Legal Affairs
2024

Legal Challenges Related
to Nuclear Safety

Legal Affairs

Legal Challenges Related to Nuclear Safety© OECD 2024
NEA No. 7664
NUCLEAR ENERGY AGENCY
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENTORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENTThe OECD is a unique forum where the governments of 38 democracies work together to address the
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NUCLEAR ENERGY AGENCYThe OECD Nuclear Energy Agency (NEA) was established on 1 February 1958. Current NEA membership consistsof 34 countries: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Czechia, Denmark, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, Norway,
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to assist its member countries in maintaining and further developing, through international
co-operation, the scientific, technological and legal bases required for a safe, environmentally soundand economical use of nuclear energy for peaceful purposes;–

to provide authoritative assessments and to forge common understandings on key issues as input togovernment decisions on nuclear energy policy and to broader OECD analyses in areas such asenergy and the sustainable development of low-carbon economies.

Specific areas of competence of the NEA include the safety and regulation of nuclear activities,
radioactive waste management, radiological protection, nuclear science, economic and technical analyses of
the nuclear fuel cycle, nuclear law and liability, and public information. The NEA Data Bank provides nuclear
data and computer program services for participating countries.

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© OECD 2024
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Cover photos: BWXT licence renewal public Commission hearing, 2020 (Canadian Nuclear Safety Commission); Vogtle Unit 3 liquid
processing tanks inside the reactor building (Georgia Power Company/CC BY 2.0 DEED).

FOREWORD AND ACKNOWLEDGEMENTS

Foreword and acknowledgements

The Working Party on the Legal Aspects of Nuclear Safety of the OECD Nuclear Energy Agency(NEA) prepared this report under its Chair, Ms Lisa Thiele (Canada), and its Vice-Chair,
Mr Karel Künzel (Czechia). The report was approved by the NEA Nuclear Law Committee on
9 October 2023 and prepared for publication by the NEA Secretariat.
The conception, drafting and overall co-ordination of the report was led by Ms Kimberly
Sexton Nick, Head, NEA Division of Nuclear Law (DNL), along with Mr Pierre Bourdon, Legal
Adviser, NEA Office of Legal Counsel, Mr Garrett Henderson, Legal Adviser, DNL,
Ms Robyn Jordan, Paralegal, DNL, and Ms Ruri Sakamoto, Junior Legal Adviser, DNL. More than
50 individuals contributed in some way to the report. These individuals are listed in Annex 4.
Finally, the graphic and editorial support provided by Laurie Moore and Elisabeth Villoutreix
as well as the thorough revision and valuable comments by Carlo Piovano are gratefully
acknowledged.

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TABLE OF CONTENTS

Table of contents

List of abbreviations and acronyms .................................................................................................... 7
Introduction ........................................................................................................................................... 11
Method ................................................................................................................................................ 11
Report structure................................................................................................................................. 12
Chapter 1: Review of approaches to legal challenges related to nuclear safety ....................... 13
1.1 Raising a challenge...................................................................................................................... 13
1.2 Parties ........................................................................................................................................... 22
1.3 Preliminary legal process ........................................................................................................... 27
1.4 Legal process ................................................................................................................................ 31
1.5 Judgment and remedies ............................................................................................................. 35
Chapter 2: Legal cases related to nuclear safety ............................................................................. 39
New reactor licensing ....................................................................................................................... 41
Long-term operation ......................................................................................................................... 71
Reactor restart following a non-routine shutdown ..................................................................... 97
Other licensing and regulatory actions (not necessarily a restricted to nuclear
power reactors) ................................................................................................................................ 103
Decommissioning activities (e.g. licence transfer, decommissioning licence,
regulatory release)........................................................................................................................... 129
Storage and disposal of radioactive waste................................................................................... 139
Legislative actions ........................................................................................................................... 151
Annex 1: Nuclear law case chart ..................................................................................................... 163
Environmental protection (ENV) ................................................................................................... 163
Licensing and regulation (LR) ........................................................................................................ 176
Radioactive waste management (RWM)....................................................................................... 193
Radiological protection (RP) ........................................................................................................... 196
General litigation (GEN) .................................................................................................................. 198
Annex 2: Relevant laws ..................................................................................................................... 203
Annex 3: Survey on legal challenges related to nuclear safety ................................................. 207
Annex 4: Reporting organisations and contact persons.............................................................. 221

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LIST OF ABBREVIATIONS AND ACRONYMS

List of abbreviations and acronyms

ADR

alternative dispute resolution

AEA

Atomic Energy Act (United States)

AECB

Atomic Energy and Control Board (Canada)

ANAV

Ascó Vandellós Nuclear Association (Spain)

ANSTO

Australian Nuclear Science and Technology Organisation

APA

Act on Administrative Procedure (Switzerland)

ARPANSA

Australian Radiation Protection and Nuclear Safety Agency

ASN

Autorité de sûreté nucléaire [Nuclear Safety Authority] (France)

ASLB

Atomic Safety and Licensing Board (United States)

ASLBP

Atomic Safety and Licensing Board Panel (United States)

AtG

Atomgesetz [Act on the Peaceful Utilisation of Atomic Energy and theProtection against its Hazards] (Germany)

BDAC

Barngarla Determination Aboriginal Corporation RNTBC (Australia)

BGBl.

Bundesgesetzblatt [Federal Law Gazette] (Austria and Germany)

BMUV

Bundesministerium für Umwelt, Naturschutz, nukleare Sicherheit undVerbraucherschutz [Federal Ministry for the Environment, Nature
Conservation, Nuclear Safety and Consumer Protection] (Germany)

CEA

Commissariat à l'énergie atomique et aux énergies Alternatives [Alternative
Energies and Atomic Energy Commission] (France)

CEAA

Canadian Environmental Assessment Act

CEOchief operating officer

CFR

Code of Federal Regulations (United States)

CISF

consolidated interim storage facility

CJEU

Court of Justice of the European Union

CNEN

Comissão Nacional de Energia Nuclear [National Nuclear Energy Commission](Brazil)

CNS

Convention on Nuclear Safety

CNSC

Canadian Nuclear Safety Commission

CSA

Complementary Safety Margin Assessment (the Netherlands)

DETEC

Département de l’environnement, des transports, de l’énergie et de lacommunication [Department of Energy, Transport, Environment andCommunication] (Switzerland)

DFO

Department of Fisheries and Oceans (Canada)

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LIST OF ABBREVIATIONS AND ACRONYMS

8

DiP

Decision-in-Principle (Finland)DOdesignated officer (Canada)

DOE

Department of Energy (United States)

EA

environmental assessment

ECHR

European Court of Human Rights

EDF

Électricité de France

EIA

environmental impact assessment

EIS

environmental impact statement (United States)

ENSI

Eidgenössisches Nuklearsicherheitsinspektorat [Federal Nuclear Safety
Inspectorate] (Switzerland)

FANC

Federal Agency for Nuclear Control (Belgium)

FCA

Federal Court of Appeal (Canada)

FERC

Federal Energy Regulatory Commission (United States)

FONSI

finding of no significant impact (United States)

GEIS

generic environmental impact statement (United States)

HLW

high-level waste

IAEA

International Atomic Energy Agency

ICEDA

Installation de Conditionnement et d’Entreposage de Déchets Activés –packaging and storage facility for radioactive waste (France)

ISP

Interim Storage Partners, LLC (United States)

JAPC

Japan Atomic Power Company

KKNPS

Kudankulam Nuclear Power Station (India)km

kilometre

LES

Louisiana Energy Services, LP (United States)

LLW

low-level wasteLRlicence renewal

MOX

mixed oxides uranium/plutonium

NEA

Nuclear Energy Agency

NEPA

National Environmental Policy Act (United States)NGO

non-governmental organisation

NHPA

National Historic Preservation Act (United States)

NLA

Nuclear Liability Act (Canada)

NLB

Nuclear Law Bulletin

NLC

Nuclear Law Committee (NEA)

NRA

Nuclear Regulation Authority (Japan) or Nuclear Regulatory Authority – Úradjadrového dozoru Slovenskej republiky [ÚJD SR] (Slovak Republic)

NRC

Nuclear Regulatory Commission (United States)

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LIST OF ABBREVIATIONS AND ACRONYMS

NSCA

Nuclear Safety and Control Act (Canada)

OECD

Organisation for Economic Co-operation and Development

PAA

National Atomic Energy Authority (Poland)

PSA

probabilistic safety assessment

PSR

periodic safety review

RL

reference levels

RS

Recueil systématique [Classified Compilation] (Switzerland)

RSC

Revised Statutes of Canada

RWE

RWE Power AG (Germany)

SAMA

severe accident mitigation alternatives

SC

Statutes of Canada

SEPCO

Shikoku Electric Power Company (Japan)

SLOMFP

San Luis Obispo Mothers for Peace (United States)

SFOE

Swiss Federal Office of Energy

SLR

subsequent licence renewal

SNF

spent nuclear fuel

SONGS

San Onofre Nuclear Generating Station

Stb

Staatsblad [Official Gazette] (the Netherlands)

TEPCO

Tokyo Electric Power Company

TLAA

time-limited ageing analysis

TVO

Teollisuuden Voima Oyj (Finland)

UK

United Kingdom

US

United States

USC

United States Code

VEPCO

Virginia Electric and Power Company

WENRA

Western European Nuclear Regulators Association

WISE

World Information Service on Energy Amsterdam (Netherlands)

WPLANS

Working Party on the Legal Aspects of Nuclear Safety (NEA)

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INTRODUCTION

Introduction

MethodOn 6 October 2020, a survey entitled “Legal Challenges related to Nuclear Safety” (reproduced in
Annex 3) was sent to all Nuclear Energy Agency (NEA) member countries. The survey was
originally prepared by the NEA and then was revised and supplemented with additionalquestions following consultation with members of the NEA Working Party on the Legal Aspectsof Nuclear Safety (WPLANS). Responses were received from 24 countries, 23 of which are NEA
member countries and 1 from a country which participates in certain NEA activities. Five of the
respondents do not currently operate nuclear power reactors, but one of those five is in theprocess of constructing nuclear power reactors.
The intent of the survey was to compile relevant information about NEA member countries’
frameworks for legal challenges related to nuclear safety and, without making any generalrecommendations, identify commonalities and differences. The main specific areas of study
were:•types of procedures for legal challenges related to nuclear safety;•

stages of the legal challenge process, both internal to an agency and in a judicial forum;•

identification of the parties to proceedings and how they become parties; and•types of decisions/actions related to nuclear safety that can be challenged.

The survey and related responses focused on legal challenges related to nuclear safety, 1which may include both technical and environmental issues. This includes not only specificdecisions made (such as issuing licences 2 and authorisations 3 ) and approvals 4 granted byregulatory authorities and the government related to nuclear safety, but it may also include
possible challenges made to “[a]ll operations associated with the production of nuclear energy.” 5

1.

2.

3.
4.

5.

“The achievement of proper operating conditions, prevention of accidents or mitigation of accident
consequences, resulting in protection of workers, the public and the environment from undue radiation
risks.” Basic Safety Standards Secretariat (BSS Secretariat) (2014), Radiation Protection and Safety ofRadiation Sources: International Basic Safety Standards, General Safety Requirements Part 3, IAEA Doc. No.
GSR Part 3, p. 405 (approved by the NEA Steering Committee for Nuclear Energy, 28 Oct. 2011, aspresented in “NEA Co-sponsorship of ‘Radiation Protection and Safety of Radiation Sources:
International Basic Safety Standards’”, NEA Doc. NEA/NE(2011)12, “Summary Record of the 123rd Sessionof the Steering Committee for Nuclear Energy”, NEA Doc. NEA/SUM(2011)2, pp 7-8).
“Any authorization granted by the regulatory body to the applicant to have the responsibility for thesiting, design, construction, commissioning, operation or decommissioning of a nuclear installation.”
Convention on Nuclear Safety (1994), IAEA Doc. INFCIRC/449, 1963 UNTS 293, entered into force
24 October 1996 (CNS), Article 2(iii).
“The granting by a regulatory body or other governmental body of written permission for a person ororganization (the operator) to conduct specified activities.” BSS Secretariat (2014), supra note 1, p. 383.
“The granting of consent by a regulatory body. NOTE: Typically used to represent any form of consent
from the regulatory body that does not meet the definition of authorization.” BSS Secretariat (2014),
supra note 1, p. 382.
According to the International Basic Safety Standards definition of “nuclear fuel cycle”, “These include:(a) Mining and processing of uranium ores or thorium ores; (b) Enrichment of uranium; (c) Manufactureof nuclear fuel; (d) Operation of nuclear reactors (including research reactors); (e) Reprocessing of spent
fuel; (f) All waste management activities (including decommissioning) relating to operations associatedwith the production of nuclear energy; (g) Any related research and development activities.” BSS
Secretariat (2014), supra note 1, pp. 404-405.

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INTRODUCTION

Policies, plans and programmes related to the production of nuclear energy and to nuclear
safety in particular may also be the subject of legal challenges. The scope of the survey was
intentionally broad so as to gather as much information as possible from the respondents.

Report structure
The report is structured into two main chapters. Chapter 1 provides
the international context, with an overall review of the different
approaches taken by countries to legal challenges related to nuclear
safety. The information presented is intended to be a concise andfactual account of the survey responses. To facilitate this, detailed
quantitative information, such as the number of countries using any
specific approach, was not included. Rather, qualifiers have beenused to provide more general information.
At the same time, throughout Chapter 1, country-specific vignettes
have been included to highlight informative examples of certain
aspects. None of the selected examples were included in order todescribe either a best practice or poor practice; they are to serve as
helpful illustrations of certain aspects of the activities canvassed.

Key to qualifiers•••

All: 24
Vast majority: 21-23
Most: 18-20••

Majority: 15-18
Slight majority: 13-14•••

Half: 12
Just under half: 10-11
Some: 7-9••

Few: 3-6
Less than a few: 1-2

As this subject matter is complex, highly dependent upon national legal systems, and evenmore dependent on the facts of each specific matter, the WPLANS determined that thepreferable approach was to provide a compendium of representative cases in responding
countries in certain defined categories. Thus, Chapter 2 provides case summaries from
11 different countries related to the following actions or activities:•

new reactor licensing;•long-term operation;•

reactor restart following a non-routine shutdown;•other licensing and regulatory actions (not restricted to nuclear power reactors);•

decommissioning activities (e.g. licence transfer, decommissioning licence or regulatory
release);•storage and disposal of radioactive waste;•legislative actions.

A total of 39 cases have been included in Chapter 2.
As a further illustration of the type and nature of cases involved in challenges to nuclear
energy activities, a chart of cases dealing with challenges to nuclear safety is included as
Annex 1. Further details on many of the cases can be found in the NEA Nuclear Law Bulletin andwhere possible, citations to the final judgment are provided.
Annex 2 provides a list of all relevant laws and decrees as related to this report for the
responding countries.

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REVIEW OF APPROACHES TO LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY

Chapter 1:
Review of approaches to legal challenges related to nuclear safety

Each country’s framework for legal challenges related to the peaceful use of nuclear energy
depends on its national legal system. Because each country’s national legal structure isdistinct, it is important for lawyers, as well as law and policy makers, to have a comparative
understanding of the different frameworks for legal challenges. There are many types of legal
challenges that can be raised in the context of the peaceful uses of nuclear energy. This report,
however, focuses on legal challenges related to nuclear safety.

1.1 Raising a challenge
All 24 responding countries stated that legal challenges related to nuclear safety are allowed.
Nuclear safety has been the subject of a legal challenge in most responding countries and only
a few countries have not had such a challenge.
In Canada, while nuclear safety is not very often the primary subject of a judicial
challenge, nuclear safety is implicated in many types of court challenges. Other measures,
including environmental assessment (EA) decisions for nuclear projects, and not only thelicensing decisions that follow an EA, have also been the subject of legal challenges
implicating nuclear safety. For example, in Greenpeace Canada et al. v. Attorney General of
Canada and Ontario Power Generation Inc., 2016 FCA 114, an EA for the refurbishment of a
nuclear power reactor was subjected to judicial review by the Federal Court and appealed to
the Federal Court of Appeal.
In the United States (US), section 189 of the Atomic Energy Act of 1954 allows persons
whose interests may be affected by the grant, suspension, revocation, transfer of control oramendment of a licence, to request a hearing before the US Nuclear Regulatory Commission(NRC) on the proposed action; the US NRC’s final decision may be challenged through an
appeal to the federal courts. Even though legal challenges through an adjudicatory proceeding
are allowed, the US NRC also provides other mechanisms to allow members of the public toraise safety concerns and receive a response. For example, the provision in 10 Code of Federal
Regulations (CFR) section 2.206 allows any “person” to “file a request to institute a
proceeding … to modify, suspend, or revoke a license or for any other action as may be proper.”Members of the public may also raise safety concerns directly to the US NRC. Safety concerns
raised directly to the US NRC are processed through the agency’s allegations process.
Of those countries that have not had a challenge related to nuclear safety, only one
currently operates nuclear power reactors.

1.1.1 Procedures to raise legal challenges
The first step in initiating a legal challenge is to determine the legal procedure. In responding
countries, the legal procedure for raising challenges to nuclear safety were either those ofgeneral application (e.g. general rules of administrative procedure applicable to any
administrative challenge, rather than just a nuclear safety-specific challenge) or specificprocedures laid out in nuclear legislation or nuclear regulation. While some countries havespecific procedures to challenge nuclear safety, the majority do not.

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In those countries with specific procedures, not all of the procedures are unique to nuclear
power. For example, in the United States, US NRC licensing actions (e.g. issuance, amendment,
renewal, suspension, etc.) are subject to the US NRC’s rules of practice and procedure in
10 CFR Part 2, which govern the adjudicatory proceeding from its commencement until a final
decision is rendered by the five-member Commission of the US NRC. After that, an aggrievedparty to the proceeding may challenge the Commission’s decision in the US courts of appeals
and then, in rare circumstances, through a petition for certiorari filed before the US Supreme
Court.
The four main types of procedures in responding countries are: administrative, civil,
criminal and constitutional. All responding countries provide for an administrative procedure
to raise a challenge related to nuclear safety. A slight majority of responding countries provide
for civil and criminal challenges. A few countries provide for constitutional challenges. In
addition, depending on the country, these four main types of procedures are not always
completely distinct procedures and it can be the case, for example, that an administrative
procedure also includes a constitutional challenge.
The type of legal procedure used to bring challenges to nuclear safety can change based on
the subject matter of the challenge. For example, if one is challenging a licence application,
the procedure may be administrative. If one is challenging a law, the procedure may be civil orconstitutional. The type of legal procedure can impact many different aspects of the legal
challenge like legal basis, standing, legal process, judgment or remedies. The procedures(administrative, civil, criminal or constitutional) change depending on the subject matterbeing questioned in a slight majority of the responding countries, while in some of thecountries the procedures do not change. Some examples of the subject matter of challenges in
responding countries are:Administrative challenge•

decisions made by the regulatory body concerning nuclear safety;•

licensing decisions (e.g. issuance, amendment, renewal or suspension);•royal decrees issued by the executive branch;•safety breaches by the operator.

Civil challenge•

making or amending of laws or regulations;•civil liability of the government;•

judicial review of awards;•

state body’s decision;•

appeals from final agency decisions.

Criminal challenge•

violations of law or regulations;•infringement of particular laws concerning nuclear safety.

Constitutional challenge

14•

compatibility of federal/state laws with the constitution;•compatibility of state laws with federal laws;•

violations of fundamental rights;•

legality of laws and regulations.

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For example, in Australia, decisions made by the regulator are subject to administrative
challenge, violations of laws are subject to criminal action and challenges to the making or
amending of laws are subject to civil actions. In Türkiye, challenges to regulatory acts andadministrative acts of the regulatory authority are raised in administrative courts. Challenges
related to compensation are brought against the person authorised under civil law. Criminal
law matters are filed in criminal courts against authorised/unauthorised person(s). In Belgium,
civil liability of the government for matters of nuclear energy is governed by civil procedure,
while infringement of some laws concerning nuclear safety is subject to criminal procedure aswell as administrative procedure. The decisions of the regulatory body concerning nuclear
safety may also be subjected to administrative procedures due to it being a federal
government body. Royal decrees issued by the executive branch can also be contested throughadministrative procedures and be brought before the State Council. In the Netherlands, theprocedure depends on whether the subject is civil, criminal or administrative. Decisions,mainly licensing and oversight decisions, by the government (nuclear authority or otherwise),
as well as laws and other general rules can be challenged indirectly by contesting a specificdecision with a reticent review by the judge through the administrative procedure. Laws andother general regulations, as well as legal procedures against civil parties (e.g. the operator)
are governed by civil procedure. Prosecution of persons or companies for criminal charges aregoverned by criminal procedure.
In Canada, where a legal challenge is brought related to a law or regulation, the legal basis
for a challenge could be constitutional, in which case it would proceed in Federal Court in thesame manner as a challenge to a decision, but the process would be constitutional. Claims
may also be made against the nuclear regulator for tort liability, which could relate to nuclear
safety. General civil actions or claims related to nuclear safety made against the applicant/licensee/operator could be made and heard by provincial courts. The Crown Liability andProceedings Act is the federal statute that allows for the Crown (the executive branch of
government) to be sued for any tort (including negligence) committed by one of its employees
or agents who was acting within the scope of their duties under vicarious liability (section 3).
Similarly, the Canadian Nuclear Safety Commission (CNSC, the nuclear regulatory body), as acorporate body with a distinct legal personality, may be sued in its own name and incur civil
liability for an act or omission of its members and staff acting in the course of their duties, persubsection 18(3) of the Nuclear Safety and Control Act (NSCA). 6
The CNSC licensing process is accomplished either by public hearing by the Commission(NSCA, subsection 40(5)), in accordance with the CNSC Rules of Procedure (SOR/2000-211), orby a designated officer (DO) under NSCA, section 37. Licensing decisions by DOs may bereviewed by the Commission on appeal under the NSCA, and an opportunity to be heard must
be extended to applicants for a licence before any refusal to issue a licence. The NSCA requires
the Commission to hold public hearings in certain specified situations and to give areasonable opportunity for affected parties to be heard. Section 40 of the NSCA, for instance,
sets out the circumstances in which the Commission is required to provide an opportunity to
be heard in accordance with rules of procedure prescribed by it. This would be the case, forexample, before the Commission refuses to issue or renew a licence, or before it confirms anorder made by an inspector or a designated officer requiring a licensee to take measures toprotect the environment or the health or safety of persons. This section also sets out thecircumstances under which the Commission may, on its own initiative, conduct proceedingsin accordance with prescribed rules of procedure and under which it must hold public
hearings. The CNSC Rules of Procedure (SOR/2000-211) govern the Commission’s proceedings
and provide for things such as the possibility of intervention in proceedings before theCommission. Section 43 of the NSCA addresses the Commission’s powers to rehear andre-determine decisions and orders and to hear appeals in specified cases.

6.

This is the case notwithstanding the fact that individuals acting either on behalf of or under the
direction of the Commission enjoy immunity from civil liability in respect of anything done in thegood faith exercise of their powers or duties under the NSCA.

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Subsection 43(1) of the NSCA provides a list of the actions of a DO that may be appealed to
the Commission. Subsection 43(2) of the NSCA provides a detailed list of those persons who
may apply for the rehearing and redetermination of a decision of the Commission and thedecisions that may be reheard and re-determined. This is not an “appeal” since it is theCommission’s own decision that is in question and being reviewed by itself. Per subsection
43(3) of the NSCA, the Commission itself may decide on its own initiative that a decision of aninspector, designated officer or the Commission itself, or any licence condition, may deserve
redetermination.
In Czechia, the typical procedure used to carry out challenges related to nuclear safety isadministrative. The general process is that anyone who claims that their rights have beenprejudiced directly or due to the violation of their rights in the prior proceedings by a decision(an act of an administrative authority whereby the person’s rights or obligations are created,changed, nullified or bindingly determined) may seek the cancellation of such a decision, or
the declaration of its nullity according to Act No. 150/2002 Coll., Code of Administrative Justice.
A complaint against the decision of an administrative authority can also be made by a party tothe proceeding before the administrative authority who is not entitled to file complaint, if theparty claims that his or her rights have been prejudiced in a manner that could have resulted
in an illegal decision. Moreover, anyone can seek protection against the inaction of an
administrative authority or protection against unlawful interference, instruction or
enforcement from an administrative authority according to this Act. Unlawfulness rests infailure to follow the legally required procedure or substantive violation of any obligations
enumerated in: Act No. 263/2016 Coll., Atomic Act; Act No. 183/2006 Coll., on Town andCountry Planning and Building Code (Building Act); Act No. 100/2001 Coll., on Environmental
Impact Assessment. These acts also provide specific rules for determination of the person
authorised to challenge the respective decisions of competent authorities (e.g. State Office for
Nuclear Safety, Ministry of Industry and Trade or Ministry of Environment). In theadministrative court’s proceedings, a plaintiff is anyone entitled under that particular law andthe defendant is the competent authority of the state.
The principal act that provides the opportunity to challenge nuclear safety in all stages ofthe lifecycle of nuclear installations is Act No. 100/2001 Coll., on Environmental Impact
Assessment. The public (i.e. one or more persons) may submit comments on the project,including the nuclear installation itself and its significant changes, in a proceeding subsequent
to the environmental impact assessment (EIA). The public concerned specified in Article 3(i)(2)is entitled to bring an action against the decision issued in subsequent proceeding (as listed bythis Act, e.g. construction of the installation) and challenge the substantial and/or procedural
legality of such decision.
It should also be noted that the decision issued by an administrative authority (in the first
instance) should also be reviewed by a higher administrative authority (appellate
administrative authority) according to Act No. 500/2004 Coll., Code of Administrative
Procedure. This procedure – an ordinary appeal against a decision – is part of administrative
proceedings before administrative authorities. Unless stipulated otherwise by law, theappellate administrative authority shall be the immediate superior administrative authority.
For decisions taken by the State Office for Nuclear Safety, which is the responsible authority
for issuing authorisations according to Act No. 263/2016 Coll., Atomic Act, this appellate(administrative) decision is taken by the chairperson of this office (as it is a central
administrative authority that does not have a superior administrative authority). This is thefirst, necessary, step before engaging in subsequent (administrative) court proceedings.
In Czechia, all of these actions eventually can lead to the constitutional complaint to theConstitutional Court where the plaintiff is entitled also to challenge the applicable regulation(law or decree or their amendment) if they question its constitutionality (claiming that acertain provision(s) is/are non-compliant with the constitutional order of Czechia).

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1.1.2 Forms and types of challenges
There are countless types of actions and activities that may be challenged in the context of
nuclear safety. Over 25 different actions and activities were analysed and the mattersrepresent the potential to challenge the operational safety of a facility, different licensing
actions, and the issuance or amendment of laws, regulations, plans, etc. Some of these typesof challenges are to the:7.

•

current general state of safety at a facility (regardless of whether there is a violation ofa law or regulation)•

current specific safety concern (regardless of whether it is a violation of a law or
regulation)•

current general state of safety at a facility based on a potential violation of a law or
regulation•

current specific safety concern based on an asserted violation of a law or regulation•

design certification•site permit/licence•

construction authorisation/permit/licence•

operation authorisation/licence 7•

combined construction and operation licence•licence amendment•

request to restart a facility following a shutdown•

refurbishment•

licence renewal•

long-term operation authorisation•

licence extension•

periodic safety review•

licence suspension•

licence termination•

licence transfer•

decommissioning•

enforcement action taken by the regulatory body•issuance of a new law•

amendment of an existing law•

issuance of a new rule/regulation/decree•

amendment of an existing rule/regulation/decree•

issuance of a nuclear energy-related plan or policy•

amendment of the country’s constitution

It should be noted that there are a number of countries that require additional authorisations/licences
between the construction phase and the operation phase, which can include activities such ascommissioning, first nuclear fuel loading, first physical start-up and first power generation start-up.

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The vast majority of responding countries provide the opportunity to challenge a numberof different licensing actions, including: site permit/licence, construction authorisation/
permit/licence, operation authorisation/licence, licence amendment, licence suspension. In
addition, the vast majority of responding countries also provide an opportunity to challenge
one or more of the following actions/activities related to long-term operation: 8 refurbishment,
licence renewal, long-term operation authorisation, licence extension or a periodic safety
review. Just under half of the countries allow for a challenge related to design certifications or
to a combined construction and operation licence, but this is likely due to the more limited
number of countries that have these processes or types of licences rather than countries
restricting the ability to challenge design certifications and combined construction andoperation licences.
There are a few additional opportunities to raise challenges in a licensing context apartfrom the traditional pre-operational and operational licensing actions. The vast majority of
responding countries allow challenges to decisions in respect of decommissioning in generaland to licence termination in particular. A majority of the responding countries allow achallenge to licence transfers, with no specification as to whether the transfer is related todecommissioning or a mid-operation change of ownership. In one specific example, theNetherlands allows for challenges to the authorisation of the decommissioning plan as well as
the financial security and the financial security plan for the decommissioning.
Half of the responding countries allow a challenge to the restart of a facility following a
shutdown, though it is not specified whether the challenge is against the approval of a restartor the denial of a restart.
Finally, enforcement actions taken by the regulatory body may be challenged in all
responding countries. In Germany, the legality of enforcement decisions can be challenged by
the addressee through preliminary injunction, and the unlawfulness of enforcement actions
already taken can be determined ex post.
Fewer countries allow challenges related to the state of safety at a facility than challenges
related to licensing decisions. Most countries allow a challenge to a current specific safetyconcern based on an asserted violation of a law or regulation, whereas only a majority allow achallenge to the current general state of safety at a facility based on a potential violation of alaw or regulation. Just under half of the countries allow a challenge to a current specific safetyconcern (regardless of whether it is a violation of a law or regulation); however, only somecountries allow a challenge to the current general state of safety at a facility (regardless ofwhether there is a violation of a law or regulation).
In Germany, according to section 19(3) of the Act on the Peaceful Utilisation of Atomic
Energy and the Protection against its Hazards (Atomic Energy Act – Atomgesetz, AtG), thesupervisory authority may order that a situation be discontinued that is contrary to AtG
provisions or to the statutory ordinances issued under the AtG, or to the terms and conditionsof the notice granting the licence or general approval or to any subsequently imposed
obligation, or which may constitute a hazard to life, health or property because of the effectsof ionising radiation. In other words, the authority can act to: 1) remedy a violation of the lawor 2) remedy a dangerous state as a result of the effects of ionising radiation. The operator – as
the addressee – may challenge the supervisory authorities’ orders issued under AtG,
section 19(3). Third parties may bring forward such safety concerns to oblige the supervisory
authority to act based on AtG, section 19(3) claiming a potential violation of their individual
rights by an alleged unsafe condition at a facility.

8.

18“Operation beyond an established time frame defined by the licence term, the original plant design,
relevant standards or national regulations.” IAEA (2018), Ageing Management and Development of a
Programme for Long Term Operation of Nuclear Power Plants, Specific Safety Guide No. SSG-48, IAEA,
Vienna, p. 9, para. 2.30.

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In responding countries, various types of challenges can be raised specifically related tolaws, rules, plans, polices and the constitution, such as for the:•amendment of an existing rule/regulation/decree [most countries];•

issuance of a new law; amendment of an existing law; issuance of a new rule/
regulation/decree [majority of countries];•

issuance of a nuclear energy-related plan or policy [some countries]; and•amendment of the country’s constitution [a few countries].

All of the previous discussion relates to challenges to governmental actions; however,challenges could also be raised against actions by the applicant, licensee and/or operator by
non-governmental entities in most responding countries. A variety of applicant, licensee
and/or operator actions can be challenged, including:•actions causing an imminent threat to the plaintiff;•

negligent endangerment;•

environmental offences and/or environmental damage;•non-compliance of the applicant/licensee/operator with the law, regulation, licence,
etc.;

•

violations of rights and legitimate interests of third parties;•

actions that threaten safety; and•activities that cause damage.

For example, in Canada, such actions can be those for damages, torts or other civil wrongs,
employment matters, or environmental damage. The following applicant, licensee and/or
operator actions can be challenged in Japan: establishing facilities, operation, restarting
facilities following shutdown, etc. In Czechia, any act of the applicant, licensee and/or
operator can be challenged according to Act No. 99/1963 Coll., on Civil Procedure when the
defendant’s fault or neglect causes the plaintiff some injury or damage. In Türkiye, theactivities of the authorised person cannot be challenged unless damage occurs. If damage
occurs, one can request compensation by lawsuit under civil law. In the United States,
members of the public may raise safety concerns directly to the US NRC. Safety concerns
raised directly to the US NRC are processed through the agency’s allegations process. Also,
concerns about applicant, licensee and/or operator actions may also be raised through aninternal agency process that allows any person the opportunity to file a request to institute a
proceeding to modify, suspend or revoke a licence.

1.1.3 Legal basis for raising a challenge
Responding countries noted numerous legal bases for raising challenges to nuclear safety inthe initial challenge, including:•lack of a constitutional basis for the law or regulatory requirement;•

illegality of the law or regulation under which a decision was made;•negligence;•

government’s failure to act;•

misapplication of substantive law or regulation;•legal error;•

erroneous findings of fact;

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procedural impropriety;•procedural fairness;•jurisdictional error of the decision maker;•

failure to observe a principle of natural justice;•lack of legal authority to make a decision; and•protection against unlawful interference.

Specifically, for example:

20•

In Australia, most challenges arise under administrative law principles, such aswhether the decision maker considered irrelevant factors or failed to take account ofrelevant considerations, or there was an absence of power, all of which generally comeunder a heading of jurisdictional error. Where the validity of a law under which thedecisions are made is challenged, it is done on Constitutional law grounds.

•

In Belgium, the legal basis can be the lack of legal authority to make the decision, thegovernment’s failure to act, misapplication of substantive law, illegality of theregulation, negligence or erroneous findings of fact.

•

In Canada, pursuant to the Federal Courts Act, the court may grant relief if a statutory
decision maker made a jurisdictional error, failed to observe a principle of natural
justice, procedural fairness or other required procedure, made an error in law or acted
contrary to law, or based its decision on an erroneous finding of fact. A successful
judicial review application generally results in the decision being quashed and thematter being referred back to the decision maker for reconsideration in accordancewith the court’s decision. This process provides a mechanism to compel a decision, as
well as challenge a decision that has been made. A decision or law may also bechallenged on the basis of a lack of legal authority or constitutional basis for the law or
regulatory requirement.

•

In Czechia, the legal basis can be erroneous findings of fact, lack of legal authority tomake a decision, misapplication of substantive or procedural law, inaction ofadministrative authority or protection against unlawful interference, instruction or
enforcement from an administrative authority.

•

In Finland, the legal basis can be erroneous findings of fact, lack of legal authority tomake a decision or misapplication of substantive law.

•

In France, the legal basis can be erroneous findings of fact, lack of legal authority tomake a decision, misapplication of substantive law, illegality of the regulation underwhich a decision was made or the government’s failure to act. In addition, a concept
specific to French law is that of “integrated safety”, according to which all basic nuclear
installations [installations nucléaires de base] are subject to a specific legal regime
established to protect all the interests mentioned in Article L593-1 of the Environment
Code (public safety, health and sanitary conditions, or the protection of nature and theenvironment). Consequently, the concept of “integrated safety” applies beyond therequirement of the sole prevention of accidents.

•

In Romania, the legal basis can be the lack of a competent national authority in the
nuclear field to make a decision; misapplication of the Law No. 111/1996 on the Safe
Conduct, Regulation, Authorisation and Control of Nuclear Activities and of the legal
norms issued on the application of that law; illegality of the regulation under which a
decision was made; failure of the competent national authority to resolve such
person’s petition within the timeframe provided by law; unjustified refusal of thecompetent national authority to respond to a petition; the abusive exercise, by thecompetent national authority, of their authority in violation of their jurisdictional
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violation by the competent national authority of any public or private legitimate
interest; violations by the operator of the nuclear safety legal framework; or thegovernment’s failure to act or the non-compliance of a government act with theconstitution.
•

In Slovenia, a decision may be challenged (i.e. an appeal may be lodged), if theregulation has been applied incorrectly or has not been applied at all, the factual
situation has not been established correctly or completely, or there has been a violationof the rules of procedure.

•

In Spain, the legal basis can be substantive or procedural illegality, negligence, legal
error, illegality of the law or regulation under which a decision was made,misapplication of substantive law or regulation, government’s failure to act, violationsof law or regulations, or infringement of particular laws concerning nuclear safety.

•

In Türkiye, an administrative act related to nuclear safety can be challenged with theclaim that the act is contrary to legislation due to a mistake made in one of theelements of competence, form, reason, subject or aim. Also, in the case of criminal law
and civil law, there should be a causal connection between the act of the person andthe nuclear safety incident. In addition to that, in criminal law, the act must be defined
as a crime.

•

In Ukraine, the legal basis can be recognition of a regulatory legal act or its separate
provisions as illegal and invalid; recognition of an individual act or its separate
provisions as illegal and requiring cancellation; recognition of actions of the public
body/authority as illegal where there is the obligation to refrain from committing
certain actions; recognition of inaction of the public body/authority as illegal where
there is the obligation to take certain actions, establishing the presence or absence ofcompetence (authority) of the public body.

•In the United States, the US NRC’s decisions can be challenged based on erroneousfindings of fact, lack of legal authority to make a decision, misapplication ofsubstantive law, illegality of the regulation under which a decision was made, thegovernment’s failure to act, etc. depending on the specific facts at issue. Licensing
decisions, for example, are most often challenged for failure to follow the National
Environmental Policy Act of 1969 or US NRC safety regulations, whereas rulemakings
are most often challenged for failure to follow the Administrative Procedure Act.
Challenges to compliance with the Atomic Energy Act of 1954 (e.g. whether a proposed
action provides adequate protection of public health and safety) most often arise in thecontext of safety issues related to reactor licensing actions (e.g. initial licensing, licenceamendments).

1.1.4 Informing the public
A majority of the responding countries stated that there was a requirement for thegovernmental body making a decision or taking an action to inform members of the public
about their right to challenge a decision or action related to nuclear safety. For example, in
Slovenia, regardless of what type of decision is taken within the administrative procedure, aso-called “legal remedy instruction” must be provided with the decision that explains whether
an appeal or other remedy is allowed, the time frame for such action and to whom it must be
addressed. In Sweden, the parties concerned must be informed of the decision whereas in the
United Kingdom, there is no legal requirement but it is considered to be good practice.
In Czechia, there is no general legal requirement for the governmental body making adecision or taking an action to inform members of the public about their right to challengesuch decision or action in the Act No. 150/2002 Coll., Code of Administrative Justice; however,specific legislation lays down the general access to information requirements (ActNo. 100/2001 Coll., on Environmental Impact Assessment, Article 9b and Act No. 114/1992 Coll.,
on Nature and Landscape Protection, Article 70(2)). According to generally applicable access to

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information legislation (Act No. 106/1999 Coll., on Free Access to Information), the relevant
state organisation is required to publish certain details, such as the description of theorganisational structure, the place and the way of obtaining relevant information, where to
submit a request or file a complaint, submit a proposal, instigation or any other request or
where to receive the decision on the persons’ rights and duties, place, time for compliancewith the request, and how and where to seek a remedial measure against the decision of thelegally bound person on the rights and duties of persons, including the explicit list ofrequirements put on the applicants in this respect, as well as the description of procedures
and rules, which are necessary to comply with during these activities, and a description of therelevant form and how and where such a form can be obtained.
In Germany, the nature of the disclosure depends on the decision or action taken by thegovernment body. For those decisions within the scope of the Nuclear Licensing Procedure
Ordinance (Atomrechtliche Verfahrensverordnung, AtVfV), the authority’s obligation to informthe public is two-fold: at the outset of the licensing process, when the application is complete,
the licensing authority must announce the project in both its official gazette and in local daily
newspapers distributed in the area of the site of the installation. The announcement must
include, inter alia, information on where and by what date the project documentation can beviewed, objections raised and the public hearing attended. At the end of the licensing process,the decision must be made in writing, state the reasons in writing, be accompanied byinstructions on the right of appeal and be served to the applicant and the persons who haveraised objections. In addition, the decision must be publicly announced. If the decision is to beserved on more than 300 persons, the notifications shall be replaced by a public announcement.

1.2 Parties
The right or ability to introduce a legal challenge in court is generally referred to as locus standi(or “standing” in common law countries). As explained in the previous section, there are
numerous types of challenges that may be introduced in relation to nuclear safety. Dependingon the type of challenge raised, the locus standi may differ. This section addresses the manydifferent types of questions related to the parties to a challenge, including who may raise achallenge related to nuclear safety and against whom is the challenge being raised; how doesa prospective party establish locus standi or standing; and is there any type of government
funding for legal aid or judicial assistance for challenges related to nuclear safety.

1.2.1 Who can legally raise a challenge to nuclear safety?
Single individuals and group or individuals not part of a formal group of organisation
Single individuals are generally entitled to raise a challenge related to nuclear safety inaccordance with their legal framework in a vast majority of responding countries. For example,
in Finland, the following persons may request judicial review of an administrative decision by
way of appeal: one whom a decision concerns; one whose right, obligation or interest is
directly affected by the decision; and/or one whose right of appeal is separately provided bylaw. In the United States, challenges may be raised by any person or group whose interests
may be affected by a US NRC decision.
The case differs, however, regarding the ability for a group of individuals who are not partof a formal group or organisation to introduce a legal challenge in relation to nuclear safety,
which appears to be provided for in the legal frameworks of a slight majority of responding
countries. Further, in some countries, there appears to be a form of “commonality
requirement” for such groups to introduce a legal challenge, which means that, for example,
all individual members of the group must share either a common cause of action, direct harmfrom the challenged decision or legal arguments in support of the redress sought. For example,
in Australia, all persons must have directly suffered a loss as a result of the action. In Japan,
to raise a legal challenge, a group of individuals must have certain characteristics, such ascontinuity of the group regardless of membership changes and a principle of majority vote,

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among others. In Türkiye, for more than one person to bring an action with a joint petition,
the plaintiffs must have a joint right or benefit and the events that gave rise to the action or
the legal reasons must be same.
In certain countries, legal challenges related to nuclear safety brought by a group ofindividuals would be subject to general rules applicable to so-called “class actions”. In Canada,
for example, class actions are possible and have a specific procedure under the rules of thevarious courts.

Non-governmental organisations (NGOs)
NGOs focused either on environmental matters or nuclear safety matters are entitled to raise achallenge to nuclear safety in a vast majority of responding countries. These categories aredifferentiated because in several countries, NGOs focused on environmental matters is a
category defined and somewhat protected by law, while nuclear safety as a specific category
may not be so defined and protected. Additionally, there may be some variance in responding
countries’ interpretation of the question and what was meant by NGO. For example, Austria
drew a distinction between NGOs focused on environmental matters and recognised
environmental organisations, specifying that only the latter can legally raise a challenge tonuclear safety. According to the Environmental Impact Assessment Act 2000 (Bundesgesetzüber die Prüfung der Umweltverträglichkeit (Umweltverträglichkeitsprüfungsgesetz 2000 –UVP-G 2000)), to be considered a recognised environmental organisation that can raise achallenge, such an organisation must first meet the requirements specified in section 19(6):their primary objective must be the protection of the environment according to theassociation’s statutes or the foundation’s charter, they must be a non-profit and have pursed
protection of the environment as their primary objective for a minimum of three years before
applying for recognised status and have a minimum of 100 members.
Some responding countries provide for the possibility for any NGO (i.e. including thoseneither focused on nuclear safety nor environmental protection) to introduce a legal challenge
related to nuclear safety.
The legal framework in a majority of countries regulates the locus standi of NGOs throughspecial requirements. These requirements are not identical among responding countries.
Examples of some requirements are:•by-laws or statutory purposes of the concerned NGO must include environmental
protection or a topic otherwise related to nuclear safety;•

the concerned NGO must be either registered with, or accredited/recognised officially,by public authorities;•

the concerned NGO must have a minimum number of members;•

the concerned NGO must have already been active in the concerned field for a certain
period of time (e.g. three years in Germany and ten years in Switzerland).

In many countries, fulfilling the relevant applicable criteria means that the concerned
NGO otherwise does not have to fulfil other criteria applicable to other types of parties interms of standing. For example, in Austria, there must be a decision based upon a request by
an administrative order whether an environmental organisation meets certain criteria or isentitled to exercise the rights to participate or appeal. In Belgium, if an NGO is qualified as alegal entity, they are bound by the specialty principle and thus are only able to raise a legal
challenge as long as it is related to the function of the legal entity as determined by theirstatutes (by-laws). In Czechia, NGOs that are able to raise a challenge under Act No. 100/2001
Coll. on Environmental Impact Assessment must be legal persons of private law whose
activity (according to its founding act) is the protection of the environment or public health,whose principal activity is not business or other profit-making activity, and which either was
established at least three years before the challenge or is supported by at least 200 persons (viatheir signatures). In France, NGOs officially recognised by the state (an authorisation referred
to as an “agrément”) in accordance with the Environmental Code have automatic standing,

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while other NGOs may still introduce a legal challenge if they demonstrate that the subject of
their challenge falls within the mandate of their statute. In Slovenia, the Environmental
Protection Act provides that NGOs acting in the public interest on the basis of laws governing
nature conservation, protection, use of natural resources or protection of cultural heritage
may acquire the status of an NGO under the Environmental Protection Act and have the rightto participate in decision-making procedures under the Act. In Ukraine, the NGO must be
officially recognised by the state and the subject of their challenge should be within thegoverning or organisational document(s).
In Canada, there is a recognised basis for standing that is called “public interest standing”,
which can be granted to individuals or groups not directly affected by the matter where thecase raised a “… serious justiciable issue…”, the party bringing the matter forward “… has areal stake or genuine interest in its outcome and whether, having regard to a number offactors, the proposed suit is a reasonable and effective means of getting the case to court.” 9This allows cases of public interest to be brought forward even though the claimant is notdirectly involved in the matter and even though their own rights are not at stake. NGOs havebeen granted public interest standing to challenge nuclear safety decisions in Canada.
In addition, an NGO may have “representational standing”, which means that it could
raise a challenge on behalf of one or more of its members, subject to the demonstration thatsuch members would satisfy standing requirements, in a limited number of countries. For
example, in the United States, an NGO may demonstrate representational standing when it
seeks to raise a challenge on behalf of one or more of its members. To intervene in aproceeding based on representational standing, the organisation must show that: 1) at least
one member of the organisation’s members would qualify for standing in their own right,2) the member authorises the organisation to bring the suit on their behalf, 3) the intereststhat the organisation seeks to protect are germane to the organisation’s purpose and4) neither the claim asserted, nor the relief requested, require the individual’s participation in
the organisation’s legal action.
In the United States, NGOs may also obtain organisational standing in the same way as anindividual. When addressing the injury requirement, an NGO must demonstrate that its
organisational interest could be affected by a proceeding and this may be based on its
proximity to the site, organisational standing or representational standing (as just discussed).
Proximity arises when an organisation is located close enough to a nuclear facility that there isa potential for it to be affected by offsite consequences due to facility operations. In
proceedings related to construction permits, operating licences, licence renewal and licenceamendments where there is an increased potential for offsite consequences, if theorganisation operates within the potentially affected radius from the facility, then apresumption arises that it could be affected, and it would therefore be able to raise challenges
regarding the facility. Organisational standing arises when an organisation demonstrates thatits interest could be adversely affected by a proceeding. An organisation seeking to intervene
in a proceeding must satisfy the same standing requirements as an individual seeking tointervene. In addressing the injury requirement, the organisation must show that thelicensing action would constitute “a threat to its organizational interests”. 10

Governmental entities and foreign governmental entities
Domestic governmental entities, such as cities, states, counties or self-governing regional or
local entities are entitled to raise a challenge related to nuclear safety in a majority of countries.
For example, in Austria, the competent authority, ex officio, i.e. the authority that issued the9.

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012
SCC 45; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1
SCR 236.

10. Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 18 (14 Feb. 2014).

