Offshore siting of nuclear power plants

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Offshore siting of nuclear power plantsJohn Warren Kindt aa Assistant Professor , University of Illinois , Urbana, IllinoisPublished online: 16 Nov 2009.

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Offshore Siting of Nuclear PowerPlantsJohn Warren KindtAssistant Professor,University of IllinoisUrbana, Illinois

Abstract Of the newly suggested energy sources, nuclearpower has the most immediate potential for solving predicted energyshortages in the U.S. during the next two decades. Nuclear powerplants require approximately 500 acres of ground and a million gallonsof cooling water per minute, but there are few remaining land sites inthe U.S. which meet these requirements. One solution is to buildfloating nuclear plants (FNPs) and site them in the ecologically sensi-tive oceans. The environmental impacts of constructing and operatingFNPs appear to be large; however, the domestic legislation of the U .S.can adequately regulate the problems associated with thermal dis-charge, perimeter contamination, and the risk of major accidents. Onthe international level, the U.S. needs to recognize the environmentaland jurisdictional issues involving FNPs and then avoid potential FNPproblems in the current law of the sea negotiations.

I. IntroductionThe near-tragedy at the Three Mile Island nuclear facility highlightedsome of the problems and dangers that are inherent in producing nuclearpower. Detailed studies are now being conducted which are re-evaluat-ing the dangers associated with land-based nuclear plants. However,little or nothing is being done in the area of floating nuclear power plants(FNPs), which in the near future are scheduled to be moored in theecologically sensitive oceans.

The purpose of this article is to provide an overview of the environ-

This article, originally, published in the Suffolk Transnational Law Journal in Vol. 3 , 1979, is re published with the permission ofthe Editors of that Journal. This exception to publication policy is made in view of the timeliness of the subject and its importance tothe community of scholars and practitioners in marine affairs.

Ocean Development and International Law Journal, Volume 8, Number 10090-8320/80/0130-0057/$02.00/0Copyright © 1980 Crane, Russak & Company, Inc.

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58 John Warren Kindt

mental problems involved in the offshore siting of nuclear power plants.These environmental problems will be examined from both a domesticand an international viewpoint. First, this article will seek to dem-onstrate that an energy crisis does in fact exist. Then a quick survey ofthe possible alternatives which would help alleviate the energy shortagewill show why development of nuclear sources of electrical energy isnecessary. Once the importance of future nuclear power plants has beendemonstrated, the concept of floating nuclear power plants will beexplored in detail. Since FNPs represent a relatively new method ofutilizing ocean resources, the design and safety features of FNPs will beexplained and the environmental impact of constructing and operatingFNPs will be viewed from a domestic standpoint.

These background essentials will be followed by a historical survey ofdomestic pollution and safety regulations governing nuclear powerplants and their relationship to FNPs. Since there has been no time todevelop legislation regulating FNPs per se, the problems encountered incontrolling their influence on the environment must necessarily involvean examination of the existing domestic legislation of the United States.This examination will cover the domestic regulations relating to thermaldischarge, perimeter contamination, major accidents, and recent judi-cial trends in extending the effect of United States environmentalsafeguards to "international" projects. Thereafter, some currentdomestic and international problems involving FNPs will be reviewed.This progression should provide a comprehensive overview of thedomestic and international environmental considerations involved inutilizing ocean resources to support FNPs.

H. The International Energy CrisisEnergy development and usage, long taken for granted, are now com-manding the attention of nations and individuals the world over.1 By1975, the United States was already consuming 71,078 trillion Britishthermal units (BTUs) of energy per year with projected requirements of98,000 to 116,000 trillion BTUs by 1985.2These figures are up from the63,800 trillion BTUs required in 1970, which at the time represented 35percent of the total world consumption and which made the UnitedStates, with approximately 6 percent of the world's population, thelargest energy consuming nation in the world.3 Since the early 1970s,

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Offshore Siting of Nuclear Power Plants 59

energy consumption within the United States has continued to rise atunprecedented rates.

Projections of energy consumption indicate that the U.S. energy demand willgrow at an annual rate of 3.8 percent, reaching a level of 200,000 trillion Btuin consumption by the year 2000. The energy-mix will change markedly bythat time, as . . . [the United States begins to] rely more upon nuclearpower.4

An estimated 5 percent annual increase in energy consumption withinthe United States is needed for continuous improvement in the standardof living and the acceleration of industrialization.5 The bulk of thecurrent energy supply of the United States comes from foreign sourcesrather than from a domestic resource base.6 This supply base contrastswith the 1970 energy sources—when approximately 90 percent of theenergy consumption of the United States "was from indigenous re-sources and in terms of primary energy sources, coal supplies 18percent, natural gas 33 percent, and petroleum 44 percent."7

The very concept of an "energy crisis" is controversial, and it isappropriate to inquire whether the "energy crisis" is real, artificial, oreven fictional.8 However, it appears to be all three. It is real in that "forhistorical reasons of logistics, economics, and politics, fuel supplieswill not always meet needs,"9 especially in urban areas. "The crisis isartificial because it has been created by a combination of economicpolicies and maneuvers, technological schedules and lag times, andmiscalculations that could have been avoided."10 The crisis is fictionalbecause an abundance of fossil fuel resources still exists.11

In any event, it is apparent that the traditional fossil fuels (i.e., coal,natural gas,12 and petroleum13) will be exhausted at some time in thefuture.14 Extracting the fossil fuels also entails drastic consequences tothe environment,15 and future shortages may foster international con-frontation over the fuel resources of the oceans.16 Consequently, it isimperative that new and cleaner sources of energy be developed.17

The newly suggested sources include geothermal energy,18 windpower,19 solar energy,20 thermal energy from the oceans,21 and nuclearfission and thermonuclear fusion.22 Of these suggestions, only thenuclear proposals have any immediate potential for solving energyshortages within the next two decades.23 These nuclear alternatives areexamined in the next section.

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III. The Nuclear Alternative

A. The Utilization of Nuclear Energy"The interrelating crises of energy and environment are among themore significant factors in the [current] expansion of law. . . ."2 4

This is particularly true in the area of nuclear technology.

The demand for energy has grown exponentially during the past decade, andwhile there may be some doubt as to whether this rate of increase has notlessened somewhat, there seems to be little doubt that substantial increases inthe cost of fossil fuels, the traditional source of electricity, have heightenedthe appeal of nuclear power.25

The commitment of the United States to nuclear power developmentwas first expressed in the Atomic Energy Act of 1954 (hereinafterreferred to as 1954 Act),26 which created the Atomic Energy Commis-sion (AEC). "Given the lower operating costs of nuclear plants, andassuming that adequate capital is available for plant construction,utilities will probably continue to lean toward construction of nuclearrather than fossil fuel plants."27

It is a given fact that "the supply of economically extractable fossilfuels is plummeting while energy demands rapidly multiply."28 Conse-quently, the use of nuclear energy has been and continues to be pro-moted as a solution to the energy crisis. It has been predicted that nuclearreactors, now supplying 10 to 12 percent of the energy needs of theUnited States, will provide over 50 percent by the year 2000.29 As ofOctober 1978, there were 72 nuclear reactors in the United States with acapacity of 52,273 megawatts supplying an average of 11.8 percent ofthe nation's electricity.30

Recently, schedules have slipped and may slip further, but according tocurrent indications, ranging from firm plans to a mere gleam in the eye,nuclear power may supply 20 percent or more of the nation's electricity bythe 1980's, with projections of up to 60 percent by the year 2000.31

Estimates have been made that by the year 2000 there may be up to1,000 nuclear plants in operation.32 Congress has recognized this trendtoward relying on nuclear power and has acted accordingly.

Six years ago, Congress enacted the Energy Reorganization Act of

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1974 (hereinafter referred to as 1974 Act),33 which abolished the AECand divided its functions between two new agencies, the Energy Re-search and Development Administration (ERDA) and the Nuclear Reg-ulatory Commission (NRC).34 The 1974 Act placed all federal energyresearch and development under the auspices of ERDA.35 The licensingand related regulatory functions of the old AEC became the responsibil-ity of the NRC, which still derives its power and duties from the 1954Act.36

The proliferation of agencies and energy-related laws currently favorsnuclear power for many reasons.

Several advantages accrue from nuclear power. There is no air pollution.Thermal pollution can be curbed with cooling systems. Thus, atomic poweris essentially pollution free. In an area like New York City where airpollution is a severe problem, utilities are turning to nuclear power to meetthe needs of the public. Another advantage of nuclear power is its cost.Although the initial capital costs are higher for nuclear power, operatingexpenses are lower, thereby attracting the attention of cost consciousutilities. Finally, with fossil fuels either becoming scarce or expensive,atomic power is becoming even more desirable to utilities worried aboutfuture supply.37

There is some doubt as to whether the initial capital costs are accuratelycalculated, but as a general rule, it appears that compared to the fossilfuels, nuclear power is basically pollution free, inexpensive, and easilyobtainable.38 The problem now arises as to "which forms of atomicenergy producers (light-water reactors, fast-breeder reactors, fusionreactors)"39 should be given priority.

B. Future Energy Sources:Breeder and Fusion ReactorsThere are many types of nuclear reactors: (1) boiling water reactors,40

(2) pressurized water reactors,41 (3) gas-cooled reactors,42 (4) light-water reactors,43 and (5) heavy-water reactors.44 "Several reactorshave a potential for breeding—that is, for producing more nuclear fuelthan they consume—because of the materials, or combinations of mater-ials, that are used to build them."45 These reactors are collectivelycalled "breeder reactors,"46 and "if breeder reactors are successfullydeveloped, the nuclear fuel resources of uranium and thorium can

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supply a l l . . . [the United States] energy needs for many thousands ofyears. . . ."4 7

A potential energy crisis exists even with nuclear power. The uranium usedfor nuclear fuel is exhaustible. The cost of nuclear power may rise to anuneconomical level under present projections. An alternative lies in thedevelopment of a fast-breeder reactor. This system creates more atomic fuelthan it consumes, thus opening up a new energy source.48

In 1955, the AEC granted the first construction permit to build abreeder reactor. The permit was granted to a group of utilities who wereto build at private expense a breeder reactor near Detroit.49 Building thebreeder reactor involved an advanced technology, and at that time "theAEC itself had built only one experimental reactor of that type."50

"Furthermore, the Commission granted this permit against the advice ofits own Advisory Committee on Reactor Safeguards (ACRS), andconcealed that fact from Congress and the public."51 Predictably, theconstruction of the reactor was plagued by problems and, followingpublic disclosure of those problems, it was labeled the "PRDCCase." 52 The AEC was characterized as an ' 'overzealous promoter andcareless regulator of nuclear power,"53 and in 1966, after the reactorfinally started operating at low power, there was a significant reactormalfunction. "While there were no injuries or external consequences,the damage to the reactor and its limited usefulness later led to itspermanent shutdown."54 To keep this accident in perspective it shouldbe noted that the use of other types of reactors has resulted in six majoraccidents—including the Three Mile Island accident.55

Despite the setback with the Detroit breeder reactor, the AEC con-tinued with the project to develop breeder reactors. The AEC and theelectric utility industry sponsored construction of a breeder plant in theTennessee Valley Authority (TVA) system at an estimated cost ofbetween 200 million and one billion dollars.56 Until recently, develop-ment was proceeding "both because of the present energy crisis andbecause the promise held forth by fast-breeder technology . . . [out-weighed] the high capital risk."57 In fact, new funds were beingprovided "for the development of fast 'breeder' reactors, already givenhigh priority, in an effort to telescope the interval leading to theircommercial availability."58

Recently, however, President Carter has indicated his displeasure

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with the TVA breeder reactor, and it is being criticized for manypotential problems.

The system is under environmental attack because of its ability to create largequantities of highly radioactive fuel that would be transported to nuclearplants around the country. Large amounts of plutonium, one of the mosttoxic substancest)n Earth, will be created. Security and safety systems wouldhave to be greatly tightened because of the dangers involved. It is alsocontended that the large amounts being invested in this system have drainedfunds that might otherwise go into developing other energy sources, such assolar energy. Here, most research funds are being allocated to one technol-ogy, which is not only risky but may preclude development of less costlyalternatives.59

In addition, the breeder reactors create large amounts of atomic wastes,which intensifies the problem of radioactive waste disposal.60 Due tothe high temperatures involved in the breeder system, thermal pollutionproblems are also intensified.61 Consequently, breeder reactors have thepotential for solving some future energy problems, but the environmen-tal problems associated with their use appear to outweigh their potentialbenefits.62

One other type of nuclear power, thermonuclear fusion, needs to bementioned. Fusion refers to "the liberation of energy by the nuclearcombination of the isotopes of hydrogen or helium, as in the nuclearreactions that occur in the sun."63 While the fusion reactions of the sunare "uncontrolled," fusion can be "controlled" to generate electricpower.64 Fusion reactors are considered to be a prime source of futureenergy because once they become technically feasible, "the world'soceans will provide an inexhaustible supply of fuel."65 Thus, the de-velopment of ocean resources with regard to nuclear power has differentaspects. The waters of the oceans can be used as a coolant for nuclearreactors or even as a fuel for fusion reactors. However, it should benoted that fusion reactors also have pollution problems similar to thoseof other types of reactors.

