubayi told the portfolio committee on energy on Tuesday that she would be challenging the recent High Court ruling that called the country’s nuclear procurement processes unconstitutional.
She said that the department remains committed to the nuclear energy plan, and would seek a declaratory order from the court that it can continue with its plans, or alternatively appeal the judgment.
According to Kubayi, she has not problem with the request in the judgement that more public participation take place, saying she is in favour of running an open and transparent process.
She stressed, however, that the nuclear plan couldn’t be abandoned, with nuclear energy forming an integral part of the country’s energy future, with predictability and certainty needed for investors…….
The ruling has set back South Africa’s nuclear ambitions significantly, with even appeals processes and the litigation surrounding it likely to push back the process by about a year.
According to analysts, this delay is likely to put even more pressure on president Jacob Zuma and the political sphere leading up to the ANC’s elective conference in December, as the nuclear programme is a key component in pushing certain political interests.
The appeal comes as no surprise.
“The stakes politically and geopolitically for the government, and specifically for President Zuma, are simply too high. So much has been invested in terms of political capital, including two reshuffles. We therefore fully expect the government to continue to push down this road,” said research analyst at Nomura, Peter Attard Montalto.https://businesstech.co.za/news/energy/172967/government-will-challenge-high-courts-nuclear-energy-ruling/
May 3, 2017
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Nuclear regulators find Cameco shipping violations Company spilled toxic sludge on U.S. 191 south of Blanding, The Journal By Jim Mimiaga Journal Staff Writer | Sunday, April 30, 2017 The Nuclear Regulatory Commission has found numerous shipping violations against Cameco Resources, a Wyoming uranium mine company that spilled radioactive waste on U.S. Highway 191 south of Blanding, Utah.
A report released on April 25 details the commission’s November inspection of the company’s shipping procedures and practices.
“Based on the results of this inspection, nine apparent violations were identified and are being considered for escalated enforcement action,” wrote Mark R. Shaffer, division director of Nuclear Materials Safety.
Cameco came under additional scrutiny after an incident March 28-29 when its regular truckload of barium sulphate, bound for a containment cell at the White Mesa Mill, leaked onto the roadway………
According to the Nuclear Regulatory Commission report, the list of violations against Cameco includes:
Failure to accurately assess, report and label barium-sulfate waste shipments,Failure to ship waste material in appropriate containers,Failure to test whether the material could withstand the vibration and acceleration of transportation,Failure to provide specific hazmat training.According to the report, errors in shipping paperwork at Cameco misclassified radioactive waste level as lower than the actual shipment, which led to it being shipped in the wrong container……..
May 3, 2017
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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.
April 28, 2017
Posted by Christina Macpherson |
Legal, South Africa |
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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/ LINDA ENSOR 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.
Red flag
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.
April 28, 2017
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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.
April 26, 2017
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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.
The case involved the tax treatment of the costs to dispose of spent nuclear fuel — nuclear wastes.
In a 20-page ruling issued last week, West Palm Beach-based U.S. District Judge Robin Rosenberg ruled in favor of the Internal Revenue Service and said the company is not entitled to a tax refund.
NextEra had argued that the fees it pays to the Department of Energy for the disposal of nuclear waste qualify as decommissioning expenses and should be counted as net operating losses. The fees should also be eligible for carry-back to the in-service date of the reactor, the company asserted.
Rosenberg ruled that the disposal of nuclear fuel as waste from a nuclear power plant does not constitute decommissioning.
“Stated another way, for fuel to be decommissioned, it would first have to be commissioned,” Rosenberg wrote.
FPL owns and operates nuclear reactors at its Turkey Point plant south of Miami and at its St. Lucie plant on Hutchinson Island. NextEra owns three nuclear plans through other subsidiaries. They are Seabrook, Seabrook, N.H.; Duane Arnold, Palo, Iowa and Point Beach, Two Rivers, Wis.
Nuclear reactors require nuclear fuel assemblies containing radioactive uranium, and after about four years the assemblies no longer efficiently produce energy. They are then spent fuel and must be removed from the reactor and replaced with a new fuel assembly.
The tax years the company claimed it was owed a refund are 2003-05 and 2008-10. During those years, NextEra paid more than $73 million in nuclear waste fees to the Energy Department, and FPL paid more than $24.5 million, according to the lawsuit filed in April
April 26, 2017
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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.
April 26, 2017
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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.
April 26, 2017
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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.
April 22, 2017
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MOX injunction delayed until at least July 31 http://www.aikenstandard.com/news/mox-injunction-delayed-until-at-least-july/article_01a4ce3c-25f5-11e7-9f5c-8fd2c77c42e0.html By Michael Smith msmith@aikenstandard.com Apr 20, 2017
An injunctive order that would move plutonium disposition forward in Aiken County will have to wait until at least July.
U.S. District Judge Michelle Childs signed an order giving all parties until July 31 to develop a jointly written statement that will be used to frame the order. The previous deadline was April 21.
Childs previously ruled the U.S. Department of Energy failed to comply with an agreement to dispose of 1 metric ton of weapons grade plutonium by Jan. 1, 2016. South Carolina sued the DOE, the National Nuclear Security Administration, NNSA director Lt. Gen. Frank Klotz and former Secretary of Energy Ernest Moniz in February 2016, saying the defendants reneged on their obligations to dispose of plutonium or make $1 million a day “economic assistance payments.”
Childs ruled the federal government failed to dispose of plutonium as agreed, but refused to issue any financial sanctions. Her order asks all parties to develop a joint statement to determine exactly what the injunction will say.
The April 20 order to delay comes at the request of the DOE and its codefendants.
According to court documents, the DOE’s budget is only funded through April 28.
In addition, the DOE cited difficulty in coordinating with a number of program offices and officials, “a process which is complicated by the fact that a number of leadership positions at DOE are not presently filled.”
The motion goes on to say that settlement negotiations will continue. If an agreement can’t be reached by the deadline, then both parties will submit individual statements, court records state.
The DOE missed the Jan. 1, 2016 deadline because the mixed oxide, or MOX, fuel fabrication facility at the Savannah River Site in Aiken County isn’t built yet.
Once operational, MOX will convert plutonium stockpiles into fuel for commercial reactors. It’s presently about 73 percent complete, sources familiar with the project say.
The plutonium disposition is part of a nuclear deal with Russia, both nations agreed to dispose of 34 metric tons of defense plutonium. An NNSA news release from 2011 heralding the MOX deal said that’s enough plutonium to make 17,000 nuclear weapons.
Russia suspended, but didn’t withdraw from, the agreement in 2016. While not citing MOX directly, Russian President Vladimir Putin cited “unfriendly” practices by the U.S.
Both nations were supposed to begin disposition in 2018, the NNSA news release said.
April 22, 2017
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Lawsuit Warns $234B In Aid To Israel Violates US Law Against Supporting Secret Nuclear States, Mint Press, By Kit O’Connell | 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.
By Kit O’Connell AUSTIN, Texas — A lawsuit warns that U.S. aid to Israel violates a law meant to prevent nuclear weapons proliferation, even as the United States prepares to increase the already massive Israeli aid program.
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/
April 19, 2017
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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.
April 17, 2017
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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/
April 10, 2017
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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.)
April 8, 2017
Posted by Christina Macpherson |
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