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decision in the last instance or the relevant higher authority in the public interest, can amend
notices to the extent that this is necessary to remedy abuses that endanger the life or health ofpeople. In all such cases, the authority must proceed with the greatest possible protection of
acquired rights (Allgemeines Verwaltungsverfahrensgesetz 1991 [AVG – General Administrative
Procedure Act 1991], section 68). In Finland, an authority may request a judicial review by appeal
if this is necessary because of a public interest overseen by the authority. In Germany, local
authorities on whose territory a site proposed for underground exploration for a deep geologicalrepository is located are provided rights to legally challenge such decisions.
In some countries, governmental entities would have to demonstrate standing before
courts in the same way as other parties. A foreign governmental entity may also introduce alegal challenge related to nuclear safety in half of the responding countries.

Operator, applicant or licensee, vendor, supplier or other private companies
The applicant and/or licensee may introduce a legal challenge in all responding countries. The
operator may introduce a legal challenge related to nuclear safety in a vast majority ofcountries. The situation is different for vendors, suppliers or other private companies that are
not licence applicants, where these entities can introduce a challenge to nuclear safety in only
a majority of responding countries.

Indigenous peoples, Native American Tribes, First Nations, national minorities and ethnic
groupsIn certain instances, there can be special categories of individuals or groups that may havespecial locus standi afforded to them in certain legal proceedings, as compared to the general
population. Special locus standi is provided to either Indigenous peoples, Native American
Tribes or First Nations or to national minorities or ethnic groups in only a few responding
countries. This may not necessarily mean that the other countries affirmatively do not provide
such special standing, but rather that the national context is different and that either suchpeoples and groups are not represented in their country or that the national context does notnecessarily indicate that such individuals or group face increased difficulties in effectively
accessing justice, thus justifying special standing requirements.
In Canada, there are constitutional protections and rights held by Canada’s Indigenous
peoples (First Nations, Inuit and Métis), and concomitant fiduciary obligations on theexecutive branch of government (the Crown). Indigenous groups therefore can have specificrights in relation to nuclear safety decision making and can use a legal challenge to assert
those rights where it is viewed they have not been respected. In the United States, there arecertain exceptions for Federally-recognised Tribes to general standing requirements that apply
to potential parties in NRC licensing hearings. Federally-recognised Tribes are not required todemonstrate standing to be admitted as a party in proceedings involving production or
utilisation facilities located within the boundaries of the Tribe. For proceedings involving highlevel waste geologic repositories, Federally-recognised Tribes are not required to demonstrate
standing if the repository would be within the borders of a Tribe’s reservation or if therepository would affect certain land ownership or usage rights for the Tribe outside of its
reservation. Additionally, a presiding officer in a US NRC proceeding may exercise
discretion to permit a Federally-recognised Tribe an opportunity to participate in a hearing
as a non-party representative.

1.2.2 How does a prospective party establish standing to raise a legal challenge?
One of the most common grounds to establish standing is a direct and actual harm resulting
from that which is being challenged, which is the case in a majority of responding countries.
Standing can be established by demonstrating a direct imminent harm (i.e. not actual) due tothat which is being challenged in a majority of countries. In both instances, the asserted injury
cannot be hypothetical or conjectural.

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Only a few countries allow a prospective party to demonstrate standing by asserting therights of others. This means that for most countries, standing must be demonstrated by adirect interest, i.e. individuals may not challenge on behalf of the interest of others.
Another common ground identified is that of the legal interest, which partly corresponds
to the situation described earlier for NGOs (as such, this could also apply to governmental
entities). In this situation, for a majority of countries, claimants would be required todemonstrate that they are challenging something that falls within their protected interest.
Standing can also be established by demonstrating that the actual or imminent harm canbe traced to the defendant in a slight majority of countries. In just under half of the countries,
the injury suffered or to be suffered by plaintiffs must be able to be redressed by a favourable
decision.
Geography is a component that may be used to establish standing in just under half of thecountries; however, a plaintiff can automatically establish standing based on geography/
location in only a few countries. For example, in the Netherlands, according to precedent (asopposed to law) from the Raad van State [Council of State], the highest general administrative
court in the Netherlands, those residing a maximum of 20 kilometres (km) from a nuclear
power plant would automatically meet the criteria for legal standing; however, this distance
may be smaller for other nuclear installations and must be determined by the courts. In
Switzerland, according to case law in the field of nuclear energy, geographical proximity is
sufficient to demonstrate an interest. Persons living in Zone 1 (i.e. within a 3-5 km radiusaround the nuclear power plant) have a right to request and obtain a decision. Regarding
persons living in Zone 2 (i.e. within a 20 km radius around the nuclear power plant), the Swiss
Federal Supreme Court left the question open. In the United States, regarding construction
permit, operating licence, licence renewal and licence amendment proceedings where there isan increased potential for offsite consequences, there is a presumption that those who resideor conduct substantial activities within 50 miles (approximately 80 km) of the facility havestanding to intervene or request a hearing, based on being within a pre-recognised geographic
zone of potential harm.
In most instances, however, geographical proximity would be assessed by courts on acase-by-case basis, i.e. there is no set distance to, for example, an installation that would
justify automatically establishing standing. For instance, in France, there is no fixedgeographic criteria, and this would be decided on a case-by-case basis. As an example, an NGO
recognised for the protection of the environment would not have to demonstrate geographic
proximity, while a private individual would be required to demonstrate geographic proximity
to the situation challenged. In Germany, there is no automatic legal standing in the case ofgeographic proximity; however, this will play a role in the judgment of the courts when they
determine whether or not the plaintiffs’ rights might be violated. In Japan, standing will be
judged during the trial on factors such as distance from the nuclear power plant,
administrative area division, etc. In Korea, if a statute on which the administrative dispositionis based stipulates a sphere of influence that is expected to infringe upon the environment
due to the project implemented, residents within that sphere of influence may be expected tosuffer direct and serious environmental damage. Because it is presumed de facto that there isan infringement or are concerns of infringement on environmental interests, residents withinsuch sphere of influence have a standing (Supreme Court Full Bench Decision 2006Du14001
delivered on 22 December 2006, et al.).

1.2.3 Government funding for legal aid or judicial assistance for challenges related tonuclear safety
Government funding can be made available to plaintiffs subject to an application to publicauthorities in some countries and such funding could be made available to prospective
plaintiffs on application in a few countries. Government funding is not provided to either
prospective plaintiffs or plaintiffs in a slight majority of countries.

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The criteria based on which such funding can be made available is similar among
countries and primarily includes an economic component (i.e. plaintiffs are unable to cover
the expenses related to the challenge) and, in several countries, a requirement that thechallenge presents a reasonable likelihood of success (i.e. filtering manifestly unsubstantiatedclaims). For example, in Poland, the right to assistance in the administrative court proceeding
may be granted in full or in part. The plaintiff must demonstrate that it does not havesufficient resources to bear the costs of the proceedings. The public administration body can
waive the fees, costs and amounts due, entirely or partially if the party is clearly unable to pay
the fees for the administrative proceeding. Any waiver of treasury duty shall be made inaccordance with the regulations relating to that duty.

1.2.4 Subject, defendant of, respondent to and intervener in the nuclear safety challenge
The question regarding the subject, defendant of or respondent to the nuclear safety challengeis, similar to previous elements, closely related to the type of challenge introduced before thecourt. For example, in countries such as Belgium, the Netherlands, Poland, and Türkiye thedefendant depends on the claim and the type of procedure.
The nuclear safety authority or nuclear regulatory body may be the subject of a legal
challenge, primarily in relation to a decision made either wholly or partly by such authorities, inall responding countries. Other governmental bodies could be the subject of such challenge in aslight majority of countries. This corresponds to legal frameworks where such authorities arecompetent for part of the licensing of nuclear activities, but not necessarily all (e.g. ministries incharge of issuing operation licences, authorities in charge of land-use planning and construction,and environmental agencies). In Belgium and in the Netherlands, under administrative law, thedefendant is the competent authority. In the Netherlands, the state can also be defendant incivil cases. In administrative cases before courts in Poland, administrative actions are brought
against the nuclear safety authority, but the operator has the right to participate in theproceeding. In Türkiye, legal challenges related to enforcement actions and other administrative
actions are brought against the regulatory authority.
Applicants/licensees or operators may be the defendants in a nuclear safety-related
challenge in a majority of countries. It is not clear, however, if this applies to all types ofchallenge or only challenges of a non-administrative nature (i.e. civil challenges due todamage caused or criminal challenges). In some countries an operator has an automatic rightto intervene in proceedings where only the nuclear safety authority or another governmental
body can be sued (such as, for example, a challenge to a licensing decision), which is the casein Poland. For example, in Belgium, under criminal law, the defendant will likely be theoperator/applicant/licensee. In the Netherlands, under criminal and civil law, the defendant
will often be the operator/applicant/licensee. In Türkiye, the authorised person/operator is thedefendant in civil or criminal cases.

1.3 Preliminary legal processThis section is focused on the actions and activities that occur in the earlier stages of the legal
challenge process, up to the stage of the actual hearing, whether that hearing is administrative,
civil, criminal or constitutional.

1.3.1 Statute of limitations
One of the first procedural hurdles that must be crossed in raising a legal challenge is ensuringthat such challenge is raised within the correct period of time. This can be variously referred
to as a statute of limitations, a prescription period or simply a legal time limit. Regardless ofthe validity of the challenge, if a claim is not raised within the legally-mandated period, thechallenge will not be considered.

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There is a statute of limitations or prescription period or legal time limit set for raising achallenge to nuclear safety in a vast majority of responding countries. In the countries withsuch a limit, the statute of limitations/prescription period/legal time limit does not differ
depending on the subject matter of the challenge in a slight majority of the responding
countries. The average prescription period for raising a challenge is 30-60 days.
There is a “discovery of harm” element in the determination of “when the clock starts” forthe statute of limitations in some countries. For example, in Australia, a potential plaintiff has
six years from first becoming aware of the damage caused to raise a challenge. In Czechia, inan administrative procedure the complaint must be filed with the administrative authoritythat issued the decision within two months of the complainant being notified of the decisionby delivery of a written copy or by another manner prescribed by law, unless a relevant special
law prescribes a specific time limit. Korea provides a prescription period of 90 days from thedate a disposition is known, but an ultimate limit of 1 year from the date the disposition ismade.
The time periods differ greatly depending on the subject matter of the challenge. This
period can range from as short as 15 days in Slovenia or 20 days in the United States forlicence transfers to as long as 3 years in some countries (e.g. in Russia, and in the Slovak
Republic in event of an extraordinary legal remedy procedure) or even 10 years in Türkiye forcivil challenges. In France, the time period for the challenge to the licensing of a basic nuclear
installation (which includes nuclear reactors and facilities for the enrichment, production,
processing or storage of nuclear fuels or treatment, storage or disposal of radioactive waste) is
two months for the licensee but two years for any other potential plaintiff. In Spain,
prescription periods in criminal law are based on the severity of the penalties while
prescription periods in civil law are based on the severity of non-compliance, with longer
prescription periods corresponding to more severe penalties or violations of law. In Sweden,
there is no time limit on the regulatory body’s right to investigate or act on a possible violationof law or regulation; there is also no time limit on the regulatory body’s decision not to act onan acclaimed violation. Also, there is no time limit on the regulatory body’s right to set new
conditions relating to nuclear safety to a permit. Such a decision can be challenged within
three weeks. If a decision according to the Act on Nuclear Activities is challenged, it issubmitted to the government. The government decision cannot be challenged in its entirety;
however, a three-month time limit applies to requests for judicial review of the legality of thegovernment’s decision (which is submitted to the Supreme Administrative Court).

1.3.2 Preliminary procedure
Stay of effectiveness
There are instances where a legal challenge may stay the effectiveness of the decision or
action being challenged. Another way to understand this is whether the legal challengesuspends the execution or enforcement of the decision or action being challenged. For
example, if a member of the public raised an administrative challenge to the issuance of an
operating licence by the nuclear safety authority or nuclear regulatory body, would suchchallenge prevent the operator from starting the installation pending the conclusion of thechallenge?
A legal challenge always stays the effectiveness of the decision or action being challenged
in a few countries, while it never does in a few other countries. The answer is determined on acase-by-case basis in about half of the countries. For example, in Czechia and Poland, a legal
challenge in an administrative proceeding generally stays the effectiveness, while a legal
challenge in an administrative court proceeding in the same country generally does not. There
are, however, exceptions to each of these rules. In Portugal, as a general rule, legal challenges
to administrative acts generally do not stay the effectiveness, but there are exceptions. In
Canada, decisions remain effective unless notwithstanding a challenge an application for aninterim order to “stay” the decision is filed.

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For those countries that stated that a legal challenge always or sometimes stays theeffectiveness, there are avenues for making the decision or action effective pending theresolution of the challenge. For example, in Belgium and the Netherlands, a stay can be
expressly requested in a separate procedure, whereas in the United States, in the case of alicence amendment proceeding, the amendment may be issued before the completion of
adjudicatory hearings if the regulatory body determines that “no significant hazard
consideration” is involved. In Austria, a legal challenge automatically stays the effectiveness of adecision or an action; however, the authority may exclude the suspensive effect by anadministrative decision if, after having considered the affected public interests and the interestsof other parties, the early enforcement of the contested administrative decision or the exerciseof the authorisation granted by the contested administrative decision is urgently required
because of imminent danger.
On the other hand, for those countries that stated that a legal challenge does not
automatically stay the effectiveness (either always or on a case-by-case basis), there are also
ways to request such a stay. For example, in Japan, a party must file a petition to stay theeffectiveness of the decision/action in addition to the legal challenges itself and the court
judges the necessity of staying the effectiveness.

Pre-trial or alternative dispute resolution mechanisms
Pre-trial or alternative dispute resolution (ADR) mechanisms are available in a majority of
responding countries. These pre-trial or ADR mechanisms are largely voluntary, with only a
few countries stating that they are mandatory. As an example, in Canada, while themechanisms are voluntary, the Federal Court may order that a pre-hearing conference be held.
In some countries, if pre-trial or ADR mechanisms are employed, such mechanisms only
suspend the statute of limitations or prescription period for raising a challenge.
Of the countries that stated pre-trial or ADR mechanisms are available, a few countries inalmost equal numbers noted the possibility for arbitration, for mediation and for negotiation.
For example, in Czechia, arbitration and mediation are only possible for civil law disputes, notadministrative proceedings or consecutive administrative challenges (an appellate procedure
before the appellate administrative authority). Therefore, civil law disputes related to nuclear
power plants may be resolved through an ADR mechanism in this country, but not if it is anadministrative procedure.
There were additional alternatives, including plea bargains, admissions of guilt, settlement,
appeals to the decision maker and appeals to a higher authority in some countries. In the UnitedStates, settlements of adjudicatory proceedings are encouraged. The presiding officer or Atomic
Safety and Licensing Board may appoint a settlement judge or establish other dispute resolution
procedures, if requested.

Discovery
In general, discovery can be understood as the gathering of information prior to an
administrative proceeding or trial. This information can be collected in a number of different
ways, such as interrogatories, depositions, requests for admissions and written requests for
documents. Most countries provide for formal written requests for documents that containrelevant information within the other party’s possession, custody or control. This was possible
on a case-by-case basis in a few countries while this was not allowed in another few countries.
Of the countries where there was an opportunity for document production (including thoseon a case-by-case basis), this was an automatic production in half the countries. This meansthat the document production is required according to law or rule or regulation or decree andthere is no requirement for a specific written request. For example, during the challenge process
in Sweden, the parties as a rule receive the documents that the other parties submit to thereview body. In the United States, the rules of practice require the parties to make mandatory
disclosures, including: 1) the identity of any persons, including experts, upon whose opinion theparty bases its claims and may rely upon as a witness, along with a copy of that person’s

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analysis or documents relied upon; 2) all documents and data compilations that are relevant tothe contentions in the proceeding; 3) all tangible things that are relevant to the contentions; and4) a list of documents that are being withheld under a claim of privilege. Generally, in the UnitedStates, comparable disclosure requirements apply to the regulatory body as well. In an informal
proceeding, formal discovery mechanisms (e.g. interrogatories, requests for admission,
document requests and depositions) are only allowed in exceptional cases, as defined in therules of practice. In addition, the regulatory body is required to compile a hearing file containing
the application, any amendments to the application, any correspondence between theregulatory body and the applicant/licensee, and the regulatory body’s safety evaluation andenvironmental impact statement or environmental assessment. Formal proceedings are held fora few types of actions: these include proceedings on high-level waste repository permits,uranium enrichment facility licensing proceedings, and enforcement proceedings (unless theCommission of the NRC orders or all parties agree otherwise). Formal proceedings use bothmandatory disclosures and formal discovery mechanisms (e.g. interrogatories, requests foradmission, document requests and depositions); a hearing file is not required. Formal
procedures (i.e. cross-examination) may also be used in otherwise informal reactor licensing
proceedings where the presiding officer or Atomic Safety and Licensing Board finds an issue ofeyewitness credibility, motive or intent.
Oral depositions (defined as “the taking and recording of testimony of a witness underoath before a court reporter in a place away from the courtroom before trial” 11) of parties andpotential witnesses are allowed in some countries, with less than a few countries specifyingthat they are allowed on a case-by-case basis. For example, in Canada, oral depositions areallowed in civil actions, but not for judicial review applications. In Switzerland, if it is notpossible to establish the facts of the case sufficiently in any other way, certain enumerated
competent authorities may order the examination of witnesses (Swiss Act on Administrative
Procedure Act [APA], Articles 12(c) and 14 et seq.), though witness evidence is considered to be
only subsidiary evidence. In the case of a hearing of witnesses, the parties have the right toattend the examination of witnesses and to ask supplementary questions (Swiss APA,
Article 18(1)). The Swiss Federal Nuclear Safety Inspectorate (ENSI) or the Swiss Federal Officeof Energy (SFOE) have to obtain an order from the Swiss Department of Energy, Transport,
Environment and Communication (DETEC).
The situation is quite similar for written interrogatories (questions and answers written
under oath or similar obligation to tell the truth). In this instance, written interrogatories areallowed in some countries, not allowed in half the countries and determined on a case-by-casebasis in a few countries.

Summary judgment
Summary judgment is a judgment by a court either before trial or at an early stage of theproceedings that either disposes of the entire case or certain issue(s) of the case without a fulltrial. Motions for summary judgment are available in some countries, not available in half ofthe countries and available on a case-by-case basis in less than a few countries. For those thatdo provide for motions for summary judgment, these motions were dependent on similar
circumstances in most countries, such as the case not showing any particular factual or legal
difficulties and where the facts have been clarified, the simplicity or uncomplicated nature of
the dispute, or a showing that there is no genuine issue of material fact and that the
proponent of the motion is entitled to judgment as a matter of law.

11. Law.com (n.d.), “Deposition”, https://dictionary.law.com/Default.aspx?selected=495.

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1.4 Legal process
1.4.1 Conduct of proceedings
There can be great differences between responding countries in their conduct of proceedings
to challenge nuclear safety based on the multiple types of challenges, each being subject todifferent procedural rules.

Method to adjudicate a challenge
Courts and other relevant bodies in responding countries have different methods to adjudicate
challenges related to nuclear safety, be it by means of written pleadings, oral hearings or a
combination of the two. The process to adjudicate a challenge to nuclear safety involves a
combination of written pleadings, motions, statements and an oral hearing in a vast majorityof responding countries. This is the case in Czechia, though in specific instances no oral
hearing is conducted as the court may decide on the matter without a hearing if both parties
agree. However, such process would be exclusively in writing in Switzerland, with one
exception mentioned below, and the process would solely rely on oral hearings in Portugal.
In responding countries, the calling and examining of witnesses is more commonly foundin civil and criminal proceedings, while administrative proceedings are more likely to rely on
written pleadings.

Witnesses
Witnesses can be called to testify and be cross-examined in the oral hearing in a majority ofcountries. Witnesses could be called on a case-by-case basis in a few countries, which often
depends on the type of challenge or proceeding. For example, in Belgium, witnesses will not
be called in most cases as most nuclear safety challenges are subjected to an administrative
procedure. Nevertheless, the law regulating nuclear safety prescribes that infringement may
be subject to criminal procedure where it is the competence of the judge to determine
whether or not witnesses must be called based on the principle of fair-trial or if written
testimonies are sufficient. In Canada, it is not possible for witnesses to be called for judicial
review but witness testimony may be allowed in other types of challenges. In Spain, themajority of challenges to nuclear safety relate to the Administrative Procedure andContentious Administrative Jurisdiction. Calling and examining witnesses is more commonly
found in criminal proceedings, while administrative proceedings rely on written pleadings.
In Türkiye, witnesses can be called if the case is civil and/or criminal law related.
In administrative law, adjudication is mainly made through written pleadings, motions and/or
statements. However, if the claimant, defendant or court requests a hearing, the legal
challenge is adjudicated with both. In the United Kingdom, it is very rare, but witnesses may
be called in judicial review proceedings.
The situation is slightly different in Switzerland, where the case-by-case determination
relates to the ability to establish facts in writing as opposed to witness examination. Although
the procedure is usually to conduct the process in writing, if it is not possible to establish thefacts of the case sufficiently in any other way, the examination of witnesses may be ordered(Swiss APA, Article 14). The parties then have the right to attend the examination of witnesses
and to ask supplementary questions (Swiss APA, Article 18(1)).

Openness of proceedings to the public
The state of affairs for how open proceedings are to the public is quite varied between andamong responding countries. While proceedings are in general intended to be public, thepublic may be excluded from at least parts of such proceedings based on the confidentiality of
the concerned information (e.g. due to the protection of trade secrets or due to public safety/
security requirements linked with the sensitivity of nuclear information) in several countries.

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In Belgium, there is a principle of openness, but given the sensitive nature of nuclear
information this can be restricted by a decision of the court. In Germany, proceedings before
the administrative courts may be made public on request. In the Netherlands, in general,
hearings are held in public. However, the case materials are only available for review by theparties. In Russia, as a general rule, the process is open and judicial acts are published. But,
the case materials are available for review only by the parties. In Slovenia, in administrative
proceedings within which an appeal is conducted, the General Administrative Procedure Act
stipulates that under certain conditions an oral hearing is public if, for example, due toincompletely established facts it is necessary to supplement it. This means that interested
members of the public may attend the oral hearing but does not mean that the administrative
body proactively ensures release of all materials in real time. In Türkiye, if a confidential order
is not taken, the hearings are open to the public. In the United States, most US NRC
adjudicatory proceedings are open to the public, although portions or all of a proceeding can
be closed to protect against the disclosure of privileged, proprietary, sensitive or classified
information. In Poland, court proceedings are open to the public. Having received an
application for a construction licence of a nuclear facility, the President of PAA (National
Atomic Energy Agency) shall immediately publish the application with an abbreviated safety
report in the Public Information Bulletin, in the section dedicated, along with: 1) informationon the initiation of proceedings in response to the application for a licence to build a nuclear
facility; 2) information on the right to make submissions or observations; 3) information on
how and where to make submissions or observations within a 21-day deadline; 4) information
on how and where the administrative proceedings take place.

1.4.2 Courts from first to last instanceFirst instanceIn several countries, administrative challenges must generally first be raised before theconcerned decision-making body as a first instance challenge. However, in some othercountries, raising a challenge before such authority is only optional and claimants may decideto directly introduce their challenge before a court (typically an administrative court). Somecountries provided details illustrating the integration of adjudicatory functions within nuclear
regulatory bodies (e.g. the Atomic Safety and Licensing Board Panel within the US NRC). Somecountries reported that all challenges – understood as including administrative challenges –would be raised directly before a court.
In Austria, the appeals must be submitted to the authority concerned, which is theauthority that issued the contested decision. After having carried out any further necessary
additional investigation, the authority may reject the appeal as impermissible or filed too late,cancel the administrative decision or modify it in any way (preliminary decision on thecomplaint). In Czechia, the challenge must first be raised with the administrative body thatissued the decision being challenged. In Sweden, an appeal is always submitted to the bodythat made the first decision. This body decides whether to reconsider the decision itself or not(if it is obvious that the decision is wrong and a change would not have a negative effect on an
individual party, the decision can be changed by the body itself). If not, the appeal isforwarded to the next instance. In Switzerland, challenges are first raised before the relevant
competent body. In safety-related cases this is the regulatory authority, ENSI. Otherwise it is
DETEC or the SFOE, respectively. In the United States, for challenges to US NRC licensing andenforcement actions, hearing requests/petitions to intervene are filed before the Commission,
which typically refers the matter to the Chief Judge of the Atomic Safety and Licensing Board
Panel. The Chief Judge then appoints a presiding officer or Atomic Safety and Licensing Board
to consider the request/petition and to preside over any proceeding that may be held. For
some types of actions (e.g. challenges to licence transfer applications or import/export licenceapplications), the Commission itself typically considers the request/petition and may conduct
any hearing that is held.

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Second instance
All countries indicated that the initial decision made by either the competent court or body on
the challenge related to nuclear safety may be appealed to a higher court or body. Dependingon the corresponding country and the type of challenges, appeals may be lodged on the basisof a misapplication of the substantive law, procedural law or on erroneous findings of facts. In
some countries, appeals are limited to errors of law, i.e. the appellate court will rely on thefacts established in the first instance.
For example, in Australia, appeals are usually based on an error of law or deficiencies in the
conduct of the initial trial. In Canada, on an appeal of a judicial review decision by the Federal
Court of Canada (lower court), the Federal Court of Appeal (FCA) is required to determine
whether the lower court identified the appropriate standard of review and, if so, whether it wasapplied correctly. If the lower court applied the wrong standard, the FCA applies the correct
standard. If the lower court applied the correct standard, the FCA ensures it was applied
properly and, where necessary, remedies errors that were made. In Czechia, anyone who claims
that their rights have been prejudiced directly or due to the violation of their rights in thepreceding proceedings (administrative decision) may seek a review by the administrative court.
A complaint against a decision of an administrative authority can also be made by a party to theproceeding before the administrative authority, which is not entitled to file a complaint, if theparty claims that his or her rights have been prejudiced in a manner that could have resulted in
an illegal decision. Moreover, anyone can seek protection against an administrative authority’s
inaction or unlawful interference, instruction or enforcement according to Act No. 150/2002 Coll.,
Code of Administrative Justice. Unlawfulness rests in failure to follow the legally required
procedure or substantive violation of any obligations enumerated. Appeals must be raised to theregional court in whose jurisdiction lies the seat of the administrative authority that issued thefirst instance decision on the matter or otherwise infringed upon the rights of the subject
seeking protection of the court. In France, appeals must be based on a claim that the decision isbased on erroneous findings of fact, there was a lack of legal authority to make a decision, there
was a misapplication of substantive law, the regulation under which the decision was made wasillegal or the government failed to act. In Russia, appeals must be based on a misapplication ofsubstantive and/or procedural law. In Slovenia, decisions may be challenged (i.e. an appeal may
be lodged) if the regulation has been applied incorrectly or has not been applied at all, thefactual situation has not been established correctly or completely, or there was a violation of therules of procedure. In Ukraine, appeals must be based on an incorrect application of substantive
law or a violation of procedural law that led to the incorrect judgment. In the United States,
appeals from a presiding officer’s or Atomic Safety and Licensing Board’s factual findings
typically require a demonstration of clear error or abuse of discretion; while the Commission of
the US NRC has the authority to review factual questions de novo (i.e. a fresh look is taken
without need for the appellant to demonstrate clear error or abuse of discretion), it is disinclined
to do so when a Board has issued a plausible decision that rests on carefully rendered findings offact, supported by the record. Decisions on questions of law are reviewable de novo.
In very general terms, there are three categories of appellate bodies in responding countries:•

appellate courts (whether in administrative, civil or criminal matters), even though
their denomination may differ in some countries (e.g. high courts);•

supreme courts (generally administrative), indicating that for some types of challenges,
in some countries, there is only one possibility of appeal; and•adjudicatory bodies within the decision-making authority, which in this case would
address the challenge with a different panel than that of first instance (e.g. in the
United States).

For example, in Austria, within two weeks after the preliminary ruling on the complaint
has been served, either party can apply to the authority that issued the preliminary decision tosubmit this decision to the administrative court for review (request for submission). The
authority must submit the application and the complaint to the administrative court together
with the files of the proceedings and notify the other parties of the submission of the

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application. If a hearing has taken place in the presence of parties, the administrative court
must, as a rule, immediately announce the decision with the essential reasons for the decision.
Every judgment (decision of the administrative court) must contain an instruction about thepossibility of filing a complaint with the Constitutional Court and an ordinary or extraordinary
review with the (highest) Administrative Court. In the Netherlands, administrative decisions
based on the Nuclear Energy Act can be appealed in the first and final instance to the highest
administrative court, the Council of State [Raad van State]. In Sweden, licensing cases
pertaining to the Environmental Code are raised to the Land and Environment Court (first
instance), and then the Land and Environment Court of Appeal (second instance) on appeal
against a decision made by the Land and Environment Court according to the Environmental
Code, and finally the Supreme Court (final instance). Licensing cases pertaining to the Act on
Nuclear Activities are submitted to and reviewed by the government (first instance) and thenthe government’s decision may in certain cases be submitted to the Supreme Administrative
Court for judicial review of the legality of the decision (second instance). Regulatory decisions
on nuclear safety are made by the Swedish Radiation Safety Authority (SSM). When challenged,
they can be submitted to the government, if pertaining to the Act on Nuclear Activities.
If pertaining to the Radiation Protection Act, the challenged regulatory decisions are raised to
the Administrative Court (first instance), then the Administrative Court of Appeal (second
instance) and finally the Supreme Administrative Court (final instance). For those cases
pertaining to the Penal Code, a criminal judgment by the District Court (first instance) can beraised to the Court of Appeal (second instance) and to the Supreme Court (final instance).
In most cases, the court in charge of hearing the appeal is composed of a panel of judges,
as opposed to the body in charge of hearing the first instance challenge, which is more likely(according to the survey) to either be composed of a single judge or be an administrative body.
The vast majority of countries indicated that the appellate decision may be appealed again
to a higher court, body or authority.

Third and (where applicable) fourth instances
A majority of countries indicated that the third appeal would be filed before their respective
supreme courts (also known as supreme administrative court, court of cassation or council ofstate), indicating that this is the last possible appeal. The grounds on which such appeals can beraised are more restrictive than those to appeal first instance decisions. In several countries,
these grounds appear to be limited to errors in law. In various countries, there is an additional
requirement that the cases present special significance or be admitted by the concerned court,
especially when it consists of a supreme court. For example, in Czechia, according to Article 103
of Act No. 150/200 Coll., Code of Administrative Justice, the complainant (party to theproceedings from which the decision arose or a person participating in the proceedings) isentitled to bring a cassation complaint as a remedy against the final decision of a regional courtin administrative justice. A cassation may be submitted only based on the grounds of claimed
unlawfulness consisting of: incorrect consideration of a legal issue before the court in previous
proceedings, fault of proceedings, irregularity of proceedings or non-reviewability of a decision.
Some countries indicated that third instance decisions may be further appealed to a fourth
instance court, sometimes raising issues related to breaches to the concerned country’s
constitution. For example, in the United States, the Commission of the NRC’s second instancedecision can be appealed to the US Court of Appeals for the District of Columbia Circuit or to
the US Court of Appeals for the circuit in which the facility is located. The third instance
Circuit Court decision can then be appealed by a petition for certiorari to the US Supreme Court.

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1.5 Judgment and remedies
1.5.1 Legal remedies
The most commonly indicated remedies that can result from the final judgment acrossresponding countries are ones that affirm the original decision or remand the decision to theoriginal decision maker, followed closely by those that overturn the original decision.

The original decision
Courts can affirm the original decision or remand it to the original decision maker for new oradditional analysis in all responding countries. Courts can overturn the original decision inalmost all countries. Courts have the ability to modify the original decision as part of the final
judgment in a majority of countries. For example, in Canada, a successful judicial review
application generally results in the decision being quashed and the matter referred back to thedecision maker for reconsideration in accordance with the Court’s decision. In Czechia, thebasic rule is that if the complaint is justified, the court revokes the contested decision as
unlawful or for procedural faults. If the complaint is not justified, the court shall dismiss it.
While affirming, overturning or remanding the decision was an available remedy inalmost all countries, fewer countries’ courts have the power to modify an original decision.
This discrepancy may be due to the courts’ deference to the technical decisions of authorised
regulatory bodies or the requirement of the court to decide only on matters of legality, as
specifically indicated by a few responding countries.

Injunction, damages or civil monetary penalty/fine
An injunction can be issued as part of the final decision in half of the responding countries.
Damages can be awarded in a slight majority of countries, with some countries indicating thata civil monetary penalty or fine can result from the final decision.

Changes to a licence/authorisation/permit
A final decision could result in an amendment to a licence/authorisation/permit in a slightmajority of responding countries. A final decision could lead to the issuance of a licence/authorisation/permit in half of the countries, whereas a final decision could result in thesuspension or revocation of a licence/authorisation/permit in a majority of countries.
For example, in Germany, administrative decisions are subject to judicial review. Courts
can also oblige executive powers to revoke, modify or suspend a licence taking into accountthe court’s conclusions. While, theoretically, Switzerland allows for the issuance, amendment,
revocation and/or suspension of a licence/authorisation/permit as possible remedies, theywould likely never occur in practice because of existing legal precedent from the Supreme
Court respecting the technical determinations of the specialised authorities. In Türkiye, thecourts can only judge the legality of the licence or authorisation and any questions of theappropriateness are the purview of the regulatory body that issued the licence.

Changes to a law/rule/regulation/decree
Courts can issue a new law/rule/regulation/decree as result of a final decision in a few
responding countries. However, a final decision can amend or repeal a rule/regulation/decree
in a larger number of countries and a final decision can also modify or repeal a law in somecountries. In one country, Türkiye, a final decision can lead to the repeal of a constitutional
amendment. In Germany, the Federal Constitutional Court can oblige parliament to issuelegislation if they find the subject of the legal challenge leads to a situation of
unconstitutionality.

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Criminal penalties
Criminal penalties may result from a final decision in just under half of the responding
countries. Such decisions are taken in separate criminal proceedings.

1.5.2 Awarding of legal fees
The vast majority of countries can award legal fees to the prevailing party as part of the final
judgment, but a few of those countries restrict this to the plaintiff alone. Despite thepossibility, there is no requirement to award legal fees in a few countries and it is up to thediscretion of the court to award costs. In some instances, legal fees are only awarded in very
limited circumstances.

1.5.3 Monetary damages for injury resulting from the legal challenge
Monetary damages are available for any injury or harm suffered during a legal challenge in aslight majority of responding countries. There are conditions and specifications for thosecountries that provide for monetary damages. For example, in Belgium, according to Article 1382
of the Civil Code only compensatory legal remedies are available. In Czechia, costs ofproceedings that can be reimbursed involve cash expenses of the parties and theirrepresentatives, judicial fees, loss of earnings of the parties and their legal representatives,
expenses related to providing evidence, representation fees, the representatives’ cash expenses,
and interpretation fees. Moreover, a successful claimant can ask for a specific remedy, e.g. cash
expenses, loss of earnings or satisfaction for non-pecuniary damage (if the damage was causedby the unlawful decision or incorrect administrative procedure). In France, monetary damages
can be awarded in the event of improper claims (recours abusif). In Japan, a party can file a civil
lawsuit to ask another party for compensation. In the Netherlands, according to Article 8:75 of
the Dutch General Administrative Law Act (Awb), the administrative court can order a party to
pay the costs that another party has reasonably incurred in connection with the appeal
proceedings. A natural person may be ordered to pay costs in the event of a manifestly
unreasonable use of the right of appeal, which is very exceptional. In Portugal, it is possible toask for compensation based on bad faith litigation. In the Slovak Republic, one usually, but notalways, claims for monetary damages according to the classification of various sorts of harm(loss of reputation, loss of income, etc.) in a separate proceeding and if the causal link between
the result of proceedings and the harm caused is established. In Türkiye, pecuniary and nonpecuniary damages are available. Pecuniary damages can be requested to compensate the loss ofassets due to an unlawful act. Non-pecuniary damages are provided for the grief experienced by
the individual due to the action(s) at issue.

1.5.4 Duration of the legal proceeding
The length of legal proceedings varies greatly depending on the subject matter and how many
appeals the parties undertake. There is a wide estimated duration that varies from 133 days to
8 years in a slight majority of responding countries. Legal proceedings took an average of one
to three years in just under half of the responding countries. This, however, varies dependingon the subject matter and number of appeals. For example:

36•

In Australia, it depends on the nature and complexity of the proceeding, but court
actions usually take one to two years to resolve.

•

In Austria, it depends on the specific matter, but the length of the proceeding is usually
one to three years for the Administrative Court and approximately six months for theSupreme Administrative Court.

•

In Canada, it depends on the nature and complexity of the proceeding, but the lengthof the proceeding is approximately two years.

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In Czechia, according to the most recent statistics, the average length of proceedings infront of the administrative courts was 500 days.

•

In France, the length of the proceedings is approximately 18 months in the first
instance and 3 years on appeal.

•

In Korea, in administrative cases, it takes about two years on average to reach a final
decision from the Supreme Court.

•

In the Netherlands, it depends on the nature and complexity of the proceeding, but thelength is usually one to two years.

•

In Romania, the average length of a procedural stage is 133 days. Cases with more than
one procedural stage (two appeals) will take longer. This can vary based on the numberof parties involved, the specialised expertise administered in the case, clarifications
from various national and international institutions, etc.

•

In Spain, according to the most recent statistics, the average duration of contentious
administrative proceedings of the National High Court is 16.5 months. As regards theSupreme Court, it is 15.2 months.

•

In Sweden, the length of the proceedings usually last from one to three years.

•

In Türkiye, there is no definitive period, but the proceedings can last approximately
two years.

•

In Ukraine, the proceedings can last one to five years.

•

In the United Kingdom, the proceedings can last approximately one year, but this canvary significantly.

•

In the United States, if a hearing request is granted, administrative adjudicatory
proceedings within the US NRC typically take two to three years from inception toconclusion, although cases have taken as little as one year to as much as eight or more
years. The US NRC’s rules of practice contain model milestones for various types ofproceedings (see 10 CFR Part 2, Appendix B). Appeals to the federal courts typically takean additional one to three years.

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Chapter 2:
Legal cases related to nuclear safety

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AUSTRALIA
Greenpeace Australia Pacific Ltd v. Chief Executive Officer of the Australian
Radiation Protection & Nuclear Safety Agency
Federal Court of Australia, 2002
[2002] FCA 1144; 125 FCR 186; 125 LGERA 233

1. Parties:
The Plaintiff in this proceeding was Greenpeace Australia Pacific Limited (Greenpeace).
Greenpeace is a company limited by guarantee whose objects include the protection,
preservation and enhancement of the natural environment and the promotion of nuclear
disarmament.
The first Respondent was the Chief Executive Officer of the Australian Radiation Protection
and Nuclear Safety Agency (ARPANSA) (ARPANSA CEO). ARPANSA is the AustralianGovernment’s primary authority on radiation protection and nuclear safety and regulatesCommonwealth entities that use or produce radiation with the objective of protecting people
and the environment from the harmful effects of radiation.
The second Respondent was the Australian Nuclear Science and Technology Organisation(ANSTO). ANSTO is one of Australia’s largest public research organisations.
To gain standing in the proceeding, Greenpeace claimed that it was adversely affected to agreater degree than ordinary members of the public by the ARPANSA CEO’s decision to grant
ANSTO a licence to construct a controlled facility under section 32(1) of the Australian
Radiation Protection and Nuclear Safety Act 1998 (Cth) (the Act). Its standing to bring thisproceeding was not disputed.

2. Issue(s):Greenpeace applied for an order under the Administrative Decisions (Judicial Review) Act 1977
(Cth) (the AD(JR) Act) for review of the ARPANSA CEO’s decision (the Decision) to issue Facility
Licence FO0118-Construction (the Licence) to ANSTO under section 32(1) of the Act. The
Licence authorised the construction of a replacement nuclear research reactor (the Reactor) at
the Lucas Heights Science and Technology Centre.
It was common ground in the proceedings that by section 32(3) of the Act, in making theDecision, the ARPANSA CEO was required to take into account “international best practice inrelation to radiation protection and nuclear safety”.
The primary issue raised by Greenpeace was that in making the Decision, the ARPANSACEO failed to identify, ascertain or take into account international best practice in relation to
the management, handling, transport, processing and storage of spent nuclear fuel andradioactive waste. As a consequence of this purported failure, Greenpeace asserted that:•the procedures required by law to be observed in connection with the making of theDecision were not observed (see section 5(1)(b), AD(JR) Act);•the making of the Decision was an improper exercise of the power conferred by section
32(1) of the Act, in that the ARPANSA CEO failed to take into account a relevant
consideration (see sections 5(1)(e) and 5(2)(b), AD(JR) Act); andLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

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the Decision involved an error of law (see section 5(1)(f), AD(JR) Act).

Greenpeace’s claims focused on the invalidity of the ARPANSA CEO’s reasoning for theDecision on the grounds that he failed to adequately consider the management of spent
nuclear fuel and radioactive waste to be generated by the Reactor once completed and his
failure to make a determination on the “international best practice in relation to radiation
protection and nuclear safety” imposed by section 32 as regards spent nuclear fuel andradioactive waste management.

3. Facts:
Upon receipt in May 2001 of ANSTO’s application for a licence to construct the Reactor on land
owned by ANSTO at Lucas Heights, adjacent to the existing “HIFAR” research reactor, and aftera lengthy assessment process, including public consultation, the Decision authorising theconstruction of the Reactor was made on 4 April 2002 by the ARPANSA CEO. As part of the
public consultation undertaken by the ARPANSA CEO, Greenpeace was expressly invited tomake, and did make, submissions, in relation to ANSTO’s application to ARPANSA.
In relation to international best practice, it could be gleaned from the ARPANSA CEO’s
reasons for the Decision that “international best practice in relation to radiation protection
and nuclear safety” is not a phrase defined by the Act. He also noted that “international bestpractice” is not a term of art used at the international level. Against this background, the
ARPANSA CEO identified the relevant international best practice by having regard to theordinary meaning of these terms and the object of the Act. He also noted that his
consideration of international best practice occurred in the context of issuing a construction
licence.
The ARPANSA CEO referred to the Convention on Nuclear Safety (CNS) and to the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management (Joint Convention) in his reasons for the Decision. The ARPANSA CEO noted that
the Joint Convention is modelled on the CNS in that it is an “incentive convention that sets out
the ‘gold standard’ for the safety of the management of spent fuel and radioactive waste” andthat the CNS makes a distinction between the design and construction of a nuclear
installation and the operation of a nuclear facility. The Joint Convention also makes a
distinction between the safety standards for existing facilities, the siting of proposed facilitiesand (importantly) the design and construction of facilities. The issue of safe operation offacilities is treated separately.

4. Past procedure:This was a decision at first instance with no prior proceedings or any subsequent appeal.

5. Analysis:
The Court considered each of Greenpeace’s assertions separately.
a.

Were procedures required to be observed in connection with the making of the Decision not observed?

Greenpeace submitted that section 32 of the Act required the ARPANSA CEO, in effect, todetermine what constitutes international best practice in relation to the management of spent
nuclear fuel and radioactive waste, whether it be an objective determination or a subjective
one. According to Greenpeace, the ARPANSA CEO did not do so, and this was an error of law.
Greenpeace further submitted that ARPANSA failed to sufficiently assess the validity of
the ARPANSA CEO’s determination that it was “likely” that waste from reprocessing spent
nuclear fuel could be safely stored for a significant period of time.

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It was said that the ARPANSA CEO failed to consider whether ANSTO’s proposals (or any of
the alternatives to them) constitute international best practice in relation to radiation
protection and nuclear safety, specifically in relation to the transportation of such spent
nuclear fuel and radioactive waste, when its transportation involves safety questions for
persons in the vicinity of domestic and international routes, including sea lanes, and a risk ofharm to the environment.
In short, Greenpeace contended that since section 32(3) required the ARPANSA CEO toconsider international best practice in this connection, in failing to do so, the ARPANSA CEO
did not, in the terms of AD(JR) Act, section 5(1)(b), observe “procedures that were required bylaw to be observed in connection with the making of the [D]ecision.”
The Court noted that although Greenpeace claimed that the ARPANSA CEO erred in law in
his interpretation of section 32(3), the grounds for review described in AD(JR) Act, section 5(1)(b)is available only in a procedural context and, therefore, whether the ARPANSA CEO erred inlaw in his understanding of the meaning and operation of section 32(3) is a question arising, if
at all, under either section 5(1)(f) or section 5(2)(b) of the AD(JR) Act and not an adjectival orprocedural issue.
Ultimately, the Court disposed of this submission by determining that there was nothing
in the ARPANSA CEO’s process that could be said to be procedurally irregular or defective.
b.

Did the ARPANSA CEO fail to take into account a relevant consideration?

In making this claim, Greenpeace essentially relied upon the same submission it made in
relation to procedural irregularities.
The Court accepted ANSTO’s arguments that the allegation that the ARPANSA CEO failed
to take into account a relevant consideration will only be made out as a ground of review if the
ARPANSA CEO failed to take into account a consideration that he was required to take into
account in making the Decision. ANSTO conceded that the ARPANSA CEO’s obligation to take
into account international best practice requires him to give proper, genuine and realistic
consideration to any relevant international best practice; however, it is for a decision maker,
and not for the Court, to decide the appropriate weight to be given to a matter that is required
to be taken into account.
The Court considered the ARPANSA CEO’s obligations under section 32(3) in two steps:•“international best practice in radiation protection and nuclear safety” must be construed
in the context of the application before the ARPANSA CEO, i.e. for a construction licence.

•

any international best practice in relation to radiation protection and nuclear safety
relevant to the issue of a construction licence must be identified as a matter of fact.
That is, there is no assumption under the Act that there is an established international
best practice for every aspects of radiation protection and nuclear safety and as suchonly an established international best practices can be taken into account.

The Court determined that, with regard to relevant international conventions, the ARPANSA
CEO appropriately reasoned that international best practice concerning the design andconstruction of a research facility is different than international best practice concerning theoperation of a research facility. Under this reasoning the ARPANSA CEO made no error in failingto consider the management, handling, transport, processing and storage of spent nuclear fueland radioactive waste as this relates to the operation of the reactor and not its design andconstruction. Therefore, Greenpeace’s submission relied upon a faulty understanding of themeaning of international best practice as regards radiation protection and nuclear safety.
The results of the operation of the Reactor were considered by the ARPANSA CEO, properly,in the context of, and in the course of, assessing the construction of the proposed Reactor.
In analysing an administrative decision for the purposes of assessing a claim under AD(JR)Act, section 5(2)(b), the considerations may come within three categories: obligatory, forbidden
or permissible. The obligatory relevant considerations are those mandated by the Act, in thiscase the matters set out in Regulation 41 of the Australian Radiation Protection and Nuclear

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Safety Regulations 1999 (Cth) (as it then was), together with international best practice inrelation to radiation protection and nuclear safety. Forbidden considerations, or legallyirrelevant considerations, are those that the statute expressly or impliedly prohibits to beconsidered.
The ARPANSA CEO’s consideration, in his reasons, of radiation protection and nuclear
safety (even assuming that it did include the “management, handling, transport, processing
and storage” of spent nuclear fuel and radioactive waste), falls into the class of “permissible”
considerations. These are matters that may be taken into account in assessing the design of a
research reactor, and how that reactor may operate at some future time based on the design.
However, the ARPANSA CEO is not required by section 32, or otherwise, to consider thesematters as if he were issuing an operating licence, and in a manner that would bind him in
relation to any future consideration of an application to issue an operating licence for the
purpose of section 30(1)(d).
The Court found that because these considerations fall within the class of “permissible”,
rather than “legally relevant”, considerations, the ARPANSA CEO’s treatment of them is not
subject to review under AD(JR) Act, section 5(2)(b).
Ultimately, on this point, the Court determined that Greenpeace failed to show failure on thepart of the ARPANSA CEO to take into account international best practice in relation to radiation
protection and nuclear safety for the purposes of section 32(3) of the Act; nor that he failed tocorrectly identify and consider the relevant international best practice in relation to theconstruction of the Reactor. Further, it was found that the ARPANSA CEO did consider public
submissions and other materials when making a determination on the management of spent
nuclear fuel and radioactive waste that would be generated by the Reactor, despite having no
obligation under law to make this consideration. His analysis concluded that “the applicant has
demonstrated that the radiation protection and nuclear safety objectives included as a part ofthe design meet those laid out in the guidance provided by the international authorities.”c.