In any event, the important point to remember is that, regardless ofthe technology involved, the pollution problems of all types of nuclearreactors are basically similar. These problems include thermal pollu-tion, perimeter contamination, and the risk of major accidents. Theyinvariably lead to a common concern involving the situs of nuclear

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power plants. The postulated "common denominator" situs for all ofthese nuclear facilities is offshore.66

C. The Offshore Siting of Nuclear Power PlantsThe critical factors that limit the building of power plants are land andwater.67 A nuclear power plant requires 500 acres of ground and amillion gallons of cooling water per minute.68 However, in the 1960s"[environmentalists and intervenors were phalanxed upon the [land]sites that remained. . . ."6 9

Then in 1969, the solution was envisioned by Richard Eckert, anengineer with the Public Service Electric and Gas Company of NewJersey (hereinafter referred to as New Jersey Electric).70 Eckert en-visioned ' 'a huge nuclear-power plant, as prodigious as any yet built onland, mounted on an immense hull, floating on the sea."71 There wasplenty of room on the ocean, and there was certainly enough water.72

Since public utilities were "already giving large annual sums to supportuniversity research of thermonuclear fusion,"73 Eckert had little diffi-culty in finding monetary backing for his idea.74

The FNPs have advantages over land-based plants because they arebuilt on a honeycomb of water-tight bulkheads. Since the design is notaffected by differing site topographies, the layout for each FNP isuniform. FNPs also have another major advantage. "The personnel. . . stay in one place, and the plants . . . travel."75 Prior to the originof the FNP concept, personnel involved in the construction of nuclearplants had to travel from one plant situs to another, but with FNPs apermanent work force could settle in one place to manufacture the plantsand then ship them out.76

FNPs and the method of their construction would lead to several otheradvantages. Standardization would reduce overall costs and potentialerrors. The production time necessary for constructing plants woulddecrease by perhaps several years thereby helping to alleviate the energyshortfall in the United States.77

Eckert and his team of engineers "never encountered the irrefutablenegative that would have ended the project for technical reasons.. . ." 78 Consequently, other companies and groups became inter-ested. "Westinghouse . . . put several dozen people to work on theconcept; General Electric had a team, too—preparing to make eventualbids for the reactor contract."79 However, the two other makers of

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conventional light-water reactors, Combustion Engineering and Bab-cock & Wilcox, found that they were too small to handle a project of thismagnitude.80

The plan, as developed, calls for mass producing FNPs from a singlefacility. Each FNP is to be floated and anchored off the coastal area it isdesigned to serve, and an underwater cable is to be laid to connect theplant to the shore. The entire facility will then be surrounded by abreakwater to protect it during large storms. "Offshore nuclear energyplants, clearly contemplated by the Energy Reorganization Act of 1974,also depend upon the availability of onshore facilities."81 The problemis that siting nuclear plants on the outer continental shelf has fosteredenvironmental concerns. "[T]hree of the most promising nationalenergy strategies—outer continental shelf (OCS) oil and gas produc-tion, offshore nuclear development, and deep water supertanker ports—focus attention upon siting of energy-related facilities in the coastalzone. . . ,"82 The potential sites for FNPs, in particular, are bynecessity located in shallow waters, which are generally in or nearecology sensitive areas.

In addition, there have been innovative developments in the area ofocean thermal energy conversion (OTEC), which involves the use oftemperature differentials in the oceans to generate electrical energy.OTEC installations must necessarily be situated on the outer continentalshelf. Although they are not nuclear per se and although they will not bedeveloped until the mid-1980s, they can profitably be compared withFNPs.83-

While coastal oil and gas production is within the jurisdiction of theCoastal Zone Management Act of 1972,84 and deepwater supertankerports are under the auspices of the Deepwater Port Act of 1974,85 thereare no environmental guidelines or regulations specifically directedtoward FNPs.

With the advent of the "energy crisis" and the resultant need to resort to avariety of new energy strategies, it has been recognized that the lack of aneffective regulatory process for the siting of energy-related facilities in thecoastal zone presents a critical barrier to the environmentally acceptableimplementation of necessary energy programs within a suitable time.86

These gaps in coastal zone environmental regulations must be filled,especially in the area of FNPs .87 Regulation of FNPs must be specific; it

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cannot be solely dependent upon tangential laws, such as the NationalEnvironmental Policy Act (NEPA)88 requirement of filing an "en-vironmental impact statement" (EIS).89 In any event, "the develop-ment of offshore nuclear plants . . . [is] necessary to the nation'senergy future despite their inevitable impacts upon the coastal zone." 90

IV. Environmental Impact of the Construction andOperation of FNPs

A. FNP Design and Safety Features"(T]he offshore electrical generating station considered typical is atwo-unit station involving twoFNP's emplaced within a single break-water of a rubble mound design."91 Since FNPs are of uniform designand are floated to their operation situs, they can also be used' 'in lagoonsor basins along rivers or the coastline and in bays or other estuarinelocations. . . ,"9 2

Each nuclear generating plant, mounted on a floating platform, has a netcapacity of 1150 MWe. This energy is provided by a pressurized waterreactor steam supply system consisting of a Westinghouse four-loop 3425-MWt unit with an ice-condenser containment system. When one or more ofthese units is located within a single breakwater, the installation is designatedan offshore power station.93

' 'After emplacement of each FNP within the breakwater, its motion willbe limited by mooring struts,"94 and the FNP will then be coupled todischarge water conduits. "The eight floating nuclear plants proposedfor manufacture will employ once-through cooling of the steam con-denser system."95 The 1975 Draft EIS for FNPs originally projectedthat FNPs would have the advantage of not using cooling towers and thatthe concomitant "rising plumes of water vapor" would be absent.96

However, the Final EIS for FNPs has reintroduced the possibility thatcooling towers will be utilized.97

The floating nuclear power plant will supply electricity to an onshoreelectrical distribution network. In the case of the proposed Atlantic Generat-.ing Station, this will be by way of a submerged transmission system buriedbeneath the sea bottom. Transmission of high-voltage electricity (345 KV)

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may also entail the extension of underground lines through nearby bays,tributaries, and land to a switchyard.98

Transportation of materials, equipment, and personnel both to and fromthe FNP will be accomplished through a shore support facility."

The rubble mound "breakwater serves a twofold function—tominimize the effects of storm-generated waves and to prevent shipsfrom colliding with the floating nuclear plant."100 The breakwater isbased on concrete caissons,101 which are positioned in the breakwaterand are then filled with sand and rock of graded sizes .102 The breakwater"mound" is formed from larger rock, and it is capped with 17,000 castconcrete dolosse103 weighing between 11 and 62 tons. A dolos lookslike a twisted letter "H." 1 0 4 Dolosse are used to cover the breakwaterbecause experiments proved that "[w]hen high seas hit them, the wavesall but disappeared—no slaps like thunder, no geysers in the air."105

Consequently, the breakwater seems to "blot up the waves after break-ing them into a thousand pieces."106

The breakwater and the dolosse act as safety features. They serve toprotect the FNP during mammoth storms.107 Their protective functionshave been designed to allow for the million-year storm; that is, a stormso huge that it occurs only once in every million years.108 In 1972, thetests were carried out, in part, by the Stevens Institute of Technology inHoboken and by theUniversity of Florida inGainesville.109The UnitedStates Corps of Engineers (hereinafter referred to as Corps) also con-ducted tests at its Waterways Experiment Station in Vicksburg, Missis-sippi.110 Presumably, FNPs "would be in 'safe shut-down condition'during the 'probable maximum hurricane' (the once-in-a-million-yearsstorm), but what about the once-in-a-hundred-years storm, when theocean surface was up sixteen feet and forty-foot waves were break-ing?"111 The tests revealed that the breakwater would protect the FNPin such a situation; however, recent theories state that giant waves ofapproximately 200 feet in height can occur in otherwise calm areas ofthe seas.112 The Corps and the NRC need to examine this potentialproblem and to formulate alternate solutions. Naturally, there is quite adifference between a 40-foot wave and a 200-foot wave.

Similarly, experiments were also conducted to determine what wouldhappen if a supertanker running at 16 knots hits the breakwater during amammoth hurricane. The tests were conducted with the supertankerhitting the breakwater on every side and from every angle.113

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A supertanker crash is anticlimactic. After a minor crunch, the ship stopsdead. The bows do not buckle. Instead, they form a nest in thedolosse. Whenthe ship is removed, the breakwater heals itself, and dolosse fall into thenest.114

Consequently, the danger created by the collision of a supertanker withthe breakwater, even during a mammoth storm, appears to be relativelysmall. Of course, if an oil spill developed as the result of such acollision, the FNP would have to be shut down quickly or the oil wouldbe sucked into the FNP cooling system. This contingency needs to beexplored further since it was not covered per se in the 1976 Final EISprepared by the NRC to cover offshore siting of nuclear power plants,u 5

and because the Three Mile Island incident raised questions about theability of nuclear facilities to shut down quickly.116 Naturally, in thecase of 200-foot waves in otherwise calm seas, there would have to bethe ability to shut down almost immediately.

The problem of earthquakes also demonstrates the necessity for quickshut-down procedures, and some potential nuclear plants have not beenbuilt because of a fear of earthquakes. The prime examples are theCalifornia utilities whose managers believe that there is "a strong safetyproblem if a plant is located on or near a fault."117 Of course, locatingan FNP on a fault is dangerous, but otherwise the NRC contends that therisk is minimal.118 "Earthquake risk, small as i t . . . [is], would affectonly the breakwater anyway, because the generating station, beingafloat, would be decoupled from the earth. The only seismic effect thatcould reach the floating hulls would be a tsunami."119 As indicatedearlier, the Final EIS states that tidal waves can be effectively dealt withby the breakwater.120 However, the fact remains that "the thought ofcombining nuclear power with earthquakes is received coolly by thepublic."121

B. Environmental Impact of ConstructionThere are several environmental impacts and adverse effects caused bythe site preparation and construction of an FNP. The two major areas ofconstruction consist of the breakwater area which surrounds the FNP122

and the onshore facilities which support it.123 The construction of thebreakwater will result in two major effects. First, 100 acres of benthicinfauna124 will be destroyed by the dredging operations of the sitepreparation.125 Secondly, the breakwater will result in the establish-

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merit of a reef-type community which is expected to produce sufficientbiomass to compensate for the biomass destroyed by dredging.126

However, careful planning will be necessary to protect marshlands andwetlands from the adverse impacts caused by construction of the on-shore facilities.127

The dredging operations necessitated by construction of the break-water and jetting128 for employment of the transmission cables willdamage approximately 550 acres of ocean bottom.129 "The majorpotential for damage will result from the destruction of the benthos130

and from turbidity and siltation resulting from these operations."131

The ecological effects on phytoplankton, zooplankton, benthos, andfishes are expected to be minor, especially after the dredging operationsare terminated.132 However, "[e]cologically sensitive areas, such ascoral reef communities and sea grass beds, where siltation, turbidity,etc., might have a measurable long-lasting effect, should be identifiedand avoided."133 Once the breakwater is completed, it will constitute anartificial reef and, as such, will probably support a biomass of barnacles,mussels, tunicates, hydroids, crustaceans, and other benthic organismsgreater than that destroyed by dredging.134

The seaward side of the breakwater and the adjacent area "is expectedto be an area of active erosion due to increased turbulence from bothincident and reflected wave energy."135 Accordingly, evaluation of theeffects of erosion on the ends of the breakwater will require periodicmonitoring for local scouring and structural damage.136 Conversely,"[t]here will be a zone of sediment accretion, several feet in thickness,extending less than 1 mile to the lee of the breakwater."137 The basicerosion action taking place will constitute a sediment transfer from theseaward side of the breakwater to the lee.138 As long as the FNP islocated more than one mile offshore, the dimensions of the accretionzone will be approximately stable and the environmental impact will beinsignificant.139 Even so, periodic measurements of the bathymetricchanges around the entire region of the FNP will need to be undertakenvia high-resolution fathometer surveys.140 These surveys will be espe-cially important after storms.141 During the storms, large sedimentinflux is expected within the breakwater basin itself, because the' 'waves, water particle velocities, and water levels are high and there ismore sediment in suspension."142 However, as a general rule, onlyminimal amounts of sediment will enter the breakwater lagoon if amid-depth entrance sill is utilized.143 Accretion along the shoreline

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itself should be unnoticeable as long as the FNP is situated severalbreakwater widths offshore, but the potential for noticeable accretionwill increase as the distance between the FNP and the shoreline de-creases.144

In the case of estuarine or riverine siting of FNPs, the dredgingoperations and disposal of dredged materials are potentially harmful tothe environment because the ecosystems involved are more sensitive tochange than the ecosystems of the continental shelf.145 Consequently,siting must be given careful attention and construction operations mustbe properly developed.146 'This will be particularly true in the caseof disposing of large quantities of polluted dredged materials fromriver bottoms where long term discharge of industrial wastes hasoccurred. . . ."147

The construction of the onshore facilities which support the FNP willhave the greatest environmental impact. First, the laying of transmissionlines to the onshore facilities will create a problem if there are barrierislands between the FNP and the shore.148 Barrier islands are ecologi-cally sensitive buffers to tropical storms, and "placement of under-ground transmission systems through or across barrier islands would beconsidered an adverse impact, particularly if the area were subjected tosevere storms following construction but prior to natural stabilization ofthe dunes by pioneer species."149 Accordingly, placement throughnatural breaks in barrier islands is recommended as a means of circum-venting potential problems.150 Secondly, construction and operation ofthe support facilities themselves will create environmental problems.

