Nuclear power and the Supreme Court

Like Gulliver snared by Lilliputians, the giant US nuclear power industry is struggling beneath a myriad of restraints, ranging from poor economics, stagnant electricity demand, government regulation, and public apprehension.

This week the industry snapped one bond, only to find another strengthened.

The bond that was broken was an attempt to make the Nuclear Regulatory Commission (NRC) take local residents' ''psychological distress'' into account when approving the start-up of a nuclear reactor. The case involved an undamaged reactor at Three Mile Island, the site of the nation's worst nuclear accident. This reactor has not operated since its twin unit had its mishap in 1979. Tuesday, the US Supreme Court ruled that the NRC did not have to take such psychological concern into consideration when issuing permission to restart this plant.

The next day, however, the high court strengthened another of the industry's institutional shackles by affirming California's right to place a moratorium on the construction of new nuclear power plants.

''The decision was a very welcome surprise,'' comments John Clewett of Critical Mass, an antinuclear organization. The antinuclear community expected that the court would strike down the California law, which prohibits construction of new nuclear plants until an acceptable method of waste disposal is available.

The Atomic Energy Act clearly reserves nuclear safety matters for the federal government. But lawyers for the state convinced the court that the law was based on the issue of the economics of nuclear power, rather than safety. The justices unanimously awarded the case to the state. Seven did so on the principle that economic regulation of the utility industry is a traditional state power. In a concurring opinion, Justices Harry A. Blackmun and John Paul Stevens added that states should have a say in nuclear safety matters as well.

''This decision will have no immediate effects on the nuclear industry,'' asserts Don Winston of the Atomic Industrial Forum, the nuclear industry trade association. ''It does not apply to any of the 85 plants already licensed, or to the 65 plants under construction.

''I think it's significant that everyone is calling today when we lost, while no one called yesterday when we won 9 to 0,'' he remarks wryly.

In some states where nuclear power is unpopular, however, there have been unsuccessful efforts to shut down already operating plants. There is speculation that this decision will help antinuclear forces press for such closures. Barring such a development, there is general agreement that the immediate impact of this ruling is minimal. Existing state moratoriums have had little effect because the beleaguered US nuclear industry has had no new orders for several years. This is primarily because of the stagnant demand for electricity and the utility industry's poor financial condition. But if a strong economic recovery materializes, bringing with it a rebound in demand for electricity, state statutes like that in California could represent a major hurdle to the revitalization of the nuclear industry, its spokesmen acknowledge.

Four other states - Maine, Connecticut, Maryland, and Oregon - have statutes like California's. Massachussetts and Montana have moratorium laws that include reactor safety as well as waste criteria, so the applicability of this ruling to those two states is questionable. In addition, Iowa and Wisconsin have called a halt to new nuclear plants administratively rather than legally.

According to the National Center for Initiative Research, no new nuclear power moratorium proposals are under consideration now. But there has been considerable activity along these lines in a number of states in recent years. Antinuclear activists are hoping the Supreme Court's ruling will spur moratorium attempts in other states, while industry officials see this as the worst possible ramification.

This decision also increases the sense of urgency the industry feels in resolving the nation's nuclear waste disposal problem. Last year Congress passed the Nuclear Waste Policy Act, which taxes the industry $700 million annually. This is funding a tightly scheduled program to come up with the nation's first operational waste repository by 1983.

''I hope this decision doesn't result in pressure to speed up what should be a careful and reasonable repository schedule,'' warns US Rep. Morris K. Udall (D) of Arizona, one of the drafters of the act.

Currently, the US Department of Energy is studying tracts in Mississippi, Texas, Utah, Nevada, and Washington as candidates for underground waste disposal sites. State opposition to these efforts is particularly strong in Mississippi, Texas, and Utah. There, many people feel the federal program is being rammed down their throats, so they have been trying various methods to slow the process.

Unlike nuclear industry officials, Representative Udall sees some potential advantages to the industry in this ruling. He argues that federal preemption of state authority in nuclear power may have been a major mistake. Returning authority to the state level, he says, could be the key to building the public confidence in nuclear power that the industry needs.

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