Did the ARPANSA CEO’s decision involve an error of law?

To establish, within the meaning of AD(JR) Act, section 5(1)(f), that the Decision “involved anerror of law”, Greenpeace must first show that the ARPANSA CEO erred in his understandingof section 32(3). The Court accepted that it was settled law in Australia that “[a] decision doesnot ‘involve’ an error of law unless the error is material to the decision in the sense that it
contributes to it so that, but for the error, the decision would have been, or might have been,different.”
Adopting much the same reasoning as in its consideration of relevant considerations
above, the Court found that the ARPANSA CEO did not err in law in his understanding ofsection 32(3). The phrase “international best practice in relation to radiation protection andnuclear safety”, is not a term of art or a technical term and therefore the ordinary meaning
applies. Under this meaning the factual enquiry undertaken by the ARPANSA CEO in his
granting of the construction licence was sufficient. There was no indication of a legal error or
mistake of law occurring that would have changed the outcome of the decision.

6. Holding:
The application was dismissed, with costs awarded against the Plaintiff.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: NEW REACTOR LICENSINGCANADA
Ontario Power Generation Inc. v. Greenpeace Canada
Federal Court of Appeal (FCA), 2015
2015 FCA 186

1. Parties:
The Federal Court of Appeal heard and consolidated three appeals: A-282-14, brought byOntario Power Generation (OPG) a publicly owned utility company and licensee of theCanadian nuclear regulatory body; A-283-14, brought by the Canadian Nuclear Safety
Commission (CNSC), the Canadian regulator; and A-285-14, brought by the Attorney General of
Canada, the Minister of the Environment, the Minister of Fisheries and Oceans and theMinister of Transport. The Respondents to the appeals were Greenpeace Canada, Lake Ontario
Waterkeeper, Northwatch and the Canadian Environmental Law Association who are all nongovernmental organisations.

2. Issue(s):Whether the Federal Court Judge erred in his review of the question of whether, in conducting
the environmental assessment (EA) and preparing the EA Report, the Joint Review Panel (thePanel) failed to consider the factors contained in paragraphs 16(1)(a) and (b) of the Canadian
Environmental Assessment Act, SC 1992, c. 37 (CEAA) in respect of the hazardous substanceemissions (HSE) issue; and whether the Judge misapplied the correct standard of review in his
review of that question.

3. Facts:
In June 2006, the Ontario Ministry of Energy directed OPG to begin the approvals process forthe installation and operation of new nuclear power generation units at the existing
Darlington Nuclear Generating Station, located on the Lake Ontario shoreline in Clarington,
Ontario. Pursuant to this directive, OPG applied to the CNSC in September 2006 for a licence toprepare the Darlington site for construction of up to four new nuclear reactors (the Project).
The Project consisted of site preparation; construction of the four new reactors andassociated facilities; the operation and maintenance of the reactors and related facilities forapproximately 60 years, including the management of conventional and radioactive waste;
and the decommissioning of the nuclear reactors and abandonment of the site.
In March 2008, the Panel was established to conduct both an EA under the CEAA and serve
as a CNSC panel to determine OPG’s site preparation licence application under the Nuclear
Safety and Control Act, SC 1997, c 9 (NSCA). In September 2009, OPG filed its environmental
impact statement (EIS).
The hearing was conducted from March 2011 until April 2011, it received 278 contributions
and was finally able to make public the Panel’s Environmental Assessment Report (EA Report)
in August 2011. The EA Report concluded that the Project was not likely to cause significant
adverse environmental effects, provided the mitigation measures proposed and thecommitments made by OPG during the review, as well as the Panel’s 67 recommendations,

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were implemented. The Governor in Council subsequently released the Government Response
approving the Project under the CEAA.
In August 2012, the CNSC issued OPG a site preparation licence under the NSCA.

4. Past procedure:
Two Federal Court applications, heard consecutively, challenged the EA undertaken by the
Panel under the CEAA in relation to the Project and challenged the licence issued under the
NSCA on the basis of the EA Report. The applications were allowed in part. The Federal Court
Judge held that the EA failed to comply with the CEAA in respect of three areas. The EA Report
was partially quashed and was returned to the Panel for further consideration of the HSE Issue,
the Spent Nuclear Fuel Issue, and the Common Cause Accident Issue. The second application
challenged the issuance of the site preparation licence with respect to the Project that wasissued by the CNSC after the release of the EA Report by the Panel. The licence was quashedbecause the EA Report failed to comply with the CEAA.

5. Analysis:
On appeal are the Federal Court Judge’s conclusions that the analysis of the Panel wasincomplete in three areas: (1) consideration of hazardous substance emissions; (2) considerationof spent nuclear fuel; and (3) the deferral of the analysis of a severe common cause accident. In
each area, the Federal Court Judge held that the EA Report required more information to allow
the Governor in Council to properly evaluate the Project in connection to “society’s chosen levelof protection against risk.”In relation to hazardous substance emissions, the Federal Court of Appeal found that thereasonableness standard of review, with respect to the question of whether the Panel erred byfailing to consider those environmental effects, was misapplied. The lack of bounding scenario
analyses with respect to all of the environmental effects of HSE was a logical consequence of
the use of the plant parameter envelope approach.
In consideration of the spent nuclear fuel issue, the Federal Court of Appeal found thePanel’s decision to have been defensible and found that the Judge erred in substituting his
own views for that of the Panel.
With respect to severe common cause accidents, the issue turned on whether the decision
maker had sufficient information of the environmental effects, together with mitigation
measures, to make the assessment and recommendations that it did. In this case, the issue
was a highly improbable severe accident, the parameters of which depended on any one of
any number of hypothetical scenarios. The CEAA does not require that all accident scenarios
be considered. Therefore, the Federal Court of Appeal agrees that the Panel’s assessment of
the probability of the accident, and hence its limited assessment of the environmental effects,
was a matter within the scope of its discretion and its conclusion was reasonable.

6. Holding:On the basis that the Federal Court Judge erred in his conclusions with respect to all three of
the issues, this decision dismissed both applications for judicial review.
Greenpeace Canada’s application for leave to appeal this decision to the Supreme Court of
Canada was dismissed.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: NEW REACTOR LICENSINGCZECHIASdružení Jihočeské matky v. Státní úřad pro jadernou bezpečnost
[South Bohemian Mother’s Association v. State Office for Nuclear Safety]
The Supreme Administrative Court of the Czech Republic, 2007
2 As 12/2006-111

1. Parties:
In this matter, the Complainant was Jihočeské matky, a non-governmental organisation (NGO),
appealed the decision of the State Office for Nuclear Safety (SÚJB), the nuclear regulator, toissue a licence to operate Unit 1 of the Temelín Nuclear Power Plant.

2. Issue(s):Whether the applicant for a licence to operate a nuclear power plant under section 9(d) of the
Act No. 18/1997 Coll., of 24 January 1997 on Peaceful Utilisation of Nuclear Energy and Ionising
Radiation (Atomic Act) is the sole participant in the administrative proceeding and thus
whether the entities defined in section 70(2) and (3) of the Act No 114/1992 Coll., on theProtection of Nature and the Landscape (Nature and Landscape Protection Act) are notparticipants in this proceeding.

3. Facts:
The licensee applied for a licence to operate a nuclear installation pursuant to section 9(1)(d)of the Atomic Act for Unit 1 of the Temelín Nuclear Power Plant. The SÚJB issued the licence inan administrative proceeding and laid down the conditions under which that activity may be
carried out.

4. Past procedure:
The Complainant (the NGO Jihočeské matky) appealed SÚJB’s decision (first instanceadministrative decision) and subsequently filed a complaint against the administrative
proceeding described above. Jihočeské matky based its appeal, inter alia, on the grounds of aprocedural defect, namely its omission as a party to the administrative proceeding, and on theassertion that the applicant for the licence had not demonstrated that the benefits of its
activity outweigh the associated risks and that the principle of the lowest reasonably
achievable level of risk was being respected.
The appeal was found to be inadmissible by the President of the SÚJB as the Complainant
was not a party to the proceedings under section 14 of the Atomic Act.
The Complainant then brought an action against that decision before the Municipal Court
in Prague. Jihočeské matky argued, inter alia, that the operation of Temelín, Unit 1 would
undeniably have a major impact on the interests of nature and landscape protection as
defined in section 2 of the Nature and Landscape Protection Act and also criticised thedecision by the SÚJB in the first instance administrative procedure, in particular for its alleged

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non-reviewability. That action was dismissed by the Municipal Court in Prague (final decisionof a regional court in administrative justice review).
This decision was subsequently challenged by a cassation complaint to the Supreme
Administrative Court (remedy against the final decision of a regional court in administrative
justice review).

5. Analysis:
The applicant for a licence to operate Temelín, Unit 1 in accordance with section 9(d) of theAtomic Act is the sole participant in the administrative proceeding. The entities defined in
sections 70(2) and (3) of the Nature and Landscape Protection Act are not participants in theproceeding. It is sufficient if public participation is ensured in those proceedings in which theenvironmental impact of such operations is directly considered (e.g. under Act No. 183/2006
Coll., on Town and Country Planning and Building Code (Building Act)).
A different situation would arise if there were only a single administrative procedure to
bring a nuclear power plant into operation. In such case, a systematic interpretation would
lead to a different conclusion and participation in such proceedings would also have to be
granted to the civic associations whose main objective is to protect nature and landscape.

6. Holding:
The Court held that the applicant for a licence pursuant to section 9(1)(d) of the Atomic Act isthe sole participant in the proceeding and the entities defined in section 70(2) and (3) of the
Nature and Landscape Protection Act do not have a right to participate as parties in theproceeding. This is consistent with the international legal obligations of Czechia, namely the
Aarhus Convention, 12 published under Act No. 124/2004 Coll., of International Treaties. The
appeal was dismissed.

12. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice inEnvironmental Matters (1998), 2161 UNTS 450, entered into force 30 Oct. 2001 (Aarhus Convention).

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FINLAND
Olkiluodon ja Orjasaaren osakaskunta, Munakarin yhteisalueen osakaskunta ja Sorkan
osakaskunta sekä yksityishenkilöt A ja B v. The Finnish Government[Olkiluoto and Orjasaari Co-operative, Munakari Common Area Co-operative and Sorkka
Co-operative, as well as private individuals A and B v. The Finnish Government]
The Supreme Administrative Court of Finland, 2019
KHO 29.8.2019/3864

1. Parties:
The Appellants were three co-operatives of property owners possessing the water areas
around Olkiluoto 3 Nuclear Power Plant: Olkiluoto and Orjasaari co-operative, Munakari
co-operative and Sorkka co-operative, and two private persons A and B. The Respondent was
the Finnish Government, as the licensing authority of nuclear facilities in Finland.

2. Issue(s):Whether the decision of the Finnish Government to grant a licence to operate the Olkiluoto 3
Nuclear Power Plant should be annulled. The appealing parties argue that Olkiluoto 3 does notcomply with the safety standards set out in the Nuclear Energy Act (990/1987) and that thewater areas around the power plant belong to the appealing parties.

3. Facts:
In April 2016, Teollisuuden Voima Oyj (TVO) applied for a licence to under section 20 of the
Nuclear Energy Act (990/1987) to operate the Olkiluoto 3 Nuclear Power Plant to be built on
Olkiluoto Island in the Municipality of Eurajoki. The licence was to run from the beginning of2018 until the end of 2038. In addition, TVO applied for an intermediate storage permit for theintermediate storage of spent nuclear fuel and a permit for the intermediate storage of wastefrom 2018 until the end of 2038. In its application, TVO requested that the Government,
pursuant to section 31(2) of the Administrative Procedure Act (893/2015), decide that thedecision be enforced despite any complaint and not be postponed in the public interest.
On 7 March 2019, the Finnish Government granted TVO a licence to operate the Olkiluoto 3
Nuclear Power Plant under section 20 of the Nuclear Energy Act. The Government decisionfound that the security procedures, emergency procedures and other procedures were
sufficient. Additionally, the Government found the residence and movement restriction area
for the Nuclear Power Plant area set up by Decree 480/2018 of the Ministry of the Interior was
sufficient to cover changes caused by the construction of the Olkiluoto 3 Nuclear Power Plant.
The licence was granted from the date of the decision until the end of 2038 with the decision
having immediate effect.
Olkiluoto and Orjasaari co-operative, Munakari co-operative and Sorkka co-operative
launched their appeal with the Supreme Administrative Court on the grounds that thedecision by the Finnish Government failed to meet sections 6, 7 and 20 of the Nuclear Energy
Act and that the Ministry of Economic Affairs and Employment and TVO unlawfully
determined the extent and location of the area of Olkiluoto 3 Nuclear Power Plant. TheyLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

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claimed that the Finnish Government and the Ministry of Economic Affairs and Employment
illegally granted control of town-planned water and island areas owned by the shareholders to
TVO. According to their claim, the Ministry of the Interior must impose a restriction on
movement and residence in the area in accordance with Chapter 9, section 8 of the Police Act(872/2011) for TVO to have legal control over it, in accordance with the requirements ofsections 6, 7 and 20 of the Nuclear Energy Act.
Similarly, two private persons, A and B, argued that the conditions for granting a licencewere not met and thus the decision should be annulled. They claimed that the Government’s
decision was made in violation of sections 5, 6, 7 and 20(1)(1)(1) to (3) of the Nuclear Energy Act.
The Supreme Administrative Court reserved an opportunity for A and B, referring to section 75(2)of the Nuclear Energy Act and section 6(1) of the Administrative Judicial Procedure Act (808/2019),
to present its explanation of the grounds for their right of appeal in the matter.

4. Past procedure:
According to the Administrative Judicial Procedure Act, appeals against the decision of agovernment plenary session shall be made to the Supreme Administrative Court. Thus, this is
the court of first and last instance.

5. Analysis:
Concerning the appeal by the co-operatives, the Court reasoned that an appeal may be filed on
the grounds that a decision is unlawful. In this case, the ownership of the water areas was notunclear and the nuclear power plant had the right to operate in the water areas. There wasalso no evidence of deficient safety of the nuclear power plant that would lead to theGovernment’s decision being considered unlawful.
According to Chapter 9, section 8 of the Police Act (872/2011), in order to safeguard
activities or property of great importance or to protect people, movement or residence in or
around a secure or protected object may be restricted by decree of the Ministry of the Interior
because of the danger posed by or to the site, or prohibit the introduction of objects or
substances that endanger safety. The Ministry of the Interior imposed such a restricted zone
on movement and residence at the Olkiluoto 3 Nuclear Power Plant through Decree 480/2018.
However, the question concerning the movement and residence restriction area of the
Olkiluoto 3 Nuclear Power Plant and its scope has not been fully resolved.
Concerning the appeal by the private persons, A and B, the Court held that they did nothave the right of appeal because the decision did not concern them and their rights,
obligations or interests were not affected. According to Article 6(1) of the Administrative
Judicial Procedure Act, any decision may be appealed by the person to whom the decision is
directed or whose right, obligation or interest is directly affected by the decision. The Court
was not convinced that the rights, duties or interests of A and B were affected in such a waythat they have the right to appeal the Government's decision.

6. Holding:
The Court dismissed the appeal by the co-operatives and held the appeal by the private
persons, A and B, was inadmissible.

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Case to seek revocation of the permission for the Ikata Nuclear Power Plant
Judgment of the First Petty Bench of the Supreme Court of 29 October 1992 13
Minshu 14 Vol. 46, No. 7, p. 1174
1985 (Showa 60) (行ツ: Gyo-Tsu) No. 133

1. Parties:
The Appellants were residents living in Ehime Prefecture, in which the Ikata Nuclear Power
Plant is located. The Appellee was the Minister of International Trade and Industry, who by
way of an amendment to the Act on the Regulation of Nuclear Source Material, Nuclear Fuel
Material and Reactors (Act No. 166 of 1957) was given the regulatory power on nuclear power
plants that was previously held by the Prime Minister, who had given Shikoku Electric Power
Co., Inc. the permission to install the nuclear reactor in question.

2. Issue(s):Although the Appellants submitted plenty of legal issues, the main legal issues before theSupreme Court were as follows: 15(1) whether the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material andReactors (Act No. 166 of 1957; prior to the amendment by Act No. 80 of 1977) violated Article
31 of the Constitution of Japan (publication date: 3 November 1946) on the grounds that thelaw did not provide for public participation in regulatory review and disclosure of related
documents;(2) whether the safety criteria were inconsistent with Articles 31 and 41 of the Constitutionof Japan by reason that the criteria in question were not set by laws in detailed andconcrete terms;(3) to what extent the regulator had administrative discretion to grant the permission for
installing the nuclear reactor (hereinafter referred to as the “permission”), to what extent
the court could review the regulator’s decision to give the permission in question, andwhether the regulator bore the burden of proof of showing the reasonableness of its
decision to give the permission; and(4) whether the scope of the permission was limited to the basic design of the nuclear
reactor.

13. A provisional English translation of this decision is available on the Supreme Court website at:www.courts.go.jp/app/hanrei_en/detail?id=1399.
14. Minshu is the abbreviated name for Saiko Saibansho Minji Hanreishu, which is a Japanese publication
containing the collection of rulings of the Supreme Court in civil matters (Japanese language
publication: 『最高裁判所民事判例集』).
15. Takagi, H. (2018), “Commentary on the Ikata case”, in The 100 Selected Leading Cases on the Environment
Law, 3rd edition, p. 192 (Japanese language publication: 髙木 光「伊方原発事件」『環境法判例百選［第３版］』（2018 年）192 ページ).

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3. Facts:
Over the course of amendments of laws related to nuclear power plants, Japan has had several
different nuclear power regulators. 16 In this case, the Supreme Court reviewed the permission
granted by the Prime Minister as nuclear power regulator at that time.
The Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors(hereinafter referred to as the “Regulation Act”) has provided regulatory process on a step-bystep basis since the law was enacted in 1957. 17 As the Defendant explained (a permission “[did]not cover an approval of nuclear reactor operation. In the stage of obtaining a permission, an
applicant [was] just qualified to seek an approval of construction plan which [was] required asa secondary step” 18), under the then Regulation Act, the scope of the permission in question
was limited to the basic design of nuclear reactor.
Under the above legal background, on 28 November 1972, the permission in question wasgiven by the Prime Minister to the Shikoku Electric Power Co., Inc. pursuant to then Article 23of the old Regulation Act.

4. Past procedure:
On 27 August 1973, the residents filed the administrative litigation with the Matsuyama
District Court to seek revocation of the permission in question, claiming that there wasillegality in the safety review and, as a result, their lives, health and properties, etc. were indanger. However, the District Court dismissed the claim on 25 April 1978. 19
The residents later appealed to the Takamatsu High Court on 1 May 1978, asserting that
there were defects and unjust points in the District Court’s reasonings.
During this appeal, on 5 July 1978, the Regulation Act was amended with other related
laws such as the Atomic Energy Basic Act (Act No. 186 of 1955). And on 4 January 1979, theMinister of International Trade and Industry succeeded the regulatory power on nuclear
power plants from the Prime Minister following the partial enforcement of those laws. The
residents claimed that the Minister of International Trade and Industry should have followed
the procedures prescribed in the then Code of Civil Procedure (Act No. 29 of 1890) 20 to succeed
as the defendant, but the High Court made an interlocutory judgment on 25 May 1979
concluding that the Minister of International Trade and Industry ipso jure succeeded this caseas the defendant from the Prime Minister following the abovementioned partial enforcement

16. Hase, H. (2018), “Legal challenges to the operation of nuclear reactors in Japan”, Nuclear Law Bulletin,No. 100, OECD Publishing, Paris, pp. 38-39.
17. Commentary on the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material andReactors, Monthly Report by the Atomic Energy Commission, Vol. 2, No. 7 (1957), pp. 27-32. (Japanese
language publication: 「核原料物質、核燃料物質及び原子炉の規制に関する法律解説」『原子力委員会月報』
第２巻第７号（1957 年）). The current Regulation Act maintains the step-by-step regulatory process.
Article 43-3-5 and Article 43-3-9 of the existing Regulation Act stipulate that when an electric powercompany wants to build a nuclear power plant, it must get a permission for installing a nuclear powerreactor in its basic design stage, and it needs to obtain an approval of its design and construction
method in the detailed design stage.
18. Case to seek revocation of the permission to install the nuclear reactor in the Ikata Nuclear Power
Plant, The collection of rulings of the Supreme Court in civil matters, Vol. 46, No. 7 (1993), pp. 2490-2491(Japanese language publication: 「伊方発電所原子炉設置許可処分取消請求事件」『最高裁判所民事判例集』
第 46 巻第７号（1993 年）2490～2491 ページ).
19. Hanrei Times, No. 362 (1978), pp. 124, 132 (Monthly Journal of Court Judgments/Japanese language
publication: 『判例タイムズ』362 号（1978 年）124、132 ページ).
20. The current civil procedure law is the Code of Civil Procedure (Act No. 109 of 1996).

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LEGAL CASES RELATED TO NUCLEAR SAFETY: NEW REACTOR LICENSINGof the laws in 1979 and therefore was not required to take the procedures pursuant to theCode of Civil Procedure. 21
The High Court upheld the judicial decision of prior instance and dismissed the appeal on
14 December 1984. 22

5. Analysis:
The judgment by the Supreme Court concerning this case, which is generally referred to as “TheIkata Supreme Court decision”, is recognised as the leading case in this area as it provides the
judicial review standards for administrative cases regarding the permission for installing a
nuclear power reactor. With regard to the above-mentioned issue (1), the Supreme Court
considered that (a) “there are various types of administrative proceedings depending on
administrative purposes”, (b) reviewing the safety of reactor facilities “requires a considerablyhigh level of expert technical assessments”, and (c) the then Regulation Act obliged the nuclear
power regulator to hear an opinion of the Atomic Energy Commission, which consisted of
persons with knowledge and experience in the relevant specialised fields, and to respect theCommission’s opinion before granting a permission. Taking these points into consideration, theSupreme Court concluded that it was impossible to say that the then Regulation Act wascontrary to Article 31 of the Constitution only for the reason that the law in question did not
require public participation in regulatory review and disclosure of related documents.
Concerning the above-mentioned issue (2), the Supreme Court considered that reviewing
the safety of reactor facilities requires a wide-ranging and considerably high level of scientificand technical knowledge that makes progress constantly, and it concluded that the safety
criteria were not inconsistent with Articles 31 and 41 of the Constitution because “it is not
only difficult to set out safety criteria for [nuclear] reactor facilities in specific details by law,
but it is also inappropriate to do so from the perspective of the need to respond to the latest
science and technology standards instantly.” Another reason for the Supreme Court’s
conclusion is that the relevant provision of the Regulation Act included the discreet procedurethat made it mandatory for the nuclear regulator, before granting a permission, to hear andrespect the opinion of the Atomic Energy Commission and the said discreet procedure wasprescribed to ensure proper safety review by the nuclear regulator.
About the above issue (3), the Supreme Court stated that the Regulation Act’s purpose of
requiring the nuclear power regulator to ask and respect the opinion of the Atomic Energy
Commission was to leave the nuclear safety issue to the regulator’s reasonable decision,
which was based on the Atomic Energy Commission’s opinion. Taking the law’s purpose into
consideration, the Supreme Court concluded that judicial review should be made “in light ofthe current science and technology standards”, concerning (a) whether the then safety
standards, which the Atomic Energy Commission or the expert panel used for reviewing
nuclear safety, were unreasonable or not, and (b) whether there were errors or omissions,which could not be overlooked, in the expert’s review process and the nuclear regulator madean illegal decision relying on such unreasonable expert’s opinion. And the Supreme Court
stated that, in principle, the plaintiff should bear the burden of proof regarding the illegality of
the nuclear regulator’s permission, but concluded that considering that all of the materials
concerning the safety review “[were] in the hands of the defendant administrative agency”,
the nuclear regulator as defendant should first prove, based on the substantial evidence andmaterials, that there were no unreasonable aspects in its decision.

21. Hanrei Times, No. 395 (1979), pp. 110-111 (Japanese language publication: 『判例タイムズ』395 号（1979年）110～111 ページ).
22. Hanrei Times, No. 542 (1985), pp. 89, 94 (Japanese language publication: 『判例タイムズ』542 号（1985 年）
89、94 ページ).

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As for above-mentioned issue (4), the Supreme Court concluded that the permission was
limited to the basic design of the nuclear power reactor because of the structure of regulations
under the then Regulation Act.

6. Holding:
The Supreme Court upheld the High Court’s decision, which had determined that thepermission for the Ikata Nuclear Power Plant was legal, and the final appeal to seek revocationof the permission was dismissed.

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Case to seek a declaratory judgment of the nullity of the permission
for the fast breeder reactor called “Monju” by the residents living outside
a radius of 20 kilometres from the reactor
Judgment of the Third Petty Bench of the Supreme Court of 22 September 1992 23
Minshu 24 Vol. 46, No. 6, p. 571
1989 (Heisei 1) (行ツ: Gyo-Tsu) No. 130

1. Parties:
The residents living about 11 to 58 kilometres (km) away from the fast breeder reactor (FBR)
called “Monju” brought an administrative case to judicially obtain a declaration of nullity ofthe permission for the Monju reactor.
In this case, some of the plaintiffs, i.e. the residents living outside a radius of 20 km from
the Monju reactor, as well as the Prime Minister, who gave the permission in question as anuclear regulator, appealed the case to the Supreme Court.

2. Issue(s):The legal issue before the Supreme Court was whether the residents living about 29 to 58 km
away from the Monju reactor had the standing to sue in an administrative lawsuit to seek adeclaration of nullity of the permission for the FBR in question under the Article 36 of the
Administrative Case Litigation Act (Act No. 139 of 1962). 25

3. Facts:
The Monju reactor is an FBR with an electrical power of 280 MW, and the reactor in question
was in the research and development phase when the Supreme Court reviewed this case. It
used metallic sodium as its coolant and mixed oxide of uranium and plutonium as its fuel,breeding plutonium inside its reactor core. 26

23. A provisional English translation of this decision is available on the Supreme Court website at:www.courts.go.jp/app/hanrei_en/detail?id=1406.
24. Minshu is the abbreviated name for Saiko Saibansho Minji Hanreishu, which is a Japanese publication
containing the collection of rulings of the Supreme Court in civil matters (Japanese language
publication: 『最高裁判所民事判例集』).
25. Ohnishi, Y. (2017), “The Reactor Installation Permit and the standing of the third person”, in The
100 Selected Leading Cases on the Administrative Law II, 7th edition, p. 336 (Japanese language publication:
大西有二「原子炉設置許可と第三者の原告適格」『行政判例百選Ⅱ［第７版］』（2017 年）336 ページ).
26. More information about the Monju reactor can be found in IAEA (2012), Status of Fast Reactor Research
and Technology Development, IAEA-TECDOC-1691, IAEA, Vienna and JAEA (2020), Prototype Fast Breeder
Reactor Monju – Its History and Achievements, JAEA-Technology 2019-20, available at: https://doi.org/
10.11484/jaea-technology-2019-020.

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Under the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material andReactors (Act No. 166 of 1957; hereinafter referred to as the “Regulation Act”), on 27 May 1983,
the Prime Minister granted the permission for the Monju reactor to the “Power Reactor andNuclear Fuel Development Corporation” (PNC), which was a special company establishedunder the Power Reactor and Nuclear Fuel Development Corporation Act (Act. No. 73 of 1967)
and was the operator of the FBR reactor in question.

4. Past procedure:
On 26 September 1985, the residents living approximately 11 to 58 km away from the Monju
reactor filed an administrative lawsuit with the Fukui District Court to obtain a declaration ofnullity of the permission for the reactor in question, claiming that there were serious risks on
residents’ lives and health resulting from the establishment and operation of the FBR facility.
Concurrently, the same residents filed a civil lawsuit in the same court against PNC, seeking
an injunction against the construction and operation of the Monju reactor.
On 25 December 1987, the Fukui District Court separated the administrative lawsuit fromthe civil lawsuit and declined the residents’ claim on the administrative lawsuit, stating thatthe civil lawsuit filed against PNC was “an action concerning the existing legal relationship”
prescribed in Article 36 of the Administrative Case Litigation Act, 27 and the civil lawsuit could
achieve the residents’ purpose more effectively than the administrative lawsuit. 28
The residents appealed to the Nagoya High Court, Kanazawa Branch, asserting that they
had standing to sue to seek a declaration of nullity of the permission in question under the
Article 36 of the Administrative Case Litigation Act.
On 19 July 1989, the Nagoya High Court, Kanazawa Branch divided the residents into twogroups and dismissed the appeal of those living outside a radius of 20 km from the Monju
reactor, who were the Appellants in this Supreme Court case. At the same time, the High
Court ruled in favour of the appeal of those living within a radius of 20 km from the reactor inquestion, stating that they had standing to sue under the Article 36 of the Administrative Case
Litigation Act. The High Court sent the case of the residents living within a radius of 20 km
from the Monju reactor back to the Fukui District Court.
Therefore, the residents living outside a radius of 20 km from the Monju reactor, as well as
the Prime Minister, appealed to the Supreme Court. 29

5. Analysis:
The judgment by the Supreme Court concerning this case is the first Supreme Court case inJapan regarding a nuclear power plant.

27. Article 36 (Standing to Sue in an Action for Declaration of Nullity, etc.) “An action for the declaration ofnullity, etc. of an original administrative disposition or administrative disposition on appeal may be filed
only by a person who is likely to suffer damage from said original administrative disposition or any
disposition following said administrative disposition on appeal or any other person who has legal
interest to seek the declaration of nullity, etc. of the original administrative disposition or administrative
disposition on appeal, where the person is unable to achieve the purpose by filing an action concerning
the existing legal relationship which is based on the existence or non-existence of or validity orinvalidity of the original administrative disposition or administrative disposition on appeal.”
28. Ohnishi, Y. (2017), supra note 28, p. 336.
29. The Supreme Court rendered separate judgments for both parties respectively, and the case ofresidents living within 20 km of the Monju reactor was decided in the Supreme Court decision of 1989
(Heisei 1) (行ツ: Gyo-Tsu) No. 131, provided infra.

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Regarding the standing to sue, the Supreme Court concluded as follows:
Article 9 of the Administrative Case Litigation Act provides for standing to file an action forrevocation of an administrative disposition. The “person who has legal interest” to seek
revocation of the disposition as referred to in said Article means a person whose right orlegally-protected interest has been harmed or is likely to be necessarily harmed by thedisposition. If it is construed that the administrative legislation that governs thedisposition is not only intended to have a specific interest of many and unspecified
persons merely absorbed and dissolved into the general public interest but also intended
to protect such specific interest as an individual interest of each person who is entitled tosaid specific interest, said specific interest falls within the scope of legally-protectedinterest mentioned herein …
Determination as to whether or not the administrative legislation in question is intended
to protect a specific interest of many and unspecified persons also as an individualinterest of each person who is entitled to said specific interest should be made by taking
into consideration such factors as the purpose and objective of the administrative
legislation, and the content and nature of the interest that the administrative legislation
intends to protect by means of the disposition.
Article 36 of the Administrative Case Litigation Act provides for standing to file an action
for declaration of nullity, etc. It is appropriate to interpret the “person who has legal
interest” to seek declaration of nullity, etc. of the disposition in question as referred to in
said Article [9] in the same meaning as in the case of standing to file an action forrevocation of an administrative disposition mentioned above. …
The criterion under item (iii) (limited to the part concerning technical capabilities) and that
under item (iv) [listed in paragraph (1) of Article 24 of the Regulation Act] … have been set
out as the criteria for granting permission for installation of reactors for the following
reason. Reactors … could cause serious disasters …. In light of such risk, and with a viewto ensuring that such a disaster will not take place by any chance, said criteria areintended to ensure that sufficient examination will be conducted during the process ofgranting permission for the installation of reactors, with regard to the technicalcapabilities of the person who intends to install reactors and the safety of the location,
structure and equipment of the reactor facilities specified in the application for permission,and to prohibit the competent minister from granting permission for installation ofreactors unless he/she finds that the applicant has such technical capabilities and that thelocation, structure and equipment of the reactor facilities will not hinder the prevention ofdisasters. Furthermore, any errors or omissions in the examination as to the applicant's
technical capabilities as prescribed in Article 24, paragraph (1), item (iii) of said Act and theexamination as to the safety of the reactor facilities as prescribed in item (iv) of said
paragraph could cause a serious reactor accident, and if such an accident actually occurs,
residents living closer to the reactor facilities are more likely to suffer damage, … and inparticular, those who live near the reactor facilities are likely to suffer direct and serious
damage to their lives, health, etc. Hence, items (iii) and (iv) of said paragraph can beinterpreted as setting out the criteria for technical capabilities and for safety as mentioned
above, in consideration of the nature of such damage resulting from a possible disasterthat could be caused by such a reactor accident, etc. In light of such matters as the reason
why item (iii) (limited to the part concerning technical capability) and item (iv) have been
established, and the nature of the damage that is taken into consideration under these
items, it is appropriate to construe that these items are not only intended to protect thesafety of the lives and health of the public and their interest in the environment as a
general public interest, but also intended to protect the safety of the lives and health, etc.
of the scope of residents who are living near the reactor facilities and are likely to suffer
more direct and serious damage resulting from a possible disaster that could be caused bysuch an accident, etc., as an individual interest of each of these residents.

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The issue as to whether or not the area where these residents are living is an area where
the residents are likely to suffer more direct and serious damage in the event of such adisaster that could be caused by a reactor accident, etc. as mentioned above should bedetermined rationally in light of socially accepted ideas, while taking into consideration
specific conditions regarding the reactors concerned (e.g. the type, structure and scale) andfocusing on the distance between the area where those residents are living and thelocation of the reactors.
Considering the facts that “the appellants are living in areas within a radius of about
29 [km] to about 58 [km] from the Reactor; the Reactor is a fast-breeder reactor in the researchand development stage” which “produces 280,000 kilowatts of power output, using mixed
plutonium-uranium oxide as the core fuel, and a larger amount of plutonium with hightoxicity than used is generated in the reactor core” the appellants living in areas within aradius of about 29 km to about 58 km from the Monju reactor “should be considered to bepersons living in an area where the residents are likely to suffer more direct and serious
damage in the event of a disaster that could be caused by a reactor accident.”

6. Holding:
The Supreme Court ruled in favour of the appeal, stating that the residents living about 29 to
58 km away from the Monju reactor had the standing to sue under the Article 36 of the
Administrative Case Litigation Act. At the same time, the Supreme Court sent the case back to
the Fukui District Court.

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Case to seek a declaratory judgment of the nullity of the permission for the fast
breeder reactor called “Monju” by the residents living within a radius of
20 kilometres from the reactor
Judgment of the Third Petty Bench of the Supreme Court of 22 September 1992 30
Minshu 31 Vol. 46, No. 6, p. 1090
1989 (Heisei 1) (行ツ: Gyo-Tsu) No. 131

1. Parties:
The residents living about 11 to 58 kilometres (km) away from the fast breeder reactor (FBR)
called “Monju” brought an administrative case to judicially obtain a declaration of nullity ofthe permission for the Monju reactor under the Article 36 of the Administrative Case Litigation
Act (Act No. 139 of 1962).
In this case, the Nagoya High Court, Kanazawa Branch, ruled in favour of some of theabove plaintiffs, i.e., the residents living within a radius of 20 km from the Monju reactor,
stating that they had standing to sue under the law, and the Prime Minister, who gave thepermission in question as a nuclear regulator, appealed the case to the Supreme Court.

2. Issue(s):The legal issue before the Supreme Court was whether the residents who had already filed
another civil lawsuit seeking an injunction against the FBR reactor in question had standing tosue under Article 36 32 of the Administrative Case Litigation Act. 33

30. A provisional English translation of this decision is available on the Supreme Court website at:www.courts.go.jp/app/hanrei_en/detail?id=1407.
31. Minshu is the abbreviated name for Saiko Saibansho Minji Hanreishu, which is a Japanese publication
containing the collection of rulings of the Supreme Court in civil matters (Japanese language
publication: 『最高裁判所民事判例集』).
32. Article 36 (Standing to Sue in an Action for Declaration of Nullity, etc.) “An action for the declaration ofnullity, etc. of an original administrative disposition or administrative disposition on appeal may be filed
only by a person who is likely to suffer damage from said original administrative disposition or any
disposition following said administrative disposition on appeal or any other person who has legal
interest to seek the declaration of nullity, etc. of the original administrative disposition or administrative
disposition on appeal, where the person is unable to achieve the purpose by filing an action concerning
the existing legal relationship which is based on the existence or non-existence of or validity orinvalidity of the original administrative disposition or administrative disposition on appeal.”
33. Shimizu, A. (2017), “The possibility of the civil injunction lawsuit and the legal interest for the actions
for the judicial review of administrative dispositions”, in The 100 Selected Leading Cases on the
Administrative Law II, 7th edition, p. 374 (Japanese language publication: 清水晶紀「民事差止訴訟の可能性と抗告訴訟の訴えの利益」『行政判例百選Ⅱ［第７版］』（2017 年）374 ページ).

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3. Facts:
The Monju reactor is an FBR with an electrical power of 280 MW, and the reactor in question
was in the research and development phase when the Supreme Court reviewed this case. It
used metallic sodium as its coolant and mixed oxide of uranium and plutonium as its fuel,breeding plutonium inside its reactor core.
Under the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material andReactors (Act No. 166 of 1957; hereinafter referred to as the “Regulation Act”), on 27 May 1983,
the Prime Minister granted the permission for the Monju reactor to “Power Reactor andNuclear Fuel Development Corporation” (PNC), which was a special company establishedunder the Power Reactor and Nuclear Fuel Development Corporation Act (Act. No. 73 of 1967)
and was the operator of the FBR reactor in question.

4. Past procedure:
On 26 September 1985, the residents living approximately 11 to 58 km away from the Monju
reactor filed an administrative lawsuit with the Fukui District Court to obtain a declaration ofnullity of the permission for the reactor in question, claiming that there were serious risks on
residents’ lives and health resulting from the establishment and operation of the FBR facility.
Concurrently, the same residents filed a civil lawsuit in the same court against PNC, seeking
an injunction against the construction and operation of the Monju reactor.
On 25 December 1987, the Fukui District Court separated the administrative lawsuit fromthe civil lawsuit and declined the residents’ claim on the administrative lawsuit, stating thatthe civil lawsuit filed against PNC was “an action concerning the existing legal relationship”
prescribed in Article 36 of the Administrative Case Litigation Act, 34 and the civil lawsuit could
achieve the residents’ purpose more effectively than the administrative lawsuit. 35
The residents appealed to the Nagoya High Court, Kanazawa Branch, asserting that they
had standing to sue to seek a declaration of nullity of the permission in question under the
Article 36 of the Administrative Case Litigation Act.
On 19 July 1989, the Nagoya High Court, Kanazawa Branch, divided the residents into twogroups and dismissed the appeal of those living outside a radius of 20 km from the Monju
reactor, who were the Appellants in this Supreme Court case. At the same time, the High
Court ruled in favour of the appeal of those living within a radius of 20 km from the reactor inquestion, stating that they had standing to sue under the Article 36 of the Administrative Case
Litigation Act. The High Court sent the case of the residents living within a radius of 20 km
from the Monju reactor back to the Fukui District Court.
Therefore, the residents living outside a radius of 20 km from the Monju reactor, as well as
the Prime Minister, appealed to the Supreme Court. 36

34. Article 36 (Standing to Sue in an Action for Declaration of Nullity, etc.) “An action for the declaration ofnullity, etc. of an original administrative disposition or administrative disposition on appeal may be filed
only by a person who is likely to suffer damage from said original administrative disposition or any
disposition following said administrative disposition on appeal or any other person who has legal
interest to seek the declaration of nullity, etc. of the original administrative disposition or administrative
disposition on appeal, where the person is unable to achieve the purpose by filing an action concerning
the existing legal relationship which is based on the existence or non-existence of or validity orinvalidity of the original administrative disposition or administrative disposition on appeal.”
35. Ohnishi, Y. (2017), supra note 28, p. 336.
36. The Supreme Court rendered separate judgments for both parties respectively, and the case ofresidents living outside 20 km of the Monju reactor was decided in the Supreme Court decision of
1989 (Heisei 1) (行ツ: Gyo-Tsu) No. 130, provided supra.

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5. Analysis:
This Supreme Court case is known as the leading case judging the relationship of civil
injunction lawsuit and administrative lawsuit for nullity of administrative disposition such as
granting a permission.
The Supreme Court judged as follows:
It is appropriate to interpret the case where the person is unable to achieve the purpose by
filing an action concerning the existing legal relationship which is based on the validity orinvalidity of the administrative disposition in question---which is one of the requirements forthe eligibility to file an action for declaration of the nullity of an administrative disposition---,not only as referring to the case where, in connection with the legal relationship arising fromthe disposition, the person is unable to eliminate the disadvantage he/she is suffering due tothe disposition by filing a public law-related action or civil action based on the invalidity of thedisposition, but also as referring to the case where an action for declaration of the nullity ofthe disposition should be deemed to be a more direct and appropriate type of litigation, whencompared with a public law-related action or civil action that is to be filed based on theinvalidity of the disposition, for resolving the dispute arising from the disposition (see 1964
(Gyo-Tsu) No. 95, judgment of the Second Petty Bench of the Supreme Court of November 6,
1970, Minshu Vol. 24, No. 12, at 1721, 1982 (Gyo-Tsu) No. 97, judgment of the Second Petty
Bench of the Supreme Court of April 17, 1987, Minshu Vol. 41, No. 3, at 286).
This reasoning can be applied in this case as follows. The appellees filed a civil action
against Power Reactor and Nuclear Fuel Development Corporation, which is the installer of thereactor facilities in question, to seek an injunction against its construction and operation of
the [Monju reactor] based on their personal rights, etc. This civil action cannot be regarded as
an action concerning the existing legal relationship which is based on the validity or invalidityof the administrative disposition in question as prescribed in Article 36 of the Administrative
Case Litigation Act, nor can it be deemed to be a more direct and appropriate type of litigation,
when compared with the action for declaration of nullity in this case, for resolving the disputearising from the [permission for the Monju reactor]. Hence, the fact that the appellees are able
to file and have actually filed such a civil action cannot be evidence for the action for
declaration of nullity in this case failing to meet the requirements prescribed in said Article.

6. Holding:
The Supreme Court upheld the High Court’s decision and dismissed the final appeal filed by
the Prime Minister.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: NEW REACTOR LICENSINGSLOVAK REPUBLIC
Greenpeace Slovensko v. Úrad jadrového dozoru Slovenskej republiky[Greenpeace Slovakia v. Nuclear Regulatory Authority of the Slovak Republic]
Supreme Court, 20135Sžp/21/2012

1. Parties:
The Plaintiff, Greenpeace Slovensko, a non-governmental organisation (NGO), brought a
lawsuit against the Nuclear Regulatory Authority of the Slovak Republic (Úrad jadrového
dozoru Slovenskej republiky – ÚJD SR) (the Defendant), Slovakia’s nuclear regulator.

2. Issue(s):Whether the Plaintiff has standing to be a participant in the permit procedure regarding
modifications to construction prior to the completion of Units 3 and 4 of the Mochovce
Nuclear Power Plant.

3. Facts:
On 14 August 2008, the ÚJD SR issued administrative decision No. 246/2008 that approved
modifications to construction prior to the completion of Units 3 and 4 of the Mochovce
Nuclear Power Plant (first instance administrative body decision). These modifications wererequested by Slovenske elektrarne, the constructor of Units 3 and 4.
Greenpeace Slovensko filed an appeal against decision No. 246/2008 to the Chairman ofthe ÚJD SR.
On 28 April 2009, the Chairman of the ÚJD SR issued decision No. 79/2009, which denied
Greenpeace Slovensko’s appeal (second instance administrative body decision).

4. Past procedure:
Greenpeace Slovensko then filed an appeal with the District Court in Bratislava (the court offirst instance review of administrative decisions) seeking annulment of decision No. 79/2009.
On 11 May 2012, the District Court in Bratislava decided in favour of the ÚJD SR (Judgment
4S/125/2009-72). Greenpeace Slovensko filed an appeal with the Supreme Court.
On 27 June 2013, the Supreme Court decided in favour of Greenpeace Slovensko. Itreversed the judgment of the District Court in Bratislava, annulled ÚJD SR decision No. 79/2009
and remanded the case to the ÚJD SR to renew the proceeding. The ÚJD SR held a public
hearing on 27 February 2014.
On 23 May 2014, the ÚJD SR issued decision No. 291/2014, which dismissed Greenpeace
Slovensko’s appeal of decision No. 246/2008 and confirmed decision No. 246/2008.
Upon entry into force on 30 May 2014, Greenpeace Slovensko’s claims were closed.

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5. Analysis:
When determining the range of participants in administrative proceedings, it is necessary toalso take into account persons, whose rights, legally protected interests or obligations may bedirectly affected by the decision. This opinion was expressed by the Constitutional Court of
the Slovak Republic in its 13 January 2011 judgment no. k. II. ÚS 197/2010-52: “the basic
criterion for assessing participation is above all the impact of the actions of a state power body(court or public administration body) or its decision on the basic rights that such a person has
guaranteed in the constitution or through an international treaty”.
In addition, the Constitutional Court stated in judgment no. k. I. ÚS 223/09-131 of 27 May
2010 that:
effective care for the environment is a constitutional value (Article 44, paragraph 4 of theConstitution) that the state takes care of. Everyone is subject to the right to a favourable
environment (Article 44, paragraph 1 of the Constitution). The state ensures effective care forthe environment in all respects, while the basic forms of this care are rule-making (legal
framework of protection) and supervision of the state environmental administration bodies
over selected activities in the area of the environment. … In addition to the constitution, there
are a number of international treaties, but also community law, which pay increased attention
to issues related to the protection and creation of the environment. With regard to the fact,that according to the constitution, everyone has a right to a favourable environment, theSlovak Republic has adopted several legal obligations to ensure public participation in thedecision-making processes of public administration bodies in the sphere of the environment.
At the international legal level, this is mainly the Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters (publishedunder No. 43/2006 Coll.; hereinafter referred to as the “Aarhus Convention”). At the legal level,
it … was implemented by Council Directive 96/61/EC on integrated pollution prevention andcontrol as amended by Directive 2003/35/EC, as well as Act No. 24/2006 Coll. on theAssessment of Environmental Impacts and on the amendment and supplementation ofcertain laws (hereinafter referred to as the “EIA Act”).
Mindful of these conclusions of the Constitutional Court, as well as referencing
Recommendation Rec2004(20) of the Committee of Ministers to member states on judicial
review of administrative acts, Art. B(2)(a), and Recommendation No. R(87)16 of the Committeeof Ministers to member states on administrative procedures affecting a large number of
persons, the Supreme Court found that the Plaintiff must be considered a party to theadministrative proceedings and further be treated as a party in these proceedings. Whenevaluating this objection, it is not sufficient to state that the Plaintiff did not suffer damage to
its rights, as far as the administrative authority acted with it, and it is necessary to point out
the obligation of the administrative authority to include the Plaintiff as a participant in theadministrative proceedings, since such a right belongs to the Plaintiff on the basis of theaforementioned legal provisions.
In agreement with the Plaintiff, the Supreme Court found that:•

nuclear power plants are clearly activities that can be characterised as environmental
matters, as the Aarhus Convention deals with this term;•

any authorisation (including the construction procedure) related to the nuclear power
plant clearly falls under the authorisation procedures covered by the Aarhus
Convention, in which the member states must ensure timely and effective public
participation;•

the Aarhus Convention concerns not only the authorisation of new activities, but also
relevant changes to already permitted activities;•

the essence and purpose of the Aarhus Convention is to ensure broad participation of
the public, especially associations whose goal is environmental protection, in decisionmaking processes;

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the participation of the public should be ensured so that it is timely and effective; and•the administrative body, considering that the administrative procedure in question
indisputably involves an activity consisting of a permit for the operation of a nuclear
facility, taking into account Article 6 and Annex I of the Aarhus Convention, shall carryout an assessment of the impact of construction on the environment in accordancewith the EIA Act.