Establishment of offshore floating nuclear power stations will require pene-tration of the littoral zone at as many as four locations along the coastal zone.On shore, new transmission lines to a switchyard will be installed for eachnew offshore power station. This will require acquisition of additionalrights-of-way, most of which will traverse several miles of wetlands anduplands. . . . Construction of transmission facilities may cause recogniz-able adverse alterations of the ecological balance in these areas. Carefulplanning will be required if adverse impacts to the marshlands and wetlandsby construction of offshore power stations are to be averted. . . .151

Thirdly, support facilities for the construction workers themselves willhave to be provided, including roads to the onshore construction site.152

However, a large influx of workers to the area is not anticipated,

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because "most of the work force is expected to commute from surround-ing cities and towns."153

C. Environmental Impact of OperationThe principal environmental concerns of operating anFNP are chemicaldischarges, perimeter contamination, entrainment of marine organisms,and thermal stress. Chemical discharges will be limited primarily tochlorine and corrosion products such as copper and nickel.154 TheFNPshave been designed to be operable with intermittent or continuouschlorination and to conform to guidelines and regulations of the En-vironmental Protection Agency.155 As will be explored in a subsequentsection, FNPs are subject to the requirements of NEPA156 and variousother tangential pollution control laws.157 Consequently, toxic dis-charges from FNPs can be prohibited if they are not within prescribedlimits. Due to these pollution limitations, the potential ecological dam-age that could result from discharge of the chlorinated compounds inthe cooling water of the FNP condenser, as well as from free availablechlorine,158 has been analyzed in detail.159 The conclusion is that "themortality of marine biota in the immediate vicinity of floating nuclearpower plants will be confined to acceptable rates if their exposure tototal residual chlorine160 in the cooling water discharge is limited toseawater in which the concentration does not exceed 0.1 mg/liter. . . ,"1 6 1 However, it should be remembered that this type ofpollution is within a new setting (i.e., an FNP in a continental shelfenvironment), and the opinion of the NRC as to "acceptable limits"should not be accepted without question. This is an area in whichspecific pollution legislation regulating FNPs is necessary.

On the other hand, the old AEC standards controlling perimetercontamination are still potent limitations as to the acceptable amount oflow-level radiation emissions. Even so, the problem of radiation emis-sions with regard to humans is alleged to be minimal. The 1975 DraftEIS reached the following conclusions:

No significant environmental impacts are anticipated from normal opera-tional releases of radioactive materials. The calculated radiation dose to thepopulation, estimated through the 1980's, that will live within a radius of 50miles of each two-unit FNP station from plant effluent releases is 0.001man-rem/year per thousand people. These effluent doses as well as the 900

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man-rems/year and 6 man-rems/year estimated for occupational and publictransportation exposure, respectively, are small in comparison to naturalbackground, which ranges from 20,000 to 430,000 man-rems/year. . . .162

However, the wording in the 1976 Final EIS was changed to read asfollows:

No significant environmental impacts are anticipated from normal opera-tional releases of radioactive materials. The calculated radiation dose com-mitment to the U .S. population from each FNP unit will be on the order of 33man-rem/yr or less from all gaseous and liquid effluents. The dose commit-ments to populations within the 50-mile radius of each site are expected to beon the order of 1 man-rem/yr. These population dose commitments, as wellas the 500 man-rem/yr and the 3 man-rem/yr per unit estimated for occupa-tional and public transportation exposures, respectively, are small in com-parison to annual doses from natural background, which will be on the orderof 26,000,000 man-rems/yr in the year 2000 regardless of where the FNPsare sited. . . .1S3

When comparing the 1975 Draft EIS and the 1976 Final EIS thedifferences in the estimates and the types of changes in the wording areinteresting. These discrepancies may be insignificant, but whether thechanges were prompted by more sophisticated and updated scientificstudies or by an increasing sensitivity to adverse public opinion regard-ing nuclear plants (or both)164 would be an interesting exercise. Whilemaintaining an optimistic approach toward FNPs, that portion of theFinal EIS which comprises the "radiological assessment" does admitthat there are areas of uncertainty.165

With regard to other life forms, "no detectable radiological impact isexpected in the aquatic biota or terrestrial mammals as a result of thequantity of radionuclides to be released into the ocean and into the air bythe FNP."166 The risks associated with radiation exposure from acci-dental gaseous release, transportation accidents, and other postulatedoccurrences are also alleged to be minimal.167

A potentially serious environmental problem could occur in theprocess of cooling the FNPs. The FNPs will suck in more than twomillion gallons of seawater per minute. Screens will cover the ingress,but fish and other marine organisms will be drawn toward thescreens.168 This process, by which marine organisms are unintention-ally trapped, is commonly referred to as "entrainment."

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"Each plant will be designed for a cooling water flow of about 2300cfs, which will be discharged at about 16T above the intake tempera-ture,"169 and most of the "organisms entrained into the condensercooling water are expected to be killed."170

Entrainment will be confined to micro- and small macroscopic planktonicorganisms. The meroplankton populations (predominantly larval inverte-brates and fish) will probably sustain the greater impact. Potential forsignificant impact on fish appears to be confined to local reef and localestuarine-dependent populations. . . .1T1

A related problem is the "impingement" of marine organisms on theintake screens. Plans for the intake systems provide that "[a]ny or-ganism impinged on the screens will be washed into a sluice box andpackaged for disposal."172

For marine biota, impingement is expected to be confined predominantly tosmall fish and pelagic invertebrates. In all of the geographical areas, smallschooling "bait" fish (anchovies, menhaden, etc.), jellyfish (scypho- andhydromedusae), and pelagic crustaceans are likely to be impinged in thegreatest numbers. The potential for ecologically or commercially significantlosses is small. . . ,173

"The entrainment and impingement of aquatic organisms within thefloating nuclear power plant during operation will not significantlydiminish productivity of coastal zone waters, but may deplete thepopulations of various marine biota in the proximity of the offshorestation. . . . " m The effect, which a given FNP will have on themarine organisms around it, will be dependent on the extent to which thearea is utilized as a spawning and/or nursery ground.175

In 1972, the marine biologists of Icthyological Associates studiedthese problems and developed methods to minimize the problems ofentrainment and impingement.176 Many of the techniques recom-mended by Icthyological Associates appear to have been adopted by theNRC.177 In fact, during the design of one FNP, "[g]ossip went aroundthe nuclear-safety circuit that in the design of the Atlantic GeneratingStation fish were getting even more consideration than human be-ings."178

The final operational problem is that of thermal stress. As indicatedearlier, the water discharged from an FNP will be heated 16 degrees

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Fahrenheit above the intake temperature, and consequently, thermalstress is expected within the thermal plume, which is more than 2degrees warmer than the surrounding water.179

This stress will result in two effects: thermal death (direct effects) andphysiological and behavioral changes (indirect effects). Thermal death is notexpected to occur to a major extent since the area of high temperatures(temperature rise greater than 6°F) are small and most organisms either willnot be able to stay in thermal areas because of high water velocities or willavoid these areas.180

Behavioral and physiological changes will occur, but as a general rule,these are not expected to adversely affect community structure ordynamics.181 The exception would be "in the subtropical areas, whereambient water temperatures may be high, especially during the sum-mer. . . ."182 However, as far as the shoreline and surroundingareas are concerned, the thermal impact is expected to be small.183

V. A Historical Survey of Domestic Pollution andSafety Regulations Governing Nuclear Power Plantsand Their Relationship to FNPs

A. Thermal Discharge

As the rate of electricity generation increases, and as more nuclear powerplants—in contrast to fossil fuel and hydro-electric facilities—are built tomeet power needs, the use of cooling water and its subsequent discharge inheated states into the environment is expected to rise to massive levels.184

Due to pressure from public officials and citizens on decision makersand legislators, the responsibility for thermal water pollution slowlydevolved upon the AEC and its successor, the NRC.185 Historically,the AEC had "no present jurisdiction over the thermal effects caused bythe siting of nuclearplants."186However, each applicant for a construc-tion permit was urged to cooperate with the environmental recommen-dations made by the Fish and Wildlife Service, the Federal WaterPollution Control Administration, the state fish and game boards, and

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other interested agencies.187 The 1954 Act "essentially confined AECenvironmental responsibilities to radiological health and safety pertain-ing to the special hazards associated with the operation of nuclearfacilities,"188 but when the Water Quality Control Act of 1964(hereinafter referred to as 1965 Act)189 was enacted, the AEC wasconfronted with required water quality standards and implementationprograms.190 Even though the AEC was faced with water quality stan-dards, "the primary mission of the AEC to both promote and regulatenuclear power, the regulatory focus on radiation, and the two-steplicensing procedure for construction and operating authorizations re-sulted in inadequate concern ' for thermal effects of licensedfacilities."191 This AEC attitude concerned the public and resulted inNew Hampshire v. AEC,192 in which the state of New Hampshiresought judicial review of the AEC's decision granting a provisionalconstruction permit for a nuclear reactor at Vemon, Vermont.193 Thecourt concluded that the AEC properly refused to consider the profferedevidence of thermal pollution and affirmed issuance of the permit.194

The legislative response to the unwillingness of the courts to close thegap between modem technology and pollution problems was the 1970amendment195 to the 1965 Act. "The AEC subsequently acknowledgedresponsibility for thermal effects and other non-radiological environ-mental effects in licensing nuclear facilities, in part due to the 1970amendment, [and] in part due to the National Environmental Policy Actand its judicial interpretations. . . ."196 However, the meager resultsof the 1965 Act and the 1970 amendment led to the 1972 amendments197

(and the subsequent Clean Water Act of 1977).The 1972 water pollution control program incorporates the permit

program of the Rivers and Harbors Act of 1899 (hereinafter referred toas Refuse Act).198 The Refuse Act has been judicially interpreted toprovide the Corps of Engineers with the "authority to deny virtually alldischarges into navigable waters, irrespective of any effects on naviga-tion."199 Several cases have been brought under the Refuse Act, but"[a]s far as heated water discharges are concerned, no cases under theRefuse Act brought about judicial extension of the Act to thermalpollution."200

Section 101 of the 1972 amendments sets, as a national goal, theelimination of all discharges of pollutants into navigable waters by1985. FNPs will certainly be located within the "navigable waters" of

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the United States if they are within the 3-mile limit, and therefore, theywill be subject to the 1972 water pollution control program. If theFNPsare situated outside the 3-mile limit, then they are in international watersand other problems arise. Of course, now that the Fisheries Conserva-tion and Management Act of 1976,201 extending the United Statesfisheries jurisdiction to 200 miles, has been enacted, the FNPs might besubject to federal jurisdiction merely by their "situs" alone. For pur-poses of the current discussion, the important points to note are that the1972 water pollution control program is or might be applicable to allFNPs and that "[t]hermal water pollution, although an immediate localscale problem, eventually could lead to major regional and even interna-tional impacts, particularly in the coastal zone."202

B. Perimeter Contamination"The operation of nuclear power plants presents radiological and ther-mal pollution difficulties that conflict with . . . [the] federal concernfor environmental quality."203 The problem of thermal pollution,which was discussed in the preceding'section, is important; however,"[a] second problem of nuclear power—the risk, however controlled,of released radiation—has sparked most of the debate on the propriety ofnuclear power."204 This continuous low-level radiation from nuclearplants is referred to as perimeter contamination, and the primary stan-dard set by the AEC is that "no person at the perimeter of a nuclearfacility shall receive more than 0.5 rads of total body exposure peryear."205

Supporters of nuclear power have often pointed out that the nuclearplants have a 100 percent safety record as far as human life, injury, orproperty damage are concerned, and have alleged that the safety recordof the nuclear industry is unparalleled.206 However, as mentionedearlier, there was a significant breeder reactor malfunction in 1966, andincluding the Three Mile Island incident, there have been 6 other majoraccidents .207 Consequently,' '[utilities prefer to operate at much lowerradiation limits than prescribed by the AEC since they are well awarethat if any fatal accident occurred, or damage were linked to radiationdischarges, the national uproar could halt further development of nu-clear power."208

In any event, continuous low-level radiation is an inevitable incident

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of operating nuclear power plants, and "the effects upon man and otherorganisms of protracted exposure to these low levels are virtuallyunknown."209 "If a person breathes the air or drinks effluent waterdischarged from the plant, the radioactivity content is supposed to bebelow the level which can result in delivery of 0.5 rads to persons justoutside the perimeter."210 Critics of the old AEC standards complainthat they allow too much exposure; however, the prevailing view hasgenerally been that the safety limits prescribed by the AEC areadequate.211 Naturally, at an FNP the risk of perimeter contaminationwould be basically limited to those working at the FNP. The isolation ofthe FNP would be an advantage in this instance, because the FNP wouldnecessarily be farther from population centers. In addition, whether anuclear power plant is located at a riverine site or at sea, it is going to beclose to fish stocks. Thus, potential perimeter contamination of fishstocks would be the same regardless of the situs of a given nuclearplant—unless an FNP is situated in a breeding area (which, according tothe Final EIS, it should not be).

