What the Nuclear Regulatory Commission Can Do to Address Environmental Justice
In one of his first acts after taking office, President Biden called for a government-wide effort to improve consideration of impacts on environmental justice communities. Federal agencies are now working to figure out how to realize that goal and implement change. The Nuclear Regulatory Commission (“NRC”) has begun its efforts with a request for public input on how it could better address environmental justice in its programs, policies, and activities. The agency received thousands of responses, including from Policy Integrity. Our comments recommended ways to improve public participation and environmental justice analysis.
The NRC regulates nuclear power plants and other uses of nuclear materials, as well as disposal of nuclear waste. They also oversee in-situ uranium projects — a form of uranium extraction — in many states. Like other energy facilities and infrastructure, nuclear facilities are more likely to be located in low-income and communities of color than in whiter or wealthier communities. The Commission’s licensing has been rife with challenges from federal Indian Tribes protesting in-situ uranium projects that endanger culturally significant areas and water resources that tribal communities depend upon.
The Commission’s mandate is “to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment.” It may not issue licenses which are “inimical” to “the health and safety of the public.” The Commission has acknowledged that the National Environmental Policy Act (“NEPA”) provides an avenue to identify and assess environmental justice impacts, and does include some consideration in its licensing analysis.
Despite this responsibility to protect and its acknowledgement of its NEPA obligations, the Commission has not provided sufficient attention to environmental justice. Advocates and members of the public have voiced their concerns and outrage at the Commission’s failure to provide adequate opportunities for participation and to meet its legal obligations to consider how its actions impact environmental justice communities. The current request for input provides an opportunity for the public and other interested parties to suggest concrete ways that the NRC can fix its deficient approach and truly identify, consider, and address environmental justice impacts.
Policy Integrity’s comments make two categories of recommendations: (1) improving public participation, and (2) improving analysis.
Public Participation
Our comments advise the NRC to look to and learn from the Federal Energy Regulatory Commission’s (“FERC”) efforts to improve stakeholder engagement and consideration of environmental justice impacts, and reiterate our recommendations on participation from FERC’s proceedings on its newly created Office of Public Participation. We highlight benefits of robust public participation, such as conflict prevention and greater public buy-in for decisions. We also share best practices for stakeholder engagement from the literature, including by citing input from other stakeholders in the FERC processes, like Vote Solar and a coalition of Public Interest Organizations.
Improving public participation in NRC proceedings is particularly important because the Licensing Board process, which is the main avenue for NEPA challenges, is so opaque. Comment letter co-author Sarah Ladin knows from her experience clerking for the NRC’s Licensing Board that navigating the procedural rules and finding substantive experts can be a major obstacle for all stakeholders — from seasoned participants, to federal Tribes, to the general public. Providing public liaisons who can walk challengers through the process and providing technical assistance can lessen the burden and allow the public to advocate for themselves effectively.
Environmental Justice Analysis
Our comments also outline ways the Commission can improve its environmental justice analysis and incorporate the findings of that analysis into its review process under the National Environmental Policy Act. We reiterate and build on our recommendations to FERC in response to its notice of inquiry on natural gas infrastructure certification. Specifically, we advise the NRC to consider using more granular and effect-appropriate data, disaggregate effects by groups of interest, decide how the desirability of distributional outcomes should factor into decisionmaking, and consider environmental justice impacts cumulatively. These recommendations are explained in more detail in our Summer 2021 report, Making Regulations Fair: How Cost-Benefit Analysis Can Promote Equity and Advance Environmental Justice. Because the NRC includes a cost-benefit analysis (“CBA”) section in its NEPA review documents, the recommendations from our report, which focuses on distributional analysis and CBA in regulatory decisionmaking, can easily translate into the NRC’s decisionmaking.
We have been very eager to review the comments from other groups, but as of December 1st, only 162 out of over 2,300 have been posted to Regulations.gov, about 150 of which are letters submitted by the public using a template provided by the Nuclear Information and Resource Service, a non-profit organization that seeks to provide information and networking services for citizens and environmental activists on nuclear-related issues. We will post an update with some highlights from other commenters here when we have more material.
The NRC has an opportunity to take advantage of the extensive and useful work that stakeholders have undertaken in FERC’s proceedings and profoundly reform the way it engages the public and assesses its impact on environmental justice communities. The Commission should seriously consider the recommendations provided there and in comments submitted under its own request. Its NEPA obligations and mandate under the Atomic Energy Act demand better from the agency. This is the chance to live up to its duty, provide transparency and accountability, and protect the public.
Co-authored by Policy Integrity attorney Sarah Ladin and senior policy analyst Iliana Paul.