In its conclusion, there is no legal requirement of the Slovak Republic or of the Aarhus
Convention that the comments submitted by civil associations and the interested public to theenvironmental impact assessment process be met. Instead, the purpose is to allow the public
not only to express themselves, but also to submit qualified comments, especially throughenvironmental experts, to ensure a professional, substantive evaluation process.

6. Holding:
The Supreme Court decided in favour of Greenpeace Slovensko.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: NEW REACTOR LICENSINGSLOVAK REPUBLIC
Greenpeace Slovensko v. Úrad jadrového dozoru Slovenskej republiky[Greenpeace Slovakia v. Nuclear Regulatory Authority of the Slovak Republic]
Supreme Court, 20153Sži/22/2014

1. Parties:
The Plaintiff, Greenpeace Slovensko, a non-governmental organisation (NGO), brought a suitagainst the Nuclear Regulatory Authority of the Slovak Republic (Úrad jadrového dozoru
Slovenskej republiky – ÚJD SR) (the Defendant), Slovakia’s nuclear regulator.

2. Issue(s):Whether the ÚJD SR’s refusal to release the preliminary safety report for Units 3 and 4 of the
Mochovce Nuclear Power Plant was lawful under Act No. 211/2000 Coll. on Free Access toInformation and Amendments of Some Acts (Freedom of Information Act).

3. Facts:
On 2 December 2009, under the Freedom of Information Act, the Plaintiff (Greenpeace
Slovensko) submitted a request for access to the preliminary safety report for Units 3 and 4 of
the Mochovce Nuclear Power Plant (then under construction). Greenpeace Slovensko claimed
it had a right to the information (especially environmental information). The ÚJD SR claimed
that such sensitive information could endanger public security if it was easily accessible andmade publicly available.
On 14 December 2009, the first instance administrative body of the ÚJD SR issued decision
No. 325/2009 denying the Plaintiff’s request. The Plaintiff appealed the decision.
On 1 February 2010, the second instance administrative body – the Chairman of the ÚJD SR– rejected the appeal by decision No. 39/2010 and confirmed the decision of the first instanceadministrative body (ÚJD SR).

4. Past procedure:On 6 April 2010, the Plaintiff lodged the petition/claim for review of the lawfulness of decision
No. 39/2010 with the District Court in Bratislava (the court of first instance review ofadministrative decisions).
On 25 October 2011, the District Court decided in favour of the ÚJD SR and denied
Greenpeace Slovensko’s claim. Subsequently, Greenpeace Slovensko appealed to the Supreme
Court.
On 1 August 2012, the Supreme Court reversed the District Court judgment and remanded
the proceeding back to the District Court. The Supreme Court held that the District Court did

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not adequately deal with the full scope of the Plaintiff’s claims and that its decision lacked
sufficient reasoning, especially in regard to application of the Aarhus Convention.
On 14 May 2013, the District Court in Bratislava decided in favour of the Plaintiff,
overturning decision No. 39/2010 and remanding the case to the ÚJD SR to renew theadministrative proceedings (judgment No. 3S/142/2010 – 212). The ÚJD SR appealed to theSupreme Court.
In the meantime, the ÚJD SR provided to the public from 15 October and 30 November 2013
the safety documentation for Mochovce Units 3 and 4, except for information designatedsensitive pursuant to the Article 3(14) and (15) of Act No. 541/2004 Coll. on the Peaceful Use of
Nuclear Energy and on amendment and supplement of certain acts, as amended (2004 Atomic
Act), which was redacted. Disclosure of the safety documentation was made as part of therenewed administrative proceedings on licensing of the modifications to the construction of
Mochovce Units 3 and 4. Public participants were allowed access to all documentation except
those portions containing sensitive information.
On 18 December 2014, ÚJD SR issued a new decision No. 291/2014 and lodged an
application for suspension of the trial on the grounds that it made licensing documentation
available to the Plaintiff, including the preliminary safety report with exclusion of sensitive
information. The Plaintiff did not avail itself of this possibility in the scope originally
requested in the claim handled by the District Court.
On 9 June 2015 the Supreme Court confirmed the decision of the District Court.

5. Analysis:
The Supreme Court confirmed the logic and reasoning of the District Court. It stated that theprecedence of the Aarhus Convention must be observed. On the other hand, Directive
2003/4/EC and the Aarhus Convention do not provide the public unlimited access to
information with regards to the environment. Thus the relevant environmental informationmust be available, but the remaining sensitive information has not been disclosed. The
Respondent lodged an application for suspension of the trial, reasoning that from 15 October
2013 to 30 November 2013 the Respondent made licensing documentation available to the
Claimant, including the preliminary safety report with redaction of sensitive information. The
Claimant has not made use of this possibility in the scope originally requested in the claim
handled by the District Court and the Claimant did not express that it does not hold the same
claim entitlement as originally requested in the claim. The Supreme Court was therefore
unable to satisfy the Respondent’s request for suspension of the trial.

6. Holding:
The Supreme Court confirmed the judgment of the District Court.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: NEW REACTOR LICENSINGUNITED STATESIn the Matter of South Carolina Electric & Gas Co.
& South Carolina Public Service Authority
US Nuclear Regulatory Commission (2012)
CLI-12-9, 75 NRC 421

1. Parties:
The United States (US) Nuclear Regulatory Commission (NRC) conducted a mandatory hearingof the US NRC Staff’s review of South Carolina Electric & Gas Co. (SCE&G) and South Carolina
Public Service Authority’s combined licence application to build and operate two additional
units at the Virgil C. Summer Nuclear Station in Fairfield County, South Carolina.

2. Issue(s):Under section 189(a) of the US Atomic Energy Act of 1954, as amended (AEA), the US NRC isrequired to conduct a hearing at the construction permit phase of new reactor generation facility.
Interested parties are given the opportunity to contest the sufficiency of the application. Even in
the absence of a contested hearing, however, section 189(a) requires the US NRC Commission to
hold an “uncontested” or mandatory hearing.
This decision was the result of the mandatory hearing to consider the sufficiency of the US
NRC Staff’s review of the application for combined construction permits and operating licences(combined licences or COLs) for reactor units at a nuclear power plant. The Commission
evaluated whether the US NRC Staff had adequately reviewed the licence application.

3. Facts:
On 27 March 2008, SCE&G submitted its application for 10 Code of Federal Regulations (CFR)Part 52 COLs for two AP1000 advanced passive pressurised-water reactors for the Virgil C.
Summer Nuclear Station, Units 2 and 3.
The US NRC completed its safety review in August 2011 with the issuance of the final
Safety Evaluation Report. The Staff concluded that the COL application (COLA) complied withapplicable safety regulations and recommended that the Commission make the findings
necessary for issuance of the COLs.
The environmental review was completed in April 2011 with the issuance of the final
environmental impact statement. It concluded, among other things, that unavoidable adverse
environmental impacts during construction and operation would be small. The Staff
concluded that construction and operation of the proposed units would have accrued benefits
that most likely would outweigh the economic, environmental and other societal costs. The
recommendation to the Commission related to the environmental aspects was that the COLs
be issued.
The AP1000 reactor design is design certified in US NRC regulations as a standard design(10 CFR Part 52, Appendix D). The AP1000 design underwent revisions during the US NRC’sreview of the Summer COLA. The US NRC’s review of the Summer COLA could not be finalised
until the amendment to the AP1000 certified design was also finalised, which was effective on
30 December 2011.

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4. Past procedure:
Independent of the mandatory hearing conducted by the Commission of the US NRC, twoenvironmental organisations (the Sierra Club and Friends of the Earth, filing jointly) and one
individual requested a hearing before the US Atomic Safety and Licensing Board (ASLB), which
conducts the US NRC’s adjudicatory hearings.
In February 2009, the ASLB found that only the Sierra Club had demonstrated standing butthat none of the proposed conditions by any Petitioner was admissible and denied the hearing
requests.
All three parties appealed to the US NRC Commission, which affirmed the ASLB’s decision
except with respect to one proposed contention, relating to the requirement to consider energy
alternatives. The Commission determined that promoting energy efficiency by end users could
be a valid alternative to be considered when the applicant is a public utility, as opposed to amerchant generator of electricity and remanded the issue to the ASLB for further consideration.
On remand, the ASLB concluded that the contention was inadmissible, which theCommission of the US NRC affirmed on appeal, thus ending the contested portion of theproceeding.
In April 2011, Friends of the Earth and the South Carolina Chapter of the Sierra Club joined
in a petition, filed on multiple dockets, to (among other things) suspend licensing decisions
while the US NRC Commission considered the impacts of the earthquake and tsunami at the
Fukushima Daiichi Nuclear Power Plant in Japan. The US NRC Commission granted thepetition in part and denied it in part.

5. Analysis:
The Commission of the US NRC determined that the agency’s safety and environmental review
was consistent with the requirements of the AEA and the National Environmental Policy Act of1969, as amended.

6. Holding:
The Commission of the US NRC authorised the agency staff to issue the licences. In addition, it
directed the US NRC Staff to include in the licence certain conditions relative to theimplementation of a surveillance programme for squib valves and the development ofstrategies to address beyond design basis external events.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONCANADA
Greenpeace Canada v. Canada (Attorney General)
Federal Court of Appeal (FCA), 20162016 FCA 114

1. Parties:
In this matter the Appellants were four non-governmental organisations (NGOs): Greenpeace
Canada, the Canadian Environmental Law Association, Lake Ontario Waterkeeper andNorthwatch. The Respondents were the Attorney General of Canada and Ontario Power
Generation Inc. (OPG), a publicly owned utility company licensed by the Canadian nuclear
regulatory body, the Canadian Nuclear Safety Commission (CNSC).

2. Issue(s):The issue before the Federal Court of Appeal was whether the decision of the CNSC was
unreasonable on two issues: (1) whether it was unreasonable for the “Responsible
Authorities” 37 (RA) to exclude severe low-probability nuclear accidents from the scope of theenvironmental assessment (EA); and (2) whether it had failed to give adequate consideration
to the long-term management of the nuclear fuel waste that the Darlington Facility would
generate if the project were authorised.

3. Facts:
The Darlington Nuclear Generating Station, owned and operated by OPG, is made up of fourCANDU reactors and has been in operation since 1993. In April of 2011, OPG submitted a projectdescription to the CNSC for the refurbishment and continued operation of the four reactors foran additional 30 years. The refurbishment and continued operation would produce additional
waste, including spent fuel. The project description included the construction of additional
storage capacity at the Darlington Waste Management Facility.
Under Canadian law, the activities outlined in the refurbishment project required a licensing
decision by the CNSC under the Nuclear Safety and Control Act (NSCA), 38 authorisation from the
Department of Fisheries and Oceans (DFO) under the Fisheries Act 39 and an environmental
assessment under the Canadian Environmental Assessment Act 1992 40 (CEAA 1992). Both the
CNSC and DFO were RAs to conduct the EA, with the CNSC taking the lead on the assessment.

37.
38.
39.
40.

The Responsible Authorities in this matter are the CNSC and the Department of Fisheries.
SC 1997, c. 9.
RSC 1985, c. F-14.
Under the Canadian Environmental Assessment Act 1992 that was in force in 2011, OPG’s application
under the Nuclear Safety and Control Act and the request for an authorisation under the Fisheries Act
triggered the need to conduct a screening level EA. By virtue of an order issued by the Minister ofEnvironment under subsection 124(2) of the new Canadian Environmental Assessment Act, 2012, SC
2012, c. 19, s. 52 (CEAA 2012), OPG’s refurbishment project continued to be governed by the CEAA 1992
despite the repeal of this legislation in 2012.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONIn March 2013, after a public hearing on the proposed EA screening report, the CNSC
issued its decision on the EA concluding that the refurbishment and continued operation of
Darlington were not likely to cause significant adverse environmental effects when the
mitigation measures identified in the EA screening report were taken into account. It
proceeded to consider the matter for licensing under the NSCA.

4. Past procedure:
Greenpeace Canada, the Canadian Environmental Law Association, Lake Ontario Waterkeeper
and Northwatch, who participated in the EA review and hearing process, applied to theFederal Court for judicial review of the EA decision. They argued that the CNSC had failed toassess the matters it was required to assess under the CEAA 1992 and erred by excluding fromthe scope of the EA low-probability severe nuclear accidents.
By decision dated 25 November 2014, the Federal Court dismissed the application. 41 The
Court found that there was no reviewable error, and that the selection of the “one in a million
per year” probability for a severe accident as a threshold below which accidents would be outof scope for the EA, was reasonable.
The Federal Court also held that the RAs were entitled to delegate completion of the EIS
and technical studies to OPG under section 17 of CEAA 1992 and that they did not need topostpone their decisions until after the design and implementation of the follow up programthat was to be pursued by OPG and presented to the CNSC as part of the licensing process
under the NSCA.
In late 2014, the NGOs filed an appeal of that decision to the Federal Court of Appeal.
Meanwhile, after a two-part licensing hearing that took place in 2015, the CNSC made its
licensing decision to renew the Darlington operating licence and to authorise therefurbishment of the reactors. This decision making under the NSCA was reliant upon thevalidity of the EA that had been done, which had been upheld by the Federal Court.

5. Analysis:With respect to the standard of review, the Federal Court of Appeal found its job on appeal
required it to “assess whether a decision is justified, transparent and intelligible, and whether
the result reached is defensible on the facts and the law”. In this, the FCA found thatconsiderable deference was owed to the CNSC.
On the issue of exclusion of severe low-probability accidents, the Federal Court of Appeal
found that the threshold of “one in a million per year” severe accident was the accepted norm
applied, as had been explained in the CNSC decision. The NGOs argued both that thethreshold was too low and that the CNSC had not respected that threshold in making its EA
decision. The Federal Court of Appeal found no reviewable error in how the CNSC had
addressed this issue.
In considering the issue of long-term management of fuel waste, the NGOs submitted thatthey had submitted to the CNSC in the EA hearing, and before the Federal Court, that the EA
had to consider the impact of the absence of a comprehensive plan for the permanent storageof nuclear fuel waste in Canada. The Federal Court of Appeal found that the CNSC had

41. 2014 FC 1124.

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reasonably broadened the scope of the project to be considered respecting this issue by
including the possibility of ongoing long-term onsite storage of spent fuel at the facility. 42

6. Holding:
The Federal Court of Appeal found that there had been no reviewable error made in the EA
conducted by the RAs for a nuclear project. The EA had concluded that the refurbishment andcontinued operation of the Darlington Nuclear Generating Station was not likely to causesignificant adverse environmental effects. The appeal was dismissed, with costs.

42. This finding is reminiscent of the ruling made by a different panel of the same appellate court in theappeal of an EA completed in the context of an application to build new reactors at the Darlington
site, where the Court also determined that the consideration of the issue of spent fuel management at
the EA stage did not require consideration of off-site permanent storage. Canada et al. v Greenpeace
Canada et al., 2015 FCA 186.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONCANADA
Citizens Against Radioactive Neighbourhoods (CARN) v.
BWXT Nuclear Energy Canada Inc.
Federal Court, 2022
2022 FC 849

1. Parties:
The Applicant in this proceeding is Citizens Against Radioactive Neighbourhoods (CARN), an
unincorporated non-profit organisation established in 2019 and based in Peterborough,Ontario.
The Respondent is BWXT Nuclear Energy Canada Inc. (BWXT), which owns and operates
the two nuclear fuel manufacturing facilities in Toronto and Peterborough. Both facilities are,under the Nuclear Safety and Control Act, SC 1997, c.9 (NSCA) and its Class I Nuclear Facilities
Regulations, SOR/2000-204, defined as “Class IB nuclear facilities”. Prior to 2016, these facilities
were operated by GE-Hitachi Nuclear Energy Canada Inc. The Canadian Nuclear Safety
Commission (CNSC or Commission) transferred the operating licence for these facilities to
BWXT following its acquisition of that company in 2016.

2. Issue(s):Whether it was reasonable for the Commission to authorise pelleting operations at thePeterborough facility subject to certain licence conditions.

3. Facts:
On 2 November 2018, BWXT applied for a ten-year renewal of its operating licence for the two
Class IB facilities. It sought authorisation to conduct “pelleting operations”, previously
authorised only at the Toronto facility, at the Peterborough facility, for potential futurebusiness reasons. The Peterborough facility is in a residential area of downtown Peterboroughand is adjacent to an elementary school.
On 18 December 2020, the Commission renewed the licence for a period of ten years
pursuant to section 24 of the NSCA and severed the single licence into two facility-specificlicences for the Toronto and Peterborough facilities. By majority decision, the Commission
authorised commercial fuel pellet production by BWXT at the Peterborough facility, subject tothree licence conditions, the first two commonly termed “hold points”:

76•

Licence Condition 15.1 required BWXT to submit and implement an updated
environmental monitoring programme at the Peterborough facility prior to thecommencement of fuel pellet production;•

Licence Condition 15.2 required BWXT to submit a final commissioning report related
to production of fuel pellets that is acceptable to the Commission, prior to thecommencement of commercial fuel pellet production at the Peterborough facility; and•Licence Condition 15.3 stipulated that fuel pellet production could be conducted ateither the Toronto facility or at the Peterborough facility, but not at both facilities.

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The minority Commission decision (dissent) would not have authorised fuel pellet
production at the Peterborough facility. The Commission majority was satisfied that pelleting
operations would be adequately safe at either location, since the public effective dose, the air
uranium dioxide releases and the effluent uranium dioxide releases would remain well below
regulatory and licence limits. The majority found that BWXT was “entitled to determine how
best to conduct its business, and that the Commission’s role is to ensure it does so safely inaccordance with the NSCA and related regulations”. The minority, on the other hand, was ofthe view that even if the safety case were met for either location, the “question is not whether
pelleting is safe in Peterborough, but rather, at what location is it ‘safer’ to pellet”.

4. Analysis:
There were four major issues in the application that the Court addressed. First, the Court
determined the appropriate standard of review, or level of deference to be given to thedecision maker. The parties before the Court agreed that the appropriate standard throughwhich the Court ought to review the Commission decision was “reasonableness”.
Second, the Court addressed the sufficiency of the licence renewal application materials
and information provided for hearing. In its application, CARN argued that BWXT’s licenceapplication lacked information that was required by the NSCA and the applicable regulations,
violating the statutory scheme and resulting in an unreasonable Commission decision. The
Court was not persuaded by this submission, finding that the sufficiency of an application
received by the CNSC under the NSCA and its regulations was:… a subjective standard left to the Commission to enforce, as the Regulations provide broad,general standards, and terms defined without scientific precision. These broadly defined
standards leave room for the Commission’s judgment. It is worth noting that theCommission itself wrote the Class I Regulations … Calibration of the precise level of
specificity required by these broad terms is a matter Parliament left for the Commission, not for
the Applicant or the Court. [emphasis added]
The Court was satisfied that there was no reviewable error respecting this issue.
Third, the Court addressed the legality of the use of “hold point” licence conditions. In its
challenge to the Commission’s decision, CARN argued that licence conditions 15.1 and 15.2
unlawfully deferred key elements of the Commission’s decision making and relieved thelicensee of mandatory licence application requirements. The Court noted that the NSCA
confers a broad discretion on the Commission respecting the power to impose licenceconditions. Finding this wording to reflect Parliament’s intention that the Commission haveflexibility in its interpretation of its enabling authority, the Court found the Commission’s
imposition of “hold point” licence conditions to be a valid exercise of its discretionary power.
The Court was also satisfied that there was no reviewable error on the part of the Commission
in requiring additional information from a licensee in the future.
Finally, the Court analysed how the principles of ALARA (As Low as Reasonably Achievable),justification and precaution fit within the statutory scheme of the NSCA and domestic law, inorder to assess the legality of the Commission majority decision. CARN submitted that theCommission exercised its statutory discretion unreasonably in light of the three above principles(ALARA, justification and precaution). These principles, CARN argued, have been entrenched ininternational law and that sections 3, 9 and 24(4) of the NSCA required that they be applied by
the Commission.
With respect to the ALARA principle, the Court found that the Commission “did not
unreasonably fail to implement the ALARA principle as there was no obligation for it to do soin its decision. The Commission properly found that the Respondent complied with the ALARA
principle by monitoring radiation doses, implementing ‘action levels’ and establishing an
ALARA Committee.” The Court was satisfied that “none of the regulations or regulatory
documents cited by the Applicant create an obligation for the Commission’s decisions to

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comply with the ALARA principle, nor for its decisions to take into account social
considerations in applying that principle”.
With respect to justification, according to CARN, the justification principle dictates that theCommission could not authorise pelleting operations in the Peterborough facility withoutfinding that the advantage or benefit posed by exposure to additional levels of ionising radiation
outweighed any risks. The Court rejected this reasoning, accepting BWXT’s argument that under
the NSCA (sections 3, 9 and 24), justification is a matter of “preventing unreasonable risk”.
Regarding the application of the precautionary principle, the Court was satisfied that it was notengaged here since there was, as had been established to the satisfaction of all of theCommission members, no potential for serious or irreversible damages.

5. Holding:
The Court concluded that the decision was lawful and reasonable, and it dismissed theapplication seeking to have the licence decision quashed.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONNETHERLANDS
Stichting Greenpeace Nederland v. Minister van Economische Zaken[Greenpeace Netherlands Foundation v. Minister of Economic Affairs]
Raad van State [Council of State], 2014
ECLI:NL:RVS:2014:517

1. Parties:
The Appellants were four non-governmental organisations – Vereniging World Information
Service on Energy Amsterdam (WISE), Stichting Greenpeace Nederland (Greenpeace
Netherlands), Vereniging Zeeuwse Milieufederatie, and Stichting Noordelijke Ondergrond
Afvalvrij (Stichting No-A) – and others. The Defendant was the Minister of Economic Affairs(the Minister).

2. Issue(s):Whether an amendment to a licence for the extension of the design lifetime of the Borssele
Nuclear Power Plant must be proceeded by an environmental impact assessment (EIA).

3. Facts:
NV Elektriciteits-Produktiemaatschappij Zuid-Nederland (EPZ) has a licence based on the
Nuclear Energy Act of 21 February 1963 (Stb. 1963, No. 82), as amended (NEA) for the operationof the Borssele Nuclear Power Plant. Although the licence was issued for an indefinite period
in 1973, in the original design and construction, the Borssele Nuclear Power Plant had a design
lifetime of 40 years from the start of operation in 1973. EPZ agreed in the Borssele Nuclear
Power Plant Covenant 43 in 2006 to limit the operating time, despite the indefinite term of thelicence, to an ultimate shutdown date of 31 December 2033 (thus a 60-year operating life). The
31 December 2033 shutdown date was also set out in NEA, Article 15a(1) in 2010. 44
The justification for Borssele’s design lifetime was set out in the Safety Report, whichforms a part of the initial operation licence granted in 1973 and because of this, any changes
to the Safety Report necessitate an amendment to the licence. Therefore, to continue tooperate the Borssele Nuclear Power Plant after 2013, EPZ had to apply for a licence approving
long-term operation. This application was submitted in 2012. The Minister of Economic Affairs
issued the long-term operation licence on 18 March 2013 with the decision “Amendment of
the Nuclear Energy Act Licence granted to N.V. Elektriciteits-Produktiemaatschappij ZuidNederland (NV EPZ) for the extension of the design lifetime of the Borssele Nuclear Power
Plant”. This licence amended the licence conditions related to updating the Safety Reportcontaining the justification for an extension of the design lifetime from 40 to 60 years, until
the end of December 2033.

43. Borssele Nuclear Power Plant Covenant, Staatscourant [Government Gazette], No. 136, 17 July 2006, p. 29.
44. “To the extent that it covers the release of nuclear energy, the licence granted pursuant to Article 15b
for the operation of the Borssele Nuclear Power Plant that was commissioned in 1973 shall be revokedwith effect from 31 December 2033.”

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4. Past procedure:This is a case in the first instance. For the licence, the Minister followed the Uniform Public
Preparation Procedure [Uniforme Openbare Voorbereidingsprocedure – UOV] of section 3.4 of theGeneral Administration Law Act of 4 June 1992 [Algemene wet bestuursrecht – Awb]. Pursuant to
the UOV, anyone can submit their views on the draft licence and on the EIA before the final
licence is issued. For licences that have been established with the UOV, appeal to the Raad vanState, the highest administrative court in the Netherlands, is the only remedy available. The
right to appeal a licence decision is reserved for interested parties.
In the case at hand, the Appellants argued that an EIA should have been conducted prior to
taking the disputed decision, since the changes permitted by this decision involve significant
adverse impacts on the environment. According to the Appellants, the failure to perform an EIA
is in breach of Article 4(2) and Annex II(13) of the EU EIA Directive. 45 In their view, theinterpretation of these provisions should be based on the Espoo Convention. 46 According toAppellants, not conducting an EIA is contrary to Dutch obligations under the Espoo Convention.
The Appellants argued that the findings of the Espoo Convention Implementation Committee
should apply, that the extension of the design lifetime of the Rivne Nuclear Power Plant inUkraine must be regarded as a major change under the terms of the Espoo Convention thatshould lead to an EIA although it was not accompanied by further physical works.
The Appellants further maintained that because several components of the Borssele Nuclear
Power Plant may have to be replaced in due course, drastic changes will be taking place at the
Borssele Nuclear Power Plant. In addition, the Appellants took the position that category D.22.3,
5° of Appendix D of the Dutch EIA Decree 47 is applicable, because the disputed decision also
involves a change to when the Borssele Nuclear Power Plant is to be decommissioned. On thebasis of the same provision, Appellants contended that an obligation exists to perform an EIA.
Insofar as the grounds for appeal do not lead to an EIA obligation, the Appellants argued
that the 2010 NEA amendment and the introduction of Article 15a resulted in a change in thedecommissioning timeline, as referred to in Appendix D, category D.22.3, 5° of the Dutch EIA
Decree. For that reason, there is still an EIA obligation. Appellants contend that the adoptionof the amendment that impacts when decommissioning occurs means an EIA obligation
applies when a decision is taken on a subsequent amendment. 48 According to Appellants, therequested licence amendments must be regarded as a phase of a procedure consisting ofseveral phases for which there is ultimately an EIA obligation.

5. Analysis:
The Raad van State found that it has not been contested that the EU EIA Directive has beencorrectly implemented in Dutch regulations. For that reason, the EU EIA Directive has nodirect effect.

45. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending
Directive 2011/92/EU on the assessment of the effects of certain public and private projects on theenvironment, Official Journal of the European Union L 124 (25 Apr. 2014) (EU EIA Directive).
46. Convention on Environmental Impact Assessment in a Transboundary Context (1991), 1989 UNTS 310,
entered into force 10 Sept. 1997 (Espoo Convention).
47. D.22.3: “The modification or extension of a nuclear power plant and other nuclear reactors, including
the decommissioning or dismantling of such power plants or reactors, with the exception of research
installations for the production and processing of fissile and breeding materials, with a constant
power not exceeding 1 thermal kW.”; “5°. a change in the time of decommissioning or dismantling of
more than 5 years.”
48. See Judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others v. Vlaamse Gewest, C-275/09,
ECLI:EU:C:2011:154.

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Additionally, the requested changes do not result in physical works taking place at the
Borssele Nuclear Power Plant. The changes relate exclusively to the update of the Safety
Report. The update of the Safety Report does not concern an amendment, extension or
establishment of an installation as referred to in Appendix A to the Dutch EIA Decree. For thatreason, the requested changes cannot be considered “an activity” as referred to in category
D.22.3, 5° of Appendix D to the Dutch EIA Decree. Even if the update of the Safety Report may
result in components of the Borssele Nuclear Power Plant having to be replaced in the future,these changes will not be considered “an activity”.
Further, it cannot be inferred from the findings of the Espoo Convention Implementation
Committee in the Rivne case that the requested changes result in actual changes taking place
at Borssele.
Based on the aforementioned findings, the Raad van State determined that there is no
reason to overturn the Minister’s decision that no EIA was required prior to the issuance of thecontested licence. Pursuant to NEA, Article 15a the operating licence for the Borssele Nuclear
Power Plant will lapse on 31 December 2033. The appealed licence decision does not constitutea phase of a licence procedure consisting of several phases ultimately aimed at performing
activities for which an EIA obligation applies.

6. Holding:
The appeal was found to be without merit and dismissed.

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Stichting Greenpeace Nederland en Stichting LAKA v. minister van Infrastructuur
en Milieu [Greenpeace Netherlands Foundation and LAKA Foundation v. Ministerof Infrastructure and the Environment]
Raad van State [Council of State], 2018
ECLI:NL:RVS:2018:1448

1. Parties:
The Appellants were two non-governmental organisations: Stichting Greenpeace Nederland(Greenpeace Netherlands) and Stichting LAKA [LAndelijk Kernenergie Archief – National
Nuclear Energy Archive] (LAKA Foundation). The Defendants were the Minister ofInfrastructure and the Environment (the Minister) and, since August 2017, the Authority of
Nuclear Safety and Radiation Protection (ANVS).

2. Issue(s):Whether an amendment of the licence and the corresponding licence conditions due to theimplementation of 11 safety measures resulting from the 10-year periodic safety review (PSR)
and the Complementary Safety Margin Assessment (CSA) (or stress test) should be proceededby an environmental impact assessment (EIA) on the basis of Dutch EIA Decree or on the basisof the Aarhus 49 and Espoo 50 Conventions.

3. Facts:
NV Elektriciteits-Produktiemaatschappij Zuid-Nederland (EPZ) has a licence based on the
Nuclear Energy Act of 21 February 1963 (Stb. 1963, No. 82), as amended (NEA) for the operationof the Borssele Nuclear Power Plant. Although the licence was issued for an indefinite period
in 1973, in the original design and construction, the Borssele Nuclear Power Plant had a design
lifetime of 40 years from the start of operation in 1973. EPZ agreed in the Borssele Nuclear
Power Plant Covenant 51 in 2006 to limit the operating time, despite the indefinite term of thelicence, to an ultimate shutdown date of 31 December 2033 (thus a 60-year operating life). The
31 December 2033 shutdown date was also set out in NEA, Article 15a(1) in 2010. 52

49. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice inEnvironmental Matters (1998), 2161 UNTS 450, entered into force 30 Oct. 2001 (Aarhus Convention).
50. Convention on Environmental Impact Assessment in a Transboundary Context (1991), 1989 UNTS 310,
entered into force 10 Sept. 1997 (Espoo Convention).
51. Borssele Nuclear Power Plant Covenant, Staatscourant [Government Gazette], No. 136, 17 July 2006, p. 29.
52. “To the extent that it covers the release of nuclear energy, the licence granted pursuant to Article 15b
for the operation of the Borssele Nuclear Power Plant that was commissioned in 1973 shall be revokedwith effect from 31 December 2033.”

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Long-term operation licence amendment. The justification for Borssele’s design lifetime
was set out in the Safety Report, which forms a part of the initial operation licence granted in1973 and because of this, any changes to the Safety Report necessitate an amendment to thelicence. Therefore, to continue to operate the Borssele Nuclear Power Plant after 2013, EPZ had
to apply for a licence approving long-term operation. This application was submitted in 2012.
The Minister of Economic Affairs issued the long-term operation licence on 18 March 2013
with the decision “Amendment of the Nuclear Energy Act Licence granted to N.V.
Elektriciteits-Produktiemaatschappij Zuid-Nederland (NV EPZ) for the extension of the design
lifetime of the Borssele Nuclear Power Plant”. This licence amended the licence conditions
related to updating the Safety Report containing the justification for an extension of thedesign lifetime from 40 to 60 years, until the end of December 2033.
Eleven-measures licence amendment/revision licence. Following the completion of thethird 10-year PSR in 2013 and the post-Fukushima European CSA, EPZ agreed to implement 11
measures that required a modification of the licence because of their significance and impact
on the Safety Report. Because the Safety Report forms a part of the initial operation licencegranted in 1973, any changes to the Safety Report necessitate an amendment to the licence.
On 11 September 2015, the Minister decided that it was not necessary to conduct an EIA
for the implementation of the 11 safety measures, because the activity was not expected tohave any significant adverse impacts on the environment.
On 9 December 2015, EPZ applied for a licence amendment.
On 12 July 2016, the Minister agreed to the requested amendments to the licence and EPZ’slicence conditions. With this amendment, the Minister implemented the 11 safety measuresfrom the third PSR and the CSA to improve the nuclear safety of the Borssele Nuclear Power
Plant. EPZ’s application to amend the licence was also used by the Minister to issue a so-called“revision licence” which, in addition to implementing the 11 safety measures, replaced all
previously granted licences.
With effect from 1 August 2017, the licensing decision of 12 July 2016 was regarded as adecision of ANVS, which replaced the Minister in the appeal procedure in 2018 in connection
with the establishment of ANVS.

4. Past procedure:This is a case in the first instance. For the licence, the Minister followed the Uniform Public
Preparation Procedure [Uniforme Openbare Voorbereidingsprocedure – UOV] of section 3.4 of theGeneral Administration Law Act of 4 June 1992 [Algemene wet bestuursrecht – Awb]. Pursuant to
the UOV, anyone can submit their views on the draft licence and on the EIA before the final
licence is issued. For licences that have been established with the UOV, appeal to the Raad vanState, the highest administrative court in the Netherlands, is the only remedy available. The
right to appeal a licence decision is reserved for interested parties.
The Appellants appealed the 12 July 2016 revision licence decision on the grounds that itshould have been preceded by an EIA. They argued that inadequacy of the chosen safetymeasures can have serious consequences for people and the environment. Further theyclaimed that an EIA is mandatory under the Dutch EIA Decree and the Aarhus and Espoo
Conventions. According to the Appellants, both conventions require an EIA for the continued
operation of a nuclear power plant following the end of the originally planned operating
period.

5. Analysis:
The Raad van State found that the scope of the application to amend the licence is limited tothe implementation of the 11 safety measures. These safety measures have no relation to the2013 long-term operation licence amendment, which became irrevocable with the 19 February

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2014 judgment of the Raad van State. The Appellants were unable to refute with evidence the
Minister’s decision that the 11 safety measures would have no or no significant adverse
impacts on the environment.
Further, contrary to what Appellants argue, the EU EIA Directive 53 has been correctly
implemented in the Dutch EIA Decree.
In addition, the Appellants wrongly assume that the contested decision involves anextension of the design lifetime or the operation time. Neither the findings of the Espoo
Convention Implementation Committee with respect to the Rivne Nuclear Power Plant 54 nor
the judgment of the Constitutional Court of Belgium regarding Doel 1 and 2 Nuclear Power
Plants are applicable to this case. According to NEA, Article 15a(1) the validity of the operating
license for Borssele Nuclear Power Plant will expire at the end of 2033. Furthermore, therevision licence is not a phase of a licensing procedure consisting of several phases. The
judgment of the Court of Justice of 17 March 2011, 55 as cited by Appellants, and the Maastricht
Recommendations on “Multi-stage decision-making” 56 to which it refers, does not give
sufficient reasons to find that the Aarhus or Espoo Conventions obliges an EIA to be drawn up
because an EIA was missing from the long-term operation licence. The procedure before the
Aarhus Convention Compliance Committee with regard to a complaint from Greenpeace
Netherlands (ACCC/C/2014/410) also does not lead to that conclusion.
Contrary to what the Appellants argue, it also cannot be deduced from the Aarhus andEspoo Conventions that an EIA must be made for every amendment of a licence.
Based on the above, and contrary to the view of the Appellants, it cannot be concluded
that by not requiring an EIA for the amendment of the licence there is a conflict with the
Aarhus and Espoo Conventions.

6. Holding:
The appeal was found to be without merit and dismissed.

53. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending
Directive 2011/92/EU on the assessment of the effects of certain public and private projects on theenvironment, Official Journal of the European Union L 124 (25 Apr. 2014) (EU EIA Directive).
54. UNECE (2014), “Decisions adopted by the Meeting of the Parties to the Convention”, “Decision VI/2,
Review of compliance with the Convention”, ECE/MP.EIA/20.Add.1 –ECE/MP.EIA/SEA/4.Add.1, Meeting of
the Parties to the Convention on its sixth session and of the Meeting of the Parties to the Convention
serving as the Meeting of the Parties to the Protocol on its second session, Geneva, 2-5 June 2014.
55. Judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others v. Vlaamse Gewest, C-275/09,
ECLI:EU:C:2011:154.
56. UNECE (2015), Maastricht Recommendations on Promoting Effective Public Participation in Decision-making inEnvironmental Matters: Prepared under the Aarhus Convention, UNECE, Geneva.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONNETHERLANDS
Vereniging World Information Service on Energy Amsterdam en Stichting
Greenpeace Nederland v. Autoriteit Nucleaire Veiligheid en Stralingsbescherming[Association World Information Service on Energy Amsterdam and Greenpeace
Netherlands Foundation v. Authority for Nuclear Safety and Radiation Protection]
Raad van State [Council of State], 2021
ECLI:NL:RVS:2021:174

1. Parties:
The Appellants were two non-governmental organisations: Vereniging World Information
Service on Energy Amsterdam (WISE) and Stichting Greenpeace Nederland (Greenpeace
Netherlands). The Defendant was the Authority for Nuclear Safety and Radiation Protection(ANVS).

2. Issue(s):Whether ANVS’s amendment of the licence conditions for NV ElektriciteitsProduktiemaatschappij Zuid-Nederland (EPZ)’s Borssele Nuclear Power Plant due to theimplementation of the Western European Nuclear Regulators Association’s (WENRA)
Reference Levels (RL) must be proceeded by an environmental impact assessment (EIA).

3. Facts:
EPZ has a licence based on the Nuclear Energy Act of 21 February 1963 (Stb. 1963, No. 82), as
amended (NEA) for the operation of the Borssele Nuclear Power Plant. Although the licence
was issued for an indefinite period in 1973, in the original design and construction, theBorssele Nuclear Power Plant had a design lifetime of 40 years from the start of operation in
1973. EPZ agreed in the Borssele Nuclear Power Plant Covenant 57 in 2006 to limit the operatingtime, despite the indefinite term of the licence, to an ultimate shutdown date of 31 December
2033 (thus a 60-year operating life). The 31 December 2033 shutdown date was also set out in
NEA, Article 15a(1) in 2010. 58
Long-term operation licence amendment. The justification for Borssele’s design lifetime
was set out in the Safety Report, which forms a part of the initial operation licence granted in1973 and because of this, any changes to the Safety Report necessitate an amendment to thelicence. Therefore, to continue to operate the Borssele Nuclear Power Plant after 2013, EPZ had
to apply for a licence approving long-term operation. This application was submitted in 2012.
The Minister of Economic Affairs issued the long-term operation licence on 18 March 2013

57. Borssele Nuclear Power Plant Covenant, Staatscourant [Government Gazette], No. 136, 17 July 2006, p. 29.
58. “To the extent that it covers the release of nuclear energy, the licence granted pursuant to Article 15b
for the operation of the Borssele Nuclear Power Plant that was commissioned in 1973 shall be revokedwith effect from 31 December 2033.”

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with the decision “Amendment of the Nuclear Energy Act Licence granted to N.V.
Elektriciteits-Produktiemaatschappij Zuid-Nederland (NV EPZ) for the extension of the design
lifetime of the Borssele Nuclear Power Plant”. This licence amended the licence conditions
related to updating the Safety Report containing the justification for an extension of thedesign lifetime from 40 to 60 years, until the end of December 2033.
Eleven-measures licence amendment/revision licence. Following the completion of the third
10-year periodic safety review (PSR) in 2013 and the post-Fukushima European Complementary
Safety Margin Assessment (CSA) (or stress test), EPZ agreed to implement 11 measures that
required a modification of the licence because of their significance and impact on the Safety
Report. Because the Safety Report forms a part of the initial operation licence granted in 1973,
any changes to the Safety Report necessitate an amendment to the licence.
On 11 September 2015, the Minister of Infrastructure and the Environment decided that itwas not necessary to conduct an EIA for the implementation of the 11 safety measures, because
the activity was not expected to have any significant adverse impacts on the environment.
On 9 December 2015, EPZ applied for a licence amendment.
On 12 July 2016, the Minister of Infrastructure and the Environment agreed to the requested
amendments to the licence and EPZ’s licence conditions. With this amendment, the Minister
implemented the 11 safety measures from the third PSR and the CSA to improve the nuclear
safety of the Borssele Nuclear Power Plant. EPZ’s application to amend the licence was also usedby the Minister to issue a so-called “revision licence” which, in addition to implementing the
11 safety measures, replaced all previously granted licences.
WENRA RLs licence amendment. On 4 December 2018, ANVS amended the licenceconditions of EPZ’s amended licence of 12 July 2016. With this amendment, ANVS implemented
particular WERNA RLs for the operation of nuclear power plants. These RLs, issued from 2006 to
2008, consist of updated standards regarding nuclear safety. All WENRA members are expected
to implement the RLs.
The first set of RLs was implemented in EPZ’s licence in 2010. In September 2014, the RLs
were reconsidered and updated by WENRA based on the European Complementary Safety
Assessment and the lessons learned from the TEPCO Fukushima Daiichi accident. In 2015 59
and 2017 60 most of the updated RLs were implemented in regulations. The RLs that had not yet
been implemented were included in the NEA licence for the Borssele Nuclear Power Plant via
the ex officio amendment of the licence conditions by ANVS on 4 December 2018.

4. Past procedure:
Eleven-measures licence amendment/revision licence. Greenpeace Netherlands andStichting LAKA [LAndelijk Kernenergie Archief – National Nuclear Energy Archive]
Foundation appealed the 12 July 2016 decision granting the licence amendment to the Raadvan State [Council of State, the highest administrative appeal body]. Greenpeace
Netherlands and the LAKA Foundation argued inter alia that the measures forming the basis
for the licence modification could have serious consequences for the environment, which
would necessitate an EIA under the Environmental Management Act of 13 June 1979 (Stb.

59. Handreiking VOBK (Veilig Ontwerp en het veilig Bedrijven van Kernreactoren) [VOBK Handbook (Safe Design
and Safe Operation of Nuclear Reactors)], 19 October 2015.
60. Regeling nucleaire veiligheid kerninstallaties [Nuclear Safety Regulations for Nuclear Installations],
Staatscourant [Government Gazette], No. 30889, 13 June 2017.

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1979, No. 442), as amended, the Espoo Convention, 61 the Aarhus Convention, 62 and the EU
EIA Directive. 63
On 2 May 2018, the Raad van State issued its judgment declaring the appeal unfounded
and dismissed the case. 64 In its decision, the Raad van State found inter alia that the licenceamendment did not relate to an extension of the design life of the Borssele plant, as the longterm operation licence was already granted years earlier. Further, Greenpeace Netherlands
and the LAKA Foundation could not substantiate their claim that an EIA was necessary for any
change to a licence for a nuclear power plant.
WENRA RLs licence amendment. Greenpeace Netherlands and WISE appealed the
4 December 2018 licensing decision on the grounds that this licence amendment should havebeen preceded by an EIA in the context of the lifetime extension of the Borssele Nuclear Power
Plant from 2013 to 2033. The Appellants’ main arguments for requiring an EIA were based on the:•changed environmental conditions and changed risk perceptions since 2013, forexample higher population in the area and more nature reserves;•

opinion of the Advocate General of the Court of Justice of the European Union (CJEU)
regarding the lifetime extension of the Belgian Doel 1 and Doel 2 Nuclear Power Plantsfrom 2015 until 2025 and the obligation to conduct an EIA on the basis of the Aarhus
and Espoo and Conventions, 65 the EU EIA Directive and the Habitats Directive; 66 and•findings of the Compliance Committee of the Aarhus Convention in the case against
the Netherlands regarding the licensing decision of 2013 for the long-term operation of
the Borssele Nuclear Power Plant from 2013-2033. 67 As there was no public participationin the long-term operation licence decision, this should have happened with the
WENRA RLs licence decision.

While the Appellants stated that their appeal should not be construed as a request forreview of the 2 May 2018 decision on the 11-measures licence amendment, their arguments
amounted to a complaint that because an EIA was not done, then it needed to be done inconjunction with the next licence amendment, namely the addition of the WENRA RLs in the
4 December 2018 licensing decision.

5. Analysis:
The Raad van State notes that the WENRA RLs licence amendment did not change the lifetimeof the Borssele Nuclear Power Plant, it only added a set of additional safety regulations to thelicence. There were to be no physical changes to the Borssele Nuclear Power Plant as a resultof the licence and, furthermore, the decision would not affect the radiation risk associatedwith the Borssele Nuclear Power Plant.

61. Convention on Environmental Impact Assessment in a Transboundary Context (1991), 1989 UNTS 310,
entered into force 10 Sept. 1997 (Espoo Convention).
62. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice inEnvironmental Matters (1998), 2161 UNTS 450, entered into force 30 Oct. 2001 (Aarhus Convention).
63. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending
Directive 2011/92/EU on the assessment of the effects of certain public and private projects on theenvironment, Official Journal of the European Union L 124 (25 Apr. 2014) (EU EIA Directive).
64. Judgment of 2 May 2018, Stichting Greenpeace Nederland en Stichting Laka v. minister van Infrastructuur en
Milieu, ECLI:NL:RVS:2018:1448.
65. Opinion of Advocate General Kokott, 29 November 2018, Inter-Environnement Wallonie ASBL and Bond
Beter Leefmilieu Vlaanderen ASBL v. Conseil des ministers, C-411/17, ECLI:EU:C:2018:972.
66. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild faunaand flora, OJ L 206 (22 July 1992).
67. Findings Compliance Committee Aarhus Convention of 4 October 2018 (ACCC/C/2014/104).

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONThe Raad van State further found that the advice of the Compliance Committee is notapplicable to this case, because the WENRA RLs licence only attaches additional safety
regulations to the conditions of the Borssele Nuclear Power Plant licence and does notreconsider or amend of the lifetime of the plant.
Furthermore, the Raad van State found that the ruling of the CJEU 68 regarding the Doel 1
and Doel 2 Nuclear Power Plants in Belgium is not applicable. In the Doel case the CJEU gave
an explanation of the concept of “project” and an opinion on the physical renovation work
specific to the extension of the lifetime of the Doel 1 and Doel 2 Nuclear Power Plants. In thepresent case, no physical works are being undertaken and the lifetime of the Borssele Nuclear
Power Plant is not being extended.
Therefore, the Raad van State found no basis to conclude that the WENRA RLs licenceamendment could not be issued without an EIA. Furthermore, the Raad van State held that noother facts and circumstances were submitted by Appellants that make it impossible to follow
the judgment in the earlier ruling of the Raad van State of 2 May 2018.

6. Holding:
The appeal was found to be without merit and dismissed.

68. Judgment of 29 July 2019, Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v.
Conseil des ministers, C-411/17, ECLI:EU:C:2019:622.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONSWITZERLAND
BKW FMB Energie AG und Eidgenössisches Departement für Umwelt, Verkehr,
Energie und Kommunikation gegen X. und 115 Mitbeteiligte[BKW FMB Energie AG and the Federal Department for the Environment,
Transport, Energy and Communication (DETEC) v. X. and 115 Participants]
Schweizerisches Bundesgericht [Swiss Federal Supreme Court], 2013
BGE 139 II 185, 2C_347/2012; 2C_357/2012

1. Parties:
The Appellants were BKW FMB Energie AG (BWK) and the Federal Department of theEnvironment, Transport, Energy and Communications (Département fédéral de l’environnement,
des transports, de l’énergie et de la communication – DETEC). The Complainants were a numberof private individuals.