C. Major AccidentsIn 1957, an AEC-sponsored study known as the Brookhaven Reportconsidered the hypothetical consequences of an accident releasing 50percent of the inventory of radioactive fission products from a nuclearfacility. The report concluded that the consequences of such an accidentwould include the possible evacuation of several hundred thousandpersons, $7 billion in property damage, the death of 3,400 persons fromradiation, and up to 150,000 square miles of agricultural land contami-nated beyond use.212 "Based upon the doses of radiation accumulatedin such a hypothetical accident, it is possible to predict that more than50,000 persons would die prematurely of cancer as a result of suchradiation exposure."213 However, the AEC never really finished theBrookhaven Report because it felt the studies were macabre mathemati-cal exercises, almost totally divorced from reality.214 Another reasonthe AEC dropped the Brookhaven study was because Congressionaldeliberations over extending the Price-Anderson Act of 1957215 foranother 10 years were being held.

The AEC regarded Price Anderson's indemnification program, which wouldcompensate the public for injuries and damages arising from a nuclear

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accident to the extent of 500 million dollars over and above the maximumamount available through private insurance, as essential to the insurability ofthe nuclear industry and the protection of the public. The Commissiontherefore wished to maintain a low profile and avoid any "scare" storiesobscuring the merits of extension.216

Regardless of the AEC's public show of confidence in nuclear safety,the AEC quickly developed the concept of the' 'emergency core coolingsystem."

Those concerned about the danger of a major catastrophe at a nuclear powerplant know that loss of integrity of the cooling water flow to the reactor coreis the major concern. As a result, a system known as the "Emergency CoreCooling System" has been engineered into the modern nuclear reactors, inthe hope that this system will be actuated and thus avert disaster.217

Accordingly, the major problem that receives the most attention by theenvironmentalists is the emergency core cooling system. Environmen-talists fear that this system may itself be damaged by the accident andthereby be unable to perform properly: In 1971, the emergency systemfailed in a small-scale test in Idaho.218 The AEC's explanation at thattime was that the test was inapplicable to full-scale commercial reactors;however, environmentalists have remained "unconvinced, and litiga-tion has resulted."219

The 1974 AEC study popularly known as the Rasmussen Report hasestimated that in the year 2000 the probability of a core meltdown wouldbe one in ten million,220 and the Brookhaven Report has estimated thepossibility of a "major release" of radioactivity at one in a million, perreactor year.221 In view of the Three Mile Island accident new estimateswith much higher probabilities have been forthcoming, but there iscurrently a heated debate over their accuracy and it would be presump-tuous to make a definitive judgment at this point.222

Of course, in the case of an FNP, the effects on people of a majoraccident would be mitigated to the extent that the FNP was locatedoffshore. An FNP may be located any place on the outer continentalshelf where the water depth is greater than 40 feet and less than 70 feet.Thus, an FNP could conceivably be located many miles at sea. How-ever, at such a distance, national security problems as well as otherinternational complications would arise.

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By'comparison, if a meltdown occurs on land the radioactive contentsof the pressure vessel melt through the bottom of the reactor and downinto the earth until the heat from the meltdown glazes the surroundingrock into a type of insulation chamber.223 The local water table wouldprobably be polluted for hundreds of years, and the radioactive dis-charges into the atmosphere would contaminate several miles of thesurrounding region.224 While this scenario is frightening in its scope, ameltdown in an FNP would be even more devastating.

It has been postulated that at sea a glazed insulation chamber wouldnot be formed and the radioactive core would release radioactivity intothe atmosphere and contaminate thousands of cubic miles of oceanwaters.225 It has also been aUeged that "radioactive contamination ofthe entire northwest Atlantic food chain for hundreds of years from onemeltdown is a conceivable scenario."226 The massive radioactivitywhich would enter the food chain would inevitably find its way (atdangerous levels) into significant numbers of people.227 In addition, theoceans as a "total resource system" providing food and oxygen to theworld as a whole would be significantly affected.

Thus, the differences appear to be between enhancing the protectionafforded people in the short-term and ruining the environment in an FNPmeltdown, versus limiting the overall scope of a meltdown but affectingthe local population immediately (a land-based meltdown). To keepthese considerations in perspective, it should be remembered that themajority opinion is that meltdowns in any location are unlikely tooccur.228

VI. NEPA: The Domestic and International Checkon Nuclear Facilities

A. Calvert Cliffs: The Fall of the AEC Monolith

Today it is agreed that we are paying the piper for our failure to establishnational energy programs and policies before the oil embargo finally con-fronted us with a crisis. In terms of environmental protection, however, thefact that the establishment of energy policies came after the enactment ofenvironmental legislation may prove to be of critical importance to thesurvival of the environmental movement.229

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NEPA is probably the most important environmental legislation to date.Since it became federal law on January 1, 1970, it has surpassed allexpectations in its effects on decision making in the federal agencies,and it has had a great influence on state programs and the private sector.Section 102 of NEPA requires that federal agencies assess impacts onthe environment before taking "major action." Assessment must bemade of the: (1) potential environmental impacts, (2) unavoidableadverse impacts, (3) irreversible adverse impacts, (4) alternatives to theproposed action, and (5) short-term considerations versus long-termresource use considerations. "It is within this larger framework of theclash of energy and environmental concerns that one may compare anddistinguish the recent use of nuclear power."230

In 1971, the AEC's disregard for environmental concerns wasbrought to task in Calvert Cliffs Coordinating Committee, Inc. v.AEC.231 In fact, the "landmark opinion in Calvert Cliffs CoordinatingCommittee, Inc. v. AEC, has been one of the most encouraging resultsof citizen intervention."232 The court held that in general NEPAmakes environmental protection a part of the legislative mandate of allfederal agencies unless there is specific legislation to the contrary.233

Five months after Calvert Cliffs, the AEC's criteria for issuing per-mits were specifically curtailed in Izaak Walton League v. Schlesin-ger.23* "The AEC's controversial NEPA regulation . . . [allowing]issuance of a temporary operating license up to 20% or more of a plant'scapacity without a detailed environmental impact statement"235 waschallenged. The Washington D.C. District Court enjoined issuance ofthe permit, because even though it was only temporary, it constituted"final agency action" requiring an EIS prior to reaching a decision.236

However, in 1972 another district court in Brooks v. Volpe231 rejected achallenge to the adequacy of an EIS on the grounds that it drew upondata assembled by the AEC for different but similar projects, eventhough the overall EIS was ruled to be inadequate. In addition, in 1973the Washington D.C. Circuit Court in Brooks v. AEC238 refused toenjoin construction of a nuclear plant merely because hearings andnotice had been delayed due to bad weather, unexpected labor prob-lems, and necessary redesign of reactor components. Despite this deci-sion, the same court held inScientists' Institute for Public Information,Inc. v. AEC239 that an EIS must be filed for the fast-breeder reactor

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program.240 This trend towards imposing more safeguards and morethorough studies to avert potential environmental consequences wassharply curtailed in 1978 by theU.S. SupremeCourt in Vermont YankeeNuclear Power Corp. v. Natural Resources Defense Council, Inc. ,241

a case which has received strong criticism. It should be remembered thatthe NRC has already prepared a Final EIS for the program involvingFNPs.

The EIS requirement of NEPA serves as an environmental check onthe construction of nuclear facilities and, in particular, FNPs. In anyevent, the NRC "is now compelled to consider the environment inissuing permits and regulations."242 Currently, the use of genericrulemaking is being urged to resolve environmental issues in all areas ofnuclear power plant licensing,243 because tolerating this type of "vex-atious rule-making should minimize the delay . . . [caused by] latercase-by-case adjudication."244

B. International Ramifications of NEPA1. NEPA's Applicability to U.S. Projects Abroad. In 1975, the impor-tant case of Sierra Club v. Coleman245 was decided. Thedefendarits, theDepartment of Transportation (DOT) and the Federal Highway Ad-ministration, were engaged in constructing the "Darien Gap Highway"through Panama and Colombia as part of the Inter-American High-way.246 The Washington D.C. District Court temporarily enjoined theproject and required DOT, the lead agency, to file a regular EIS andcomply with the substantive and procedural requirements of NEPA. Indeciding the case, the court used the Calvert Cliffs rationale that "theSection 102 duties are not inherently inflexible. They must be compliedwith to the fullest extent, unless there is a clear conflict of statutoryauthority."247

The potential effects of this decision are far-reaching. Under theColeman rationale, no United States agency or department can take any"major action" outside the United States without filing an EIS andotherwise complying with the provisions of NEPA. Consequently, inthe area of FNPs it would appear that they would be subject to NEPAand that an EIS would have to be filed regardless of the location of theUnited States territorial limits.

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2. Export of Nuclear Technology. In 1953, President Eisenhowerdirected the AEC to implement an "atoms for peace" program, whichwas designed to export nuclear technology to other nations for peacefulpurposes.248

That program led to the negotiation of dozens of international "agreementsfor cooperation" with foreign countries, supplying research reactors, andgenerally accelerating world-wide development of nuclear power, which in amatter of a decade or more would result in the accumulation of thousands ofkilograms of plutonium that could be diverted by an industrialized nation tobuild bombs.249

India's recent diversion of nuclear technology from peaceful to militaryuses has emphasized the dangers of exporting such a technology.250

In this area NEPA has once again provided a curb to the AEC'senthusiasm. In the 1974 case of Sierra Club v. AEC,251 the WashingtonD.C. District Court held that the "nuclear power export program" issubject to NEPA.252 The nuclear power export program is the processby which "the United States concludes agreements with foreign nationsto export and sell to those nations nuclear power generating systems andenriched nuclear fuels produced by domestic companies."253 Accord-ingly, in this case the court directed that the AEC file an EIS andotherwise comply with NEPA before proceeding with the export pro-gram.254 Therefore, if any export of FNP or breeder reactor technologyis contemplated for the future, the NRC will have to comply with therequirements of NEPA.

However, at this point a caveat is in order. Regulation of FNPs needsto be specific; it cannot be solely dependent upon NEPA. The potentialinternational complications resulting from environmental damagecaused by an FNP sited in United States waters could seriously hamperthe United States international negotiating position, especially at theU.N. Law of the Sea Conference.

VII. Current Problems Involving FNPsThe Office of Technology Assessment of the United States has voicedconcern that FNPs will not be covered by the Outer Continental ShelfLands Act (OCSLA) .255 There is some validity in this concern. Domes-

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tically and internationally, FNPs probably constitute "artificial is-lands"256 once they are moored behind their breakwaters, but section1333 of OCSLA states that OCSLA applies only to artificial islandserected on the continental shelf for the purpose of "developing" re-sources .257 However, if section 1333 were amended to include the word"utilizing," then FNPs would be subject to OCSLA. By using the waterof the continental shelf as a coolant, FNPs are definitely "utilizingocean resources."258 Thus, an important domestic check on the de-velopment and operation of FNPs could be established with minimaleffort.

When OCSLA was adopted, the territorial sea of the United Statesextended to a 3-mile limit and the "outer continental shelf began atthat point.259 Within this 3-mile belt, jurisdiction is now generally in thestates unless it has been specifically reserved to the federal govern-ment.260 Under the Submerged Lands Act,261 the areas reserved to thefederal government include "commerce, navigation, national defense,and international affairs. . . ,"262 In addition, the right to the benefitof water power is reserved to the federal government.263

Under the federal water pollution control program264 mentioned ear-lier, federal and state governments share jurisdiction over the release ofhazardous substances into the navigable waters of the United States.Similarly, the Corps has jurisdiction over navigable waters under theRefuse Act,265 and as indicated earlier, theCorps can use the Refuse Actto control certain types of pollution. To summarize, FNPs will beregulated by the following: (1) the Nuclear Regulatory Commission(licensing and regulation of construction and operation), (2) NEPA(requiring environmental impact statements under Calvert Cliffs andsubsequent cases), (3) the Federal Water Pollution Control ActAmendments of 1972 (EPA regulation of thermal discharge), (4) theCorps of Engineers (limits on discharges and dredging operations underthe 1899 Rivers and Harbors Act), and (5) the National Marine FisheriesService. However, state laws which would otherwise apply to FNPswould not cover any portion of a facility situated outside the 3-milelimit.266 The NRC also appears to be unable to approve the installationof an FNP situated in waters outside United States borders but on thecontinental shelf.267 In addition, "[e]xisting international law does notspecifically settle the question of jurisdiction over a floating nuclearpowerplant located beyond national territorial limits. . . ,"2 6 8

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These jurisdictional questions are important because, under currenttechnology, FNPs must be built in 40 to 70 feet of water.269 Forexample, FNPs may have to be built up to 14 miles off the New Jerseycoast and even farther offshore in other areas.270 By the turn of thecentury, servicing just New Jersey may require anFNP for every 5 milesof New Jersey coastline, and this will cause serious environmental andnavigational hazards .271 The obvious solution is to extend United Statesjurisdiction out to include FNPs wherever they are situated. However,extending the coastal jurisdiction of the United States would be consid-ered a "unilateral act" that would hurt the United States at the currentlaw of the sea negotiations. In addition, the United States cannot de-clare the entire New Jersey coast off-limits, especially out to 14 miles.Under the Revised Informal Composite Negotiating Text,272 themaximum territorial sea that a country can claim is 12 miles.273

The problem of the 3-mile limit is complicated by the fact that thecloser the FNP is situated to the shore, the greater the environmentalimpact on the shoreline.274 Rather than harm the environment by situat-ing the FNP too close to the shore, the logical alternative is to move theFNP farther out to sea. Currently, there appear to be enough potentialsites where FNPs can be located so as to prevent adverse environmentalimpacts to the shoreline. However, given the problems involved infinding suitable geologic sites and sites without fault zones,275 andassuming FNPs proliferate, the suitable sites will diminish in number.

