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The Energy Behind Environmental Justice: Environmental Justice and the Nuclear Sector

Angela Beth Coggins, Anita Ghosh, and Jessica Bielecki

Summary

  • Provide an overview of the applicable legal framework for EJ as it relates to the nuclear sector.
  • Discusses the NRC staff’s assessment of how the agency addresses EJ and findings.
The Energy Behind Environmental Justice: Environmental Justice and the Nuclear Sector
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The views expressed herein are those of Angela Coggins, Anita Ghosh Naber, and Jessica Bielecki as individuals, and do not represent the views of the U.S. Nuclear Regulatory Commission.

In the last couple of years, we have seen a spotlight on environmental justice (EJ) in the United States, with the issuance of several executive orders directing federal agencies to make EJ a priority, and agencies moving quickly to heed the call. Executive and independent agencies alike are taking action. Specifically, with respect to the nuclear sector, the Nuclear Regulatory Commission (NRC) staff recently completed a comprehensive systematic assessment of how its programs, policies, and activities address EJ. The assessment identified a number of opportunities for the NRC to enhance the agency’s practices.

This article will first provide an overview of the applicable legal framework for EJ as it relates to the nuclear sector. Next, it will discuss the NRC staff’s systematic assessment of how the agency addresses EJ and findings, and finally, it will conclude with what’s worth watching.

Legal Framework for EJ

On February 11, 1994, President Clinton issued the foundational executive order (EO) on EJ, EO 12898. This EO directed each federal agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. . . .”  The EO did not, however, “create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law” and created no right of judicial review. Independent agencies, including NRC, were not required to follow the terms of EO 12898, but were requested to comply with its provisions. A separate memorandum accompanying EO 12898 underscored the importance of certain provisions of existing law, including Title VI of the Civil Rights Act and the National Environmental Policy Act (NEPA), to prevent minority and low-income communities from being subject to disproportionately high and adverse environmental effects.

In a letter to the president, dated March 31, 1994, former NRC Chairman Ivan Selin stated, the NRC would “endeavor to carry out the measures set forth in Executive Order 12898” and the accompanying memorandum. Following this commitment, in 1995, the NRC issued its Environmental Justice Strategy, and in 2004, its Final Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Matters.

More recently, in 2021, the president issued several EOs establishing the administration’s policy and goals related to EJ. For example, EO 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, states  that the policy of the  administration is to, in part, “. . . prioritize . . . environmental justice. . . .” Likewise, EO 14008, “Tackling the Climate Crisis at Home and Aboard,” sets forth, among other things, policy goals related to “secur[ing] environmental justice and spur[ing] economic activity for disadvantaged communities that have been historically marginalized and overburdened by pollution. . . .” It also directs that “[a]gencies make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts to disadvantaged communities, as well as the accompanying economic challenges of such impacts.” Finally, EO 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability directs the federal government to incorporate EJ consideration into sustainability and climate adaptation planning, programs, and operations.

The NRC Staff’s Systematic Assessment of How the Agency Addresses EJ in its Programs, Policies, and Activities

On April 23, 2021, the NRC’s Commission directed the NRC staff to conduct a systematic review of how agency programs, policies, and activities address EJ. Specifically, the Commission directed that the staff evaluate recent EOs and assess whether EJ is appropriately considered and addressed in the agency’s programs, policies, and activities, such as adjudicatory procedures and environmental reviews, given the agency’s mission. The Commission also directed the staff to consider EJ practices of other federal, state, and Tribal agencies; to review whether the NRC’s EJ Policy Statement is adequateand to evaluate whether the NRC should incorporate EJ beyond implementation through NEPA. Finally, the Commission directed the staff to consider whether establishing formal mechanisms to gather external stakeholder input would benefit any future NRC EJ efforts. To inform the implementation of this direction, the staff engaged with stakeholders representing a broad range of EJ perspectives.

Ultimately, the NRC staff concluded that the agency’s approach to EJ has, in many ways, served the agency well. The staff also identified opportunities where consideration of EJ could be updated, enhanced, or modernized both within and outside the NEPA context. These opportunities took two forms: 1.  recommendations, which raise policy issues and need Commission approval, and 2. commitments, which do not raise policy issues.

Based on the comments received during the NRC staff’s outreach campaign, a significant focus of the staff’s recommendations and commitments was on efforts to improve communication, trust, and engagement. The message was clear that successful EJ policies are built on consistent and clear communication and meaningful engagement with communities throughout the life cycle of a facility.

More effective communication and engagement to foster trust and relationships is not unique to the NRC staff’s recommendations and commitments; we are seeing similar goals from others in the nuclear sector. For example, recently the Nuclear Energy Institute (NEI) released its “Environmental Justice Principles,” which state that NEI and its members are committed to “fostering and sustaining inclusive, trust-based, and mutually-beneficial relationships with local and disadvantaged communities.” Similarly, in January 2022, the International Atomic Energy Agency released its first guide level publication on stakeholder engagement in nuclear projects to support “efforts to engage with stakeholders throughout the life cycle of all nuclear facilities.”

What’s Worth Watching

The NRC staff’s systematic review is just a step in the agency’s assessment of how it addresses EJ. The NRC staff’s recommendations are currently with the NRC’s Commission for consideration. Any policy decisions on the staff’s recommendations regarding how the agency addresses EJ would come from the Commission.

EJ work is ongoing throughout the nuclear sector, as well as with many other federal agencies engaged in the energy sector. For example, in March 2022, the Federal Energy Regulatory Commission (FERC), proposed incorporating EJ considerations into one of its policies, and updated its strategic plan to incorporate EJ considerations. In April 2022, FERC released a two-year Equity Action Plan that, according to FERC, “promotes equity and removal of barriers for underserved communities including environmental justice communities. The FERC Equity Action Plan details how the Commission will incorporate equity and environmental justice into the Commission’s operations in several key areas.” Also, in April 2022, EPA released an Equity Action Plan and in it, committed to making equity, EJ, and civil rights a centerpiece of the agency’s mission.

All of this renewed energy surrounding the EJ movement makes this an area worth watching.

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