2. Issue(s):Whether the time limitation on the operating license for the Mühleberg Nuclear Power Plant(to 31 December 2012) should be revoked or extended according to the (then new) Nuclear
Energy Act of 21 March 2003 (Classified Compilation (CC) 732.1) (NEA) that came into force on
February 1, 2005.
In addition, the Federal Supreme Court clarified the relationship between the licensing
and supervisory authorities as well as their respective responsibilities. It also commented on
the scope of the Federal Administrative Court’s jurisdiction to review cases concerning special
expert knowledge.

3. Facts:
The Mühleberg Nuclear Power Plant is a single unit boiling water reactor owned and operated
by BKW that entered into operation in 1972. At the time of initial licensing it was granted atime-limited operating licence.
On 28 October 1998, the Swiss Federal Council extended the operating licence until
31 December 2012.
On 25 January 2005, BKW submitted a request to the Swiss Federal Council to have thetime limit lifted (i.e. to have an unlimited operating licence) when the new Nuclear Energy Act
of 21 March 2003 (SR 732.1) came into force on 1 February 2005. On the basis that it did nothave jurisdiction, the Federal Council did not consider BKW’s application and referred it to
DETEC for further consideration.
On 13 June 2006, DETEC rejected certain requests from BKW and did not consider theothers.
On 13 July 2006, BKW appealed the ruling to the Federal Administrative Court, which
rejected the appeal on 8 March 2007 (judgment A-2089/2006, BVGE_2008/8). However, therequest was approved insofar as the matter was referred back to DETEC with the instruction to

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deal with the request to lift the time limit according to the rules on reconsideration or
revocation of orders.
On 26 April 2007, DETEC appealed the judgment to the Federal Supreme Court, arguingthat a formal licensing procedure should be carried out in accordance with the NEA.
On 21 January 2008, the Federal Supreme Court dismissed the appeal and upheld theFederal Administrative Court’s decision that BKW was entitled to have its application
reviewed under the rules on the reconsideration or revocation of orders.
Thereafter, DETEC published BKW’s application for public consultation in June/July 2008,
during which time around 1 900 objections were received, primarily related to safety-related
aspects, including from the Complainants.
On 17 December 2009, DETEC approved BKW’s application and lifted the time limit on theoperating licence for the Mühleberg Nuclear Power Plant.

4. Past procedure:On 1 February 2010, some Complainants raised a complaint to the Federal Administrative
Court (case A-667/2010). On 12 February 2010, additional Complainants raised an identicalcomplaint with the Federal Administrative Court (case A-863/2010). The two complaints werecombined under case A-667/2010.
On 1 March 2012, the Federal Administrative Court decided to limit the operating licence
until 28 June 2013. In addition, BKW was required to submit a comprehensive maintenanceplan to DETEC along with any new application for an extension of the operating licence.
BKW and DETEC filed appeals with the Federal Supreme Court against the Federal
Administrative Court’s ruling on 20 April 2012 and 23 April 2012, respectively.

5. Analysis:
Legal qualification of the operating licence and requirements for a time limit: The operating
licence for a nuclear installation is what is known in Switzerland as a “police licence” and is
granted only if all the required conditions (in this case, in accordance with the NEA) are met.
The law only provides for a time limit as an exception. A time limit is equivalent to aconditional withdrawal of the licence. A time limit might be ordered if the permit would haveto be refused in principle because of minor deficiencies, but the likelihood that these
deficiencies will be rectified is so high that it appears commensurate simply to limit thelicence. The Federal Supreme Court pointed out that the short time limit set by the Federal
Administrative Court (given the known duration of the ongoing proceedings) was in fact moreakin to a withdrawal than a time limit. The Federal Supreme Court took the view that a time
limit is neither appropriate nor necessary as a means to ensure the safety of a nuclear power
plant.
Relationship between the licensing authority DETEC and the supervisory authority ENSI:
During the licensing procedure, DETEC, as the licensing authority, must decide on safetyissues based on the safety requirements applicable at the time of licensing. The possibility
that safety levels may deteriorate in the future or fall short of advancing standards is not areason to refuse the licence. In this regard, the Federal Supreme Court held that DETEC lacks
the technical expertise to assess nuclear safety. Accordingly, the licensing authority must baseits assessment of nuclear safety on the assessment made by ENSI and may only deviate forgood reasons.
After an operating licence is granted, ENSI has the task, as part of its ongoing supervision,of ensuring the safety of the nuclear installation and of issuing orders in this regard. The
purpose of supervision is to prevent safety levels from deteriorating because of the passage oftime or from falling short of the constantly evolving safety requirements that apply over time.

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Review powers: The Federal Supreme Court also held that, while the Federal Administrative
Court, in principle, has unlimited scope in reaching its decisions, where it has no particularexpertise it must respect ENSI’s discretion. In particular, it is not up to the court to take on therole of a supervisory authority or to define the standard for safety-related concerns itself. Thereis no legal basis for the Federal Administrative Court to make a further operating licenceconditional on submission of a maintenance plan. In particular, it is not the task of the licensing
or supervisory authority to assess the economic viability of continued operation.

6. Holding:
The Federal Supreme Court held that an operating licence must be granted for a nuclear
installation if the requirements under the NEA are met. An operating licence is, in principle,
unlimited in time.
DETEC is responsible for issuing an operating licence. Once the licence has been issued,
the supervisory authority, ENSI, is responsible for nuclear safety.
Where an authority or court has no expertise, it must respect ENSI’s discretion as the
specialist authority, while at the same time critically evaluating the assessment.
The law makes no provision for a maintenance plan, which consequently may not bemade a condition for granting an operating licence.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONUNITED STATESIn the Matter of Baltimore Gas & Electric Co.
US Nuclear Regulatory Commission (1998)
CLI-98-25, 48 NRC 325

1. Parties:
The Petitioner in this proceeding is the National Whistleblower Center (NWC), whichchallenged the licence renewal application submitted to the United States (US) Nuclear
Regulatory Commission (NRC) by Baltimore Gas and Electric Company (BG&E or the licensee).

2. Issue(s):Whether NWC, whose contentions before the US NRC were dismissed because they wereuntimely filed, had ample time under US NRC regulations to prepare an adjudicatory challenge.

3. Facts:
On 8 April 1998, the licensee filed an application to renew its operating licences for Units 1 and
2 of the Calvert Cliffs Nuclear Power Plant. The proposed licence renewal would extend theCalvert Cliffs operating licence for an additional 20-year period beyond the original expiration
dates of 31 July 2014 and 13 August 2016, respectively.
An application to renew the operating licence of a commercial nuclear power plant in the
United States may be granted only if the US NRC Commission finds that the continued
operation of the facility “will be in accord with the common defense and security and will
provide adequate protection to the health and safety of the public.” 42 United States Code(USC) 2232(a). The regulations implementing this statutory requirement are set out in 10 Codeof Federal Regulations (CFR) Part 54, “Requirements for Renewal of Operating Licenses for
Nuclear Power Plants”.
A notice of opportunity to request a hearing on the licence renewal application was
published on 8 July 1998. The notice specified that petitioners must submit their contentions“not later than fifteen ... days prior to the first prehearing conference.”
Directives issued by the US NRC Commission and the Atomic Safety and Licensing Board
Panel (ASLBP), which conducts the US NRC’s adjudicatory hearings, mandated that for NWC
contentions regarding the BG&E application to be timely, the contentions and supportingbases had to be submitted by 1 October 1998. Although NWC submitted its petition tointervene/request for hearing in a timely manner on 7 August, it missed the deadline to file its
contentions, and instead it filed its two contentions on 13 October 1998. In its untimely filing,
NWC failed to address the standards governing the admissibility of late-filed contentions
found in 10 CFR 2.714(a).

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4. Past procedure:
On 16 October 1998, the ASLBP determined that NWC had failed to submit any contentions by
the 1 October 1998 deadline or to show that the 13 October 1998 contentions had met the US
NRC Commission’s standards for late-filed contentions. Based on these conclusions, the ASLBP
denied NWC’s petition to intervene and terminated the adjudicatory proceeding. Baltimore Gas& Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), LBP-98-26, 48 NRC 232(1998).
On 26 October 1998, NWC appealed the ASLBP’s order to the Commission of the US NRC,
which hears appeals and petitions for review of the decisions of the ASLBP. Both BG&E and the
US NRC Staff opposed NWC’s appeal.

5. Analysis:
On appeal, the Commission of the US NRC explained that the need for stability andpredictiveness in the licensing process requires intervenors to comply with schedules issued
by the ASLBP. Although the ASLBP has discretion to depart from the milestones that arepresumptively applicable to each hearing request filed, it is proper to insist upon ademonstration of good cause to depart from the schedule that has been issued.

6. Holding:
The Commission of the US NRC affirmed the dismissal of NWC’s contentions.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LONG-TERM OPERATIONUNITED STATESIn the Matter of Entergy Nuclear Vermont Yankee LLC
US Nuclear Regulatory Commission (2010)
CLI-10-17, 72 NRC 1

1. Parties:
This proceeding stems from an application submitted by Entergy Nuclear Vermont Yankee,
LLC and Entergy Nuclear Operations, Inc. (collectively, the licensee) for a 20-year renewal of
the operating licence for the Vermont Yankee Nuclear Power Station (a single unit boilingwater reactor), located in the state of Vermont.
There were four parties to the proceeding and two “interested states” that participatedpursuant to 10 Code of Federal Regulations (CFR) 2.315(c).
New England Coalition (NEC), an environmental organisation, and the Vermont Departmentof Public Service (Vermont) sought and were granted the right to intervene and challenge theapplication.
The United States (US) Nuclear Regulatory Commission (NRC) Staff and the licensee also
participated as parties in the proceeding.
The State of New Hampshire and the Commonwealth of Massachusetts participated inthis adjudicatory proceeding as interested states.

2. Issue(s):Whether the licensee had adequately demonstrated that certain reactor components would
not fail due to metal fatigue during the period of extended operation.

3. Facts:
On 25 January 2006, the licensee filed its licence renewal application with the US NRC. The
proposed licence renewal would extend the Vermont Yankee operating licence for an
additional 20-year period beyond the original expiration date of 21 March 2012.
An application to renew the operating licence of a commercial nuclear power plant in the
United States may be granted only if the US NRC Commission finds that the continued
operation of the facility “will be in accord with the common defense and security and will
provide adequate protection to the health and safety of the public.” 42 United States Code(USC) 2232(a). The regulations implementing this statutory requirement are set out in 10 CFRPart 54, “Requirements for Renewal of Operating Licenses for Nuclear Power Plants”.
A notice of opportunity to request a hearing on the licence renewal application was
published on 27 March 2006.

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4. Past procedure:
NRC adjudicatory hearings are conducted by the Atomic Safety and Licensing Board Panel(ASLBP), which is composed of administrative judges who are lawyers, engineers and scientists.
Several entities filed petitions to intervene and requests for hearing, each including one ormore contentions (or challenges) to the licence renewal application. The licensee and the US
NRC Staff filed answers, arguing that the petitions should be denied because none of thePetitioners had submitted an admissible contention as required by 10 CFR 2.309(a).
After a series of additional briefings and an oral argument on contention admissibility, the
ASLBP admitted five of the nine proposed contentions. Subsequently, two of the five admitted
contentions were resolved: following an appeal on the admissibility of a contention, the US
NRC Commission ruled it was not admissible, and another contention was dismissed
following a settlement agreement between Vermont and NEC with the licensee.
The ASLBP held an evidentiary hearing in July 2008 on the three remaining contentions.
On 24 November 2008, the ASLBP issued a partial initial decision concluding, inter alia, thatthe licensee’s metal fatigue analyses of the core spray and reactor recirculation outlet nozzles
did not comply with the time-limited ageing analysis (TLAA) requirements of 10 CFR 54.21(c)(1)and did not provide the reasonable assurance of safety required by 10 CFR 54.29. Accordingly,
the ASLBP ruled that the licence renewal was not authorised and could not be granted until
45 days after the licensee satisfactorily completes TLAA metal fatigue calculations and serves
them on the US NRC Staff and the other parties to the proceeding. Entergy Nuclear Vermont
Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),
LBP-08-25, 68 NRC 763 (2008).
As a consequence, the licensee modified its Fatigue Monitoring Program, or ageing
management programme (AMP), to comply with 10 CFR 54.21(c)(1), the assessment of which
NEC continued to challenge.
The US NRC Staff appealed the ASLBP’s partial initial decision to the Commission of the US
NRC, which hears appeals and petitions for review of the decisions of the ASLBP.

5. Analysis:
On appeal, the Commission of the US NRC ruled that the applicant’s metal fatigue calculations,as originally prepared, complied with the relevant regulation. It determined that theapplicant’s AMP complied with standards set forth in NUREG-1801, “Generic Aging Lessons
Learned Report”, Rev. 1 (September 2005) (GALL Report). The GALL Report identifies AMPs thatwere determined to be acceptable programmes to manage the ageing effects of systems,
structures and components in the scope of licence renewal, as required by 10 CFR Part 54.

6. Holding:
The Commission of the US NRC determined that the licence renewal application was legallyand technically sufficient.

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JAPAN
Fukuoka High Court case rejecting a provisional injunction against
the restart of the Sendai nuclear power plant

Judgment of the Miyazaki Branch of the Fukuoka High Court of 6 April 2016 69
Hanrei Jihou Vol. 2290, p. 90
2015 (Heisei 27) (ラ:Ra) No.33

1. Parties:
The plaintiffs were the residents living within a radius of 250 kilometres (km) from the Sendai
nuclear power plant. The defendant was Kyushu Electric Power Company, which is theoperator of the nuclear power plant in question.

2. Issue(s):Although the plaintiffs submitted plenty of legal issues 70 on this case, it is possible to focus on
two as the main issues: (1) whether the operator should make a prima facie showing of no
actual risks of the facility in question; and (2) whether the regulatory requirements or the
regulatory review concerning external events such as earthquakes and volcanic activities etc.
were reasonable or not, including whether there were errors or omissions, which could not be
overlooked, in the NRA’s safety review on external events such as earthquakes and volcanic
activities etc.

3. Facts:
Kyushu Electric Power Company started operation of Unit 1 of the Sendai nuclear power plantin 1984 and Unit 2 in 1985.
Following the routine shutdown for maintenance after the Fukushima Daiichi Nuclear Power
Plant accident, Kyushu Electric Power Company applied for the necessary licences to comply
with the new regulatory requirements set by the Nuclear Regulation Authority (NRA) in 2013.
The NRA granted the permission for the basic design changes of Units 1 and 2 of the
Sendai nuclear power plant in September 2014, and gave other necessary approvals, whichwere preconditions for restarting the facilities, by May 2015.

69. For a detailed explanation of the case, including translation of parts of the judgment, see Hase, H.
(2018), “Legal challenges to the operation of nuclear reactors in Japan”, Nuclear Law Bulletin, No. 100,
OECD Publishing, Paris, pp. 53-56.
70. Hashimoto, H. (2017), “The claims and prima facie showing in the provisional disposition case on theoperation of nuclear power plant”, Jurist No. 1505, p. 59 (Japanese language publication: 橋本博之「原子力発電所の稼働差止めを求める仮処分命令申立事件における主張・疎明のあり方」『ジュリスト No. 1505』（2017 年）59 ページ).

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4. Past procedure:
The plaintiffs filed for a provisional injunction under the Civil Provisional Remedies Act (ActNo. 91 of 1989) with the Kagoshima District Court against Kyushu Electric Power Company toprohibit operation of Units 1 and 2 of the Sendai nuclear power plant.
However, on 22 April 2015, the Kagoshima District Court rejected the residents’ petition,
finding that the NRA’s new regulatory requirements and the NRA’s safety review, etc. were notunreasonable.
The residents appealed to the Miyazaki Branch of the Fukuoka High Court.

5. Analysis:
The Fukuoka High Court stated that the safety level of nuclear power plants should be decided
on the basis of the risk level that is socially acceptable, and it stated that considering thelegislative purpose of amending the Regulation of Nuclear Source Material, Nuclear Fuel
Material and Reactors (Act No. 166 of 1957) in 2012, the social convention does not require
absolute safety (zero risk) for nuclear power plant operation. The High Court concluded thatthe social convention requires nuclear power safety based on reasonably predicted natural
disasters in light of the latest science.
Taking into account that the operator has the professional expertise and information
regarding the safety of its nuclear power plant, the Fukuoka High Court concluded that theoperator must first make a prima facie showing that there is no specific risk of radiation
exposure in the area near the nuclear power plant and therefore no risk of infringement of theresidents’ life and health due to the operation of the reactor. And the High Court stated thatthe operators can make this prima facie showing by providing evidence that the NRA’s
regulatory requirements, the NRA’s determination that the nuclear power plant complied withthese requirements and the NRA’s review process are not unreasonable.
With regard to the reasonableness of the NRA’s regulatory requirements and the NRA
review process, the Fukuoka High Court stated that the NRA’s regulatory requirements andreview concerning earthquakes etc. are reasonable; however, it concluded that the regulatory
requirements for volcanic events, i.e. the evaluation guideline for volcanic events, are notreasonable in the light of the latest science because the guideline presumes that the time andscale of eruption can be predicted long before its occurrence. Despite pointing out that theevaluation guideline for volcanic events is unreasonable, the High Court concluded thatconsidering the difficulty of predicting volcanic events reasonably in the light of the latest
science, the Sendai nuclear power plant does not lack safety against volcanic events and the
NRA’s regulatory review is not unreasonable on the grounds of the social convention.

6. Holding:
The Fukuoka High Court declined the residents’ appeal that sought a provisional injunction
against the restart of operation of Units 1 and 2 of the Sendai nuclear power plant.

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JAPAN
Civil injunction against the restart of Tokai No. 2 nuclear power plantstating evacuation plans were inadequate
Judgment of the Mito District Court of 18 March 2021
Hanrei Jihou Vol. 2524/2525, p. 40[the case is pending before the Tokyo High Court]
2012 (Heisei 24) (行ウ:Gyo-U) No. 15

1. Parties:
The plaintiffs are the residents living about 1.69 kilometres (Ibaraki prefecture) to 1073.53 km(Kagoshima prefecture) of the Tokai No. 2 nuclear power plant. The defendant is Japan Atomic
Power Company (JAPC), the operator of the nuclear power plant in question.

2. Issue(s):Although the plaintiffs submitted plenty of legal issues in this case, the main legal issues
before the District Court were (1) whether the level of nuclear safety at the Tokai No. 2 nuclear
power plant was sufficient and (2) whether the evacuation plans set by local governments
were effective.

3. Facts:
JAPC started the operation of Tokai No. 2 in 1978.
JAPC applied for the necessary licences in order to comply with the new regulatory
requirements set by the Nuclear Regulation Authority (NRA) in 2014.
At the time of the proceeding, the NRA was reviewing the safety of the Tokai No. 2 nuclear
power plant.

4. Past procedure:
In 2012, the plaintiffs filed an injunction based on personal rights 71 with the Mito District
Court against JAPC claiming that there was a possibility of a threat to life and health resulting
from operating the Tokai No. 2 nuclear power plant. (Concurrently, the same residents filed anadministrative lawsuit with the same court against the Government of Japan; however, they
dropped the legal case later.)

71. Hase, H. (2018), “Legal challenges to the operation of nuclear reactors in Japan”, Nuclear Law Bulletin,No. 100, OECD Publishing, Paris, p. 45, explains injunctions based on personal rights in detail.

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5. Analysis:
The Mito District Court stated that the safety of nuclear power plants should be considered to
be assured if all five levels of the “defence in depth,” which are described in the Fundamental
Safety Principles (IAEA Safety Standards Series No. SF-1) and the Safety of Nuclear Power Plants:
Design (IAEA Safety Standards Series No. SSR-2/1 (Rev. 1)), are effectively in place, and the
Court concluded that a specific risk of an infringement of residents’ personal rights should berecognised due to the inadequate evacuation plans.
The District Court considered that the Regulation of Nuclear Source Material, Nuclear Fuel
Material and Reactors (Act No. 166 of 1957; hereinafter referred to as the “Regulation Act”) andthe NRA’s new regulatory requirements were based on the first four levels of “defence in
depth”, and it concluded that there was no unreasonableness in the new regulatory
requirements or the NRA’s review process regarding the nuclear power plant’s safetymeasures against earthquakes, tsunamis, and volcanic events, etc.
As for the fifth level of “defence in depth”, the District Court considered that theRegulation Act does not address the matter of evacuation plans and recognised that the Basic
Act on Disaster Management (Act No. 223 of 1961) and the Act on Special Measures Concerning
Nuclear Emergency Preparedness (Act No. 156 of 1999) deal with the enhancement andstrengthening of evacuation plans set by local governments. 72 The Mito District Court foundthat although the area-wide evacuation plan for the Ibaraki Prefecture was formulated in
March 2015, only 5 out of 14 municipalities in the “Precautionary Action Zone” and the “Urgent
Protective Action Planning Zone” have set their evacuation plans due to the difficulty to set
feasible evacuation plan for heavily populated area and the District Court concluded that
because the local government’s evacuation plans were not sufficient, there was a specific riskof infringing residents’ personal rights to life and health.

6. Holding:
The Mito District Court accepted part of the residents’ claim and granted an injunction against
JAPC to prohibit the operation of the Tokai No. 2 nuclear power plant.
JAPC filed an appeal to the Tokyo High Court on 19 March 2021. 73 As of the date of
publication, the case is still pending.

72. Cabinet Office Japan (2022), White Paper on Disaster Management 2022 (English version),www.bousai.go.jp/en/documentation/white_paper/2022.html, explains evacuation plans set by local
government in detail.
73. JAPC, Press Release, “Regarding the appeal trial of the lawsuit against the operation of the Tokai No. 2
Power Station Submission of grounds for appeal by the JAPC” (7 May 2021), available at:www.japc.co.jp/news/press/2021/pdf/210507.pdf (in Japanese).

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSCANADA
Sevidal et al. v. Chopra et al.

Ontario (High Court of Justice), 1987
[1987] O.J. No. 732

1. Parties:
The Plaintiffs (Mr and Mrs Sevidal) brought an action against the vendors (Mr and Mrs Chopra),
the real estate agent working for Northgate Realty Ltd. and the Atomic Energy and Control
Board (AECB). The AECB was the government agency responsible for regulating nuclear power
and materials in Canada. 74

2. Issue(s):Among others, 75 the Court looked at whether the AECB owed a duty of care to the Sevidals andwhether it had breached that duty and was therefore liable in negligence.

3. Facts:
During the 1940’s a former officer of Eldorado Nuclear operated a business in the Toronto area,
Radium Luminous Industries. Among the experiments this company undertook was therecovery of radium from rags that had been used for luminous dial painting. The rags werecollected and taken to a 10-acre plot of land situated in Scarborough, known as the Ivanenko
farm. The rags were burned in a pot-bellied stove in one of two small farm outbuildings to
reduce and concentrate the radium in the ashes. The ashes were collected, put in wooden
barrels and shipped to Eldorado Nuclear at Port Hope for further processing. Small amounts ofradioactive material were lost either through the grate in the stove or in the transfer of theashes to the barrels. In 1974, a portion of a subdivision in Scarborough, known as the Malvern
subdivision, was developed over the original Ivanenko farmhouse and its outbuildings. The
property in question was built in this subdivision.
In 1975, because of the discovery of radioactive contamination in part of a building in
downtown Toronto which had been used by Radium Luminous Industries, AECB investigated

74. The AECB was replaced by the Canadian Nuclear Safety Commission (CNSC) in 2000 when the Atomic
Energy and Control Act was replaced by the Nuclear Safety and Control Act.
75. The issues of the action were: Was the radioactive material, found in the area of and in the soil at theresidence, a danger or potential danger to the owners? Did the Chopras owe a duty to the Sevidals todisclose the presence of radioactive material in the area before the agreement to purchase was signed
or to disclose the discovery of radioactive material in the backyard before the closing? Did AECB owe a
duty of care to the Sevidals and did they breach that duty? Did the real estate agent meet anappropriate level of competence expected for the work which she undertook for the Sevidals? Did thelawyer advising the Sevidals meet an appropriate level of competence expected from a solicitor for
the work which he undertook for the Sevidals? At what time should the house be valued to determine
the damages, what is the measure of damages and did the Sevidals mitigate their damages?

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for other possible locations of radioactive contamination. One of the locations identified was
the Ivanenko farm.
In 1976, a federal/provincial task force was formed to bring under its control previously
uncontrolled radioactive material, to reduce the risk to the public of exposure to radiation andto arrange for the removal of any loose radioactive matter. AECB was the lead agency for thetask force. No radioactive material was found in the area.
In 1980, students from Ryerson Polytechnical Institute carried out tests for a school project
and found an elevated gamma radiation reading in the backyard of the property across thestreet from the property in question in this matter. In 1981, the Plaintiffs agreed to buy thehouse from the Chopras. The agreement was conditional on availability of mortgage financing
on certain terms, but on the advice of the real estate agent who had arranged the transaction,
the Plaintiffs waived the condition.
After reading a newspaper report about radioactive contamination in the area, thePlaintiffs contacted the AECB and were informed that there was no radioactive soil on theproperty they had purchased, and that contaminated soil in the vicinity would be removed.
Testing in the area was incomplete, however, and one week before the closing of the landtransaction, contaminated soil was found at the property. The vendors were informed, thePlaintiffs were not, and the sale closed.
In 1984, the Plaintiffs sold their house at a loss. 76

4. Analysis:On the issue of Crown liability, the approach was to first look at whether there was a negligent
misrepresentation by AECB or its employees. Then the Court looked at whether the AECB, as apublic body, through its employees, was close enough to give rise to a duty of care which, if
breached, would make it negligent.
The Court found that the AECB, through section 8 of the Atomic Energy Control Act,
assumed responsibility for disseminating information about radioactivity, and employed an
officer to carry out part of that task. It failed to exercise the standard of care required in thecircumstances, and the AECB staff member’s information had constituted negligent
misrepresentations.
Although the AECB had a right, as a policy matter, to decide to whom information would
be disseminated, that was not the issue here. In this case, the employee of the AECB provided
some incomplete and inaccurate positive information to a member of the public without
advising that person of the policy with respect to disseminating negative information. As aresult, the employee did not alert that person to the need to make other inquiries and to thedanger of relying on the information given without qualification. The Court found that
Parliament certainly never intended a public authority to exercise its policy-making powers insuch a way that non-disclosure of the policy would mislead a member of the public who madean appropriate inquiry.
The Court found that the AECB through its employees, owed a duty of care to the Sevidals
and had been negligent in the performance of that duty. The Sevidals suffered loss because ofthis negligence in the same way as they did from the negligent misrepresentation.

76. Interestingly, in 1986 the house was sold by the subsequent owners to the Ontario government.

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5. Holding:
It was held that all the Defendants were liable. The vendors were liable in deceit for failing todisclose a dangerous latent defect. The real estate agent was liable for advising the Plaintiffs towaive the financing condition, since, in the absence of the waiver, they would have been able
to avoid the transaction. The AECB was liable in negligence for misrepresenting the true stateof the property by providing incomplete information.
The Court also denied the AECB’s claim for indemnity.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSCANADA
Fond du Lac Denesuline First Nation v. Canada (Attorney General)
Federal Court of Appeal (FCA), 20122012 FCA 73

1. Parties:
The Appellants were the Fond du Lac First Nation, Black Lake Denesuline First Nation, Hatchet
Lake Denesuline First Nation and the Non-First Nation Aboriginal, Provincial Communities ofCamsell Portage, Uranium City, Stony Rapids and Wollaston Lake (“Athabasca Regional
Government”). The decision from the Federal Court of Appeal was an appeal from a lower
court judicial review decision reviewing the Canadian Nuclear Safety Commission (CNSC)
licence renewal decision respecting a uranium mine and mill operating licence held by AREVA
Resources Canada Inc. (AREVA).

2. Issue(s):The issue before the Federal Court of Appeal was whether the Federal Court Judge erred in
dismissing the judicial review application and determining that the Appellants did not establish
a right to be consulted on the licence renewal matter before the Commission made its licensing
decision.

3. Facts:
AREVA has a uranium mine and mill operation in the Athabasca Basin of northern
Saskatchewan, and it sought renewal of its operating licence, as well as consolidation of two
separate licences, in 2009. In the licensing hearing before the Commission, a group calling itself
the “Athabasca Regional Government”, made up of three recognised First Nations groups andsome non-First Nation municipalities in the region, was granted intervener status to participate
in the proceeding, and expressed concern respecting environmental protection and the potential
effects on the community if the Commission renewed and consolidated the licences. The groupsubmitted that there was a duty to consult with them before the licensing decision was made.
Canada’s constitution recognises the existing Aboriginal and Treaty rights of Canada’s
Aboriginal peoples, the First Nations, Inuit and Métis peoples. The Crown’s duty to consult
stems from this recognition and reflects the intention of reconciliation between Canada andits Indigenous peoples.
In its licensing decision, the Commission noted that the concerns of the interveners
related mostly to information and the ability of community members to understand therelevant information and that, “in this case, the submissions of the interveners did notindicate that there were specific unresolved impacts on rights, which could be addressed
within the authority of the Commission’s powers.” The Commission concluded:
The Commission is satisfied that the interveners have been informed of the Commission
process and of the licensing action at issue, and have had a full opportunity to express
their concerns and identify issues ... to the extent that a duty to consult was engaged, it

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was fulfilled in this case respecting the licensing action, by the Commission process andby the opportunities that were afforded for consultation within that process.
The Commission renewed AREVA’s operating licence for eight years. The intervener groupapplied to the Federal Court for judicial review of the Commission’s decision on the basis that
their constitutional right to be consulted with respect to the decision to license AREVA’s
operation had not been respected.

4. Past procedure:
The Federal Court determined that the intervener group had not established a reviewableerror in the Commission’s decision. The Court ruled that the Applicants had failed to identify
or establish specific Aboriginal or Treaty rights that could potentially be adversely affected bya decision to grant AREVA’s application and failed to provide evidence of adverse impact orinterference with specific Aboriginal rights. Instead, the Court found that the Applicants had
expressed broad and generalised concerns on matters unrelated to the particular licensing
application before the Commission.
With respect to the appropriate role of the Commission, the Court found that as an agentof the Crown with a broad mandate over health, safety and environmental protection arisingfrom nuclear-related activities, the Commission had a process that was the appropriate forum
in which to address potential impacts on Aboriginal rights, such as protected hunting andfishing rights. With its remedial powers and ability to set terms and conditions of licences, theCommission would be well-placed to do the consultation and mitigation of impacts, should
there be potential effects on Aboriginal rights, which was not the case here. The intervener
group appealed this decision.

5. Analysis:
Firstly, the Federal Court of Appeal recognised that before exercising its licensing powers theCommission had implicit jurisdiction to determine whether the Appellants had an Aboriginalright to be consulted on the licence renewal and, if they did, whether it had been satisfied. It
noted that the Canadian Parliament should not be taken to have authorised the Commission
to renew AREVA’s licence if the First Nations’ constitutional right to be consulted had not beensatisfied.
Secondly, with respect to the Appellants’ principal ground of appeal, that the Commission’s
decision was erroneous in law because it was made in breach of their constitutional right to be
consulted, the Court observed that the Appellants adduced no evidence that the proposed
licence might harm a protected Aboriginal or Treaty right:
We agree with the Judge that the Appellants did not establish that a duty to consult
arose on the present facts, because they failed to identify any potential harm to an
Aboriginal or Treaty right that might be caused by the Commission’s decision to renew
AREVA’s licence.
True, the First Nations Appellants have existing Treaty rights to hunt and fish for foodover an area of land that includes the McClean Lake and Midwest sites. However, they
adduced no evidence that these Treaty rights might be harmed in some non-trivial
manner by the licence renewal.

6. Holding:
The Court was not persuaded that the Federal Court below had made any error that would
warrant interference when it held that the Appellants had not established that any of them,including the three First Nations Appellants, had a right to be consulted on the matter before
the Commission made its licensing decision.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSCANADA
Regan Dow v. Canadian Nuclear Safety Commission
Federal Court of Appeal (FCA), 2021
2021 FCA 117

1. Parties:
The Appellant, Regan Dow, is a former employee of Canadian Nuclear Laboratories (CNL). CNL
is a nuclear science and technology laboratory owned by Atomic Energy of Canada Limited (aFederal Crown Corporation). CNL is a holder of licences issued under the Nuclear Safety andControl Act (NSCA or Act). The Respondent, the Canadian Nuclear Safety Commission (CNSC),
is the Canadian regulator.

2. Issue(s):Among other things, the Complainant alleged that CNL terminated her employment because
of information she provided to the CNSC about her employer’s actions relating to alleged
environmental damage.
It is an offence under paragraph 48(g) of the NSCA to take “disciplinary action against aperson who assists or gives information to an inspector, a designated officer or the Commission
in the performance of the person’s functions or duties under this Act.” It was pursuant to thisprovision of the Act that the Complainant would come to argue the CNSC was obligated to her asa whistleblower.

3. Facts:
In 2017, Ms Dow complained to the CNSC, alleging that the licensee had taken disciplinary
action against her for giving information to the CNSC regarding the conduct of the company.
The CNSC investigated the complaints. Not finding an evidentiary basis to substantiate theclaims or to ground the prosecution of a regulatory offence under the NSCA, the CNSC
informed the Complainant that no further action would be taken regarding the complaint. The
Complainant applied to the Federal Court for judicial review of that determination.

4. Past procedure:
The Federal Court dismissed the application for judicial review finding that the Complainantlacked standing to bring the application for judicial review because she was not directly
affected by the decision, and dismissed the application on that ground.
The Federal Court’s decision notes that an administrative body’s conduct does not trigger aright to bring a judicial review application where the conduct attacked “fails to affect legal rights,
impose legal obligations, or cause prejudicial effects.” The Court recognised that theComplainant did not suggest any legal obligations were imposed on her in this matter, and thatwhile she claimed that her professional reputation could have been affected, she did not provide
the Court with any evidence that the disposition of the complaint affected her professional
reputation in any way.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSThe Federal Court also determined that the disposition of the complaint does not deprive theComplainant of a legal remedy to which she might otherwise have had recourse, and therefore
ultimately found she does not have standing to bring this application for judicial review.

5. Analysis:
The Federal Court of Appeal confirmed the CNSC’s and the Federal Court’s understanding of
the NSCA and its offence provision 48(g). The Federal Court of Appeal stated, of the regulatory
regime and the CNSC’s authorities:
The steps that the CNSC may take in relation to an allegation that an offence has beencommitted under paragraph 48(g) of the NSCA are consistent with the object of the
NSCA, which is to regulate the nuclear industry, and not to resolve disputes between
employers and employees. The CNSC addresses non-compliance through orders,licence revocations, administrative monetary penalties, and prosecutions. The
regulatory and enforcement actions contemplated in the NSCA affect the rights andinterests of the regulated entities, and not their individual employees. The CNSC is not
empowered to sit as an adjudicator to decide disputes between private parties, nordoes it have the ability to grant remedies to those who submit external complaints.
The CNSC’s role in investigating potential violations of the NSCA is more analogous to thatof the police investigating crimes, and their investigators share many of the same powers ininvestigating an offence. Whether and how the CNSC decides to prosecute a regulated entity
does not “directly affect” a Complainant.
The Federal Court of Appeal added that the offence provision is to prevent and punish alicensee for acting against any would be whistleblower and presumably to discourage licensee
retaliation. However, the offence provision is not a true whistleblower protection provision inthat the NSCA provides no remedial powers relevant to the employee/whistleblower.

6. Holding:
The Appellant did not persuade the Federal Court of Appeal that there were overriding errors
in the lower court’s finding that she had not established that she had the standing necessary
to bring her application for judicial review. The appeal was dismissed with costs to the CNSC.
The CNSC waived its entitlement to costs.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSGERMANYRWE Power AG v. Federal State of Hessen

Higher Administrative Court of the Land Hesse (Hessischer Verwaltungsgerichtshof – VGH)
VGH, Judgment (Urteil) of 27 February 2013 – 6 C 824/11.T / 6 C 825/11.T;
Federal Administrative Court (Bundesverwaltungsgericht – BVerwG)
BVerwG, Order (Beschluss) of 20 December 2013 – 7 B 18.13/ 7 B 19.13

1. Parties:
The operator of the Biblis Nuclear Power Plant (the Claimant) brought an administrative suitagainst the Ministry for the Environment, Energy, Agriculture and Consumer Protection of thefederal state (“Land”) Hesse (the Defendant) in its capacity as the competent licensing andsupervisory authority.

2. Issue(s):Whether the Defendants’ administrative acts of 18 March 2011 (in response to the Fukushima
Daiichi Nuclear Power Plant accident) based on section 19(3), sentence 2, No. 3 of the Act on
the Peaceful Utilisation of Atomic Energy and the Protection against its Hazards (Atomic
Energy Act) suspending the operation of Biblis Nuclear Power Plant Unit A (Biblis A) for theduration of three months and prohibiting resumed operation of Biblis Nuclear Power Plant
Unit B (Biblis B) were lawful.

3. Facts:
On 11 March 2011, an earthquake struck below the North Pacific, east of Japan. It triggered atsunami, which caused the meltdown of three reactor cores at the Fukushima Daiichi Nuclear
Power Plant.
Consequently, the German Federal Government and the Minister-Presidents(Ministerpräsidenten) of the Länder where nuclear power plants were being operated agreed on
15 March 2011 to re-evaluate within three months the safety of Germany’s nuclear power
plants in terms of possible scenarios based on what was known at that time about theaccident at Fukushima. In addition, it was agreed to take the seven oldest nuclear power
plants off the grid for the duration of this safety review. A press conference was held on thesame day with the Federal Chancellor, members of the Federal Cabinet and a number of Länder
Minister-Presidents. There was also extensive media coverage of the agreements reached.
On 16 March 2011, the Federal Ministry for the Environment, Nature Conservation and
Nuclear Safety informed the competent regulatory bodies of the Länder in writing about thesubstantive aspects of suspending the operation of the seven oldest nuclear power plants forthe three-month safety review.
On 18 March 2011, the Defendant instructed the Claimant to suspend the operation of
Biblis A for the three-month safety review and prohibited the resumed operation of Biblis B,
which at that time was not in operation. The Defendants’ administrative acts were based on
section 19(3), second sentence, No. 3 of the Atomic Energy Act. According to section 19(3), first
sentence, “[t]he supervisory authority may order that a situation be discontinued […] which112

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may constitute a hazard to life, health or property because of the effects of ionising radiation.”To this end, section 19(3), second sentence, No. 3 of the Atomic Energy Act stipulates that “[i]nparticular the supervisory authority may order that […] the operation of [nuclear power plants]
shall be suspended […].” To justify the three-month suspension of operation, the Defendant
included the substantive reasons from the Federal Ministry’s letter of 16 March 2011 in theadministrative orders.
Prior to the issuance of the administrative acts, the Defendant did not give the Claimant
the opportunity for a hearing. Hessian Administrative Procedure Act, section 28(1) stipulates
that “[b]efore an administrative act affecting the right of a participant may be enforced, thelatter must be given the opportunity to comment on the facts relevant to the decision.”
Hessian Administrative Procedure Act, section 28(2) provides for certain exceptions from theright to a hearing. In the Defendant’s view, a hearing was not required as the facts of thedecisions were well known and had already been commented on by the Claimant in the media.

4. Past procedure:
The Claimant brought an administrative suit against the Defendant seeking a declaratory
judgment that the administrative acts suspending the operation of Biblis A and prohibiting
resumed operation of Biblis B were unlawful. The Higher Administrative Court of the Land Hesse,
by judgments of 27 February 2013, granted the request and ruled that the administrative orders
were unlawful.
Firstly, the administrative acts were unlawful for procedural reasons. The Defendant was
required under section 28(1) of the Hessian Administrative Procedure Act to hear the Claimant
before they were issued. There were no exceptions under section 28(2) Hessian Administrative
Procedure Act that could have justified forgoing a prior hearing of the Claimant.
Secondly, the administrative acts were unlawful for substantive reasons. The prerequisites
for the three-month suspension of operation were not met. It was unproven that thecontinuation of the operation of the Biblis Nuclear Power Plant would constitute hazards as
described in section 19(3), first sentence of the Atomic Energy Act, requiring action from the
Defendant as specified in section 19(3), second sentence of the Act. Furthermore, theDefendant could not simply rely on the Federal Ministry`s letter of 16 March 2011; instead it
had the duty to use its own discretion when it ordered the three-month suspension ofoperation under section 19(3), second sentence, No. 3 of the Atomic Energy Act.
The Higher Administrative Court of the Land Hesse did not allow the judgments to beappealed (Revision). The Defendant challenged this before the Federal Administrative Court.

5. Analysis:
The Federal Administrative Court rejected the challenge by means of orders of 20 December
2013 and confirmed the judgments of the Higher Administrative Court of the Land Hesse.
Within the federal structure of Germany, the Länder implement the Atomic Energy Act onbehalf of the Federation. This is known as Bundesauftragsverwaltung. Under the
Bundesauftragsverwaltung, only the Länder have the authority to enforce decisions against
licensees. In doing so, the relevant provisions of Länder administrative procedure laws apply.
Therefore, a prior hearing of the Claimant by the Defendant under section 28(1) of the Hessian
Administrative Procedure Act would have been mandatory. Only under section 28(2) of the
Hessian Administrative Procedure Act would the Defendant not have been required to do so.
However, this would only have been possible under certain circumstances (such as a previous
opportunity for the operators to comment on the relevant facts in the context of informal
contact with the Federal Government), which did not exist in the present case.
In addition, the failure to grant a hearing to the Claimant prior to the administrative acts
was relevant. According to the Defendant, in view of the agreement of 15 March 2011 between

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the Federal Government and the Minister-Presidents of the Länder, the decision for thethree-month suspension of operation would have been the same even if the Claimant had
been granted a hearing before the administrative acts were issued. However, in the Court’sview, it is beyond question that the Claimant in a hypothetical hearing by the Defendant prior
to the administrative acts would have made the same submissions as to the Court and thatthose submissions could have had an impact on the planned decision under section 19(3),second sentence, No. 3 of the Atomic Energy Act.

6. Holding:
The Defendants’ administrative acts of 18 March 2011 (in response to the Fukushima Daiichi
Nuclear Power Plant accident) based on section 19(3), second sentence, No. 3 of the Atomic
Energy Act suspending the operation of Biblis A for the duration of three months andprohibiting resumed operation of Biblis B were unlawful.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSNETHERLANDS
Stichting Greenpeace Nederland v. ministers van Volkshuisvesting, Ruimtelijke Ordening
en Milieubeheer, van Economische Zaken en van Sociale Zaken en Werkgelegenheid[Greenpeace Netherlands Foundation v. Ministers of Housing, Spatial Planning and theEnvironment, of Economic Affairs and of Social Affairs and Employment]
Raad van State [Council of State], 2008
ECLI:NL:RVS:2008:BG4711

1. Parties:
The Appellant was Stichting Greenpeace Nederland (Greenpeace Netherlands), a nongovernmental organisation. The Defendants were the Minister of Housing, Spatial Planningand the Environment, the Minister of Economic Affairs, and the Minister of Social Affairs andEmployment (the Ministers).

2. Issue(s):Whether environmental consequences should be weighed against economic interests when
examining the principle of justification as laid down in Article 6(1) of the 1996 Euratom Basic
Safety Standards Directive. 77 Whether the licence amendment should have been preceded byan assessment of animal protection under the Nature Conservation Act of 25 May 1998 andexemptions under the Flora and Fauna Act of 25 May 1998.

3. Facts:
On 15 October 2007, the Ministers granted Urenco Nederland B.V. (Urenco) a licence amendment
for their uranium enrichment plants and the operation of the entire facility. These changes
included an expansion of the enrichment capacity from 3 500 tonnes to 4 500 tonnes SWU 78 per
year, an onsite railway connection for the supply and removal of raw materials and products
and changes in the storage locations and storage quantities.

77. Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of
the health of workers and the general public against the dangers arising from ionizing radiation, Official
Journal of the European Union L 159 (29 June 1996) (1996 Euratom Basic Safety Standards Directive).
78. SWU stands for separative work unit and it “is the standard measure of the effort required to separate
isotopes of uranium (U235 and U238) during an enrichment process in nuclear facilities. 1 SWU isequivalent to 1 kg of separative work. As a larger unit, 1 tonne of separative work units or tSWU equals
1,000 kg of separative work.” Eurostat (2017), “Glossary: Separative Work Unit (SWU)”,
https://ec.europa.eu/eurostat/statistics-explained/index.php?title=glossary:separative_work_unit_(swu).

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4. Past procedure:On 4 December 2007, as supplemented on 3 January 2008, Greenpeace Netherlands challenged
the October 2007 licensing decision on the grounds that the requirements of Article 15 of the
Nuclear Energy Act of 21 February 1963 (Stb. 1963, No. 82), as amended (NEA) and underlying
legislation were not met in multiple ways, including the failure of the Ministers to consider
environmental consequences when examining the principle of justification as well as toconsider the interest of animal protection under the Nature Conservation Act and the Floraand Fauna Act.

5. Analysis:
On 19 November 2008, the Raad van State declared the appeal of Greenpeace Netherlands
unfounded. Under NEA, Article 15b(1), a licence may be refused for defined reasons including
if doing so is in the interest of protecting people, animals, plants and property. Insofar as theadverse impacts of the activity on people, animals, plants and goods cannot be prevented byattaching stipulations to the permit, a licence will be subject to stipulations that offer thegreatest possible protection against those consequences, unless this is not reasonably possible.
Pursuant to Article 4 of the Dutch Radiation Protection Decree of 16 July 2001 (Stb. 2001,
No. 197), which transposes the first paragraph of Article 6 of the 1996 Euratom Basic Safety
Standards Directive, an act is permitted so long as it is justified by the Ministers for Housing,Regional Planning and the Environment and for Social Affairs and Employment. An act or
category of acts can only be justified if their economic, social and other benefits outweigh any
damage to human health it may cause.
Under No I.B.6 of Annex 1 of the Regulation on the Analysis of the Effects of Ionising
Radiation (AGIS Regulation), an increase in the mass activity concentration of U235 with theaim of making uranium suitable for use as fuel by enrichment via ultracentrifuge is listed as ajustified act. In the contested decision, the Ministers discussed the justification for extending
the enrichment capacity from 3 500 to 4 500 tonnes SWU per year where they confirmed thatmarket conditions and potential market growth necessitates the increase in capacity.
Furthermore, according to the Ministers, centrifuge technology is still the most appropriate
method for uranium enrichment, because it presents no additional risks to human health.
When making a justification decision, only the damage to human health can be weighedagainst the economic, social and other benefits of the act. The fears expressed by Greenpeace
Netherlands that there will be no destination for depleted uranium do not relate to humanhealth damage and are therefore not a disadvantage that the Ministers had to weigh against
the benefits of expanding production capacity in this context. Because of this, it was foundthere was no reason to consider environmental consequences in general.
On the issue of assessing the interest of animal protection under the Nature Conservation
Act and exemptions under the Flora and Fauna Act, the Raad van State held, based on licenceapplication and documents submitted that the facility and the to-be-constructed railway track
were not located within the sphere of influence of an area that has been designated pursuant
to Article 10, Article 10a or Article 12 of the Nature Conservation Act. Therefore, the Raad vanState considered that it must be assumed that a permit under the Nature Conservation Act is
not required in this case. Moreover, insofar as the NEA contains an additional test for thenegative consequences not regulated in the Flora and Fauna Act, there is no apparent reason
to conclude that such consequences occurred in this case.

6. Holding:
The appeal was found to be without merit and dismissed.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSNETHERLANDS
Stichting Greenpeace Nederland et al. v. minister van Economische Zaken,
Landbouw en Innovatie[Greenpeace Netherlands Foundation et al. v. Minister of Economic Affairs,
Agriculture and Innovation]
Raad van State [Council of State], 2013
ECLI:NL:RVS:2013:BZ1263

1. Parties:
The Appellants were three non-governmental organisations – Stichting Greenpeace Nederland(Greenpeace Netherlands), Stichting De Natuur- en Milieufederaties, and Vereniging Zeeuwse
milieufederatie – and a number of individuals (Greenpeace Netherlands and others). The
Defendant was the Minister of Economic Affairs, Agriculture and Innovation (Minister).