Pollution of the waters of the United States is a problem, but thepollution of international waters can have serious international conse-quences.276 The United States is committed to several internationalconcepts restricting pollution277 and is legally and/or morally bound toobserve several pollution conventions.278 Though none of these pollu-tion conventions refer specifically to FNPs, they provide a basis forestablishing restrictions. Within international "customary law" thereare also precedents for controlling international pollution. In 1947, thejudgment in the Trail Smelter Arbitration1''9 established the principlethat no country has the right to use its territory to the injury of anothercountry.

Trail Smelter involved pollution by noxious fumes, but it is readilyapplicable to other types of pollution. The reasoning in Trail Smelter issimilar to that in Georgia v. Tennessee Copper Co. ,280 which imposedduties upon the various states of the United States not to pollute each

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others' territory. Another international precedent is the Corfu ChannelCase,291 which held Albania liable to Great Britain for failing to notifyBritish ships that mines had been placed in the Corfu Channel. Underthese cases, the United States would be liable for both internationalpollution and major accidents caused by FNPs. There is also substantialauthority imposing liability for pollution under a theory of "interna-tional tort."282

If the developed countries and the developing countries participatingin the current law of the sea negotiations are polarized over the deepseabed mining issues,283 they will be polarized even more over FNPs.Since an accident at an FNP has the potential of irradiating anothernation's fish supply and of contaminating thousands of miles ofocean,284 the developing countries can claim that for "all purposes"FNPs do not constitute a reasonable use of ocean resources. Under thisargument, the "reasonable use" of the seas allowed under Article 2 ofthe Convention on theHigh Seas285 would be negated. Thus, theUnitedStates should not publicize this particular use of the oceans. Instead, theUnited States should provide domestic environmental safeguards whichwill be strict enough to pass future-scrutiny by the international com-munity. In addition, the United States negotiators for the law of the seashould recognize these environmental problems and negotiate with themin mind.

VIII. ConclusionA worldwide energy crisis does, in fact, exist. Whether or not there arecurrent energy shortages affecting the United States, it is apparent thatthe traditional fossil fuels will be exhausted at some time in the future.Therefore, it is imperative that new and cleaner sources of energy bedeveloped. Of the newly suggested sources, only nuclear power has anyimmediate potential for solving predicted energy shortages during thenext two decades. In addition, nuclear power is basically pollution free,inexpensive, and easily obtainable. Of the different types of nuclearreactors, breeder and fusion reactors appear to have potential as futureenergy sources. However, President Carter has recently indicated hisdispleasure with theTVA breeder program. In any event, the pollutionproblems for all types of nuclear reactors are basically similar, and they

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invariably lead to a common concern involving the situs of nuclearpower plants.

Nuclear power plants require approximately 500 acres of ground anda million gallons of cooling water per minute, but there are few remain-ing land sites within the continental United States which meet theserequirements. Accordingly, the solution is to build floating nuclearpower plants (FNPs) and site them offshore. SinceFNPs are a relativelynew method of utilizing ocean resources, the design and safety featuresof FNPs need to be examined carefully. A breakwater around the FNPprovides adequate protection against the waves of large storms andagainst ships which might collide with the FNP. The environmentalimpacts of constructing and operating FNPs appear to be large; how-ever, the domestic legislation of the United States can adequatelyregulate the problems associated with thermal discharge, perimetercontamination, and the risk of major accidents. In fact, within thesetraditional problem areas, FNPs generally have advantages over land-based nuclear plants.

Domestically, FNPs will be regulated by several existing agenciesand environmental laws. The Nuclear Regulatory Commission coverslicensing and regulates the construction and operation of FNPs. UnderCalvert Cliffs and subsequent cases, the National Environmental PolicyAct has been interpreted as requiring an environmental impact statementfor all nuclear plants, and these rulings would ostensibly cover FNPs.The Environmental Protection Agency is charged with regulating"thermal discharge" problems under the Federal Water Pollution Con-trol Act Amendments of 1972 (and the Clean Water Act of 1977), andthe Corps of Engineers also covers effluent discharges (and even thedredging operations associated with FNP construction) under the 1899Rivers and Harbors Act. The National Marine Fisheries Service hasjurisdiction over the fish around FNPs. In addition, by amending sec-tion 1333 of the Outer Continental Shelf Lands Act to include "utiliz-ing" ocean resources as well as "developing" ocean resources, anotherimportant check on FNP operation in the continental shelf areas could beestablished with minimal effort.

However, one problem with these various regulations is that state andfederal laws which would otherwise apply to FNPs would not cover anyFNP or portion of any FNP facility located outside the 3-mile territorialsea. Existing international law has not decided the jurisdictional ques-

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Offshore Siting of Nuclear Power Plants . 87

tions involved in siting "artificial islands" (i.e., FNPs) outside territo-rial waters. This issue is important because environmental, technical,and geologic considerations are expected to limit the sites suitable forFNP construction and operation. The United States needs to be aware ofthese problems in light of the current law of the sea (LOS) negotiationsand to negotiate around the jurisdictional and environmental problemswithout allowing the developing countries to make FNPs a subject forpolarizing the developing countries against the developed countries.Naturally, the potential of FNPs to cause "international pollution" mustnot become an issue at the LOS negotiations. Thus, the United Statesnegotiators need to recognize these potential problems involving FNPs.The United States must make sure that it does not unwittingly agree toprovisions at the LOS negotiations which would hinder or even prohibitFNP construction and/or operation.

Notes1. Bevan, "Energy Development: A Need for Vision and Statemanship,"

12 Aha. L. Rev. p. 1 (1974); see Anderson, "Carter's Energy Drive FallsShort," The Atlanta Constitution, Aug. 30, 1977, §A at p. 4, cols. 3-6(nationally syndicated column) [hereinafter cited as Energy Drive]; Anderson,"Carter Orders Secret Oil Study," The Atlanta Constitution, Oct. 21, 1977,§A at p. 4, cols. 3-6 (nationally syndicated column) [hereinafter cited as OilStudy]; Pauly and Cook, "Now, an Oil Glut," Newsweek, Sept. 19, 1977, atpp. 85,87; "Saud on War and Oil," Newsweek, Oct. 31, 1977, at p. 64; Shea,"New Nuclear Policy Under The National Energy Plan," 29 Baylor L. Rev.689 (1977) [hereinafter cited as Shea]. See also Gilliland, "Energy Analysisand Public Policy," Science, Sept. 26, 1975, at p. 1051 [hereinafter cited asGilliland]; Weeden, 'Thermal energy from the oceans," Ocean Indus. Dig.,Sept. 1975, at p. 220 [hereinafter cited as Weeden]; Knight, "InternationalJurisdictional Issues Involving OTEC Installations," in Ocean ThermalEnergy Conversion: Legal, Political, and Institutional Aspects at p. 45(Knight, Nyhart, and Stein, eds. 1977) [hereinafter cited as Knight].

2. Solomon andRiesmeyer, "Development of Alternate Energy Sources: ALegal and Policy Analysis," 30 Okla. L. Rev., pp. 319, 323-24 (1977)[hereinafter cited as Solomon]; see Dreyfus and Grundy, "Influence of theEnergy Crisis upon the Future of Environmental Policy," 3 Envt'l Aff., p. 252(1974) [hereinafter cited as Dreyfus].

3. Drefus, supra note2, atp. 522;Nassikas, "Energy, the Environment and

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the Administrative Process," 26 Ad. L. Rev., p. 165 (1974) [hereinafter citedas Nassikas].

4. Nassikas, supra note 3, at p. 166. The growth rate in energy consumptionin the United States from 1950 to 1973 was an average 3.5 percent per year.Solomon, supra note 2, at p. 319; see Carver, "Energy Shortage and FoodShortage: Lessons to be Learned," 9 Nat. Resources L., p. 549 (1976)[hereinafter cited as Carver]; Plumlee,' 'Perspectives in U .S. Energy ResourceDevelopment,'' 3 Envt' I Aff..pp. 1, 2 (1974) [hereinafter cited as Plumlee]. Seealso Pollack and Congdon, "International Cooperation in Energy Research andDevelopment," 6L. and Pol'y Int'l Bus., p. 677 (1974) [hereinafter cited asPollack]. Depending on the projection chosen from the Bureau of Mines data,the future growth rate of the United States in annual energy consumption isestimated at 3.25 to 4.7 percent per year. Ibid, at p. 2. See generally Darmstad-ter, "Limiting the Demand for Energy: Possible? Probable?," 2 Envt'I Aff.,p. 717 (1973); Woodson, "Energy Policy:A Test forFederalism," 18 Anz .L .Rev., p. 405 (1976).

5. Plumlee, supra note 4, at p. 2; see Carver, supra note 4, at p. 549;Gilliland, supra note 1, at p. 1051; Shea, supra note I, at p. 689.

6. "A Boom Gone Bust," Newsweek, Oct. 31, 1977, at p. 65; EnergyDrive, supra note 1, at cols. 5-6; Oil Study, supra note 1, at col. 3.

7. Nassikas, supra note 3, at p. 165. For an analysis of the energy needs ofthe United States see Plumlee, supra note 4. For a concise history of the movesinitiated by the Nixon Administration to make the United States an energyself-sufficient nation, see Whitney, "Siting of Energy Facilities in the CoastalZone—A Critical Regulatory Hiatus. 16 Wm. and Mary L. Rev., pp. 805, 806n.9 (1975) [hereinafter cited as Whitney]. See generally Solomon, supra note2, at pp. 319-25.

8. Plumlee, supra note 4, at p. 2.9. Ibid.10. Ibid.11. Ibid.; see "Verdict on Energy," Newsweek, Oct. 31, 1977, at p. 36;

Weinberg "Contrived Crisis: An Environmental Lawyer's View of the Sup-posedFuel Shortage," 23 Buffalo L. Rev., p. 435 (1974) [hereinafter cited asWeinberg].

12. It should be noted that the shipment of liquified natural gas (LNG) iscurrently creating international problems in the areas of environmental protec-tion. See Mankabody, "The Affreightment of Liquified Natural Gas," 9 J.World Trade L., p. 654 (1975).

13. For general discussions of the consequences of the petroleum shortageas it affects the environment, see Kalsi, "Oil In Neptune's Kingdom: Problemsand Responses to Contain Environmental Degradation of the Ocean by OilPollution," 3 Envt'I Aff.. p. 79 (1974) [hereinafter cited as Kalsi]; Morris,

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"Oil and Gas Legal Problems on the North Sea Continental Shelf," Nat.Resources Law., Jan. 1968, at p. 1; Walter and Maltezow, "ResourcesRecovery and U.S. International Trade: The Case of Waste Oil, 3 Envt'l Aff.,p. 433 (1974) [hereinafter cited as Maltezow]; Weinberg, supra note 11, at p.435.

14. See Plumlee, supra note4, at pp. 1-3, 38-40; Solomon, supra note2, atpp. 319-25.

15. See Kalsi, supra note 13, at p. 79; Maltezow, supra note 13, at p. 433.16. An international race to exploit the resources of the seas, especially new

fuel sources, is a constant danger. It can lead to confrontations similar to thosewhich occurred during the nineteenth-century colonization of the great under-developed continents by the European powers. For general discussions on thelaw of the sea as it relates to the environment and the energy crisis, see Belman,"The Role of the State Department in Formulating Federal Policy RegardingMarine Resources, Nat. Resources Law., June 1968, at p. 14; Brownlie, "ASurvey of International Customary Rules of Environmental Protection," 13Nat. Resources J., p. 179 (1973) [hereinafter cited as Brownlie]; Carlsen,

"The Link Between Metals Availability and the Energy Crisis," 3 Envt'l Aff.,p. 447 (1974); Finlay and McKnight, "Law of the Sea: Its Impact on theInternational Energy Crisis," 6L. and Pol'y Int'l Bus.,p. 639 (1974); Hearn,"The Role of the United States Navy in the Formulation of Federal PolicyRegarding the Sea," Nat. Resources Law., June 1968, at p. 23; Luce, "TheDevelopment of Ocean Minerals and the Law of the Sea," Nat. ResourcesLaw., July 1968, at p. 29; Mero, "Mineral Deposits in the Sea, Nat. ResourcesLaw., June 1968, at p. 30; Miller, "Ecological Balance in the Semi-EnclosedSeas," 2 Envt'l Aff., p. 191 (1972); Nicholson, "A Navy View of OceanResources," Nat. Resources Law., Jan. 1968, at p. 77. See generallyFaramelli, "Toying with the Environment and the Poor: A Report on theStockholm Environmental Conferences," 2 Envt'l Aff., p. 469 (1973); Mus-kie, "The Global Environmental Crisis," 2 Envt'l Aff., p. 179 (1972).

17. Pollack, supra note 4, at p. 680; see Weeden, supra note 1, at p. 200. In1974 the 93d Congress enacted the Federal Nonnuclear Research and De-velopment Act of 1974, Pub. L. No. 93-577, 88 Stat. 1878 (to developnonnuclear energy technologies).

18. Geothermal energy is energy derived from the heat of the earth'sinterior. For an analysis of geothermal energy, see Pollack, supra note 4, at p.681 n.33. Congress has directed that research be conducted to developgeothermal energy sources. Geothermal Energy Research, Development, andDemonstration Act of 1974, 30 U.S.C. § 1101 et. seq. (Supp. 1975); seePlumlee, supra note 4, at p. 1; Solomon, supra note 2, at p. 321; Witney, supranote 7, at p. 807 n.15.

19. Wind power is a derivative of solar energy. NASA is currently develop-

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ing windmills to generate electricity. See Lof, "Solar Energy: An InfiniteSource of Clean Energy," Annals, Nov. 1973, at p. 52 [hereinafter cited asLof]; Plumlee, supra note 4, at p. 1.

20. "Solar energy refers to the conversion of radiation from the sun intoother forms of energy, such as electrical, thermal, or chemical energy."Pollack, supra note 4, at p. 680 n.32; see Lof, supra note 19, at p. 52; Solomon,supra note 2, at p. 321. Congress has initiated research in the area of solarenergy. See Solar Energy Research, Development, and Demonstration Act of1974, Pub. L. No. 93-473,88 Stat. 1341; Solar Heating and Cooling Demon-stration Act of 1974.42U.S.C. §§2473,5501 etseq.(Supp. 1975). For a briefhistory of the sources of solar energy legislation see Whitney, supra note 7, at p.807 n.15. See Plumlee, supra note 4, at p. 1.

21. Weeden, supra note 1, at p. 220. See generally Knight, supra note 1, atpp. 1, 45.

22. Solomon, supra note 2, at pp. 321-22. For descriptions of nuclearfission, see Plumlee, supra note 4, at p . 1; Whitney, supra note 7, at pp. 805,806, 809-10. For descriptions of thermonuclear fusion, see Plumlee, supranote 4, at p. 1; Pollack supra note 4, at pp. 680, 681 n.34.

23. See Plumlee, supra note4, at pp. 1-3, 38-41; Pollack, supra note4, atpp. 680-81.

24. Caldwell, "The Energy Crisis and Environmental Law: Paradox ofConflict and Reinforcement," 20 N.Y.L.F., p. 751 (1975) (emphasis inoriginal) [hereinafter cited as Caldwell]. For an interesting discussion of theeconomic aspects of energy/environment law, see Sullivan and Arias, "Con-cepts and Principles of Environmental Economics," 2 Emit'l Aff., p. 597(1973).

25. Note, "The Use of Generic Rulemaking to Resolve EnvironmentalIssues in Nuclear Power Plant Licensing," 61 Va. L. Rev., p. 869 (1975)[hereinafter cited as Generic Rulemaking].

26. 42 U.S.C. § 2011 et seq. (1970).27. Generic Rulemaking, supra note 25, at p. 869.28. Note,"Harnessing the Atomic Juggernaut: The Need for Multi-Lateral

Input in Nuclear Energy Decision-Making," 14 Nat. Resources J., p. 411(1974) [hereinafter cited as Atomic Juggernaut]; see Hubbert, 'The EnergyResources of the Earth," 224 Sci. Am., pp. 61, 64, 69 (1971).

29. Edison Electric Institute, Atom. Information Bull. F., p. 123 (Oct.1978) [hereinafter cited as Electric Institute].

30. Ibid.; see Atomic Juggernaut, supra note 28, at p. 411; U.S. Dep't ofCommerce, NOAA, Report to the Congress on Ocean Pollution, Over-Fishing, and Offshore Development, July 1973 - June 1974, at p. 59 (Jan.1975).

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31. Palfrey, "Energy and the Environment: The Special Case of NuclearPower," 74 Colum. L. Rev., p. 1375 (1974) [hereinafter cited as Palfrey].Another estimate of the amount of the nation's electricity that nuclear plantswill provide by the year 2000 is 55.8 percent. Binder, "The Energy Crisis, theEnvironment and the Consumer: A Solomonian Task," 1 Ohio N.L. Rev., pp.215, 231 (1974) [hereinafter cited as Binder]. Apparently, most of theseestimates range between 50 and 60 percent. It is interesting to note that in 1978there were 72 nuclear reactors in operation. Electric Institute, supra note 29, atp. 123. A year earlier, there were only 66 operating nuclear reactors with 90under construction and 67 on order. Meek, "Nuclear Power and the Price-Anderson Act: Promotion Over Public Protection," 30 Stan.L. Rev., pp. 393,393-94 (1978). As recently as 1976 there were only 56 nuclear plants inoperation and 63 under construction. These figures demonstrate the rapidgrowth of nuclear power facilities in the United States. Comment, "A Surveyof the Governmental Regulation of Nuclear Power Generation," 59 Marq. L.Rev., p. 836 (1976); see Kennedy, "Mutual Cooperation With State Govern-ments," 17 At. En. L.J., pp. 152, 155 (1975).

32. Binder, supra note31, atp. 231;Tamplin, "Reacting to Reactors," 10Trial, p. 15 (1974).

33. Pub. L. No. 93 -38 . See also Grainey, "Nuclear Reactor Regulation:Practice And Procedure Before The Nuclear Regulatory Commission," 11Gonz. L.Rev., pp. 809, 810 (1976).

34. See Generic Rulemaking, supra note 25, at p. 870 n.8. For analyses ofrecent challenges to federal jurisdictions, see Comment, "Slaying the NuclearGiants: Is California's New Nuclear Power Plant Siting Legislation ShieldedAgainst the Attack of Federal Preemption?", 8 Pac. L.J., p. 741 (1977);Hays,"State Power To Ban Nuclear Power Plants: The California NuclearSafeguards Initiative As A Case In Point," 6 Envt'l L., p. 729 (1976); Note,"Preemption Under The Atomic Energy Act Of 1954: Permissible State Reg-ulation of Nuclear Facilities' Location, Transportation of Radioactive Materi-als and Radioactive Waste Disposal," 11 Tulsa LJ., p. 397 (1976) [hereinaftercited as 1954 Act Preemption]; Parenteau, "Regulation Of Nuclear PowerPlants: AConstitutional DilemmaForTheStates," 6Envt'lL.,p. 675(1976).

35. See Generic Rulemaking, supra note 25, at p. 870 n.3.36. Ibid.; see Atomic Energy Act of 1954 as amended, 42 U.S.C. § 2011 et

seq. (1970). See also Hubel, "Preliminary Antitrust Review of Nuclear Elec-tric Generating Plants," 6Envt'lL., p. 753 (1976); Mitchell, "The Participa-tion of Private Interest Representatives In Nuclear Power Plant LicensingProceedings," 13 Idaho L. Rev., p. 309 (1977).

37. Binder, supra note 31, at p. 231.38. Ibid.; see Generic Rulemaking, supra note 25, at pp. 869, 872-74;

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Solomon, supra note 2, at pp. 325-34; Devereux, "Boosters in the Newsroom:The Jacksonville Case," Colum. J. Rev., Jan./Feb. 1976, at pp. 38, 47.

39. Atomic Juggernaut, supra note 28, at p. 411.40. For a description of boiling water reactors see A. Reitze, Environmental

Planning: Law of Land and Resources, ch. 17, at p. 10 (1974) [hereinaftercited as Reitze]. In a boiling water reactor the "water enters the reactor and isheated as it passes up between the elements of nuclear fuel." Ibid.

41. "A pressurized-water reactor operates at conditions under which thewater passing through the reactor does not boil." Ibid. ch. 17, at p. 11(emphasis original). "The heated water goes to a steam generator that, as thename implies, makes the steam that drives the turbine." Ibid.

42. A gas-cooled reactor is similar to a pressurized water reactor except thatthe working fluid that goes to the steam generator is a gas, usually helium orcarbon dioxide. Ibid.

43. See Atomic Juggernaut, supra note 28, at pp. 411, 414. A light-waterreactor is a general term for pressurized or boiling water reactors and should bedistinguished from a heavy-water reactor.

44. A heavy-water reactor uses D2O instead of H2O and is a tube typereactor. Reitze, supra note 40, ch. 17, at p. 12. "Any of several coolingfluids—organic compounds, gas, water,, or heavy water—can be used inheavy-water reactors, since the heavy-water moderator is separated from thecooling fluid by the walls of the process tubes. In terms of nuclear fuelutilization, the heavy-water reactor is an interim type; its net fuel consumptionis low (actually, it might be able to make slightly more fuel than it uses), whichmakes it attractive to use during the period in which designs for economicalbreeder reactors are being developed." Ibid. See also Binder, supra note 31, atpp. 236-37.

45. Reitze, supra note 40, ch. 17, at p. 12.46. Ibid., Binder, supra note 31, at pp. 236-37.47. Plumlee, supra note 4, at p. 39.48. Binder, supra note 31, at p. 236.49. Palfrey, supra note 31, at p. 1392.50. Ibid.51. Ibid.52. Ibid., at pp. 1392-93.53. Ibid, at p. 1393.54. Palfrey, supra note 31, at p. 1393; see Black, "TheOtherCloseCalls,"

Newsweek, Apr. 9, 1979, at p. 36 [hereinafter cited as Close Calls].55. Close Calls, supra note 54, at p. 36; see "Nuclear Accident," News-

week, Apr. 9, 1979, at p. 24 [hereinafter cited as Nuclear Accident]; "ANuclear Nightmare," Time, Apr. 9, 1979, at p. 8 [hereinafter cited as NuclearNightmare].

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56. Brand, "Power Play: A.E.C. and Utility Firms Bet on an UnusualDevice to Meet Energy Needs," Wall Street Journal, Nov. 29, 1972, atp. 1,col. 6; see Binder, supra note 31, at p. 236. The AEC was willing to invest asmuch as $4 billion in the breeder program, Business Week, Nov. 10, 1973, atp.222 [hereinafter cited as Business Week].

57. Binder, supra note 31, at p. 237.58. Palfrey, supra note 31, at p. 1385.59. Binder, supra note 31, at p. 237; see Veto of Dep't. of Energy authoriza-

tion bill, WEEKLY COMP. OF PRES. DOC. 1726 (Nov. 5, 1977).60. Ibid. Atomic wastes can last up to 200,000 years. Business Week, supra

note 56, at p. 222; see Reitze, supra note 40, ch. 17, at p. 47; 1954 ActPreemption, supra note 34, at p. 397. See also, Lash,' 'A Comment on NuclearWaste Disposal," 4 J. Contemp. L., p. 267 (1978); Faltermayer, "BuryingNuclear Trash Where It Will Stay Put," Fortune, Mar. 26, 1979, at p. 98.

61. Binder, supra note 31, at p. 237.62. See Reitze, supra note 40, ch. 17, at p. 46.63. Pollack, supra note 4, at p. 681 n.34.64. Ibid.65. Ibid.; see U.S. Atomic Energy Commission, Controlled Nuclear Fu-

sion, pp. 3-21 (1968).66. Selfridge, "FloatingNuclearPowerPlants: A Fleet On The Horizon?,"

6 Envt'l L., p. 791 (1976) [hereinafter cited as Selfridge]; see Morris andKindt, "The Law of the Sea: Domestic and International ConsiderationsArising from the Classification of Floating Nuclear Power Plants and TheirBreakwaters as Artificial Islands," 19 Fa. J. Int'lL., p. 299 (1979) [hereinaf-ter cited as Morris]. For discussion of the current debate involving the siting ofnuclear power plants, see Comment, "Population Criteria Of Oregon AndThe United States In The Siting Of Nuclear Power Plants, 6 Envt'l L., p. 897(1976) [hereinafter cited as Population Criteria]; Davis, "Citizen's Guide ToIntervention In Nuclear Power Plant Siting: A Blueprint For Alice In NuclearWonderland, 6 Envt'lL., p. 621 (1976); Note, "Nuclear Power Plant Siting:Additional Reductions In State Authority?", 28 Univ. Fla. L. Rev., p. 439(1976). See also Breyer, "Vermont Yankee And The Courts' Role In TheNuclear Energy Controversy," 91 Harv. L. Rev. 1833 (1978) [hereinaftercited as Breyer]; Byse, "Vermont Yankee And The Evolution Of Administra-tive Procedure: A Somewhat Different View," 91 Harv. L. Rev. 1823 (1978)[hereinafter cited as Byse]; Stewart, "Vermont Yankee And The Evolution OfAdministrative Procedure," 91 Harv. L. Rev., p. 1805 (1978) [hereinaftercited as Stewart].