2. Issue(s):Whether persons living near the Borssele Nuclear Power Plant can be considered an“interested party” in a licensing procedure.

3. Facts:
On 24 June 2011, the Minister granted NV Elektriciteits-Produktiemaatschappij Zuid-Nederland(EPZ) a licence on the basis of the Nuclear Energy Act of 21 February 1963 (Stb. 1963, No. 82), as
amended (NEA) for fuel diversification at the Borssele Nuclear Power Plant.

4. Past procedure:
Article 20.1(1) of the Environmental Management Act of 13 June 1979 (Stb. 1979, No. 442), as
amended, allows an interested party to appeal a decision made under the NEA. Article 1:2(1) of
the General Administration Law Act of 4 June 1992 [Algemene wet bestuursrecht – Awb] defines
an interested party as any person whose interest is directly involved in a decision.
To be regarded as an interested party under the Awb, a natural person must have asufficiently objective personal interest that distinguishes them from the general public that is
directly affected by the contested decision. According to the Nuclear Installations Disaster
Management Plan, Version 1.0 of 2011, zones of 5 kilometres (km), 10 km and 20 km aroundthe Borssele Nuclear Power Plant are considered as an evacuation zone, iodine prophylaxis
zone and shelter zone, respectively. Persons residing within these zones differ sufficiently
from others in terms of the risk of consequences of an incident and as such can be considered
as interested parties.
This is a case in the first instance. For the licence, the Minister followed the Uniform
Public Preparation Procedure [Uniforme Openbare Voorbereidingsprocedure – UOV] of Awb, section
3.4. Pursuant to the UOV, anyone can submit their views on the draft licence and on the EIA
before the final licence is issued. For licences that have been established with the UOV, appeal

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to the Raad van State, the highest administrative court in the Netherlands, is only remedy
available. The right to appeal a licence decision is reserved for interested parties.
Greenpeace Netherlands and others appealed this decision on the grounds that thecontent of the contested decision is not sufficiently known to third parties and as such theirright to legal protection is insufficiently guaranteed. Greenpeace Netherlands and othersargued that the requested permit should not have been granted until more was known about
the impact of the use of MOX (mixed oxide) fuel on the course of the accident at the
Fukushima Daiichi Nuclear Power Plant in Japan on 11 March 2011. They claimed the Minister
erred in not including the knowledge gained from the Fukushima Daiichi accident about the
impact of MOX fuel on the course of an accident in their assessment. They further argued thatthe accident showed that the probabilistic safety assessment (PSA) method misjudges thelikelihood of a meltdown.
Furthermore, the Appellants argued that the Minister erred in attaching Regulation II.A.23,
which allows for a 10% differentiation in the composition of MOX fuel from what has beenrequested, in terms of the ratio between the components mentioned in the regulation, to thelicence and did not sufficiently justify this decision. They also claimed that the requirementsof Regulations II.A.10 79 and II.A.11 80 should have been submitted at the time of the application
for authorisation and without these submissions the Minister should have not granted thelicence.

5. Analysis:
The Raad van State found that to be regarded as an interested party within the meaning of theAwb, a natural person must have a sufficiently objective and current, individual and personal
interest that sufficiently distinguishes them from others and is directly affected by thecontested order. Persons living within the evacuation zones, iodine prophylaxis zones andshelter in place zones of the Borssele Nuclear Power Plant (zones of 5 km, 10 km and 20 km
respectively) have sufficiently different risks resulting from a potential incident at the Borssele
Nuclear Power Plant and can be regarded as having an interest in the licensing procedure.
Some of the Appellants live less than 20 km from the Borssele Nuclear Power Plant, and assuch are interested parties in the contested decision. One Appellant, however, lives
approximately 130 km from the Borssele Nuclear Power Plant and therefore is well outside theaforementioned zones. There are no special circumstances on the basis of which thisindividual Appellant must be regarded as an interested party in the contested decision. For
that reason, the appeal of that Appellant is inadmissible.
The Raad van State dismissed the other aspects of the appeal as unfounded. It held thatthe Borssele Nuclear Power Plant meets all safety requirements and the Minister’s decision did
not need to take into account further study on the impact of MOX fuel on the course of an
accident in their assessment. Further the Raad van State was not convinced that the PSA
incorrectly misjudges the likelihood of a meltdown.
The Raad van State also held that the Appellants did not adequately demonstrate that the
Minister incorrectly added Regulation II.A.23 to the licence as Regulation II.A.23 shall apply
only when the plutonium composition described in the application for authorisation is nolonger available and Borssele Nuclear Power Plant would need to submit new core calculations
for approval before applying a different concentration of MOX. With regard to permit
requirements II.A.10 and II.A.11, the Raad van State held that the Minister provided sufficient

79. Regulation II.A.10 provides that EPZ shall establish and implement a qualification processprogramme, including following the relevant international research programmes.
80. Regulation II.A.11 provides that the evidence for the required undercriticality of the fuel storage basin
shall be updated for the storage of MOX and c-ERU fuel elements in the fuel storage basin.

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justification that the programme for a qualification process and the update of the evidence forundercriticality serve as an additional control and that there was no reason from a safety
point of view to deny authorisation.

6. Holding:
The appeal of the individual Appellant was declared inadmissible. The appeal of the otherAppellants was declared without merit and dismissed.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSSPAINAscó Vandellós Nuclear Association (ANAV) et al. v. Single Investigating Court of Gandesa
Challenge to the licensee and the regulator for release of radioactive material in Ascó
Nuclear Power Plant
Provincial Court of Tarragona, 2020
Resolution No. 226/2020, ECLI:ES:APT:2020:1411A

1. Parties:
The Appellants were the Ascó Vandellós Nuclear Association (ANAV) and three former
directors of the Ascó Nuclear Power Plant who appealed the order of the Juzgado deInstrucción Único de Gandesa (Tarragona) [Single Investigating Court of Gandesa (Tarragona)]
to initiate the abbreviated procedure. 81

2. Issue(s):The appeal was lodged against the 25 May 2018 order initiating the abbreviated procedure. The
Appellants challenged the absence of rational evidence of criminality justifying theirindictment as perpetrators of a crime under Articles 325, 326, 343 and 344 of the Criminal
Code, 82 since it has not been established that the exposure to ionising radiation resulting froman operational incident at the Ascó Nuclear Power Plant constituted a serious danger tohuman life or health or the environment.

3. Facts:
On 26 November 2007, an operational incident occurred at the end of the 19th refuelling outage of
Unit 1 of the Ascó Nuclear Power Plant. While manually pouring the liquid contents of a vacuum
cleaner (radioactive sludge, water and debris) into the spent fuel pool (an action not provided forin procedures), part of the contents entered the ventilation system. Radioactive material was
released into the atmosphere through the chimney of the auxiliary building of the plant.

4. Past procedure:On 4 February 2011, the Environmental Prosecutor’s Office of Tarragona filed a complaint
before the Single Investigating Court of Gandesa, which led, during preliminary proceedings,
to the indictment of three directors of the Ascó Nuclear Power Plant and two resident
inspectors of the Consejo de Seguridad Nuclear [Nuclear Safety Council – CSN].

81. An abbreviated procedure is a special criminal procedure used in Spain to expedite the investigation,prosecution and verdict of certain crimes to try offences that carry a punishment of up to nine years
in prison or other non-custodial sentences.
82. Organic Law 10/1995, of 23 November, of the Criminal Code (Ley Orgánica 10/1995, de 23 de noviembre,del Código Penal).

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Following the order of provisional dismissal of the case dated 21 October 2015, Ecologistas
en Acción, a non-governmental organisation (NGO), filed an appeal on 13 November 2015 infront of the Court of Gandesa, to which Greenpeace, another NGO, subsequently joined.
In the order of 25 October 2016, the Court of Gandesa partially upheld the appeal and agreed
with Ecologistas en Acción. It confirmed the dismissal of the case only against the two CSN
resident inspectors, after having been requested by the Prosecutor’s Office on 29 July 2015, andpreviously by the State Attorney’s Office and the ANAV, taking into account that the prosecution
did not file an appeal. In this sense, regarding the referred inspectors, the Court held that “in theabsence of an accusation against the aforementioned investigated persons, it is only possible toagree to dismiss the case against them, by virtue of the accusatory principle”.
Furthermore, the order makes explicit the necessary obligation to assess in oralproceedings the contradictions that exist between the experts of both parties in relation to thepossible existence of risk and its nature in the alleged crimes related to ionising radiation andagainst the environment. “Given that we are in the presence of experts who reach different
conclusions, it must be in the act of an oral trial where the evidence is examined in all its
extension in order to determine what effects on people, property and the environment were
produced by the release,” the Court reasoned.
The order to initiate the abbreviated procedure against ANAV and the three former
directors of the Ascó Nuclear Power Plant was issued by the Single Investigating Court ofGandesa on 25 May 2018 (Abbreviated Procedure No. 31/2018), which is the subject of theappeal in front of the Provincial Court of Tarragona.
In addition, mention must be made of the administrative case associated with the criminalcase. The administrative case relates to the infringement procedure initiated by the Ministry ofIndustry, Tourism and Commerce on 11 May 2009 against Endesa Generación, SA as the
responsible operator of the Ascó Nuclear Power Plant for four offences with fines totalling
EUR 15.3 million based on the same 26 November 2007 operational incident (the facts of whichwere established in a March 2009 CSN report). Endesa Generación, SA filed a contentiousadministrative appeal against the four sanctions. The contentious administrative procedure wassuspended during the criminal case. The National Audience, by judgment of 18 March 2022, 83
dismissed the contentious-administrative appeal confirming the four sanctions imposed.

5. Analysis:
Articles 343 and 344 of the Criminal Code are contained in the section “Crimes Related to
Nuclear Energy and Ionising Radiation”, which creates a legal right to collective security in theuse of nuclear energy. The Criminal Code distinguishes between crimes of concrete danger
from those that are of an abstract danger. Specifically, the crimes articulated in Articles 343
and 344 of the Criminal Code are those of concrete danger, that is, as an essential element of
the crime, there must be a verifiable danger to the life, integrity, health of people or theirproperty, or endangerment of the quality of the air, soil or water, or of animals or plants.
Article 344 of the Criminal Code punishes such conduct when it is carried out throughserious negligence. Therefore, in order to justify the indictment of the Appellants as alleged
perpetrators of such crimes, it is necessary to prove that the emission, discharge or release ofionising radiation has taken place and that such release has endangered the life, integrity, or
health of people or their property, or endangered the quality of the air, soil, or water, or
animals or plants.

83. Judgment of 18 March 2022, National Audience, Administrative Litigation Chamber, Roj: SAN
1036/2022, ECLI:ES:AN:2022:1036.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSIn this case, a release of ionising radiation was clearly identified and this was not disputedin the criminal proceedings. However, the Court found the evidence presented in the orderand pre-trial proceedings to be insufficient to justify the indictment of the Appellants.
The present case was initiated as a result of a CSN report on the incident at the Ascó Nuclear
Power Plant. In different parts of the CSN report it is shown that the exposure of people, insideor outside of the nuclear installation, to ionising radiation above the acceptable limits is very
remote; therefore, this incident is not considered to have been a situation of serious danger. The
CSN reiterates such an absence of serious danger at different points in the report. The CSN
issued its final report in March 2009, which reached two important conclusions. The report
recognises with “a high level of confidence” the absence of a real, significant impact on people,
whether workers or the general public. But, the report also acknowledges that while the real risk
to people was very low, in relation to potential risk, the possibility of worker exposure toradiation levels higher than the legally established limits cannot be ruled out. The report itself,
when assessing this last conclusion, acknowledges the theoretical possibilities of various
scenarios. Ultimately, the CSN report failed to find sufficient evidence of danger to life, integrityor health to warrant the criminal charges brought against the Appellants.
Based on this, the Court held that the contested decision does not sufficiently justify why
the Appellants should be prosecuted for the criminal offences established in the order, nordoes it adequately establish why it considers the facts as described to constitute criminal
offences. The order under appeal does not reveal any evidence or investigative measures thatcan prove the necessary elements of criminal action for which the abbreviated procedure wasinitiated, such as danger to the life, integrity, health or property of one or more persons or
serious environmental harm.

6. Holding:
The Court held that there was extensive expert evidence to rule out human andenvironmental risks after extensive analysis of the radioactive release. Additionally, the Court
found the documentation on possible radioactive effects provided by the NGOs does notcontain “any scientific element” and provides “generic and imprecise” conclusions.
Therefore, the Court granted the appeal and revoked the 25 May 2018 order issued by theSingle Investigating Court of Gandesa in Abbreviated Procedure No. 31/2018 and archived the
case.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSSWITZERLAND
Eidgenössisches Nuklearsicherheitsinspektorat gegen A. und B.
[Federal Nuclear Safety Inspectorate v. A. and B.]
Schweizerisches Bundesgericht [Swiss Federal Supreme Court], 2014
BGE 140 II 315, 2C_255/2013

1. Parties:
Two individuals, A. and B., brought a claim against the Swiss Federal Nuclear Safety
Inspectorate (Eidgenössische Nuklearsicherheitsinspektorat – ENSI) over ENSI’s safetyassessment of the Mühleberg Nuclear Power Plant.

2. Issue(s):Whether ENSI could be required to issue a so-called ruling on real acts on its supervisory
activities in relation to accident prevention in accordance with Article 25a of the Federal Act
on Administrative Procedure (Classified Compilation (CC) 172.021) (APA), and who is entitled torequest such a ruling.

3. Facts:
On 18 March 2011, following the Fukushima Daiichi Nuclear Power Plant accident, ENSI issued
a directive requiring all Swiss nuclear power plant operators to immediately begin reviewing
the design of their plants with regard to their ability to withstand earthquakes and flooding.
On 1 April 2011, ENSI issued another directive requiring all Swiss nuclear power plants tosubmit appropriate proof regarding their ability to withstand a 10 000-year flood and a 10 000year earthquake, as well as, if applicable, the combined ability to withstand a 10 000-year
earthquake and subsequent dam break near the nuclear power plant (i.e. earthquake-induced
flooding).
As a result of this directive, the operator of the Mühleberg Nuclear Power Plant, BKW
Energie AG (BKW), had to provide, among other things, deterministic proof of its ability to copewith a 10 000-year flood. As a limiting condition for this, ENSI required the assumption thatany cooling water intakes affected by the flood would fail if blockage or damage to the riverwater intake structures cannot be ruled out.
BKW submitted the required proof to ENSI on 30 June 2011. In its statement of 31 August
2011, ENSI assumed, among other things, that the use of mobile pumps would enable the
SUSAN 84 emergency system to be supplied with cooling water even in the event of a blockageof the SUSAN screen by organic substances (“ENSI statement of 31 August 2011 (ENSI 11/1481)

84. The “SUSAN”, Selbstständiges, Unabhängiges System zur Abfuhr der Nachzerfallswärme [autonomous,
independent system for removing decay heat], is a bunkerised and partially underground emergency
building at the Mühleberg Nuclear Power Plant that is designed to ensure an emergency shutdown of
the reactor in case of extreme external events.

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on the deterministic proof of the KKM [Mühleberg Nuclear Power Plant] for controlling the
10,000-year flood”).

4. Past procedure:
On 20 March 2012, A. and B. applied to ENSI to issue a ruling on real acts under APA, Article
25a. The Applicants argued that ENSI was exercising its supervision unlawfully, in particular
because it was allowing the use of mobile pumps stored on the site as deterministic proof in
the assessment of the Mühleberg Nuclear Power Plant’s ability to cope with a 10 000-year flood.
On 5 October 2012, ENSI issued a decision in which it declined to consider A. and B.’sapplication on the grounds that the Applicants had not plausibly explained the extent towhich their own legal positions were affected and had not shown that any effect was ofsufficient intensity.
On 5 November 2012, A. and B. filed a complaint with the Federal Administrative Court
against the ENSI decision.
On 7 February 2013, the Federal Administrative Court upheld the appeal against thisdecision and referred the matter back to ENSI with the instruction to perform a substantive
assessment of the application.
ENSI appealed the decision of Federal Administrative Court to the Federal Supreme Court,
requesting that the Federal Administrative Court’s decision be set aside.

5. Analysis:
Right to a ruling on real acts under APA, Article 25a in relation to ENSI’s supervisory activities:
APA, Article 25a grants a person with a legitimate interest the right to an independentadministrative procedure, which results in a ruling on the contested administrative act(declaratory ruling). An objection can be made not only to an official action but also to anomission, and an official act can be demanded accordingly. In all cases, the authority has a
specific duty to act (unlawfulness). Article 64(3) of the Nuclear Energy Act of 21 March 2003
(Classified Compilation (CC) 732.1) (NEA), on the other hand, stipulates that only the Applicant(i.e. the operator) has the right to be a party in the procedure for permits granted by thesupervisory authority.
The Federal Supreme Court held that the case under consideration does not concern
permits, but supervisory activities following a safety review ordered by ENSI. NEA, Article 64(3)therefore does not prevent APA, Article 25a from being applicable. The Court held that this isappropriate, as there was a proven legitimate interest in having a proper safety review. A
safety review is the basis for assessing, within the framework of ongoing supervision, whether
the nuclear safety of the nuclear power plant is still guaranteed, whether there are any
outstanding safety issues and whether any deficiencies can be remedied by retrofitting
measures. By providing legal recourse against ENSI’s supervisory activities, regardless of theform of action, APA, Article 25a permits the judicial review of the correct application of the
NEA and thus requires ENSI – at least indirectly – to fulfil the fundamental task of providing
protection through its ongoing supervision.
Legal standing: Further, Claimants must demonstrate that they have a legitimate interest.
Under the NEA, persons living close to nuclear power plants have a legitimate interest andthereby have legal standing. The legislation aims, in particular, to protect people and theenvironment from the dangers of nuclear energy. NEA, Article 4(1) establishes the obligation totake precautions against the unauthorised release of radioactive substances and against theunauthorised irradiation of persons during normal operation as well as in the event of any
potential accidents. Any person living within an area that would be seriously affected by anaccident has a legitimate interest in ensuring that protective measures appropriate to thenature and magnitude of the hazard are taken. The Claimants are within a specific spatial

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proximity to the nuclear power plant, which fulfils the requirement of being personallyaffected. The fact that an incident to be assessed occurs only rarely does not alter thelegitimacy of the interest. If this were the case, the area of statutory accident prevention, andthus a central component of ensuring nuclear safety, would be largely exempt from judicial
review. For residents living in Emergency Protection Zone 1 (i.e. within a 3 to 5 kilometre
radius of the nuclear power plant), a legitimate interest must be upheld. A legitimate interestfor residents in Emergency Protection Zone 2 (i.e. within a 20 kilometre radius of the nuclear
power plant, approximately) was not examined. Accordingly, the question as it relates toresidents in Emergency Protection Zone 2 is still unresolved.

6. Holding:
The Federal Supreme Court held that the NEA does not exclude the application of APA,
Article 25a (declaratory ruling) to ENSI’s supervisory activities relating to accident prevention.
Because the Claimants live within Emergency Protection Zone 1, they have a legitimate interest
that entitles them to take legal action and request an order on administrative acts. The fact thatan accident to be assessed occurs only rarely does not alter the legitimacy of the interest.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSSWITZERLAND
Beschwerdeführer gegen Axpo Power AG und Eidgenössisches
Nuklearsicherheitsinspektorat[Complainants v. Axpo Power AG and Federal Nuclear Safety Inspectorate]
Schweizerisches Bundesgericht [Swiss Federal Supreme Court], 2021
2C_206/2019

1. Parties:
The Appellants are 13 individual persons, the majority of whom live in Emergency Planning
Zone 1 around the Beznau Nuclear Power Plant. The Respondent is Axpo Power AG, theoperator of the Beznau Nuclear Power Plant, and the Swiss Federal Nuclear Safety Inspectorate(Eidgenössische Nuklearsicherheitsinspektorat – ENSI).

2. Issue(s):(1) Whether an accident resulting from a 10 000-year earthquake should be assigned as a
Category 3 design basis accident (rarest accidents), for which a dose limit of 100 mSv must not
be exceeded, or whether this event should be assigned as a Category 2 design basis accident,
for which a dose limit of 1 mSv must not be exceeded. To put it another way, whether, for adeterministic proof of safety for the control of the rarest and strongest earthquake, about
which reliable statements could (still) be made at the relevant time, the dose limit of 1 mSv orthat of 100 mSv applies.
(2) Whether ENSI was justified in requesting only a deterministic proof of safety for the
10 000-year earthquake.

3. Facts:
On 18 March 2011, following the Fukushima Daiichi Nuclear Power Plant accident, ENSI issued
a directive requiring all Swiss nuclear power plant operators to immediately begin reviewing
the design of their plants with regard to their ability to withstand earthquakes and flooding.
On 1 April 2011, ENSI issued another directive requiring all Swiss nuclear power plants tosubmit appropriate proof regarding their ability to withstand a 10 000-year flood and a 10 000year earthquake, as well as, if applicable, the combined ability to withstand a 10 000-year
earthquake and subsequent dam break near the nuclear power plant (i.e. earthquake-induced
flooding).
The safety review required deterministic proof that the core cooling, the spent fuel poolcooling system, and the spent fuel pools located outside of primary containment at the
Beznau Nuclear Power Plant are technically guaranteed in the event of a 10 000-year
earthquake and subsequent earthquake-induced flooding and that radiation exposure would
remain below the dose limit of 100 mSv.
On 30 March 2012, Axpo Power AG submitted their review to ENSI.
On 7 July 2012, ENSI issued a statement stating that the deterministic proof provided by
Axpo Power AG had been provided in full and therefore an immediate provisional

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decommissioning of the Beznau Nuclear Power Plant was not required (“ENSI statement of
7 July 2012 (ENSI 14/1658) on the deterministic verification of the KKB [Beznau Nuclear Power
Plant] to control the 10,000-year earthquake”).
On 13 July 2012, ENSI published a notification on its website that the 10 000-year
earthquake is the most extreme earthquake to consider and assigned this earthquake as a
Category 3 accident, for which a dose limit of 100 mSv was decisive. It stated that the Beznau
Nuclear Power Plant complied with this limit value.

4. Past procedure:
On 19 August 2015, the Appellants applied to ENSI for an order concerning the lawfulness of
its review.
In response, ENSI issued a decision on 27 February 2017 affirming that its acceptance of
Axpo Power AG’s review was lawful.
On 3 April 2017, the Appellants filed an appeal against ENSI’s decision with the Federal
Administrative Court on the basis of a claimed unlawful operation of the Beznau Nuclear
Power Plant, an unlawful assumption of risk and an unlawful calculation of the additionaldose resulting from an accident.
On 22 January 2019, the Federal Administrative Court dismissed the appeal and ordered
the Appellants to pay the costs of the proceedings as well as CHF 60 000 in compensation to
Axpo Power AG.
On 25 February 2019, the Appellants filed an appeal to the Federal Supreme Court. In their
response to the complaint and appeal, Axpo Power AG and ENSI requested that the complaint
be dismissed, with costs and compensation consequences to be borne by the Appellants.

5. Analysis:
As to the first issue, the Federal Supreme Court stated at the outset that the probability of anearthquake cannot be determined exactly. Accordingly, it did not make sense to speak of a
10 000-year earthquake, as the Appellants did. It was not a purely mathematically defined
earthquake, but rather the most extreme earthquake that must be considered. ENSI thus
correctly assumed that no reliable statements can be made a priori about the strength andeffects of earthquakes that occur less frequently than in the order of 10-4 per year. Afterconsidering the relevant regulations, the Federal Supreme Court concluded that the 10 000year earthquake is to be assigned to a Category 3 design basis accident and that a dose limit of
100 mSv must be applied.
As to the second issue, the Federal Supreme Court found that a safety assessment for the
10 000-year earthquake and compliance with the dose limit of 100 mSv is of limited value inrelation to safety and compliance with the correspondingly lower dose limit of 1 mSv for
accidents with a greater frequency. In addition to a safety assessment for the 10 000-year
earthquake, ENSI should also have demanded a safety assessment for an earthquake with anaccident frequency representative of a Category 2 design basis accident and compliance withthe corresponding lower dose limit of 1 mSv.
In a subsidiary point, the Federal Supreme Court noted that in accordance with the Aarhus
Convention, 85 proceedings on environmental matters must not be unreasonably expensive.
While the Aarhus Convention is not directly applicable, the third pillar of the Aarhus

85. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice inEnvironmental Matters (1998), 2161 UNTS 450, entered into force 30 Oct. 2001 (Aarhus Convention).

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LEGAL CASES RELATED TO NUCLEAR SAFETY: OTHER LICENSING AND REGULATORY ACTIONSConvention – access to justice in environmental matters – must be taken into account as a
guiding principle or interpretative maxim when interpreting and applying national procedural
rules. In the interests of environmental protection, the procedural route should not be
excessively expensive. Accordingly, the costs to be paid to the Respondent by the Appellants,
who lost the case for the most part, will be reduced.

6. Holding:
The appeal was partially upheld. The Federal Supreme Court found partially for Axpo PowerAG and ENSI in that a 10 000-year earthquake is to be assigned to Category 3, with a 100 mSv
dose limit. It also found ENSI’s reached its conclusions (that the core cooling and the cooling of
the spent fuel pools are technically guaranteed under the effects of a 10 000-year earthquake
and the combination of such an earthquake with earthquake-related flooding and that thedose limit of 100 mSv is also not reached) in accordance with federal law. Therefore, therequirements for an immediate temporary shutdown were not met at the relevant point intime.
On the other hand, the Federal Supreme Court found partially for the Appellants in thatENSI should also have demanded a deterministic proof of safety from Axpo Power AG for anearthquake with a Category 2 incident and ENSI is obliged to demand a corresponding proof ofsafety, unless this has become irrelevant through other checks.
Otherwise, the complaint is unfounded and should be dismissed to the extent that it canbe acted on.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: DECOMMISSIONING ACTIVITIESNETHERLANDS
Gemeenschappelijke Kernenergiecentrale Nederland B.V. v. ministers van Economische
Zaken en van Financiën
[Joint Nuclear Power Plant Netherlands B.V. v. Ministers of Economic Affairs and of Finance]
Raad van State [Council of State], 2021
ECLI:NL:RVS:2021:2442

1. Parties:
The Appellant was Gemeenschappelijke Kernenergiecentrale Nederland [Joint Nuclear Power
Plant Netherlands – GKN], a nuclear power plant operator. The Defendants were the State
Secretary of Infrastructure and Water Management (now the Minister of Infrastructure andWater Management) and the Minister of Finance (together, the Ministers).

2. Issue(s):Whether the permanent incapability of GKN to meet the requirements for the approval of its
application for financial security means the Ministers should therefore grant approval andannul the rejection of the application.

3. Facts:
On 9 January 2019, the Ministers rejected an application from GKN for the financial security it
had provided on the basis of Article 15f of the Nuclear Energy Act of 21 February 1963 (Stb.
1963, No. 82), as amended (NEA). GKN is the owner of the Dodewaard Nuclear Power Plant,
which was shut down in 1997.
On 1 May 2002, GKN was granted a licence to keep the Dodewaard Nuclear Power Plant in astate of safe containment for a period of 40 years until its actual decommissioning. This waschosen because it would, amongst other things, entail financial advantages. During this 40-year
period, GKN’s assets could grow with interest accrual to the amount needed fordecommissioning. This licence was subject to conditions, including that GKN was obliged tomake the necessary arrangements for the management of the financial resources necessary forthe completion of the eventual decommissioning of the plant.
In 2011, both the NEA and the Nuclear Installations, Fissionable Materials and Ores Decree of
4 September 1969 (Stb. 1969, No. 403), as amended (the Bkse) were amended. The amendment
introduces a legal regulation for the decommissioning of nuclear power plants. As a result, theprovision on financial security associated with the 2002 licence was cancelled. Under the newscheme, GKN had two obligations. First, it must have an approved decommissioning plan thatsets out how the decommissioning will actually be carried out. This plan must be updated every
five years. The decommissioning plan submitted by GKN for the Dodewaard Nuclear Power Plant
was last approved by decision of 14 September 2016 by the Minister of Infrastructure and theEnvironment. Secondly, under the new regulation, GKN must provide an approved financial
security that demonstrates that it can cover the decommissioning costs.
On 1 October 2016, GKN submitted an application for approval of the financial security as
referred to in NEA, Article 15f. The application is based on the decision of 14 September 2016

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approving GKN’s decommissioning plan. In the application, GKN has indicated that the costs
for decommissioning will be EUR 189.7 million.
On 9 January 2019, the Ministers refused to approve the financial security provided by GKN
for the dismantling of the Dodewaard Nuclear Power Plant. According to the Ministers, theapplication does not comply with Bkse, Article 44a(2)b-c because the cost estimate is not fully
based on a generally accepted method. Furthermore, the application would also be in conflictwith Article 13(a), in conjunction with Article 11(a) of the Nuclear Facilities Decommissioning
and Dismantling Regulation. 86
GKN argues that it is unable to meet the demands of the Ministers and therefore its
application must be approved. Since GKN ceased operation of the Dodewaard Nuclear Power
Plant, it does not have the opportunity to generate income and cannot provide more financial
security than it has already. GKN explained that at the time the nuclear power plant was shut
down in 1997, Article15f of the NEA and Article 44(2)(a) of the Bkse had not yet entered into
force. When these articles came into effect, no exception was made for nuclear power plantsthat were already shut down. Since the Dodewaard Nuclear Power Plant had already been shut
down at that time, GKN does not have any ability to generate new income and additional
capital, other than by accruing interest from the capital available at the time of closure.
According to GKN, this is different for nuclear power plants that are still in operation at thetime of entry into force of the relevant NEA and Bkse articles.

4. Past procedure:This is a case in the first instance. However, the lawsuit between GKN and the government ispartly a repetition of legal manoeuvres. In 2015, GKN was also unable to demonstrate that
there was sufficient financial capacity for the dismantling and lost a case about the same
matter before the Raad van State in 2016. 87

5. Analysis:
The Court found that regardless of whether GKN is incapable of ever having sufficientfinancial resources, its financial status cannot lead to an annulment of the decision. Even if itwere established that GKN is permanently unable to meet the requirements for the approvalof its application, this does not lead to the conclusion that the Ministers should therefore have
granted approval. The current legal framework does not allow for this. The NEA and the Bkse
do not contain any provisions on the basis of which the Ministers may approve the application
if there is no financial security to cover the costs of decommissioning. Moreover, the Court did
not establish at the hearing that GKN is unable to gather of sufficient resources. A procedure is
still pending in the civil court.

6. Holding:
The appeal was found to be without merit and dismissed.

86. Regulation of the Minister of Economic Affairs, Agriculture and Innovation and the State Secretary forSocial Affairs and Employment of 23 February 2011, No. WJZ/11005409 containing rules on thedecommissioning and dismantling of nuclear facilities and on the application for approval of the way
in which a financial security has been furnished for the costs of the decommissioning anddismantling of nuclear facilities at which nuclear energy can be or was able to be released (Nuclear
Facilities Decommissioning and Dismantling Regulation).
87. Gemeenschappelijke Kernenergiecentrale Nederland B.V. v. ministers van Economische Zaken en van Financiën
[Joint Nuclear Power Plant Netherlands B.V. v. Ministers of Economic Affairs and of Finance],
ECLI:NL:RVS:2016:649.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: DECOMMISSIONING ACTIVITIESUNITED STATESShieldalloy Metallurgical Corp. v. NRC

United States Court of Appeals for the District of Columbia Circuit, 2014
768 F.3d 1205

1. Parties:
The Plaintiff is Shieldalloy Metallurgical Corp., a licensee of the United States (US) Nuclear
Regulatory Commission (NRC). The Defendant is the US NRC.

2. Issue(s):Whether the US NRC’s transfer of authority to the US state of New Jersey to regulate source
material violated the US Atomic Energy Act of 1954, as amended (AEA) because it resulted in a
regulatory scheme that was less restrictive than that required under federal law. The Court
considered whether New Jersey’s regulations, which favoured decommissioning for unrestricted
release rather than restricted release, were compatible with the US NRC’s regulatory scheme.

3. Facts:
Since the 1990s, Shieldalloy was pursuing licence termination for the company’s metal alloy
manufacturing site in Newfield, New Jersey. It sought to decommission this site for restricted
release, i.e. through the use of institutional controls that would limit access to radioactive
material left on site, and it applied to the US NRC for authorisation to pursue this path.
In 2009, after submitting its fourth restricted release plan to the US NRC for review andapproval, the US NRC designated New Jersey as an “Agreement State”. Section 274 of the AEA
provides a statutory basis under which the US NRC relinquishes to authorised states portions of
its regulatory authority to licence and regulate byproduct materials (radioisotopes); source
materials (uranium and thorium); and certain quantities of special nuclear materials. The US
NRC can do this if it finds that the state’s regulatory program is “adequate” to protect the publichealth and safety with respect to the materials the state seeks to regulate and is “compatible”
with its programme for regulation of such materials. 42 United States Code (USC) 2021.
When authority over the Shieldalloy site was transferred to New Jersey, Shieldalloy was
unable to obtain authorisation for decommissioning from the state because New Jersey foundthat the restricted release plan did not meet the state’s remediation requirements.

4. Past procedure:
Shieldalloy previously obtained relief from the Court on two separate occasions.
In 2010, the Court of Appeals for the District of Columbia (DC) Circuit held that the transfer
of authority was invalid because the US NRC had not adequately explained how the transfer
did not unduly interfere with Shieldalloy’s application and, as a consequence, invalidated thetransfer (i.e. transferring regulatory authority back to the US NRC) and remanded the caseback to the Commission. Shieldalloy Metallurgical Corp. v. NRC, 624 F.3d 489 (DC Cir. 2010).

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After the US NRC cured this deficiency and reinstated the transfer to regulatory authority
over the site to New Jersey, Shieldalloy appealed again in the DC Circuit, asserting that the US
NRC’s standards concerning eligibility for restricted release had not been adequately explained.
On 19 February 2013, the DC Circuit vacated the transfer for a second time. Although it foundthat New Jersey’s licence termination regulations were “adequate” and “compatible” with the US
NRC’s regulations, the US NRC had failed to explain how its interpretation of one particularprovision, 10 Code of Federal Regulations (CFR) 20.1403(a), was grounded in the regulatory text
(meaning, how New Jersey’s rules governing licence termination were compatible with the
NRC’s restricted release provision). The Court remanded the case to the US NRC for further
explanation of this issue. Shieldalloy Metallurgical Corp. v. NRC, 707 F.3d 371 (DC Cir. 2013).
In an opinion issued in August 2013, the US NRC responded to the DC Circuit’s remand andreinstated its transfer of authority to New Jersey. In the opinion, the US NRC explained its“preference,” set forth in its regulations, “that licensees satisfy [its] radiation dose criteria forlicense termination through unrestricted-release decommissioning if it is cost-beneficial to doso.”

5. Analysis:
The Court upheld the US NRC’s explanation of the text of its regulation, deferring to what it
considered to be a reasonable interpretation. It held that the US NRC had properly determinedthat the relevant regulation constituted an “eligibility test” for using restricted release forms ofdecommissioning and that such an approach could only be undertaken if the licensee could“explain why, based on a cost-benefit analysis, it should be relieved of its burden to takefurther remedial measures required for unrestricted release.”

6. Holding:
The Court held that the agency had reasonably interpreted its rule, and that, as a result of thisinterpretation, New Jersey’s standard was consistent with US NRC’s requirements. As aconsequence, the Court dismissed Shieldalloy’s challenge to the transfer of authority to New
Jersey to regulate the site.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: DECOMMISSIONING ACTIVITIESUNITED STATESIn the Matter of Entergy Nuclear Vermont Yankee LLC
US Nuclear Regulatory Commission, 2016
CLI-16-17, 84 NRC 99

1. Parties:
The state of Vermont, the Vermont Yankee Nuclear Power Corporation (the prior owner andoperator of Vermont Yankee Nuclear Power Station) and Green Mountain Power Corporation
are the Petitioners in this case.
The Petitioners sought review of, and a discretionary hearing on, a number of issues
associated with the use of decommissioning trust funds at the Vermont Yankee Nuclear
Power Station (a single unit boiling water reactor), located in the state of Vermont.

2. Issue(s):Whether the United States (US) Nuclear Regulatory Commission’s (NRC) issuance of an
exemption to its regulations governing decommissioning constituted an amendment to thepower plant owner’s licence.
Whether the issuance of the exemptions was illegal because the US NRC had notconsidered the environmental impacts of the exemptions, as required by the National
Environmental Policy Act of 1969, as amended (NEPA).

3. Facts:
In 2002, the US NRC approved the transfer of the Vermont Yankee licence from Vermont Yankee
Nuclear Power Corporation to Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear
Operations, Inc. The transfer was subject to several conditions related to the decommissioning
trust fund, and these conditions were incorporated into the licence.
In September 2014, Entergy submitted to the US NRC a request to amend the Vermont
Yankee operating licence to delete the decommissioning trust fund license conditions, which
would have required Entergy to follow 10 Code of Federal Regulations (CFR) 50.75(h)(1)-(3)instead of the licence conditions that were imposed upon the transfer of the plant to Entergy.
A few months later, Entergy requested an exemption from US NRC requirements related tothe decommissioning trust fund, which the US NRC approved in June 2015. Specifically, theCommission permitted the plant owner to use money in the trust fund to pay for irradiatedfuel management. In approving the exemption, the US NRC determined that the exemption
was eligible for a categorical exclusion and therefore did not require an environmental
assessment or an environmental impact statement to comply with NEPA.
On 29 December 2014, Vermont Yankee was permanently shut down and all fuel was
removed from the reactor on 12 January 2015.

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4. Past procedure:
In April 2015, the state of Vermont sought a hearing on Entergy’s licence amendment request,
which was granted by the Atomic Safety and Licensing Board Panel (ASLBP). The ASLBP
conducts the US NRC’s adjudicatory hearings. In September 2015, Entergy moved to withdraw
its licence amendment request and dismiss the proceedings, which the ASLBP granted subject
to two conditions related to decommissioning trust fund notifications.
On 4 November 2015, Petitioners filed a petition before the Commission of the US NRC
seeking “a robust, comprehensive, and participatory review of Entergy’s use of the Vermont
Yankee Nuclear Decommissioning Trust Fund.” Such a petition is not contemplated by the US
NRC’s procedural rules and Petitioners did not establish that they have a right to an
adjudicatory hearing on the issues raised pursuant to section 189a of the US Atomic Energy
Act of 1954, as amended. The Commission of the US NRC nevertheless considered the petition
as a discretionary exercise of its inherent supervisory authority over agency proceedings.

5. Analysis:
The Commission of the US NRC determined that the agency had validly issued the exemption, in
accordance with the criteria for a reactor licensee to obtain an exemption under 10 CFR 50.12, i.e.
that it is authorised by law, will not present an undue risk to public health and safety, and isconsistent with the common defence and security. The Commission noted that, even with theissuance of the exemption, the plant owner could not make a withdrawal that would inhibit its
ability to complete decommissioning, and that the licensee was required to provide annual
financial assurance reports and make up any shortfalls if the report reveals that funding is
insufficient. It further ruled that issuance of the exemption was justified by “special
circumstances” and the fact that similar exemptions had been granted to other licensees did notmean that the agency had effectively modified the underlying legal requirement. However, theCommission determined that the agency was required to perform an environmental analysis of
the exemption because the “categorical exclusion” to the requirement to perform such ananalysis, which had been enacted by a prior rulemaking of the agency, was designed to coverrecordkeeping and administrative requirements and was not applicable here.

6. Holding:
The Commission of the US NRC determined that no hearing was required because the facility
licence had not been amended. However, it directed the US NRC Staff to perform anenvironmental analysis of the exemption issued to the licensee. And it concluded that any
concerns that the parties seeking relief had about the dissipation of the decommissioning
trust fund were properly recognised as enforcement issues to be raised by the US NRC Staff topursuant to the “citizen petition” mechanism in 10 CFR 2.206.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: DECOMMISSIONING ACTIVITIESUNITED STATES
Public Watchdogs v. Southern California Edison Co.
United States Court of Appeals for the Ninth Circuit
984 F.3d 744 (2020); 833 F. App’x 460 (2021)

1. Parties:
Public Watchdogs, a public interest organisation, sued the United States (US) Nuclear
Regulatory Commission (NRC) and the operator/licensee of the San Onofre Nuclear Generating
Station (SONGS), Southern California Edison Company (SCE), asserting that the US NRC andthe plant operator had impermissibly permitted dangerous conditions to exist in the loading
and storage of spent nuclear fuel in canisters.

2. Issue(s):Whether the US NRC had improperly granted exemptions to the requirements of its regulations
and its licence, and whether it had failed in its responsibility to enforce legal requirements by
not ordering the cessation of spent fuel loading activities and dismantlement of the spent fuelpool.

3. Facts:
In 2013, SCE permanently ceased operation of SONGS, Units 2 and 3 (Unit 1 was permanently
shut down in 1992). In 2015, the US NRC amended the operating licences for Units 2 and 3 torequire the licensees to “[t]ake actions necessary to decommission the plant and continue tomaintain the facility including … the storage, control, and maintenance of the spent fuel in asafe condition.” The licensees elected to use dry cask storage from Holtec International (Holtec)
for storage of their spent nuclear fuel as part of their decommissioning plan. This Holtec dry
cask spent fuel storage system had been approved by the US NRC through a certificate ofcompliance issued after a rulemaking process in which the public had an opportunity toparticipate and that was subject to judicial review.
During the loading of fuel into the Holtec spent nuclear fuel canisters, the licensee
experienced a misalignment incident. Public Watchdogs claimed that the incident called into
question the design of the fuel storage system and the licensee’s ability to complete
decommissioning of the site in a safe manner. It sought to stop loading activities and to require
the US NRC to take action to preserve the spent fuel pool building in case fuel could not be safely
held in dry storage.

4. Past procedure:
In August 2019, Public Watchdogs sued SCE, Holtec, the US NRC and others seeking to enjoin
allegedly negligent decommissioning activities at SONGS. Public Watchdogs challenged, among
other matters, the 2015 licence amendments that the US NRC issued for SONGS and the US
NRC’s grant of a certificate of compliance for a dry cask spent fuel storage system to Holtec.

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Public Watchdogs also filed a motion for preliminary injunction and a temporary
restraining order that sought to prevent the transfer of additional spent nuclear fuel into theHoltec canisters and, in turn, the SONGS independent spent fuel storage installation.
On 24 September 2019, Public Watchdogs submitted a petition under 10 Code of Federal
Regulations (CFR) 2.206 for an order immediately suspending all decommissioning operations
at SONGS and requiring SCE to submit an amended decommissioning plan to account for
spent nuclear fuel being placed in storage at SONGS.
On 3 December 2019, the District Court for the Southern District of California granted the
Defendants’ motions to dismiss, denied Public Watchdog’s motion for a preliminary injunction,and dismissed the case with prejudice, ruling that the challenge was effectively a challenge tothe design of the storage facility, which had previously been licensed. However, the Court
noted that Public Watchdogs had the option of pursuing and in fact had filed a petition under
10 CFR 2.206 asking the agency to take enforcement action with respect to the storage facility.
On 26 February 2020, the US NRC denied Public Watchdog’s 2.206 petition, determiningthat it had taken appropriate action with respect to the misalignment issue and that further
action was not warranted.
Public Watchdogs appealed both the District Court’s decision and the US NRC’s 2.206
petition decision.

5. Analysis:
The Court ruled that it lacked authority to question the agency’s prior licensing decision,
because the storage system, as well as any amendments to the facility licence permitting it todecommission the site, were no longer subject to review. The Court further ruled that thedeterminations concerning the appropriate enforcement action to take, if any, are committed
to the discretion of the agency and, absent exceptional circumstances amounting to an
abdication of statutory responsibility, cannot be reviewed by the courts. It further recognisedthat the agency has previously determined that fuel can be safely stored at reactor sites prior
to shipment to a repository, even if, at some point, the storage systems require replacement.
And it noted that decommissioning reactors must annually report the amounts of money they
have on reserve to complete the decommissioning process and to make up any shortfalls
between that amount and the estimated cost of completion.

6. Holding:
The Court dismissed both legal challenges brought by Public Watchdogs, holding that thedesign of the storage system was no longer reviewable and that the issues that Public
Watchdogs raised were questions of enforcement of legal requirements, which fell within thetechnical expertise of the agency and, except in the most egregious of circumstances thatwere not present in this case, were not properly reviewed by non-expert judges.

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AUSTRALIA
Barngarla Determination Aboriginal Corporation RNTBC v. District Council ofKimba (No. 2)
Full Court of the Federal Court of Australia, 2020
[2020] FCAFC 39

1. Parties:
The Appellant is the Barngarla Determination Aboriginal Corporation RNTBC (BDAC). The
Barngarla People are the holders of native title in an area of land situated on the Eyre Peninsula
in South Australia.
The BDAC is a body corporate established under the Corporations (Aboriginal and Torres
Strait Islander) Act 2006 (Cth) (the CATSI Act). The BDAC was registered with the Office of theRegistrar of Indigenous Corporations on 11 April 2017 and is the prescribed body corporate forthe purposes of section 57(2) of the Native Title Act 1993 (Cth) in respect of the land describedin the determination.
As is commonplace, the determination identified areas within the overall determination
area within which native title exists and areas in respect of which it has been extinguished.
The native rights declared in the determination are non-exclusive rights to use and enjoy theland and waters in accordance with the traditional laws and customs of the Barngarla People.
The Respondent is the District Council of Kimba (the Council). The Council is a council
constituted under the Local Government Act 1999 (SA) (the LG Act) and is responsible for an areaof approximately 3 500 square kilometres on the Eyre Peninsula. The land described in thedetermination is situated in its local government area. Land over which the Barngarla People
have been determined to have native title comprises approximately 10% of the Council’s local
government area.
The Intervener is the Attorney-General for the State of South Australia. The government ofSouth Australia intervened in support of the Council and in response to a notice that a
constitutional question arose in relation to the validity of the LG Act. However, this argument
was not pursued at trial and the Attorney-General made no submissions.

2. Issue(s):At first instance, the BDAC sought declaratory relief to the effect that excluding its members
from a non-binding poll to gauge community support for the construction of a radioactive waste
management facility within the Kimba local government area was unlawful on a number ofgrounds. Leading up to the poll, the Council had made a number of resolutions in determining toconduct the poll, the effect of which were that mere possession of native title rights over land
within the local government area of Kimba would not qualify a person to participate in the poll.
A single judge of the Court sitting in its original jurisdiction ultimately held that theCouncil did not contravene sections 9(1) or 9(1A) of the Racial Discrimination Act 1975 (Cth)(RDA) in passing resolutions for the conduct of the non-binding poll.
The Full Court of the Federal Court of Australia then considered an appeal made by the
BDAC against this decision.

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BDAC’s oral submissions proceeded from the starting point that its members were
excluded from the ballot. From there it was submitted that because all of the BDAC’s members
were Aboriginal, the practical effect of the resolutions was to exclude the BDAC’s members
from participating in the poll by reference to their Aboriginality. It was argued that the special
nature of the members’ interests in the land neighbouring the nominated sites for the waste
management facility meant that no justification advanced by the Council could withstandobjective scrutiny and that, accordingly, the exclusion of the BDAC’s members mustnecessarily be characterised as an act referable to the race of the BDAC’s members.
The Full Court ultimately made its decision on the basis of two issues. The first issue waswhether the primary judge erred in concluding that the actions of the Council did not involvea distinction, exclusion, restriction or preference based on race within the meaning of RDA,
section 9(1). The second issue was whether the primary judge erred in admitting andconsidering the evidence of the Council’s Chief Executive Officer (CEO) in respect of theCouncil’s reasons for adopting the requirements for voting set out in section 14 of the Local
Government (Elections) Act 1999 (SA) (LGE Act).