67. McPhee, "A Reporter atLarge: The Atlantic Generating Station," NewYorker, May 12, 1975, at p. 51 [hereinafter cited as McPhee]; Office ofTechnology Assessment, Coastal Effects of Offshore Energy Systems, pp.

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197, 204-207 (1976) [hereinafter cited as Energy Systems]; see Binder supranote 31, at p. 235.

68. McPhee, supra note 67, at p. 51; see Energy Systems, supra note 67, atpp. 25, 197. ;

69. McPhee, supra note 67, at p. 51; Selfridge, supra note 66, at pp.791-92.

70. McPhee, supra note 67, at p. 51; see Energy Systems, supra note 67, atpp. 25, 197.

71. McPhee, supra note 67, at p. 51.72. For an analysis of the problems involved in siting nuclear power plants

in frontier areas, see Handl, "An International Legal Perspective on theConduct of Abnormally Dangerous Activities in Frontier Areas: The Case ofNuclear Power Plant Siting," 7 Ecology L.Q., p. 1 (1978).

73. McPhee, supra note 67, at p. 52.74. Ibid.; see Energy Systems, supra note 67, at pp. 25, 197.75. McPhee, supra note 67, atp. 51; Energy Systems, supra note 67, at pp.

212-13.76. McPhee, supra note 67, at p. 51; see Energy Systems, supra note 67, at

p. 213.77. McPhee, supra note 67, at pp. 51-52; see Binder, supra note 31, at p.

236.78. McPhee, supra note 67, at p. 55.79. Ibid.; see Energy Systems, supra note 67, at p. 25.80. McPhee, supra note 67, at pp. 55-56.81. Whitney, supra note 7, at p. 809.82. Ibid., at p. 805 (emphasis added). For a good discussion of the environ-

mental conflict in the coastal zone, see Howard, "The Energy Crisis and ItsImpact Upon Environmental Law," 20 N.Y.L.F., pp. 711, 723-29 (1975)[hereinafter cited as Howard].

83. Weeden, supra note 1, at pp. 220-28. ERDA wants a small OTEC"prototype unit by 1981 and a full-scale 100-mw unit by 1985." Ibid, at p.220. For a discussion of jurisdictional problems involving OTEC installations,see Knight, supra note 1, at p. 45.

84. 16 U.S.C. §§ 1451-64 (Supp. II, 1972); see Whitney, supra note 7, atp. 806.

85. Pub.L.No. 93-627, 88 Stat. 2126; see Whitney, supra note7, atp. 808.86. Whitney, supra note 7, at p. 805.87. Ibid., at pp. 805-809.88. 42 U.S.C. § 4321 et seq. (1970).89. Ibid., § 4332(2)(C).90. Whitney, supra note 7, at p. 806. For a general discussion of environ-

mental planning for the coastal zone, see Note, "Saving the Seashore: Man-

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agement Planning for the Coastal Zone," 25 Hastings L.J., p. 191 (1973).91. Nuclear Regulatory Commission, Final Environmental Statement:

Manufacture of Floating Nuclear Power Plants by Offshore Power Systems atp. iii (part II, 1976) [hereinafter cited asFinal EIS]; see Energy Systems, supranote 67, at pp. 197, 204-206.

92. Final EIS, supra note 91, at p. iii; Energy Systems, supra note 67, at pp.222-23.

93. Final EIS, supra note 91, at p. iii.94. Ibid., ch .3 , at p. 4.95. Ibid.96. Nuclear Regulatory Commission, Draft Environmental Statement:

Manufacture of Floatirtg Nuclear Power Plants, ch. 3, at p. 4 (part II, 1975)[hereinafter cited as Draft EIS].

97. Final EIS, supra note 91, ch. 3, at p. 7.98. Ibid., ch. 3, at p. 4.99. Ibid.100. Ibid., ch.3, at 1; see Energy Systems, supra note 67, at pp. 206-207.101. Final EIS, supra note 91, ch. 3, at p. 2. The caissons are approxi-

mately 200 feet long, 80 feet wide, and 55 feet high. Ibid.102. Ibid.103. Ibid., ch. 3, at pp. 2, 4.104. McPhee, supra note 67, at pp. 68-69; Final EIS, supra note 91, ch. 3,

at pp. 4, 5.105. McPhee, supra note 67, at p. 68.106. Ibid.107. Ibid., at pp. 87-88, 90, 93.108. Ibid., at pp. 87-88.109. Ibid., at pp. 88, 90.110. Ibid., at p. 90.111. Ibid., at p. 88. However, the FNP should be shut down during any

major storm even though according to the Draft EIS, "[t]he plant is designedfor a tornado having a maximum tangential wind speed of 300 mph at elevationsequal to or greater than 64 ft. above the water surface and a wind speed of 200mph below this elevation." Draft EIS, supra note 96, ch. 3, at p. 28. Bycontrast, the Final EIS states "[t]he plant is designed for a tornado having amaximum rotational wind speed of 290 miles per hours (mph), a translationalspeed of 70 mph (maximum) and 5 mph (minimum), and a pressure drop at thecenter of the tornado of 3 psi." Final EIS, supra note 91, ch. 3, at p. 28.

112. Britton, "Nightmare waves are all too real to deepwater sailors,"Smithsonian, Feb. 1978, at pp. 60-67.

113. McPhee, supra note 67, at p. 96; seeFinal EIS, supra note 91, ch.3, atp. 1.

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114. McPhee, supra note 67, at p. 96.115. See Final EIS, supra note 91, ch. 3, at p. 1.116. See Nuclear Accident, supra note 55, at pp. 24-28.117. Binder, supra note 31, at p. 236; Note, "Nuclear Power A Lady or a

Tiger?," 17 Washbum LJ., pp. 546, 553-54 (1978) [hereinafter cited asNuclear Power]; see Wall Street Journal, May 18, 1973, at p. 4, col. 3(Midwest Ed.).

118. McPhee, supra note 67, at p. 58.119. Ibid.120. See notes 107-112 supra and accompanying text.121. Binder, supra note 31, at p. 236.122. Final EIS, supra note 91, ch. 5, at p. 3 .123. Ibid.,ch. 5, at pp. 8, 13.124. Benthic infauna consists of the organisms on the ocean floor.125. Final EIS. supra note 91, at p. iv.126. Ibid.127. Ibid., ch. 5, at p. 8; see Energy Systems, supra note 67, at pp. 226-29.128. Jetting creates cable trenches by utilizing hydraulic pressure to dis-

place sediment. Transmission cables are buried at least 10 feet below the seabottom "to prevent anchor damage and to protect the cable from scour thatmightresult from major storms. . . ."Final EIS, supra note 9 l,ch. 5, atp. 8.

129. Ibid., at p. iv.130. The benthos is the ocean floor itself but it can include the organisms

living on the ocean floor.131. Final EIS, supra note 91, at p. iv.132. Ibid., ch. 5, at pp. 9-12.133. Ibid., ch. 5, at p. 12, see Energy Systems, supra note 67, at p. 228.134. Final EIS, supra note 91, ch. 5, at p. 7.135. Ibid., at p. iv.136. Ibid., ch. 7, at p. 7.137. Ibid., at p. iv.138. Ibid., ch. 7, at pp. 6-7.139. Ibid., at p. iv.140. Ibid., ch. 7, at pp. 6-7.141. Ibid., ch .7 , at p. 7.142. Ibid., ch. 6, at p. 80.143. Ibid., ch. 6, at pp. 80-81.144. Ibid., at p. iv; see Energy Systems, supra note 67, at 213, 224-29.145. See Final EIS, supra note 91, ch. 5, at pp. 1-27; Energy Systems,

supra note 67, at p. 222.146. Final EIS, supra note 91, ch. 5, at p. 4 .147. Ibid., at p. v.

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148. Ibid., ch. 5, at p. 13.149. Ibid.150. Ibid.151. Ibid.152. See ibid., ch. 6, at pp. 82-83; Energy Systems, supra note 67, at pp.

213-14.153. Final EIS, supra note 91, at p. iv.154. Ibid., ch. 6, at pp. 41-46.155. Ibid., at p. v.156. 42 U.S.C. §§ 4321-47 (1970 & Supp. V 1975).157. See the discussions in Parts V and VI of this article.158. Free residual (available) chlorine is that "portion of the reactive

chlorine injected into water that remains as molecular chlorine, hypochlorousacid (HOCL), or hypochlorite ion (OCL-) after the chlorine demand has beensatisfied." Final EIS, supra note 91, ch. 6, at p. 41.

159. Ibid., at p. v.160. "Total residual chlorine" equals the free residual chlorine plus the

combined residual chlorine. Ibid., ch. 6, at p. 42. "Free residual chlorine" isdefined in note 158 supra. "Combined residual chlorine" consists of "theportion of the chlorine that remains combined with ammonia or nitrogenouscompounds (chloroamines) after the chlorine demand has been satisfied."Ibid., ch. 6, at p. 41.

161. Ibid., at p. v; see ibid., ch. 3, at p. 20.162. Draft EIS, supra note 96, at pp. iv-v; see Energy Systems, supra note

67, at pp. 230-37.163. Final EIS, supra note 91, at pp.iv-v.164. See Close Calls, supra note 54, at p. 36. See also Bryer, supra note 66,

at p. 1833; Stewart, supra note 66, at p. 1805.165. Final EIS, supra note 91, ch. 6 at pp. 61-73.166. Ibid., ch. 6, at p. 62; see McPhee, supra note 67, at pp. 70, 74,76, 78,

80-82, 84-87.167. Final EIS, supra note 91, ch. 8, at pp. 1-8.

, 168. McPhee, supra note 67, at p. 70; see Final EIS, supra note 91 ,ch. 6, atpp. 20-37.

169. Final EIS, supra note 91, at p. v.170. Ibid.171. Ibid.172. Ibid., ch. 6, at p. 38.173. Ibid., at p. v.174. Ibid.175. Ibid., ch. 6, at pp. 20-41.176. McPhee, supra note 67, at pp. 70, 74.

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177. See Final EIS, supra note 91, ch. 6, at pp. 20-41.178. McPhee, supra note 67, at p. 76,179. Final EIS, supra note 91, ch. 6, pp. 2-20; see Energy Systems, supra

note 67, at pp. 204, 228-29, 231.180. Final EIS, supra note 91, at p. v.181. Ibid.182. Ibid.183. Ibid.,ch. 6, at p. 8.184. Baram, "The Legal and Regulatory Framework for Thermal Dis-

charge from Nuclear Power Plants," 2 Envt'l Aff., p. 505 (1973) [hereinaftercited as Baram]. See also Comment, "Nuclear Waste Disposal: A Federal AndState Problem," 65 Ky. LJ., p. 917 (1977).

185. Baram, supra note 184, atp. 513; see Reitze, supra note 40, ch. 17, atp. 49.

186. Baram, supra note 184, at p. 514.187. Ibid.188. Ibid.189. 33 U.S.C. § 466 et seq.190. Baram, supra note 184, at pp. 514-15. "There is also a problem

regarding radiation discharge into waterways. If the public learns that radiationwill be discharged into the water, which may or may not be used for drinkingpurposes, reaction will set in, and litigation may ensue." Binder, supra note31, at p. 233.

191. Baram, supra note 184, at p. 515; see Nuclear Power, supra note 117,at pp. 551-52.

192. 406 F.2d 170 (lst Cir. 1969), cert, denied, 395 U.S. 962 (1969).193. Baram, supra note 184, at p. 515.194. Ibid.195. Pub. L. No. 91-224 (1970).196. Baram, supra note 184, at p. 516.197. Pub. L. No. 92-500(1972); seeClean Water Act of 1977, 33U.S.C. §

1251 et seq. (1978).198. 33 U.S.C. § 407.199. Baram, supra note 184, at p. 517.200. Ibid., at p. 518.201. Pub. L. No. 94-265, 90 Stat. 331 (codified at 16 U.S.C. §§ 1801-02

(1976) ).202. Baram, supra note 184, at p. 505. (emphasis added).203. Generic Rulemaking, supra note 25, at 869 (emphasis added).204. Ibid., at 873. See also Comment, "Environmental Law: The Supreme

Court Interprets the Role of the Environmental Protection Agency in Regulat-

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ing Radioactive Materials," 16 Washburn LJ., p. 516 (1977); England,"Recent Regulatory Developments Concerning the Transportation ofNuclearFuel and Other Radioactive Materials," 7 Envt'l L., p. 203 (1977). Foranalyses of nuclear waste disposal problems, see Note, "Nuclear Waste Man-agement: A Challenge to Federalism," 1 EcologyL.Q., p. 917 (1979); Poulin,"Who Controls Radioactive Wastes," 6 Envt'l Aff., p. 201 (1977).