3. Facts:
In 2017, two sites within the Council area were nominated by their owners under section 7 of
the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) as possible sites forthe construction of a national radioactive waste management facility (Facility). The nominatedsites each neighbour land to which the Barngarla People hold native title rights and interests.
The determination of native title in favour of the Barngarla People provided that native title inrespect of the nominated sites had been extinguished. However, native title was determined
to exist in relation to areas proximate to each site.
The object of the NRWM Act, as stated in section 3, is to provide for the selection of a site
for the Facility and for the establishment and operation of the Facility on the selected site so
as to ensure that radioactive waste generated, possessed or controlled by the Commonwealthof Australia or a Commonwealth entity is safely and securely managed. Under NRWM Act,section 9 the relevant Minister may, in their absolute discretion, approve nominated land as asite for the Facility. By NRWM Act, section 14 the Minister may, in their absolute discretion,
declare that a site approved under section 9 is selected as the site for the Facility.
It was common ground that the Minister had adopted a voluntary nomination processwith respect to proposed sites for the Facility.
After consideration of the respective nominations, the Minister initiated a process,referred to as the Phase 1 Consultation, with respect to each of the two sites. The Phase 1
Consultation involved the obtaining of feedback from community members and the receipt ofsubmissions.
In May and June 2017, at the request of the Minister, the Council conducted a poll of its
community with a view to obtaining an indication of the level of support for the nominatedsites as the site for the Facility (2017 Poll). The franchise for the poll comprised those eligible
to vote in Council elections under LGE Act, section 14. In total, 690 persons voted in the 2017
Poll, with 396 (57.4%) in favour of the establishment of a Facility and 294 (42.6%) opposed.
At the conclusion of the Phase 1 Consultation, the Minister announced his decision toproceed to Phase 2. The Minister said that “[t]here will be another decision at the end of
Phase 2, after further technical work and community consultations have been completed, forthe community to determine if they want to progress this proposal further”.
In about April 2018, communication occurred between the Council and the Ministerconcerning the conduct of a second ballot and, subsequently, the Council resolved to conduct
a non-binding ballot to ascertain the support within its community for the construction andmaintenance of a radioactive waste management facility within its local government area.
The Minister proposed that the second ballot be:•142

conducted before 4 September 2018 with a five week voting period;

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conducted by the Australian Electoral Commission (AEC) on behalf of the Council; and•the subject of arrangements between the Council and the AEC but with the “default
position” being the same basis on which the 2017 Poll was conducted.

The Council acceded to the Minister’s proposal. It passed a number of resolutions giving
effect to that decision with the effect, first, that the Council would retain the AEC to conduct aballot of members of the community and, secondly, that the ballot was to be conducted inaccordance with the provisions of the LGE Act. For this purpose, the CEO was authorised toprovide the AEC with the roll of those eligible to vote in Council elections under LGE Act,section 14.
As of 30 June 2018, the BDAC had 211 members. The addresses for those members at
30 June 2018 shown in the General Report filed with the Office of the Registrar of Indigenous
Corporations suggest that at that time none of them resided within the Council’s area and,
consequently, none of the BDAC’s members were, by reason of being a native title holder,
included on the Council’s roll.
Commencing on 30 May 2018, the BDAC made a number of representations to the Council
to have its members permitted to vote in the ballot. The BDAC submitted that its members
should be entered on the Council’s own voter roll pursuant to LGE Act, sections 14 and 15 or,alternatively, that the Council prepare a separate and specific roll of voters for the purpose of
the ballot that included its members.
The Council responded to the BDAC through its CEO acknowledging that the BDAC’s
members hold native title in respect of several parcels of land within its local government area
and, further, while those native title rights and interests satisfied the definition of “owner” inthe LG Act, this ownership did not entitle the BDAC’s members to be included on the voters’roll as the land was “non‑rateable”, and the native title holders were not ratepayers.
Accordingly, they did not meet the enrolment criteria contained in LGE Act, section 14(1)(ab),(b) or (c). The Council accepted that some of the BDAC members may be eligible to vote in theballot pursuant to LGE Act, section 14(1)(a) on the basis that they resided within the local
government area.

4. Past procedure:
The BDAC lodged an originating application in the Federal Court of Australia alleging that theCouncil had contravened RDA, sections 9(1) and 9(1A) by passing resolutions for the conduct ofa non-binding poll to gauge the level of community support for the construction of aradioactive waste management facility on sites within the Council’s local government area
nominated by the site’s owners for this purpose. Among other things, it was alleged that thepassage of the resolutions was an act involving a distinction, exclusion, restriction or
preference based on race.
The primary judge dismissed the originating application – Barngarla Determination
Aboriginal Corporation RNTBC v. District Council of Kimba [2019] FCA 1092 – stating:
In my opinion, it should be accepted that the non-inclusion of the members of BDAC
in the franchise for the ballot involve distinction or exclusion. They (and others who
did not meet the requirements for the franchise) were thereby precluded fromparticipating in the ballot being arranged by the Council for the purposes ofascertaining the views of the Kimba “community”, using that term in an extended
sense. […] However, accepting that that is so, BDAC does not establish that theexclusion was “based on” the Aboriginality of its members. In particular, it has notestablished that the decision concerning the franchise for the ballot was referrable to
the Aboriginality of its members.
The primary judge considered it pertinent that the BDAC members who could satisfy thesection 14 criteria (by virtue of place of residence, for example) were eligible to vote. That fact,
he said “militates against a conclusion that their exclusion is referrable to their Aboriginality”.

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5. Analysis:On the first issue of whether the primary judge erred in concluding that the actions of theCouncil did not involve a distinction, exclusion, restriction or preference based on race within
the meaning of RDA, section 9(1), the Full Court noted:that to prove a contravention of s 9(1) of the RDA it is not necessary to prove theexistence of a subjective motivation to exclude the complainant based on his or her
race. But that is not to say that the subjective motivations of the alleged contravener
are irrelevant. Whilst the absence of a subjective motivation will not be determinative,
proof of the existence of a subjective motivation to discriminate may point to aconclusion that the relevant act involved an exclusion based on race.
In regard to the evidence of the CEO, the Court found that the primary judge did not err in
admitting her evidence, stating “there was no objection to that evidence at first instance,
whether on the ground of relevance or on the ground that [the CEO] could not depose to thereasoning process of the members of the Council who passed the resolutions complained of.”
The Court also concluded “as to the findings based on [the CEO’s] evidence, BDAC faces
the considerable difficulty that the evidence went unchallenged. In the circumstances, it was
clearly open to the primary judge to conclude that the Council’s reasons for adopting the[requirements for voting] were as [the CEO] had asserted them to be. However, that conclusion
was not determinative.” The Court based its conclusions on the following points:•

any person who fulfilled one or more of the section 14 criteria could participate in theballot irrespective of the person’s race;•the classes of persons who were excluded from voting included persons who were
Aboriginal and persons who were not;•there was preference afforded to persons having interests in land that was rateable
over those having interests in land that was not. And non-rateable land in the Council
area did not comprise only that land falling within the determination area, but
included all non-rateable land, irrespective of the race of the person having arecognisable interest in it; and•each of the matters advanced by the Council to justify the resolutions were shown tobe referable to “sensible” concerns that were unrelated to race.

The Court was satisfied that the passing of the resolution in relation to LGE Action, section
14 was not based on race notwithstanding the special interests of the Barngarla People in theoutcome of the ballot.
Ultimately, the Full Court found that:[i]t is not correct to say that BDAC’s members were excluded from the ballot.
Membership of BDAC was not a characteristic that disqualified any person from thefranchise. Rather, the effect of the resolutions was that possession of native title rights
and interests was not included among the various qualifying criteria. The distinction isimportant. For as the primary judge concluded, any person who fulfilled one or moreof the s 14 criteria could participate in the ballot irrespective of the person’s race.
Similarly, the classes of persons who were excluded from the franchise included
persons who were Aboriginal and persons who were not. The primary judge wascorrect to find that these features of the resolutions militated against a conclusion thatthe relevant act involved an exclusion based on race.

6. Holding:
The appeal was dismissed.

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Spolek V havarijní zóně JE Temelín v. Ministerstvo pro místní rozvoj[Association in the emergency zone of Temelín NPP v. Ministry of Regional
Development]
The Supreme Administrative Court of the Czech Republic, 2018
7 As 225/2018-116

1. Parties:
The non-governmental organisation (NGO) Spolek V havarijní zóně JE Temelín brought a claim
against the Ministry of Regional Development (the Defendant) for issuing a planning permit toČEZ, the operator of two nuclear power plants in Czechia.

2. Issue(s):Whether the assessment of potential accidents at the spent nuclear fuel storage facility
carried out as part of the environmental impact assessment (EIA) process was sufficient under
Article 5(3) of Act No. 100/2001 Coll., on Environmental Impact Assessment and on Amending
Certain Related Acts (EIA Act).
Whether the Ministry of Regional Development committed such procedural errors in theappeal proceedings that the Municipal Court in Prague should have annulled its decision.

3. Facts:
ČEZ applied to obtain a zoning decision on the location of a future spent nuclear fuel storage
facility at the Temelín Nuclear Power Plant. The building authority, the Regional Authority of
the South Bohemian Region, issued a decision pursuant to section 39 of Act No. 50/1976 Coll.,on Spatial Planning and Building Regulations (the Building Act), authorising the location of thebuilding, a so-called “planning permit” (first instance administrative decision).

4. Past procedure:
The planning permit was subject to multiple appeals by the Complainant NGO that wererepeatedly reviewed by the Ministry of Regional Development. These subsequent decisions
were annulled by the Municipal Court in Prague for various procedural defects (final decisionsof a regional court in administrative justice review). The Defendant’s last decision rejected theappeal of the Complainant (and other persons) and confirmed the zoning decision. The
Complainant challenged this decision by bringing an action, once again, before the Municipal
Court in Prague that then annulled both the Defendant’s last decision to reject theComplainant’s appeal and the original zoning decision of the first instance administrative
authority and returned the case to the Defendant for further proceedings (final decisions of aregional court in administrative justice review).

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The Ministry of Regional Development and ČEZ appealed this judgment to the Supreme
Administrative Court (remedy against the final decision of a regional court in administrative
justice review).

5. Analysis:
The Supreme Administrative Court did not agree that there were grounds for annulment of
the administrative decisions of the Ministry of Regional Development. According to theSupreme Administrative Court, a sufficient assessment of possible accidents in the spent
nuclear fuel storage facility was carried out as part of the EIA process, and therefore there wasno breach of the EIA Act.
In the opinion of the Supreme Administrative Court, the EIA process, which culminated in
the issuance of the consent opinion of the Ministry of the Environment, sufficiently assessed
the impact of a possible accident at the storage site. That opinion then formed the basis forthe decision of the administrative authorities deciding the zoning procedure.
The Supreme Administrative Court also stated that the EIA process should primarily
examine possible and relevant accidents, not extremely improbable ones. The obligation toassess accidents under the EIA Act presupposes the assessment of impacts related to thenormal operation of the project as well as impacts resulting from the vulnerability of the
project to major accidents or disasters that are relevant to the project.
The Supreme Administrative Court recalled that in the case at hand other possible
accidents were also examined, including earthquakes, ground and air terrorist attacks, etc. In
addition, the Municipal Court did not indicate what other initiating events of a beyond designbasis accident should be considered in the EIA process.
The Applicants’ disagreement with the reasoning and conclusions of the contested
decision does not render it unreviewable. The lack of reviewability is not a manifestation of
the Complainant’s unfulfilled subjective idea of the level of detail of reasons for the decision,
but an objective obstacle that prevented the Supreme Administrative Court from reviewing
this decision.
Therefore, the Supreme Administrative Court set aside the judgment of the Municipal
Court and referred the case back to it with a binding legal opinion for further proceeding.

6. Holding:
The Court decided that there was no reviewable error made in the EIA conducted by the
Ministry of the Environment and therefore the subsequent decision of the Ministry of Regional
Development to issue a planning permit for the construction of the spent nuclear fuel storage
facility was not illegal. The EIA process should primarily investigate possible and relevant
accidents, not extremely improbable ones. When examining each individual case or setting
criteria or thresholds, account shall be taken of the risks of accidents arising from theparticular substances or technologies used.

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UNITED STATESIn re: Aiken County

United States Court of Appeals for the District of Columbia Circuit, 2013
725 F.3d 255

1. Parties:
Three of the Petitioners – Aiken County in the United States (US) state of South Carolina, theUS state of South Carolina, and the US state of Washington – are state or local governments oflocalities that are home to sites that temporarily store spent nuclear fuel and high-level
radioactive waste pending the opening of a federal nuclear waste repository. The remaining
Petitioners are three private citizens who live and work near one of those sites.
These various entities sought to compel the US Government (through a writ of mandamus 88)
to issue a licence for the construction of a repository for nuclear waste, challenging the US
Nuclear Regulatory Commission’s (NRC) decision to discontinue its consideration of theapplication by the US Department of Energy (DOE) for a construction authorisation for a highlevel waste (HLW) repository at Yucca Mountain, in the US state of Nevada.

2. Issue(s):Whether the US NRC lawfully exercised its discretion in choosing not to use the remaining
funds appropriated to it after Congress and the Executive Branch abandoned support for the
Yucca Mountain project. To put it another way, whether the US NRC’s decision, made in lightof the fact that the US DOE had deemed the repository site unworkable and Congress hadceased providing additional funding for the project, violated its obligation to comply with its
statutory obligation to issue a decision on the application.

3. Facts:
The US Nuclear Waste Policy Act of 1982 (NWPA), 42 United States Code (USC) 10134(d),directed the US DOE to site, construct and operate a geologic repository for high-level waste. In
1987, amendments to the NWPA directed DOE to focus its work solely on Yucca Mountain, in
the US state of Nevada. The US DOE determined in 2002 that Yucca Mountain would be asuitable location for a repository. Congress and the President endorsed that decision, and the
US DOE was directed to submit its licence application to the US NRC.
In June 2008, the US DOE submitted a licence application for the construction of a HLW
repository at Yucca Mountain.

88. “Mandamus is an extraordinary remedy that takes account of equitable considerations”, and it may be
granted “to correct transparent violations of a clear duty to act.” In re American Rivers and Idaho
Rivers United, 372 F.3d 413, 418 (DC Cir. 2004) (internal quotation marks omitted), In re: Aiken County,
725 F.3d 255, 258 (DC Cir. 2013).

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The section 114(d) of the NWPA mandates that the US NRC “issue a final decision
approving or disapproving the issuance of a construction authorization not later than the
expiration of 3 years after the date of the submission of such application, except that theCommission may extend such deadline by not more than 12 months” subject to specified
reporting requirements.
The US NRC docketed the application in September 2008 and the US NRC’s technical staff
began its review. After docketing the application in 2008, the US NRC published a notice ofhearing and opportunity to participate in the hearing. US NRC adjudicatory hearings are
conducted by the Atomic Safety and Licensing Board Panel (ASLBP), which is composed ofadministrative judges who are lawyers, engineers and scientists. Approximately 300 legal andtechnical contentions were admitted and multiple Boards of three judges each were appointed
to hear the contentions.
On 3 March 2010, the US DOE filed a motion to withdraw its application with prejudice.
Conceding that the application is not flawed nor the site unsafe, the US Secretary of Energysought to withdraw the application with prejudice as a “matter of policy” because the Nevadasite “is not a workable option.”
On 28 June 2010, the ASLBP issued an order denying the request, concluding that the
NWPA “does not permit the [US DOE] Secretary to withdraw the Application that the NWPA
mandates the Secretary file.” LBP-10-11, 71 NRC 609, 617 (2010).
On 9 September 2011, the Commission of the US NRC, which hears appeals and petitions
for review of the decisions of the ASLBP, issued an order stating that it was evenly divided onwhether to overturn or uphold the ASLBP’s decision to deny the DOE’s motion to withdraw its
application, CLI-11-7, 74 NRC 212 (2011). Due to budgetary limitations associated with thehigh-level waste programme, the US NRC directed the ASLBP to complete necessary casemanagement activities, such as disposing of matters pending before it and documenting thehistory of the proceeding, before the fiscal year ended on 30 September 2011.
Congress ceased appropriating new funds for the licensing process in fiscal year 2011.
As of 2013, the Commission had approximately USD 11 million in appropriated funds
remaining to continue consideration of the licence application. This amount was not sufficientfor the US NRC to complete the licensing process.

4. Past procedure:
The parties petitioned the US Court of Appeals for the District of Columbia (DC) Circuit for awrit of mandamus ordering the US NRC to resume the licensing process for a nuclear waste
repository at Yucca Mountain in Nevada.
In the first ruling on the mandamus petition, the DC Court of Appeals dismissed thepetitions for lack of jurisdiction, stating that they were not yet ripe for determination and notjusticiable. However, the “Court [did] indicate[] that, if the Commission failed to act on the
Department of Energy’s license application within the deadlines specified by the Nuclear
Waste Policy Act, mandamus likely would be appropriate. See In re: Aiken County, 645 F.3d 428,
436 (DC Cir. 2011)”, 725 F.3d 255, 258 (DC Cir. 2013)
A new mandamus petition was filed in 2012 and in that case, the DC Circuit ordered thatthe case be held in abeyance until the US Congress issued its fiscal year 2013 appropriations to
see if Congress took any steps to clarify the status of the Yucca Mountain HLW repository. In
re Aiken County, No. 11-1271, (DC Cir. 3 Aug. 2012).
In 2013, with neither Congress nor the US NRC having acted to change the status quo, the DC
Circuit granted the petition, reasoning that the US NRC’s inaction had gone on too long in spiteof explicit direction from the Court and, therefore, that the circumstances merited mandamus.

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5. Analysis:
The Court determined that the US NRC lacked the authority to unilaterally discontinue thelicensing process and was required, under the NWPA and principles of constitutional law, tospend the money that Congress had appropriated for the project. The US NRC must continue
the licensing process so long as funds remain.

6. Holding:On 13 August 2013, the DC Circuit Court of Appeals issued a writ of mandamus and ordered
the US NRC to spend the remaining funds that Congress had previously appropriated infurtherance of the licensing process for the construction authorisation application for the DOE
Yucca Mountain HLW repository.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LEGISLATIVE ACTIONSCANADA
Energy Probe v. Canada (Attorney General)
Ontario Court (General Division), 1994
[1994] O.J. No. 553

1. Parties:
The Plaintiff, Energy Probe, is a non-governmental organisation. Its research team actively
campaigns against nuclear power and it is dedicated to effective utility regulation.

2. Issue(s):The issues are (1) whether the provisions of the Nuclear Liability Act 89 (NLA or Act) are within
the legislative authority of the Parliament of Canada or the legislature of a Province; and(2) whether the NLA infringes the constitutional rights of Canadians by providing for a lower
degree of nuclear safety.

3. Facts:
In 1960, the Canadian Cabinet (executive arm of the federal government) formed a committee
to examine the issues surrounding third party liability for nuclear hazards. At the time,
Canada did not have legislation to address nuclear third party liability. The NLA came into
force in 1976; it channelled liability for nuclear accidents to the operators and also limited thelevel of liability.
The Plaintiffs sought declarations that certain sections of the NLA are unconstitutional, on
the basis that the statutory limit on liability of the operator would reduce the operator’s
incentive to operate safely, thus increasing risk to the public. They also argued that the NLA islegislation in relation to property and civil rights in a province, therefore beyond the legislative
powers of the federal Parliament.

4. Analysis:On the issue of division of legislative powers, the Judge disagreed with the Plaintiffs’
characterisation of the purpose of the NLA and declared that it was within the jurisdiction of
Parliament to enact. The Court confirmed that the chief purpose of the NLA is to facilitate thedevelopment of nuclear energy for peaceful purposes. Without such legislation, and theindemnities which preceded it, the industry would not exist today. Due to the inherent risks
associated with nuclear power, the federal government faced certain problems in developing
nuclear energy for peaceful purposes. Nuclear suppliers and operators expressed concern as totheir potential liability, the fact that insurance coverage was not available in the amounts
necessary for the possible consequences of a nuclear incident and its own concerns for

89. RSC 1985, c. N-2.

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providing compensation to potential victims of a nuclear incident. The Canadian Parliament has
legislative competence over the development, application and use of nuclear energy, using its
federal power to legislate for the peace, order, and good government of Canada under section 91
of the Constitution Act. 90 Parliament’s legislative competence over nuclear energy operations is
also derived from subsection 91(29) and paragraph 92(10)(c) of the Constitution Act.
On the Charter issues, the Plaintiffs argued that the NLA’s limits on liability infringe both
section 7 of the Canadian Charter of Rights and Freedoms 91 by increasing the risk of nuclear
incidents and compromising the safe operation of nuclear plants, and section 15 because
victims of nuclear incidents would be treated differently than victims of other incidents who
have full resort to the court system for all claims for damages.
The Court disagreed, finding that, realistically, in a nuclear incident, government would
step in to provide full compensation, which is anticipated in the enactment of the Act.
Potential victims of a nuclear disaster are not disadvantaged like they would be, if left to theircommon law remedies. The Court added that it would be outrageous and “political suicide” if
a federal government did not compensate beyond the then $75 million limit. Therefore, theAct does not infringe the Charter.
The Plaintiffs claimed that persons living close to a nuclear reactor are more susceptible tosustaining injuries because of the risk of a nuclear incident. They therefore suffer
discrimination by bearing the burden of the production of electricity by nuclear power whileothers living farther away enjoy only the benefits. But the Court concluded that the Plaintiffs
failed to substantiate their allegation of discrimination and s. 15 cannot be invoked to protect
a hypothetical class of persons, i.e. “potential victims of a nuclear incident”. The Act does notdeprive potential victims of benefits, but exchanges certain potential rights in favour of othersin the context of the statutory scheme as a whole.
The Plaintiffs argued that the existence of the liability scheme had the effect of lessening
nuclear safety, and the liability limit was therefore unconstitutional as this made nuclear facility
operators operate less safely. The Court rejected this reasoning, finding that there was noconnection between safe operation under regulation by the then Atomic Energy and Control
Board on the one hand, and the NLA liability scheme on the other. The Court concluded that
nuclear safety regulation had nothing to do with the policy choice made by Parliament to enact
an economic protection scheme to deal with the catastrophic consequences of a nuclear
incident. In particular, the Court found:[105] A review of the role of the regulator in the safe operation of nuclear reactors
leaves minimal opportunity for the NLA to have any impact on safety…
…
[114] Nuclear reactors have operated safely in Canada since 1962 generally, and since
1976 under the N.L.A. I heard no evidence describing the standard of care for theoperation of a nuclear reactor, nor was any evidence presented to show that nuclear
reactors in Canada are not operating safely.
...
[116] No direct evidence was presented that the N.L.A. has had any effect on the safe
operation of nuclear reactors. Of the 1,092 exhibits filed there is no hint that the N.L.A.
was ever considered in any safety decisions made by either the operator or the
regulator. When officials of the operator and regulator were questioned as to any role
played by the N.L.A. in their decision-making process, the answers were all negative.

90. The Constitution Act, 1867, 30 and 31 Vict, c. 3.
91. The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LEGISLATIVE ACTIONSThe Plaintiffs failed to show on a balance of probabilities that nuclear reactors are less safe
because of the Act.

5. Holding:
The Plaintiffs’ action was dismissed.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LEGISLATIVE ACTIONSGERMANY
A natural person v. the Minister for Labour, Health and Social Affairs and theMinister for Economic Affairs and Transport of North Rhine-Westphalia
Federal Constitutional Court (Bundesverfassungsgericht – BVerfG)
BVerfG, Order (Beschluss) of 8 August 1978 – 2 BvL 8/77

1. Parties:
The Claimant was a private individual who ran a farm approximately one kilometre (km) fromthe site of the planned fast breeder nuclear power station. The Claimant brought a suit against
the Minister for Labour, Health and Social Affairs and the Minister for Economic Affairs andTransport of the federal state (“Land”) North Rhine-Westphalia, who granted
Schnell-Brüter-Kernkraftwerksgesellschaft mbH Essen the first partial construction permit for
the SNR-300 fast breeder nuclear power station at Kalkar.

2. Issue(s):Whether sections 7(1) and (2) of the Act on the Peaceful Utilisation of Atomic Energy and theProtection against its Hazards of 23 December 1959 (Bundesgesetzblatt [Federal Law Gazette –BGBl.] I, p. 814) in the version published on 31 October 1976 (BGBl. I, p. 3053) (Atomic EnergyAct) are constitutional in relation to the licensing of fast breeder nuclear power stations.

3. Facts:
Atomic Energy Act, section 7(1) requires “[w]hoever erects, operates or otherwise holds astationary installation for the production, treatment, processing or fission of nuclear fuel, orfor the reprocessing of irradiated nuclear fuel, or essentially modifies such installation or its
operation, shall require a licence.”
Atomic Energy Act, section 7(2) lays down the requirements for the granting of the licence,
including that authorities may only grant such a licence if the licensee takes “the necessary
precautions […] in the light of the state-of-the-art of science and technology to prevent
damage resulting from the erection and operation of the installation.”
By the decision of 18 December 1972, the Minister of Labour, Health and Social Affairs andthe Minister of Economic Affairs and Transport of the Land of North Rhine-Westphalia granted
Schnell-Brüter-Kernkraftwerksgesellschaft mbH Essen the first partial construction permit for
the SNR-300 fast breeder nuclear power station at Kalkar. According to the permit, the selectedsite was suitable for a nuclear power station. In addition, the basic design features of thenuclear power station were approved with some restrictions.

4. Past procedure:
In February 1973, the Claimant filed a complaint with the Düsseldorf Administrative Court
against the Kalkar construction permit. The Court dismissed the complaint on 30 October 1973.

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The appeal proceedings took place before the Administrative Court of Appeals of the Landof North Rhine-Westphalia in Münster. On 18 August 1977, the Administrative Court ofAppeals submitted the matter to the Federal Constitutional Court. 92 The Administrative Courtof Appeals was of the opinion that sections 7(1) and (2) of the Atomic Energy Act violate the
Basic Law (Grundgesetz – the Constitution) of Germany for a number of reasons.

5. Analysis:
On 8 December 1978, the Federal Constitutional Court published its decision taken on 8 August
1978 rejecting the different arguments put forward by the Administrative Court of Appeals andthe Claimant. The Federal Constitutional Court found that sections 7(1) and (2) of the Atomic
Energy Act are compatible with the Basic Law insofar as they permit the licensing of fast breeder
nuclear power stations.
The present case concerns the area of legislation, i.e. an area for which the Basic Law – inArticle 73 No. 14 – allocates competences to the legislative power of the Federation. Under the
principle of legality, acts of the executive that considerably affect citizens’ rights of freedom
and equality must be based on a formal law (förmliches Gesetz).
The legislator is obliged to make all crucial decisions in fundamental normative areas,
especially in cases where basic rights become subject to government regulation. To determine
those areas in which government acts must be based on a formal law, one must consider the
subject matter and intensity of the planned or enacted regulation, particularly taking into
account the fundamental rights granted by the Basic Law. In addition, the Constitution
mandates that the legislator establishes the essential legal standards for the matter to be
regulated and does not leave this for the administration to determine.
The normative decision for or against the permissibility of the peaceful uses of nuclear
energy in Germany is a fundamental and essential decision in the sense that a specificenactment is constitutionally required. This follows from the decision’s far-reaching effects on
citizens, in particular on their freedom and equality, as well as on their general living
conditions, and from the kind and intensity of regulation necessarily connected with it. Only
the legislator has the authority to make such a decision. The same applies to regulations fixing
the licensing of nuclear installations within the meaning of section 7(1) of the Atomic Energy
Act. The legislator opted to promote the peaceful use of nuclear energy by means of a formal
law – the Atomic Energy Act – and this decision includes fast breeder nuclear power stations,even if these are not explicitly mentioned in section 7(1) of the Atomic Energy Act.
In addition, the Federal Constitutional Court found that, as constitutionally required,sections 7(1) and (2) of the Atomic Energy Act regulate all essential and fundamental questionsof the licensing procedure and set with sufficient precision the requirements for theconstruction, operation, and modification of nuclear installations, including fast breeder
nuclear power stations. And, because the reactor to be built in Kalkar is only a prototype, theconstruction and operation of this reactor do not indicate a decision to use it on a large
industrial scale. Under these circumstances, it is not the function of the courts to substitutetheir judgment for that of the political branches when assessing the situation.
Finally, sections 7(1) and (2) of the Atomic Energy Act do not violate the constitutional
requirement that laws be drafted with sufficient precision because it uses undefined legal terms
such as “reliability” and “necessary knowledge”. The use of these terms is constitutionallypermissible; it is at the legislator’s discretion to use either undefined legal terms or precise

92. Only the Federal Constitutional Court is competent to rule on the constitutionality of laws. If a nonconstitutional court considers a law, for which its validity is at stake in the decision, to beunconstitutional, it shall suspend the proceedings and obtain the decision of the Federal
Constitutional Court pursuant to Art. 100(1) of the Basic Law.

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terminology. When setting norms in line with scientific and technological developments, thelegislator has a number of options available to make these developments legally binding. By
using undefined legal terms, the legislator shifts the difficulties involved in giving these terms
specific binding character and aligning them with scientific and technological developments tothe executive bodies and – should litigation arise – the judiciary. Thus, the executive authorities
and the courts must make up for the regulatory deficit incurred by the legislator.
There are good reasons justifying the use of undefined legal terms and in this case, thesetting of a safety standard by establishing rigid rules, if even possible, would impede rather
than promote technical development and adequate safeguards for fundamental rights. The
assessment of risks resulting from a nuclear installation depends upon a multitude ofcircumstances, many of which are constantly evolving. In the interest of flexible protection oflife and property, the executive bodies must assess and constantly adjust safety measures – atask they are better equipped to perform than the legislator.

6. Holding:Atomic Energy Act, sections 7(1) and (2) of 23 December 1959 (BGBl. I, p. 814), in the version
published on 31 October 1976 (BGBl. I, p. 3053), is compatible with the Basic Law insofar as it
permits the licensing of fast breeder nuclear power stations.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LEGISLATIVE ACTIONSGERMANY
E.ON Kernkraft GmbH and others v. Article 1(1)(a) of the Thirteenth Act Amending
the Atomic Energy Act of 31 July 2011
Federal Constitutional Court (Bundesverfassungsgericht – BVerfG)
BVerfG, Judgment (Urteil) of 6 December 2016 – 1 BvR 2821/11, 1 BvR 321/12, 1 BvR 1456/12

1. Parties:
The Complainants were the nuclear energy subsidiaries of three of Germany’s four largest
energy suppliers (E.ON Kernkraft GmbH, RWE Power AG and Vattenfall Europe Nuclear
Energy GmbH) as well as one nuclear power plant operating company (Kernkraftwerk
Krümmel GmbH & Co. oHG).

2. Issue(s):Whether the Thirteenth Act Amending the Atomic Energy Act (Dreizehntes Gesetz zur Änderungdes Atomgesetzes – 13th AtG Amendment) of 31 July 2011 (Bundesgesetzblatt [Federal Law Gazette– BGBl.] I, p. 1704) which accelerated the nuclear phase-out is compatible with the Basic Law(Grundgesetz – the Constitution). The 13th AtG Amendment introduced fixed dates for theoperation of nuclear power plants and revoked the prolongation of the operational lifetimes ofnuclear power plants from 2010. The fundamental decision from 2002 in favour of nuclear
phase-out is undisputed.

3. Facts:
The constitutional complaints were directed against the 13th AtG Amendment, which
accelerated the nuclear phase-out. The fundamental decision in favour of nuclear phase-out –which is undisputed by the parties – had already been taken in 2002 (Gesetz zur geordneten
Beendigung der Kernenergienutzung zur gewerblichen Erzeugung von Elektrizität – Phase-out
Amendment Act of 22 April 2002 – BGBl. I, p. 1351). Individual nuclear power plants wereallocated a residual electricity volume that could be transferred to other, newer plants. Oncethese were used up, the plants were to be shut down. The Phase-out Amendment Act did notcontain a fixed end date for nuclear power operation.
At the end of 2010, the legislator granted nuclear power plants additional residual electricity
volumes, thus prolonging the operational lifetimes of German nuclear power plants (Elftes Gesetz
zur Änderung des Atomgesetzes – 11th AtG Amendment of 8 December 2010 – BGBl. I, p. 1814).
Following the Fukushima Daiichi Nuclear Power Plant accident, the legislator, for the firsttime, statutorily set out fixed end dates for the operation of nuclear power plants by enacting
the 13th AtG Amendment (section 7(1a) first sentence of the Act on the Peaceful Utilisation of
Atomic Energy and the Protection against its Hazards – Atomic Energy Act). In addition, thelegislator struck down the prolongation of the operational lifetimes of the nuclear power
plants undertaken in the 11th AtG Amendment.

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LEGISLATIVE ACTIONSThe Complainants principally challenged a violation of the freedom of property as set out
in Article 14 of the Basic Law. Article 14(1) of the Basic Law stipulates that “[p]roperty […] shallbe guaranteed” (first sentence) and that its “content and limits shall be defined by the laws”(second sentence). Article 14(2) of the Basic Law stipulates that “[p]roperty entails obligations”
and “[i]ts use shall also serve the public good”. Article 14(3) of the Basic Law regulates the
expropriation for the public good against compensation.

4. Past procedure:
Any natural or legal person may file a constitutional complaint claiming that their basic rights(Grundrechte) or certain rights that are equivalent to basic rights have been violated by an act ofa German public authority.

5. Analysis:
The Federal Constitutional Court found the 13th AtG Amendment for the most part to becompatible with the Basic Law.
Nuclear power plants and property interests related thereto constitute property with aparticularly strong social dimension. Over the past few decades, the public has become awarethat nuclear energy is a high-risk technology with extreme risks of harm, among other issues,
as well as problems of final disposal that have yet to be resolved. Therefore, the legislator has
particularly broad leeway to design the law relating to atomic energy, even in respect ofexisting property interests, without, however, completely depriving them of protection.
The provisions of the 13th AtG Amendment affect the complaints’ property interests under
Article 14 of the Basic Law in several respects. The provisions of the 13th AtG Amendment
affect the ownership of the Complainants’ nuclear power plants, the usage of which was
authorised under the Atomic Energy Act. The residual electricity volumes allocated to theindividual nuclear power plants in 2002 and in 2010 do not enjoy stand-alone protection.
Given that the residual electricity volumes are significant parameters for the use of the power
plants, they do, however, benefit from the constitutional protection of property that Article 14of the Basic Law confers on the use of property in a licensed nuclear power plant.
The provisions of the 13th AtG Amendment that are set out to accelerate the nuclear
phase-out do not amount to an expropriation of property. An expropriation under Article 14(3)of the Basic Law presupposes the deprivation of property through a change in the assignmentof ownership and a process for the acquisition of goods. In contrast, restrictions of the powerof use and disposition over property qualify as content and limits within the meaning of
Article 14(1) (second sentence) of the Basic Law. The provisions of the 13th AtG Amendment
lack the element of an acquisition of goods that is indispensable for an expropriation. Limiting
the operational lifetimes of nuclear power plants or revoking the residual electricity volumes
from 2010 do not transfer the interests concerned to the state or to a third party.
Therefore, the provisions of the 13th AtG Amendment qualify as content and limits within
the meaning of Article 14(1) (second sentence) of the Basic Law. Insofar as restrictions of thepower of use and disposition over property qualifying as content and limits within themeaning of Article 14(1) (second sentence) of the Basic Law lead to a deprivation of specificproperty interests without contributing to the acquisition of goods, enhanced requirements
must apply with regard to their proportionality. In such cases, the question arises whether asettlement provision is required.
Using this framework, the revocation of the prolongation of the operational lifetimes of thenuclear power plants that had been set down statutorily at the end of 2010 is constitutional. The
property interests concerned are limited in several ways in their worthiness for protection,
meaning that the interference in the overall balance with the public good is proportionate andtherefore constitutional. It is not objectionable that the legislator was reacting to the Fukushima

160

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LEGAL CASES RELATED TO NUCLEAR SAFETY: LEGISLATIVE ACTIONS

Daiichi Nuclear Power Plant accident to accommodate fears amongst the population or a change
in risk tolerance regarding nuclear power.
On the other hand, the provisions of the 13th AtG Amendment are incompatible withconstitutional law insofar as, due to the statutorily fixed shutdown dates of the nuclear power
plants, two Complainants can no longer use up the residual electricity volumes from 2002 within
their intra-corporate network and the legislation does not provide for appropriate settlement.
This interference – in absence of any provision for appropriate settlement – is unconstitutionalas the residual electricity volumes from 2002 were established to provide a special protection oflegitimate expectations for owners and operators of nuclear power plants for the remaining
operational lifetime. Furthermore, the shutdown dates impose an additional burden on the twocomplaints in relation to competing corporations that can use up the residual electricity
volumes from 2002 within the operational lifetime of their nuclear power plants.
In addition, the provisions of the 13th AtG Amendment are incompatible with constitutionallaw insofar as they do not provide for any settlement for investments in nuclear power plantsthat had been made in legitimate expectation of the additional residual electricity volumes
allocated in 2010 and were subsequently devalued by the change of the legal framework(frustrated investments).

6. Holding:
The Federal Constitutional Court held that it was not warranted to declare the wholelegislation unconstitutional, but that the legislator was obliged to undertake corrections to thelegislation to accommodate the legitimate concerns in regard to the intra-corporate use of theresidual electricity volumes from 2002 and the protection of frustrated investments. As aresult, the Eighteenth Act Amending the Atomic Energy Act (Achtzehntes Gesetz zur Änderungdes Atomgesetzes) of 10 August 2021 (BGBl. I, p. 3530) was adopted. It corrects the objectedviolations of the Basic Law.

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

161

*

Year

2019

2014

2015

2016

Country

Belgium

CanadaCanadaCanada

Topic

ENV

ENV

ENV

ENV

Case nameInter-Environnement
Wallonie ASBL and
Bond Beter Leefmilieu
Vlaanderen ASBL v.
Council of Ministers

Greenpeace Canada etal. v. Attorney Generalof Canada and Ontario
Power Generation Inc.

Canada et al. v.
Greenpeace Canada etal.

Greenpeace Canada etal. v. Attorney Generalof Canada and Ontario
Power Generation Inc.

ENVIRONMENTAL PROTECTION (ENV)
Court of
Justice of theEuropean
Union

Court

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Court decided that there was no reviewable error made in an environmental
assessment (EA) conducted by the “Responsible Authorities”, the Canadian Nuclear
Safety Commission (CNSC) and the Department of Fisheries and Oceans (DFO), for anuclear project. The EA had concluded that the refurbishment and continued
operation of the Darlington Nuclear Generating Station was not likely to causesignificant adverse environmental effects. At present, at the appellate court level in
Canada, there is a consistent message of deference to the Canadian nuclear
regulator, the CNSC, in its EA decision making.

Federal Courtof Appeal

Court allowed in part the challenge to the environmental assessment (EA) for the
Darlington site, determining that the EA failed to comply with the Canadian
Environmental Assessment Act (CEAA) as its analysis of hazardous substanceemissions and onsite chemical inventories, spent nuclear fuel and severe common
Federal Court
cause accidents was deficient. The EA was not quashed entirely as it was sent back to
the Joint Review Panel for reconsideration on only those three matters and foundthat the applicant’s Plant Perimeter Envelope approach was acceptable for an EA.
Overturns the Federal Court decision and states that the environmental assessment(EA) is complete and has no gaps, that it was adequate and met the requirements of
the relevant legislation, and that the licence to prepare the site, which was issued byFederal Court
the Canadian Nuclear Safety Commission (CNSC) on the basis of the EA decision, isof Appeal
reinstated. The Court of Appeal gave a good degree of deference to the expert
scientific body that heard the evidence (the Panel, whose statutory task was toevaluate the potential environmental effects of the new build project) and reversed
what it saw as the lower court’s substitution of its view for that of the expert body.

The Court ruled that the ten-year lifetime extension of Units 1 and 2 of the Doel
Nuclear Power Plant established by Belgian legislation in 2015, constituted a“project” under the EU Environmental Impact Assessment Directive. Therefore, theextension should have been subject to an environmental impact assessment (EIA).

Description

NLB Issue *2016 FCA
114

2015 FCA
186

2014 FC463

NLB 97,
pp. 71-75

NLB 96,
pp. 63-66

NLB 94,
pp. 113-115

Case CNLB 104,
411/17,
EU:C:2019:6 pp. 31-31
22

Citation

NUCLEAR LAW CASE CHART

Annex 1: Nuclear law case chart

All issues of the Nuclear Law Bulletin (NLB) are available at www.oecd-nea.org/jcms/pl_21586.

163

164
Topic

ENV

ENV

Year Case name

Jihočeské matky (NGO) v.
2007 State Office for Nuclear
SafetyBrigitte Artmann v.
Czechia2016

V havarijní zóně JE
2018 Temelín (NGO) v. Ministry ENV
of Regional Development

Country

Czechia

Czechia

Czechia

Court

The Supreme
Administrative
Court of the
Czech Republic

Compliance
Committee ofthe Aarhus
Convention

The Supreme
Administrative
Court of the
Czech Republic

Description
Applicant for a licence to operate Temelín, Unit 1 in accordance with section 9(d) of theAtomic Act is the sole participant in this proceeding and the entities defined in section 70(2)and (3) of the Nature and Landscape Protection Act are not participants in this proceeding. It issufficient, if public participation is ensured in those proceedings in which the environmental
impact of such operations is directly considered (e.g. under Act No. 100/2001 Coll., on
Environmental Impact Assessment). A different situation would arise if there were only a single
administrative procedure to bring a nuclear power plant into operation. In such a case, asystematic interpretation would lead to a different conclusion and participation in suchproceedings would also have to be granted to the civic associations whose main objective isto protect nature and landscape.
A member of the public submitted a communication to the Compliance Committee under the
Aarhus Convention alleging that Czechia failed to comply with its obligations under Article
3(9), Article 6 and Article 9 of the Aarhus Convention (specifically, that members of the publicin Germany did not have the same possibility to participate in the decision-making procedure
concerning the two new reactors at the Temelín Nuclear Power Plant as members of the
public in Czechia). The Committee found that Czechia failed to comply with the Convention
by not providing a clear requirement in its legal framework to ensure that public authorities,
when selecting means of notifying the public, are bound to select such means which, bearing
in mind the nature of the proposed activity, would ensure that all those who potentially could
be concerned, including the public outside the territory of the party concerned, have areasonable chance to learn about the proposed activity. Regarding the decision making on
the Temelín plant, the Committee is convinced that if the public participation procedure on
the environmental impact assessment (EIA) stage were to remain the last possibility for the
public concerned, including the public concerned in Germany, to participate in the permitting
procedure for the Temelín Plant, the party concerned would fail to comply with theConvention. On the other hand, the use of the “envelope” or “black box” approach at the EIA
stage does not in itself constitute non-compliance with the Convention; however, if thepermitting procedure were to continue without providing the public concerned with theopportunity to participate effectively in that stage, the party concerned would be in noncompliance with the Convention.
Court decided that there was no reviewable error made in an environmental impact
assessment (EIA) conducted by the Ministry of Environment and therefore the subsequentdecision on the Ministry of Regional Development on the location of the structure of spent
nuclear fuel storage is not illegal. The EIA process should primarily investigate possible(relevant) and not totally unlikely accidents. When examining each individual case or setting
criteria or thresholds, account shall be taken of the risks of accidents arising from particular
substances or technologies used.

NLB Issue

7 As 225/2018116

n/a

ACCC/C/2012/71
n/aCzech Republic

2 As 12/2006-111 n/a

Citation

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Decision
N° 306242;
ECLI:FR:CESSR:
2009:306242.
20090423

Judgment
No. 11-00899

Three associations for environmental protection entered actions for annulment against theDecree licensing the construction of the nuclear installation Flamanville 3. Among her
recommendations, the Rapporteur Public considered that the Aarhus Convention had no
direct effect in the domestic legal system and that the application comprised a full EIA that
Conseil d’État
was submitted to the public before the licence was delivered. The Rapporteur Public also
found that there was no infringement of the Council Directive 85/337/EEC of 27 June 1985, on [State Council]
the assessment of certain public and private projects on the environment, and that EDF had
sufficient financial capacity to cover future dismantling costs. The Conseil d’État followed all of
the Rapporteur Public’s recommendations and rejected the three actions filed against theDecree licensing the construction of Flamanville 3.
Court acknowledged that no harm to the flora and fauna has been caused by the spillage of
uranium-bearing effluent by SOCATRI following an incident in 2008, but as it temporarily led
Court of Appeal
to modification of the normal water supply regime and restricted the use of swimming areas,of Nîmes
the Court found SOCATRI guilty of polluting waterways and not declaring the incident without
delay.

Judgment of the Conseild’État rejecting the claims
made by environmental
ENV
2009
NGOs against the Decree
licensing the constructionof the EPR at Flamanville

SARL Auxiliaire du2011 Tricastin – SOCATRI(Areva)FranceFranceENV

FranceN° 292386;
ECLI:FR:CESSR:
2007:292386.
20070606
Conseil d’État[State Council]

The Conseil d’Etat revoked Decree No. 2006-147 of 9 February 2006 authorising Électricité deFrance (EDF) to carry out final shutdown operations and full dismantling of the nuclear
installation EL-4-D, a disposal facility for materials at the Monts d’Arrée (Brennilis) Nuclear
Power Plant in the Finistère. The Conseil d’État judged that the proceedings that led to thedecision to grant a licence did not comply with the purposes required by European Law on
Public Information and Consultation, notably Council Directive 85/337/EC of 27 June 1985 on
the assessment of the effects of certain public and private projects on the environment.

Decision of the Conseild’État Quashing a Decree
Concerning a Nuclear
2007 Installation in Brennilis,
for the Want of PublicInformation andConsultation

SupremeAdministrative
Court of Finland

ENV

2019 KHO 1.12.2014/3793

Local organisation appealed on the adequacy of environmental impact assessment (EIA)
regarding the environmental and water permits of the new Hanhikivi-1 Nuclear Power Plant
that is currently applying for a construction licence. The main issue was the disposal of spent
fuel. The Court ruled that the EIA procedure had been performed appropriately andadequately given the stage of the process and the ongoing separate process for disposal of
spent fuel. The appeal was dismissed.

FinlandSupremeAdministrative
Court of Finland

Local property owner appealed the decision made by the Regional State Administrative
Agency concerning compensation of the harm caused by the cooling and waste water
discharges sourcing from the Loviisa Nuclear Power Plant. The Court ruled that the originalamount of compensation was adequate.

2017 KHO 9.2.2017/508

FinlandLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

ENV

ENV

3228/1/14

3895/1/15 and3925/1/15

3678/1/13

SupremeAdministrative
Court of Finland

ENV

2015 KHO 13.1.2015/53

Finland

Local organisation appealed the decision made by the Centre for Economic Development,
Transport and the Environment concerning deviation of the demands on the preservation of
the environment under the Environmental Protection Act at the Hanhikivi-1 Nuclear Power
Plant construction site. The appeal was dismissed.

Citation

Court

Description

Topic

Year Case nameCountry

NLB 89,pp. 109110

NLB 83,
pp. 91-93

NLB 80,
p. 65

n/a

n/a

n/a

NLB Issue

NUCLEAR LAW CASE CHART

165

166

2012

Greenpeace Netherlands
Foundation v. Ministers of
Housing, Spatial Planning
ENV
2008 and the Environment, of
Economic Affairs and ofSocial Affairs andEmployment

India

The
Netherlands

G. Sundarrajan v. Union of
ENV
India and OthersHigh Court of
Judicature at
MadrasThe Court dismissed a claim against three Ministers over their decision to issue a licenceamendment to Urenco for their uranium enrichment facility. The licensing decision waschallenged on the grounds that the requirements of the Nuclear Energy Act and underlying
legislation were not met. The Court dismissed the appeal as unfounded, holding that: (1) the
Raad van State
enrichment of uranium is a justified act under the Regulation on the Analysis of the Effects of[Council of
Ionising Radiation; (2) when making a justification decision only damage to human health canState]
be weighed against the economic, social and other benefits of the act and there was no
reason to consider environmental consequences in general; and (3) because the facility was
not located within the sphere of influence of a designated area under the Nature Conservation
Act a permit under this Act is not required.