205. Gofman andTamplin, "NucIearPower, Technology and Environmen-tal Law," 2 Envt'l L., p. 57 (1972) [hereinafter cited as Gofman]; AECStandards for Protection Against Radiation, 10 CJF.R. § 20.4(b). A rad is ameasure of absorbed ionizing radiation energy. See Atomic Juggernaut, supranote 28, at p. 414; Nuclear Power, supra note 117, at pp. 550-51.

206. Binder, supra note 31, at p. 233; Palfrey, supra note 31, at p. 1375.207. Ibid., atp. 1393; Close Calls, supra note 54, at p. 36; see notes 50-55

supra and accompanying text.208. Binder, supra note 31, at p. 233.209. Generic Rulemaking, supra note 25, at p. 873; see Final EIS, supra

note 91, ch. 6, at pp. 61-73.210. Gofman, supra note 205, at p. 60; AEC Standards for Protection

Against Radiation, 10 C.F.R. § 20.106(e).211. "These release standards are erroneous because, by neglecting proper

accounting of uptake of radioactive materials by various human food chains,the standards could allow for grossly higher exposures to the public." Gofman,supra note 205, at p. 60; see ibid, at pp. 57-73. Contra, Binder, supra note 31,at pp. 233-34.

212. Gofman, supra note205, atp. 66; Population Criteria, supra note 66, atp. 897; see AEC, Theoretical Possibilities and Consequences of Major Acci-dents in Large Nuclear Power Plants, Wash-740 (1957) [hereinafter cited asBrookhaven Report]; Energy Systems, supra note 67, at pp. 230-37.

213. Gofman, supra note 205, at p. 66; see Population Criteria, supra note66, at p. 897.

214. See Doub, "Nuclear Power: A Cool Approach," Trial, Jan./Feb.1974, at pp. 18, 24.

215. 42 U.S.C. § 2210 (1970); see Palfrey, supra note 31, at p. 1398.For Analyses of the Price-Anderson Act, see Comment, "The IrradiatedPlaintiff: Tort Recovery Outside Price-Anderson," 6 Envt'l L., p. 859 (1976)Kane, "what should the price-anderson act accomplish?", 12 Forum, p. 622(1977); Lowenstein, "the price-anderson act: an imaginative approach topublic liability concerns, 12 Forum, p. 594 (1977); Marrone, "the price-anderson act: the insurance industry's view," 12 Forum, p. 605 (1977);Wilson, "nuclear liability and the price-anderson act," 12 Forum, p. 612(1977). In 1977 the $560 million liability limit of Price-Anderson was declared

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unconstitutional by a federal district court as violative of equal protection anddue process. Carolina Envt'l Study Group v. U.S., 431 F. Supp 203(W.D.N.C. 1977).

216. Palfrey, supra note 31, at pp. 1398-99.217. Gofman, supra note 205, at p. 68; see Nuclear Accident, supra note 55,

at pp. 24-28; Nuclear Nightmare, supra note 55, at pp. 8-12, 15.218. Binder, supra note 31, at pp. 234-35.219. Ibid., at p. 235; seePorterCo. Chapter Izaak Walton League of Am.,

Inc.v.AEC, 553 F.2d 1011,1018(7thCir. 1978); Naderv.Ray, 363 F. Supp.946 (D.D.C. 1973); Nader v. NRC, 513 F.2d 1045, 1047 (D.C. Cir. 1975).

220. Summary Rep. of the AEC, "Reactor Safety Study: An Assessment ofAccident Risks inU.S. Commercial Nuclear Power Plants," 16 At. En. LJ.,pp. 177, 196 (1974).

221. Brookhaven Report, supra note 212.222. See Nuclear Accident, supra note 55, at pp. 24-28; Nuclear Night-

mare, supra note 55, at pp. 8-12, 15.223. "Hearings on S.80 Before the Senate Comm. on Commerce," 93d

Cong., 1st Sess., ser. 20, at pp. 150-51 (1973).224. Ibid.; Selfridge, supra note 66, at p. 801.225. Selfridge, supra note 66, at p. 801.226. Ibid.227. See ibid., at pp. 801-02.228. NRC, An Assessment of Accident Risks in U.S. Commercial Nuclear

Power Plants (Executive Summary), p. 2 (WASH-1400, Oct. 1975).229. Palfrey, supra note 31, at p. 1383.230. Ibid., at p. 1385; see Baram, supra note 184, at p. 521. For detailed

discussions of NEPA as it relates to nuclear power, see Atomic Juggernaut,supra note 28, at pp. 416-22; Baram, supra note 184, at pp. 521-25; Binder,supra note 31, at pp. 238-44; Generic Rulemaking, supra note 25, at pp. 875,881,887-91; Howard, supra note 82, at pp. 713-14; Palfrey, supra note 31, atpp. 1378-80. For some general discussions on the applicability of NEPA, seeCaldwell, supra note 24, at pp. 800-801; Gelpe and Tarlock, "The Uses ofScientific Information in Environmental Decisionmaking," 485. Cal. L. Rev.,p. 371 (1974); Howard, supra note 82, at pp. 714-19; Note, "The NationalEnvironmental Policy Act of 1969 and the Energy Crisis: The Road to Alaska,"10 Column. J.L. & Soc. Prob., p. 265 (1974).

231. 449 F.2d 1109 (D.C. Cir. 1971).232. Atomic Juggernaut, supra note 28, at p. 416. For in-depth discussions

of Calvert Cliffs, see ibid., at pp. 416-22; Baram, supra note 184, at pp.522-25; Generic Rulemaking, supra note 25, at pp. 888-91; Howard, supranote 82, at p. 714; Palfrey, supra note 31, at pp. 1378-80, 1383, 1385.

233. 449 F.2d 1109, 1112 (D.C. Cir. 1971).

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234. 337 F. Supp. 287 p . D . C . 1971).235. Binder, supra note 31, at p. 242.236. 337 F. Supp. 287 (D.D.C. 1971).237. 350 F. Supp. 269 (W.D. Wash. 1972), affirmed 487 F.2d 1344 (9th

Cir. 1973).238. 476 F.2d 924 (D.C. Cir. 1973). The court did rule that the public

hearings had to be held.239. 481 F.2d 1079 (D.C. Cir. 1973).240. See notes 40-66 supra and accompanying text.241. 98 S.Ct. 1197 (1978); see Stewart, supra note 66, at p. 1805. Contra,

Breyer, supra note 66, at p. 1833; Byse, supra note 66, at p. 1823.242. Binder, supra note 31, at p. 240 (emphasis added).243. See Generic Rulemaking, supra note 25, at pp. 869-901.244. Generic Rulemaking, supra note 25, at p. 901.245. 405 F. Supp. 53 (D.D.C. 1975) (preliminary injunction issued to stop

Darien Gap highway); 42 F. Supp. 63 (D.D.C. 1976) (EIS insufficient, orderaccordingly).

246. See 23 U.S.C. § 216 (1977). The administration of the project wasunder the direction of the Secretary of DOT. 23 U.S.C. § 216(b) (1977).

247. 449 F.2d 1109, 1115 (D.C. Cir. 1971) (emphasis in original).248. Palfrey, supra note 31, at p. 1388; see Note, 'The United States

Nuclear Power Export Program: An Assessment of its National and Interna-tional Impacts on the Environment," 7 Ga. J. Int'l & Comp. L., p. 148 (1977)[hereinafter cited as Export Program].

249. Palfrey, supra note 31, at p. 1388.250. See L. Beaton, Must the Bomb Spread, p. 88 (1966).251. Civil No. 1867-73 p . D . C . , filed Aug. 3, 1974), reprinted in, 6

E.R.C. 1980; see Export Program, supra note 248, at p. 148.252. Sierra Club v. AEC, 6 E.R.C. 1980, pp. 1981-82 p . D . C . 1974).253. Ibid., at p. 1981.254. Ibid., at p. 1982.255. Energy Systems, supra note 67, at pp. 106, 108.256. See U.N.Doc.A/3159,atpp. 16-17; Morris,supranote 66,at p.317.257. 43 U.S.C. § 1333 (1970).258. See Energy Systems, supra note 67, at p. 204.259. 43 U.S.C. § 1331 (1970).260. United States v. California, 381 U.S. 139 (1965). Injuries occurring

within a state's territorial waters are subject to that state's jurisdiction laws. S eeSubmerged Lands Act, 43 U.S.C. §§ 1301, 1311(a) (1970); Goett v. UnionCarbide Corp., 361 U.S. 340(1960); TheTungus v. Skovgaard, 358 U.S. 589(1957); New Amsterdam Cas. Co. v. McManigal, 87 F.2d 332, 333 (2d Cir.1937).

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261. 43 U.S.C. § 1301 et seq. (1970).262. Ibid., § 1314.263. United States v.TwinCityPowerCo.,215F.2d 592 (1954), rev'd 350

U.S. 222, reh'g denied, 350 U.S. 1009 (1956); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 73-74 (1913); Morris, supra note 66,at p. 306.

264. See notes 189-200 supra and accompanying text.265. Ibid.266. Energy Systems, supra note 67, at pp. 106-108.267. Ibid., at pp. 106, 108.268. Ibid., at p. 106.269. McPhee, supra note 67, at p. 62.270. Ibid.271. Selfridge, supra note 66, at p. 828.272. U.N. Doc. A/CONF.62/WP.10/Rev. 1 (1979).273. Ibid., Art. 3.274. See notes 144-51 supra and accompanying text.275. See notes 117-21 supra and accompanying text.276. SeeGoldman, "Pollution: International Complication," 2 Envt'l Aff.,

p. 1 (1972); Pattison, "The Transnational Control of Atomic Energy: ANuclear Ecology," 11 Int'l Law., p. 501 (1977).

277. See Brownlie, supra note 16, atp. 179. "[T]he concept of the freedomof the seas . . . contains elements of reasonable user and nonexhaustiveenjoyment which approach standards for environmental protection, althoughthey are primarily based upon the concept of successful sharing rather thanconservation in itself." Brownlie, supra note 16, at p. 179; see Falk, "TheGlobal Environment and International Law: Challenge and Response," 23 U.Kan. L. Rev., p. 385 (1975) [hereinafter cited as Falk]; Smith, "Toward anInternational Standard of Environment," 2 Pepperdine L. Rev., p. 28 (1974).See also Stern, "The Impact of Pollution Abatement Laws on the InternationalEconomy: An Overview of the Hydra," 1 L. & Poly'y Int'l Bus., p. 203(1975); Swidler, 'The Role of Energy Conservation in National Energy Pol-icy," 2Envt'l Aff., p. 280 (1973).

278. Convention on the Prevention of Marine Pollution by Dumping ofWastes and Other Matter, done Dec. 29, 1972, [1975] 2U.S.T. 2403, T.IA.S.No. 8165 (entered into force Aug. 30, 1975); Convention for the Prevention ofMarine Pollution from Land-Based Sources, opened for signature June 4,1974, reprinted in 13 INTL LEGAL MATLS 352 (1974); Convention for thePrevention of Pollution of the Sea by Oil .May 12, 1954, [1961] 3 U.S.T. 2989,T J A . S . No. 4900, 327 U.N.T.S. 3 (entered into force Dec. 8, 1961, subject toan understanding, reservations, and a recommendation), as amended May 18 &

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June28, 1967, [1966] 2 U.S.T. 1523, T.I.A.S. No. 6109,600U.N.T.S. 322;International Convention for the Prevention of Pollution by Ships, opened forsignature, Jan. 14, 1974, signed by the United States Mar. 7, 1974, I.M.C.O.Doc. MP/CONF/WP.35 (Nov. 2, 1973), reprinted in 12 INTT LEGAL MATXS1319 (1973). See also Crutchfield, The Convention on Fishing and LivingResources of the High Seas, NAT. RESOURCES L., June 1968, at 115; Oda, TheGeneva Convention on the Law of the Sea: Some Suggestions for TheirRevision, NAT. RESOURCES L., June 1968, at 103.

279. (United States v. Canada) 3 U.N.J.U.A.A. 1905 (1941).280. 206 U.S. 230 (1907).281. [1949] I.C.J.4, 22.282. See The Protection of the Environment and International Law, pp.

65-109 (A. Kiss, ed. 1975); Falk, supra note 277, at p. 385.283. See generally Metcalf, "The U.S. Congress and the Law of the Sea,"

11 Marine Techn. Soc'y J., pp. 43-53 (1977); Sohn, "Settlement of Dis-putes Arising Out of the Law of the Sea Convention," 12 San Diego L. Rev.,pp. 495-517 (1975).

284. Selfridge, supra note 66, at pp. 798-803.285. Done Apr. 29, 1958, Art. 2, [1962] 2 U.S.T. 2312, T.I.A.S. No.

5200, 450 U.N.T.S. 82 (entered into force Sept. 30, 1962).

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Documents

Offshore siting of nuclear power plants