Court dismissed eight writ petitions mostly claiming that the Kudankulam Nuclear Power
Project violated current environmental laws. Environmental clearance for Kudankulam units 1
and 2 was obtained in 1989 at which time an environmental impact assessment report and apublic hearing were not required as part of the clearance process. Court found that
Kudankulam units 1 and 2 has all necessary clearances, including environmental, and cantherefore move forward with commissioning.

ECLI:NL:RVS:
2008:BG4711

Common Order
dated
31-08-2012

Decision(Request
No. 373516)
Conseil d’État[State Council]

EDF v. Republic and2016 Canton of Geneva relative ENV
to the Bugey NPP

FranceThe Conseil found that ASN (French Nuclear Safety Authority) resolutions prescribing
additional safety requirements following the Bugey Nuclear Power Plant 3rd PSR were not
implicit authorisation decrees. Further, there was no “implicit or disclosed” resolutions of the
Ministry of Ecology, Sustainable Development and Energy and the ASN authorising thecontinued operation of the Bugey-2 and Bugey-4 reactors because reactors in France have no
set time period for the operating life and as long as no decree is passed enforcing final
shutdown and decommissioning, a reactor is authorised to operate under safe conditions.
Lastly, to the extent that the ASN resolutions establishing the additional safety requirements
do not constitute operating authorisations, they are not subject to a mandatoryenvironmental impact assessment and do not require a notification as stipulated in the Espoo
Convention.

n/a

NLB 90,
pp. 103109

NLB 98,
pp. 63-64

NLB 96,
p. 67

Decision(Request
No. 367013)

The Conseil found no error in the ASN’s (French Nuclear Safety Authority) assessment in notannulling two resolutions regarding reinforcements to the Fessenheim No. 1 reactor basemat.
Conseil d’État
Environmental protection associations challenged the resolutions, stating that work on the[State Council]
basemat is a significant modification of a basic nuclear installation, which would require a new
authorisation and a public enquiry.

Association Réseau sortir
du nucléaire and others v.
ENV2014
ASN and Électricité deFrance (EDF)

FranceNLB 89,p. 110Decision(Request
No. 324294)

The Conseil recognised that all obligations required to obtain an authorisation for the full
dismantling of the Bugey Nuclear Power Plant (information delivery to the public, public
survey, public debate) have been complied with by EDF.
Conseil d’État[State Council]

ENV

Association Réseau sortir
2011 du nucléaire v. Électricitéde France (EDF)

FranceCourt

NLB Issue

Description

Citation

Topic

Year Case nameCountry

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

ENV

ENV

ENV

Greenpeace Netherlands
Foundation and LAKA
2018 Foundation v. Minister ofInfrastructure and theEnvironment

Association World
Information Service on
Energy Amsterdam and2021 Greenpeace Netherlands
Foundation v. Authority
for Nuclear Safety andRadiation Protection

Friends of Earth andothers v. Slovak Nuclear
Regulatory Authority
(NRA)

The
Netherlands

The
Netherlands

2010

ENV

Greenpeace Netherlands
2014 Foundation v. Minister of
Economic Affairs

The
Netherlands

SlovakRepublic

Topic

Year Case nameCountry

Compliance
Committee ofthe Aarhus
Convention

n/a

n/a

n/a

NLB Issue

Case C/41 (2009); NLB 88,
ACCC/C/2009/41 pp. 71-72

ECLI:NL:RVS:
2021:174

Two non-governmental organisations appealed the decision of the Council of State’s
judgment regarding the amendment of the licence conditions for Borssele Nuclear Power
Plant on the basis that the implementation of the Western European Nuclear Regulators
Association’s (WENRA) Reference Levels (RL) must be proceeded by an environmental impact
assessment (EIA). The Court noted that the WENRA RLs licence amendment did not change
Raad van Statethe lifetime of the Borssele plant, it only added a set of additional safety regulations to the[Council oflicence that would not lead to any physical changes or affect the radiation risk of the facility.
State]
Furthermore, the Court found that the ruling of the EU Court of Justice regarding the Doel 1
and Doel 2 Nuclear Power Plants in Belgium is not applicable as no physical works are being
undertaken and the lifetime of the Borssele plant is not being extended. The appeal was foundto be without merit and dismissed.
The Compliance Committee found that the Slovak Republic failed to provide for early andeffective public participation in the decision-making process with respect to the grant of anadditional construction permit related to the Mochovce Nuclear Power Plant. The Committee
recommended that the Slovak Republic review its legal framework.

ECLI:NL:RVS:
2018:1448

Raad van State[Council ofState]

Two non-governmental organisations challenged the revision of the licence conditions of the
Borssele Nuclear Power Plant claiming the implementation of 11 new safety measures must
be proceeded by an environmental impact assessment (EIA) under the Dutch EIA Decree andthe Aarhus and Espoo Conventions. The Appellants filed an appeal of the revised licence with
the Council of State. The Council of State held that the 11 safety measures had no impact on
the licence amendment. Further, the Court held that the Dutch EIA Decree had been correctly
implemented and there is no requirement under the Aarhus and Espoo Conventions toperform an EIA for every licence amendment. The appeal was found to be without merit andthe case dismissed.

Citation

ECLI:NL:RVS:
2014:517

Court

Four non-governmental organisations (NGOs) appealed the decision of the Minster of
Economic Affairs to amend the Borssele Nuclear Power Plant licence to extend the design
lifetime claiming the amendment must be proceeded by an environmental impact
assessment (EIA). The Appellants argued that the not conducting an EIA is contrary to Dutch
obligations under the Espoo Convention and the EU EIA Directive. In addition, the Appellants
took the position that the Dutch EIA Decree is applicable, because the disputed decision also
Raad van State
involves a change to when the Borssele plant is to be decommissioned, thus an obligation[Council ofexists to perform an EIA. The Council of State held that there was no evidence that the EU EIA State]
Directive was incorrectly applied to Dutch regulations and therefore has no direct effect.
Further, the Court found that, the requested changes do not result in physical works taking
place at the Borssele plant, but exclusively to the update of the Safety Report. Therefore, thesechanges are not considered “an activity” subject to an EIA. The appeal was found to bewithout merit and the case dismissed.

Description

NUCLEAR LAW CASE CHART

167

168
Attorney General denied Greenpeace Slovakia’s protest against Decision No. 761/2013.

Slovenske elektrarne filed a constitutional claim with the Slovak Constitutional Court
objecting to the denial of its basic rights by the Supreme Court judgment (requiring the NRAConstitutional
to renew its administrative proceedings on Greenpeace’s original appeal against Decision No.
Court
246/2008 and hold EIA proceedings) because its rights were directly affected by the judgment
without being afforded the opportunity to participate and defend its interests.

Greenpeace Slovakia v.
2013 Slovak Nuclear Regulatory ENV
Authority (NRA)

Slovenske elektrarne v.
2013 Slovak Nuclear Regulatory ENV
Authority (NRA)

SlovakRepublic

III. ÚS 304/14-88[Unknown]

Following a two-day public hearing, the NRC issued Decision No. 291/2014 dismissing
Greenpeace Slovakia’s appeal of Decision No. 246/2008, and at the same time confirming
Decision No. 246/2008. This decision closed Greenpeace Slovakia’s claims.

The Constitutional Court found it to be a breach of the licensee’s (Slovenske elektrarne) rightto be a participant in the Supreme Court proceeding. But, due to the already existing second
Constitutional
instance administrative decision issued by the NRA in favour of Slovenske elektrarne (Decision
Court
No. 291/2014), it was not necessary to cancel the judgment of the Supreme Court and send
the decision back for a new judicial procedure.
The NRA informed the Regional Court of Bratislava (the court of first instance review ofadministrative decisions) about the Constitutional Court decision, as well as about the existing
Regional Court
valid second instance NRA decision (No. 291/2014). When the Court asked Greenpeaceof Bratislava
Slovakia for their final statement prior to the adoption of the court decision, Greenpeace
Slovakia withdrew its claim and the Court ceased the proceedings.

Greenpeace Slovakia v.
2014 Slovak Nuclear Regulatory ENV
Authority (NRA)

Slovenske elektrarne v.
2014 Slovak Nuclear Regulatory ENV
Authority (NRA)

Greenpeace Slovakia v.
2014 Slovak Nuclear Regulatory ENV
Authority (NRA)

SlovakRepublic

SlovakRepublic

Decision
No. 291/2014[Unknown]

VI/1 Gd 343/13 7

Decision
No. 761/2013

Citation

SlovakRepublic

Slovak Nuclear
Regulatory
Authority (NRA)

Attorney
General

In 2008, the NRA approved modifications to construction, prior to the completion of the
Mochovce Units 3 and 4 by the licensee (Slovenske elektrarne) (Decision No. 246/2008).
Greenpeace Slovakia appealed NRA Decision No. 246/2008 stating: it should be considered a“participant” under the Aarhus Convention to the administrative procedures for the approvalof the modifications and that a full-scope EIA was required. In 2009, Greenpeace was admitted
Slovak Nuclear
as a participant but in Decision No. 79/2009 the NRA dismissed Greenpeace’s appeal. On
Regulatory
appeal, the District Court found in favour of the NRA. However, the Supreme Court overturned
Authority (NRA)
the District Court’s decision and abolished Decision No. 79/2009. Therefore, the NRA is obliged
to renew the administrative proceedings on Greenpeace’s original appeal against Decision No.
246/2008 and hold EIA proceedings. The NRA reopened the administrative proceedings andissued a first Decision No. 761/2013 that denied the suspensory effect of the Greenpeace
appeal on the NRA’s 2008 decision.

SlovakRepublic

Court

Greenpeace Slovakia v.
2013 Slovak Nuclear Regulatory ENV
Authority (NRA)

Description

SlovakRepublic

Topic

Year Case nameCountry

NLB 95,
p. 65

NLB 95,
p. 65

NLB 95,
p. 65

NLB 93,
p. 91

NLB 93,
p. 91

NLB 92,
pp. 89-91

NLB Issue

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 20245Sžp/21/2012

Greenpeace Slovakia v.
Nuclear Regulatory
Authority of the Slovak
Republic (ÚJD SR)

SlovakRepublic

Supreme Court

The Appellant contested the decision of the ÚJD SR on the grounds that they should beallowed to participate in the permit procedure regarding modifications to construction prior
to the completion of Units 3 and 4 of the Mochovce Nuclear Power Plant. The Appellant filed
an appeal with the District Court in Bratislava seeking annulment of decision No. 79/2009. The
District Court decided in favour of the ÚJD SR and a subsequent appeal was filed with theSupreme Court. The Supreme Court decided in favour of the Appellant on the grounds thatpublic participation is mandatory under the national legislation of the Slovak Republic, the EU
Environmental Impact Assessment Directive and the Aarhus Convention. The Supreme Court
reversed the judgment of the District Court and annulled ÚJD SR decision No. 79/2009. The
case was remanded to the ÚJD SR to renew the proceeding. The ÚJD SR held a public hearing
and issued a decision dismissing the appeal and confirming their earlier decision.

Greenpeace Slovakia v.
2015 Slovak Nuclear Regulatory ENV
Authority (NRA)

SlovakRepublic

ENV

3Sži/22/2014

On appeal by the NRA to the Supreme Court, the judgment of the District Court was
confirmed and the NRA was required to reopen the previous administrative proceedings andinclude Greenpeace and the licensee (Slovenske elektrarne) as participants. A redacted versionof the safety documentation for Mochovce Units 3 and 4 had previously been made available.
When asked by the District Court if it wished to have access to the preliminary safety report,
Supreme Court
Greenpeace withdrew its appeal reasoning that the legislative restrictions on the disclosure ofsensitive information and the cost of copying the redacted preliminary safety report was notjustified without the ability to gain any relevant or meaningful information. Thus, the NRA
closed the reopened administrative proceedings.

2013

3S/142/2010-212

Citation

Greenpeace Slovakia v.
2013 Slovak Nuclear Regulatory ENV
Authority (NRA)

Court

SlovakRepublic

Description
Greenpeace Slovakia demanded that the NRA disclose the text of the preliminary safety reporton Mochovce units 3 and 4 in accordance with Act No.211/2000 Coll. Freedom of Information
Act, as amended. Greenpeace wanted information, especially environmental information, andthe NRA dismissed Greenpeace’s application in NRA Decision No. 39/2010, stating that suchimportant information may endanger the public security if made publicly available.
Greenpeace lodged a claim for review of the lawfulness of the decision with the District Court. District Court
The District Court decided in favour of the NRA, denying Greenpeace’s claim. Greenpeace thenappealed this decision to the Supreme Court, which reversed the District Court judgment. The
case was then returned to the District Court. On remand, the District Court overturned NRA
Decision No. 39/2010 and returned the case to the NRA for renewed administrative
proceedings.

Topic

Year Case nameCountryn/a

NLB 96,
p. 78

NLB 92,p. 91

NLB Issue

NUCLEAR LAW CASE CHART

169

170
ENV

Entergy Corp. v.
Riverkeeper, Inc.

United States

2009

ENV

ENV

Pacific Gas and ElectricCompany v. San Luis
Obispo Mothers for
Peace, et al.

Nuclear Information &2007 Resource Service v. US
NRC

2007

United States

ENV

San Luis Obispo Mothersfor Peace v. US NRC

Topic

United States

2006

Year Case name

United States

Country

Court

Citation

NLB 83,
pp. 96-98

The Court upheld the US Environmental Protection Agency’s reliance on cost-benefit analysis
in determining national performance standards as well as permitting cost-benefit variancesfrom those standards to determine the best technology available to minimise the adverse
environmental impact of cooling water intake structures. In doing so, the Court applied thegeneral rules of statutory construction and the Chevron standard of deference. It held that the
Clean Water Act need not be interpreted so strictly as to require facilities to spend billions ofdollars on improved cooling technology that would have little or no environmental benefit.

556 US 208(2009)NLB 81,
pp. 100101

The Court dismissed the claims that the US Nuclear Regulatory Commission (NRC), in issuing alicence to the Louisiana Energy Services, LP (LES) Uranium Enrichment Facility in New Mexico,violated the Atomic Energy Act (AEA) by “supplementing” the environmental impact
statement (EIS) after the hearing closed and determining that LES had presented a reasonable
cost estimate for disposal of depleted uranium waste, as well as violated the National
Environmental Policy Act (NEPA) by insufficiently analysing the environmental impacts ofdepleted uranium waste from the LES facility. The Court found that the Petitioners’ EIS claims
Federal Circuit
509 F.3d 562
under the AEA were irrelevant because the agency “prepared” an EIS before the hearing was
Court of Appeals (DC Cir. 2007)
completed. The Court also held that the Petitioners had not presented sufficient evidence that
the NRC’s cost estimate was unreasonable. Additionally, the Court found the Petitioners’ NEPA
claim unpersuasive as both the EIS and the administrative record demonstrated that theagency met the requisite NEPA “hard look” standard for assessing environmental impacts ofwaste disposal. Finally, the Court dismissed the claim that NRC Commissioner McGaffigan
should have disqualified himself from the licensing proceeding as it is presumed thatadministrative officers are objective and capable of judging a particular controversy fairly.

Supreme Court

NLB 80,pp. 67-68

Supreme Court

NLB 80,pp. 67-68

NLB Issue

127 S.Ct. 1124
(2007)

PG&E filed a writ of certiorari with the US Supreme Court, which was denied. The US
Department of Justice agreed that the 9th Cir. decision on the NEPA terrorism issue wasincorrect but did not support Supreme Court review at the time.

San Luis Obispo Mothers for Peace (SLOMFP) challenged two US NRC decisions in aproceeding to license an independent spent fuel storage installation (ISFSI) at the Diablo
Canyon Power Plant. The first US NRC decision declined to suspend the ISFSI licensing
proceedings to await US NRC physical security enhancements. The second US NRC decision
rejected contentions filed by SLOMFP relating to the NRC’s analysis of the potential
environmental consequences of a terrorist attack under the US National Environmental Policy
Federal Circuit
449 F.3d 1016
Act (NEPA), as they had previously determined that an environmental analysis of the potential
Court of Appeals (9th Cir. 2006)environmental consequences of terrorist attacks was not necessary in the matter of private
fuel storage. The Court held that it was unreasonable for the US NRC to refuse to consider theenvironmental effects of a terrorist attack on nuclear facilities and remanded the case to the
NRC for further NEPA proceedings on the terrorist issue. However, the Court upheld the US
NRC’s decision not to suspend its licensing proceeding and agreed that a licensing proceeding
was not an appropriate forum to revisit the validity of US NRC security regulations.

Description

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

2009 New York v. US NRC

2010 Morris v. US NRC

United States

United States

2011

2011 Brodsky v. US NRC

2013 Brodsky v. US NRC

2016 Brodsky v. US NRC

United States

United States

United States

United States

San Luis Obispo Mothersfor Peace v. US NRC

2009

New Jersey Dep’t of Env.
Prot. v. NRC

Year Case name

United States

Country

ENV

ENV

ENV

ENV

ENV

ENV

ENV

Topic

Federal Circuit
598 F.3d 677
Court of Appeals (10th Cir. 2010)Federal Circuit
635 F.3d 1109
Court of Appeals (9th Cir. 2011)

The Court upheld the NRC’s issuance of a licence to conduct in situ leach mining for uranium
on four sites, finding that the NRC’s decision did not violate either the Atomic Energy Act or
the National Environmental Policy Act because its consideration of airborne radiation at thesites was not plainly erroneous or inconsistent with the plain language of the regulation; it
sufficiently considered the cumulative environmental effects of past and future operations;and the NRC’s final environmental impact statement took a “hard look” at the environmental
impacts of the proposed mining operations on groundwater.
The Court held that neither the Atomic Energy Act nor the National Environmental Policy Act
require the NRC to hold a closed hearing to allow public access to sensitive security
information that are part of the environmental review that the NRC was required tocomplement by considering environmental impacts of terrorist attacks.

NLB 87,
pp. 90-91

NLB 91,
pp. 109110

NLB 98,
pp. 64-65

The Court affirmed the validity of the NRC’s actions regarding the issuance of exemptions to
its regulations, but it reversed the District Court’s decision regarding its conclusion concerning
the right of the public to participate in the Commission’s preparation of an Environmental
Federal Circuit
704 F.3d 113
Assessment (EA) and Finding of No Significant Impacts (FONSI). In that respect, the Court
Court of Appeals (2nd Cir. 2013)
found that the record before it did not adequately explain why the EA/FONSI excluded an
opportunity for public comment. Case was remanded to the District Court with instructions toremand to the NRC.
The Court found that the NRC was not arbitrary or capricious, in violation of the Administrative
Federal Circuit
650 F. App’x 804
Procedure Act, in considering risks from terrorism when determining that granting a nuclear
Court of Appeals (2nd Cir. 2016)
power plant licensee an exemption from a federal fire safety regulation would have nosignificant impact on the environment under the National Environmental Policy Act.

NLB 87,
pp. 88-90

NLB 85,
pp. 101102

NLB 85,
pp. 99-100

NLB 84,
pp. 124127

NLB Issue

783 F. Supp. 2d448(S.D.N.Y. 2011)
Federal District
Court

Federal Circuit
589 F.3d 551
Court of Appeals (2nd Cir. 2009)

The NRC’s generic treatment of the environmental impacts of spent fuel pool fires at nuclear
power plants (finding that the risk is low and does not create a significant environmental
impact within the meaning of the National Environmental Policy Act) was acceptable.

The Court held that the NRC has authority to issue exemptions to its fire safety regulation; ahearing is not mandatory for challenges to exemptions; the NRC reasonably determined thatan environmental impact statement was not necessary; and the NRC’s decision to issue theexemption was not arbitrary or capricious, in violation of the Administrative Procedure Act.

Federal Circuit
561 F.3d 132
Court of Appeals (3rd Cir. 2009)

A New Jersey state agency challenged the NRC’s decision to relicense a nuclear power plant
located in the state, arguing that an analysis of the environmental impacts of an airborne
terrorist attack on the nuclear power plant was required by NEPA prior to relicensing. The
Court ruled that the NRC was not required to consider terrorism in its NEPA analysis. NRC
relicensing would not be a reasonably close cause of terrorist attacks and their resulting
environmental effects as a terrorist attack lengthens the causal chain beyond the “reasonably
close causal relationship” required. Amongst other justifications, the Court held that such an
attack would be extraordinarily unusual, wrongful and independent of the NRC and would be
far more responsible for resulting harms than the NRC’s decision to relicense a nuclear plant.

Citation

Court

Description

NUCLEAR LAW CASE CHART

171

172

2013 Beyond Nuclear v. US NRC ENV

2013 Massachusetts v. US NRC

United States

United States

NLB 91,
pp. 108109

NLB 91,
pp. 110111

The Court found that the NRC did not violate the National Environmental Policy Act in its
review of the applicant’s Environmental Report, which did not consider wind power as an
704 F.3d 12energy alternative to relicensing. The Court found that a “reasonable alternative” is that which Federal Circuit
Court of Appeals (1st Cir. 2013)
can bring about the ends of the project being contemplated; here, baseload power
generation. In addition, the NRC was rational in relying on near-term technology as a proxy forenergy alternatives during the renewal period.
The Court denied petition to reopen and suspend a licence renewal finding that the severe
accident mitigation alternatives (SAMA) analyses in the Pilgrim Nuclear Power Plant
supplemental environmental impact statement and the analysis of spent fuel poolenvironmental impacts (specifically as it pertains to spent fuel pool fires) in the genericenvironmental impact statement for licence renewal do not need to be updated because the
Fukushima Daiichi Nuclear Power Plant accident did not present “new and significant
information”.

NLB 95,
pp. 66-67

CLI-15-4,
81 NRC 221(2015)

United States

Commission of
the US NRC

The Petitioners asked the NRC to suspend licensing activities because, without the“reasonable assurance findings” that a repository for spent fuel disposal is technically feasible,
the Petitioners argued that the NRC lacks a lawful basis under the Atomic Energy Act (AEA) toissue initial or renewed licences. The Commission reaffirmed its historic interpretation of the
AEA that an explicit finding regarding the technical feasibility of spent fuel disposal is not
required as a prerequisite to reactor licensing decisions.

DTE Electric Co. (Fermi
2015 Nuclear Power Plant,
Unit 3)ENV

NLB 91,
pp. 112113

Blue Ridge Environmental
2013 Defense League v.
ENV
US NRC

United States

Federal Circuit
708 F.3d 63
Court of Appeals (1st Cir. 2013)

NLB 90,
pp. 110112

Federal Circuit
681 F.3d 471
Court of Appeals (DC Cir. 2012)NLB Issue

The Court found that the US NRC update of its 2010 Waste Confidence Decision, whichenables the NRC to license reactors or to renew their licences without examining theenvironmental effects of extended waste storage for each individual site pending ultimate
disposal is a “major federal action” requiring the NRC to either (1) take a “hard look” at theenvironmental consequences of the revisions in an environmental impact statement (EIS) or(2) develop an environmental assessment that demonstrates that the revisions will have nosignificant environmental impact and thus that no EIS “hard look” is required.

Citation

Court

Description

The Court rejected Petitioners’ claim that the Fukushima Task Force Report constitutes “newand significant circumstances or information” requiring supplementation of an environmental
impact statement (EIS), holding that the EIS in fact considered severe accidents and “precisely
Federal Circuit
716 F.3d 183
the types of harm that occurred as a result of the Fukushima accident.” The Court also rejected
Court of Appeals (DC Cir. 2013)
the argument that the NRC’s recognition of Fukushima as a “safety-significant” event
automatically rendered it “environmentally significant” for purposes of needing to
supplement the EIS.

ENV

ENV

2012 New York v. US NRC

United States

Topic

Year Case nameCountry

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Topic

ENV

ENV

ENV

Year Case nameEntergy Nuclear Vermont
Yankee, LLC and Entergy
2016 Nuclear Operations, Inc.
(Vermont Yankee Nuclear
Power Station)

Natural Resources
2018
Defense Council v. NRC

Oglala Sioux Tribe v. US
2018 Nuclear Regulatory
Commission

Country

United States

United States

United States

Commission of
the US NRC

The Petitioners sought review of, and a discretionary hearing on, the legality of the US NRC’s
issuance of an exemption to its regulations governing decommissioning on the grounds that
it was a licence amendment and as such inadequately considered the environmental impactsof the exemptions. The Commission of the US NRC determined that the Agency had validly
issued the exemption. It further ruled that issuance of the exemption was justified by “special
circumstances” and the fact that similar exemptions had been granted to other licensees did
not mean that the Agency had effectively modified the underlying legal requirement. The
Commission of the US NRC determined that no hearing was required because the facility
licence had not been amended. However, it directed the US NRC Staff to perform anenvironmental analysis of the exemption.

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

The Oglala Sioux Tribe filed a petition for review on the grounds that the US Nuclear
Regulatory Commission (NRC) failed to comply with the National Environmental Policy Act(NEPA) and the National Historic Preservation Act of 1966 (NHPA) during the licensing
adjudication procedure for an in situ uranium recovery project. They also challenged the NRC
decision to affirm a decision by the Atomic Safety and Licensing Board Panel’s (ASLBP)
keeping the licence in place despite identification of deficiencies under NEPA and NHPA. The
Court held they lacked jurisdiction over most of the Tribe’s NEPA challenges because the
NRC’s adjudication was not yet complete, but did exercise jurisdiction over the Commission’s
decision to keep the licence in place pending completion of the NRC adjudication. Although
the Court held that because the NRC considered the non-compliance to be “significant”, theCommission erred in requiring the Petitioners to show irreparable harm in order to obtainvacatur or suspension of the licence, the Court did not vacate the licence, and instead
remanded the case to the Agency for further proceedings. The administrative adjudication
remains ongoing.

NLB Issue

Decision No. 161298, 2018 WL
472547(DC Cir. 2018)

NLB 101,
pp. 71-72

NLB 100,
pp. 89-90

CLI-16-17,
n/a
84 NRC 99 (2016)

Citation

Federal Circuit
896 F.3d 520
Court of Appeals (DC Cir. 2018)

Plaintiffs argued that the US Nuclear Regulatory Commission (NRC) failed to comply with the
National Environmental Policy Act by providing an inadequate final environmental impact
statement (FEIS) before issuing a licence to an in situ uranium mining facility. Upon review, theFederal
NRC Atomic Safety and Licensing Board (the Board) determined that, despite lacking sufficient
Circuit Court
information in the FEIS, the evidentiary statements made by NRC staff supplemented the FEIS.
of Appeals
On appeal to the DC Circuit, following an appeal to the NRC Commission, the Court rejected
the claim that the Board could not supplement the FEIS with evidentiary testimony after theissuance of the licence.

Court

Description

NUCLEAR LAW CASE CHART

173

174
ENV

City of Boston Delegationv. FERC

United States

NLB 107,
pp. 57-58

LBP-21-2,
93 NRC 104(2021)

Interim Storage Partners
2021 LLC (WCS Consolidated
Interim Storage Facility)

United States

NRC Atomic
Safety andLicensing Board

Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (Fasken) sought
to reopen proceedings against Interim Storage Partners LLC (ISP) regarding their application
for a licence to construct and operate a consolidated interim storage facility (CISF). Fasken
alleged that there was new information concerning the adequacy of the NRC staff’s
environmental analysis of transportation routes to and from the proposed CISF. The Board
found that the contention was virtually identical to a previous inadmissible contention andtherefore did not warrant the reopening of proceedings.

ENV

LBP-19-7,
NLB 103,90 NRC 31 (2019) p. 50

Interim Storage Partners
2019 LLC (Consolidated Interim ENV
Storage Facility)

United States

Federal Circuit
897 F.3d 241
Court of Appeals (DC Cir. 2018)

NLB 101,
pp. 74-75

NLB Issue

The Court of Appeals for the District of Columbia upheld the US Federal Energy Regulatory
Commission’s (FERC’s) authorisation of a project to upgrade Algonquin Gas Transmission,
LLC’s natural gas pipeline. The Court held that FERC adequately considered the cumulative
impacts of other projects in its analysis, did not act arbitrarily and capriciously by declining toconsider three projects in a single environmental impact statement (EIS), and appropriately
relied on another Federal agency’s analysis in addressing safety concerns about project
activities near a nuclear energy facility.

Citation

NLB
108/109,
pp. 100101

Court

The US Court of Appeals for the District of Columbia Circuit denied a petition for review of the
NRC’s decision to issue a licence to Powertech, Inc., for a proposed in situ uranium recovery
facility in South Dakota. The petition claimed that the NRC failed to meet its obligations under
the National Environmental Policy Act (NEPA) and the National Historic Preservation Act(NHPA). The Court held that the NRC did not violate NEPA, nor was further supplementation of
the agency’s environmental impact statement required, because the Agency madereasonable efforts to gather information concerning the Tribe’s cultural resources and had
Federal Circuit
45 F.4th 291
already explained, in the Agency’s hearing record, why the additional cultural resource
Court of Appeals (DC Cir. 2022)
information was “effectively unavailable”. The Court also held that the NRC had satisfied its
obligations under the NHPA, because the NRC had offered the statutorily required
opportunities to the Tribe to provide input regarding cultural resources. Additionally, theCourt upheld the NRC’s dismissal of environmental contentions relating to the NRC staff’s
analysis of groundwater impacts, disposal of byproduct material generated from uranium
extraction and potential measures to mitigate environmental impacts. The Petitioners sought
rehearing en banc before the full DC Circuit, which was declined.

Description

The NRC Atomic Safety and Licensing Board (ASLB) issued a decision in the case challenging
Interim Storage Partners, LLC’s (ISP) licence application to build and operate a consolidated
interim storage facility (CISF) for spent nuclear fuel and greater-than-Class C waste (SNF) in
Andrews County, Texas. ISP seeks a 40-year licence to store canisters of SNF. The ASLB granted NRC Atomic
the Sierra Club’s request for a hearing and petition to intervene based on the unavailability of Safety andLicensing Board
ecological studies that ISP relied on in its Environmental Report. ISP provided these studies
and requested the ASLB dismiss the contention. In response, Sierra Club filed an amended
contention for the ASLB’s consideration. Appeals by the other Petitioners and the application
are pending before the NRC Commission.

2018

ENV

2022 Oglala Sioux Tribe v. NRC

United States

Topic

Year Case nameCountry

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Topic

ENV

ENV

ENV

Year Case nameInterim Storage Partners
2021 LLC (WCS Consolidated
Interim Storage Facility)

Friends of the Earth, et al.
2021 v. US Nuclear Regulatory
Commission

Florida Power & Light Co.
2022 (Turkey Point Nuclear
Generating Units 3 and 4)

Country

United States

United States

United States

Commission of
the US NRC

Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (Fasken)
appealed the decision of the NRC Atomic Safety and Licensing Board not to reopenproceedings against Interim Storage Partners LLC (ISP) to the Commission who dismissed theclaim. The Commission issued ISP a licence for consolidated interim storage facility (CISF). Thisdecision is currently being appealed before the DC Circuit. The licence is also subject to achallenge before the Fifth Circuit Court of Appeals of its legality under a newly enacted statestatuteCLI-21-9,
93 NRC 244(2021.)

Citation

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

The Commission of the US NRC reversed its earlier rulings and held that the genericenvironmental impact statement for licence renewal at nuclear power plants (LR GEIS) only
applied to the initial licence renewal proceedings and not subsequent licence renewal (SLR)
proceedings. The Commission, separately, directed the US NRC Staff to provide a rulemaking
plan to update the LR GEIS to clearly include evaluation of the environmental impacts of SLR.
The Commission also directed US NRC Staff to shorten the licence terms of the Turkey Point
Nuclear Generating Station in Florida until completion of the National Environmental Policy
Act analysis. The Commission approved the NRC staff’s recommendation to update the LR
GEIS to clearly include evaluation of the environmental impacts of SLR and to amend NRC
regulations codifying the conclusions of the LR GEIS.

Commission of
the US NRC

NLB 107,
pp. 56-57

NLB 107,
pp. 57-58

NLB Issue

NLB
108/109,
CLI-22-2,
95 NRC 26 (2022) pp. 101102

The DC Circuit Court of Appeals dismissed a petition for review concerning the NRC’s renewalof the operating licences for two nuclear power reactor units at the Turkey Point Nuclear
Generating Station. The operator submitted an application seeking approval of a second 20year renewal of its licences, making this the NRC’s first issuance of a subsequent licence
renewal. The Plaintiffs sought a hearing concerning the plant’s environmental impacts and thesufficiency of the NRC staff’s environmental analysis. The NRC’s Board denied the request andruled that the NRC staff’s environmental impact statement was sufficient and that the Plaintiffs
Federal Circuit
No. 20-1026
were improperly challenging the validity of codified NRC regulations on genericenvironmental impact determinations. After the Board dismissed the hearing request, the NRC Court of Appeals (DC Cir. 2021)
staff issued the renewed licences. The Plaintiffs appealed to the Commission. While theiradministrative appeals before the Commission were still pending, they also sought judicial
review of the decision to issue the licences. The DC Circuit dismissed the petition for judicial
review as premature as only “final orders” of NRC licensing decisions can be challenged infederal court and held that the Plaintiffs could not simultaneously seek judicial review during
the pendency of their separate administrative appeal. The administrative appeals remain
pending before the Commission.

Court

Description

NUCLEAR LAW CASE CHART

175

176

United States

LR

ENV

Exelon Generation Co.,
LLC (Peach Bottom
2022
Atomic Power Station,
Units 2 and 3)

United States

Greenpeace Belgium v.
2018 Federal Agency for
Nuclear Control (FANC)

ENV

Duke Energy Carolinas,
2022 LLC (Oconee Nuclear
Station, Units 1, 2, and 3)

Belgium

Topic

Year Case nameCountry

Commission of
the US NRC

Commission of
the US NRC

The Commission of the US NRC reversed its earlier rulings and held that the genericenvironmental impact statement for licence renewal at nuclear power plants (LR GEIS) only
applied to the initial licence renewal proceedings and not subsequent licence renewal (SLR)
proceedings. The Commission, separately, directed the US NRC Staff to provide a rulemaking
plan to update the LR GEIS to clearly include evaluation of the environmental impacts of SLR.
Contentions in the currently pending SLR proceedings are dismissed and can be refiled once
the NRC staff completes the update to the LR GEIS or an applicant elects to provide a sitespecific analysis of the issues previously resolved generically in the LR GEIS. The Commission
approved the NRC staff’s recommendation update the LR GEIS to clearly include evaluation of
the environmental impacts of SLR and to amend NRC regulations codifying the conclusions of
the LR GEIS.
The Commission of the US NRC reversed its earlier rulings and held that the genericenvironmental impact statement for licence renewal at nuclear power plants (LR GEIS) only
applied to the initial licence renewal proceedings and not subsequent licence renewal (SLR)
proceedings. The Commission, separately, directed the US NRC Staff to provide a rulemaking
plan to update the LR GEIS to clearly include evaluation of the environmental impacts of SLR.
The Commission also directed US NRC Staff to shorten the licence terms of the Peach Bottom
Atomic Power Station in Pennsylvania, until completion of National Environmental Policy Act
analysis. The Commission approved the NRC staff’s recommendation update the LR GEIS toclearly include evaluation of the environmental impacts of SLR and to amend NRC regulations
codifying the conclusions of the LR GEIS.

Greenpeace Belgium brought a case against the FANC contesting the legality of an
authorisation for the transport of spent fuel. The claim was based on two parts of Euratom’s
Basic Safety Standards Directive: the failure of FANC to perform a justification study and an
Raad van Stateissue related to the ALARA principle. On the first issue, the Council held that a justification[Council ofstudy is only required when the scope of the authorisation concerns an act that is considered aState]
new type of practice, not those that have already been justified. On the second issue, theCouncil ruled that the application of the ALARA principle was correct, and therefore theregulator is not obliged to evaluate possible transport alternatives.

LICENSING AND REGULATION (LR)

Court

Description

NLB Issue

Nr. 241.575

NLB 102,
p. 81

NLB
108/109,
CLI-22-4,
95 NRC 44 (2022) pp. 101102

NLB
108/109,
CLI-22-3,
95 NRC 40 (2022) pp, 101102

Citation

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

TopicLR

LR

LR

Year Case name

Ruling by the Court ofFirst Instance in Brussels,
2020
3 September 2020,
regarding Tihange 2

Public Prosecutor v.
National Nuclear Energy
2009 Commission (Comissão
Nacional de Energia
Nuclear – CNEN)

Fond du Lac Denesuline
2012 First Nation v. Canada(Attorney General)

Country

BelgiumBrazilCanada[Unknown]

2012 FCA 73

1st Federal
Court (Angra
dos Reis region)

Court confirmed the legality of the partial construction licence granted to Eletrobràs
Termonuclear SA – Eletronuclear for preliminary works carried out at the Angra III Nuclear
Power Plant. The public prosecutor had filed a public claim against the National Nuclear
Energy Commission (Comissão Nacional de Energia Nuclear – CNEN) arguing that its grantingof the partial construction licence was not lawful as Act No. 6/189/74 does not explicitly
mention partial construction licences, though it does allow for a licence under specificconditions as long as it is in accordance with CNEN’s prerogatives. The Court found that CNEN
acted within the limits of its regulatory powers.

Appellants challenge a licence renewal decision made by the Canadian Nuclear Safety
Commission (CNSC) respecting a uranium mine and mill operating licence held by AREVA
Resources Canada Inc. (AREVA). Court recognised that the CNSC has jurisdiction to determine
whether a constitutional duty to consult Aboriginal groups has been triggered by a potential Federal Court ofAppeallicensing decision to operate a uranium mine and mill, and if so, whether that duty has beensatisfied through its licensing process and decision making. The Court also makes clear that forthe constitutional duty to consult to be found, there must be evidence that a right may beharmed in some non-trivial, non-speculative way.

Citation[Unknown]

Court

The Court of First Instance in Brussels ruled in favour of the Federal Agency for Nuclear Control(FANC) regarding the restart of the Tihange 2 Nuclear Power Plant. The Plaintiffs filed a claim
against the FANC, the Belgian State and the operator, Electrabel, to prevent the restart of
Tihange 2 in 2015 after hydrogen flakes were found in the reactor vessel in 2012. The Plaintiffs
alleged that the FANC made the decision to restart based on an insufficient examination,
Court of First
failed to act in a transparent way and intentionally withheld evidence from the public. They
Instance infurther claimed to be suffering psychological damage caused by the constant fear of an
imminent severe accident because of the presence of the hydrogen flakes. The Court rejected Brussels
these claims and held that the FANC had acted as a diligent regulator when evaluating therestart of Tihange 2 by conducting a thorough safety examination and communicating withthe public clearly and transparently. Furthermore, the Court held that no legal framework
exists with regard to the phenomena of hydrogen flakes and their presence does not exclude
the safe operation of a reactor vessel.

Description

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

NLB 89,pp. 107109

NLB 85,
pp. 93-94

NLB 105,
pp. 87-88

NLB Issue

NUCLEAR LAW CASE CHART

177

178

2019 KHO 29.8.2019/3864

2014 KHO 1.12.2014/3793

2013 KHO 5.12.2013/3825

FinlandFinlandFinland

Land Oberösterreich v.
ČEZ a.s.

LR

LR

LR

LR

Canada2009

LR

Citizens Against
Radioactive
2022 Neighbourhoods (CARN)
v. BWXT Nuclear Energy
Canada Inc.

Czechia

Topic

Year Case nameCountry

SupremeAdministrative
Court of Finland

SupremeAdministrative
Court of Finland

SupremeAdministrative
Court of Finland

Local co-operative associations appealed the issuance of the operating licence for the new 3unit Olkiluoto Nuclear Power Plant claiming that the safety requirements concerning the areaof the nuclear power plant were not met and therefore the decision was unlawful. The Court
ruled that no evidence concerning safety or other matters were found that would result in thedecision being unlawful. The appeal was dismissed.
Local organisation appealed the Decision-in-Principle (DiP) made by the Government andconfirmed by the Parliament concerning the new, planned Hanhikivi-1 Nuclear Power Plant.
Since the national legislation does not allow for appeals against DiP, the appeal was notinvestigated.
NGO and private persons appealed the Government decision for uranium production in the
Talvivaara mine claiming that the decision was unlawful. The Court returned the decision to
the Government for reconsideration as to whether the application fulfilled the requirementsthat were set for granting the licence. Reconsideration was also needed because of theeconomic changes in the company after the licence was granted.

1035/1/12

3228/1/14

1475/1/19 and1805/1/19

Case C-115/08,
ECLI:EU:C:
2009:660

Court of Justiceof the European
Union (Grand
Chamber)

The Court held that a licence issued to a nuclear power plant by the competent authorities inCzechia had to be considered as valid in Austria due to the principle of mutual recognition oflicences. Nuclear facilities can only be licensed by competent authorities if they comply withthe required safety standards, which are, on a high level, uniform in the EU. This is because theEuratom Treaty and secondary legislation establish a common EU legislative framework fornuclear safety, ensuring the protection of the health and safety standards of EU citizens.
Consequently, the provision of Austrian law that provided differential treatment to the Czech
nuclear power plant because it was authorised by another member state (rather than Austria)
could not be applied in the Austrian courts, in the case of.

Citation

2022 FC 849

Court

The Federal Court of Canada dismissed a judicial review application to challenge a licensing
decision of the Canadian Nuclear Safety Commission (CNSC). The applicant argued that the
CNSC’s decision to renew BWXT Nuclear Energy Canada Inc.’s licence to operate two nuclear
fuel fabrication facilities was unlawful and unreasonable. The applicant argued for judicial
review on the grounds that the CSNC failed to meet the appropriate standard of review, thelicence renewal application materials and information provided for hearings were insufficient, Federal Court
the use of “hold point” licence conditions was unlawful and the CNSC exercised its statutory
discretion unreasonably in light of the ALARA, justification and precautionary principles. The
Court found the applicant’s claims to be insufficient and concluded that the CNSC’s decision
was lawful and reasonable, and dismissed the application seeking to have the licence decision
quashed.

Description

n/a

n/a

n/a

NLB 106,
pp. 22-23

NLB 84,
pp. 118120

NLB
108/109,
pp. 91-97

NLB Issue

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Topic

LR

LR

LR

LR

LR

Year Case nameL’affaire Collectif nationald'information et2007 d'opposition à l’usine
Melox – Collectif Stop
Melox et MOX v. France

Association trinationalede protection nucléaire
2011 (ATPN) v. Minister of
Economy, Industry andLabour

Association trinationalede protection nucléaire
2013 (ATPN) v. Minister of
Economy, Industry andLabourAtelier de technologie dePlutonium, Collectif
antinucléaire 13 et
2012
Association les amis de laterre de France v. Prime
Minister

La commune deFessenheim, et al., laFédération CGE-CGC
2018
Energies, et la Fédération
FO Énergie et Mines v.
Prime Minister

Country

FranceFranceFranceLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

FranceFranceDecision
Nos. 410109,
410622, 410624
Conseil d’État[State Council]

The Conseil repealed Decree No. 2017-508 of 8 April 2017, which revoked the operating
licence held by Électricité de France (EDF) for the Fessenheim Nuclear Power Plant. A claim to
repeal the decree was brought by the municipality of Fessenheim and various trade unions in
the region, on the basis that a revocation of a licence could only be issued at the request of alicensee, pursuant to Article L. 311-5-5 of the Energy Code. The Conseil held that revocation of
the licence to operate had not been issued at EDF’s request and therefore the decree should
be repealed.

Decision(Request Nos.
351986, 358080,
358094, 358095)

Decision(Request
No. 346395)

Conseil d’État[State Council]

Tb. Adm.
Strasbourg,
n° 0805582

The Conseil refused to annul a decree authorising the French Alternative Energies and Atomic
Energy Commission (CEA) to carry out the operations of final shutdown and dismantling of
the Atelier de technologie de plutonium (facility for plutonium technology or ATPu) located at
Conseil d’État
the Cadarache site. Conseil found that the insufficiencies of the hazards study as well as the[State Council]
risks entailed in final shutdown and dismantling does not require an annulment of the decree
insofar as the operations are carried out in compliance with the ASN’s (French Nuclear Safety
Authority) requirements.

The Conseil concluded that continued operation of the Fessenheim Nuclear Power Plant does
not pose any serious risk and dismissed a claim calling for the immediate suspension ofoperation of the Fessenheim Plant for insufficient consideration of seismic and flood risk, anabnormal number of incidents since 2004 and illegal water disposal standards.

Administrative
Court in
Strasbourg

NLB 101,
p. 71

NLB 90,
pp. 101102

NLB 92,
p. 89

NLB 87,
pp. 87-88

NLB Issue

The Court confirmed the government’s refusal to immediately close the Fessenheim Nuclear
Power Plant. Such a decision must be made by decree by the Conseil d’État, after review by
the Autorité de Sûreté Nucléaire (ASN). The Court recognised that the Fessenheim Plant was
not in compliance with the Law on Water but complainants had not demonstrated theexistence of a serious risk posed by the water releases such that a decision to shut down theplant would be required.

Citation

NLB 80,
p. 65

Court

The European Court of Human Rights (ECHR) dismissed the claim of Collectif Stop Melox et
MOX concerning a decree authorising increased production of nuclear fuels from mixed
oxides uranium/plutonium (MOX) at the Melox plant. The applicant lodged an appeal against
N° 75218/01;
this decree to the Council of State in 1999, which was dismissed, and the Plaintiff was required
European Court ECLI:CE:ECHR:
to pay FRF 5 000 (EUR 750) to the operator, Cogema. Before the ECHR, the applicant claimed aof Human Rights 2007:
violation of Article 6(1) of the European Convention on Human Rights, on the grounds that the
0612JUD007521(ECHR)
Council of State had not questioned the standing of a private law company, Cogema, to801
intervene in an action against a ministerial decision. The ECHR held that there had been no
violation of Article 6(1) and Cogema was entitled to intervene in litigation concerning a
ministerial decision directly affecting its economic activity.

Description

NUCLEAR LAW CASE CHART

179

180

1992

1992

Japan

Japan

2013

Topic

Monju Fast Breeder
Reactor Case

The Ikata Supreme Court
decisionLR

LR

G. Sundarrajan v. Union ofLR
India and Others

Year Case name

India

Country

Court

In this case, the legal issue before the Supreme Court was whether the residents living about
29 to 58 kilometres away from the fast breeder reactor (FBR) with an electrical power of
280 MW, called “Monju”, and was in the research and developing phase at the time of theSupreme Court
judicial review by the Supreme Court, had standing to sue for seeking a declaration of nullityof the permission for the FBR in question under the Article 36 of the Administrative Case
Litigation Act (Act No. 139 of 1962). The Supreme Court ruled in favour of the residents, statingthat they had standing to sue under the Article 36 of the Administrative Case Litigation Act.

The Supreme Court decision concerning this case, which is generally called “The Ikata
Supreme Court
Supreme Court decision,” is recognised as the leading case in which it provides the judicial
review standards for administrative cases over the permission for installing a nuclear powerreactor. The judicial review standards address the following legal issues, for example, (a)whether a safety standard which has not been set in detailed and concrete terms is reasonable
or legal, (b) to what extent a nuclear regulator has an administrative discretion, (c) to what
extent judicial review can be made, and (d) whether the nuclear power regulator bears burdenof proof of showing the reasonability of its decision to give a permission, etc.

The residents living in Ehime Prefecture, in which the Ikata Nuclear Power Plant is located, filed
the administrative litigation against the nuclear power regulator in order to revoke thepermission for the nuclear power plant in question. The Supreme Court upheld the High
Court’s judgment, which had determined that the permission was legal, and dismissed theresidents’ final appeal.

The Court rejected the arguments put forward in the public interest litigation petition whichsought to obtain the closure of the Kudankulam Nuclear Power Station (KKNPS) based
particularly on the larger reasoning that it is not for courts to scrutinise a particular policy (suchSupreme Court
as the government’s nuclear energy policy) or decisions taken in fulfilment of that policy, inthis case the establishment of the KKNPS. Of note, the Court stated that it cannot sit injudgment on the views expressed by the technical and scientific bodies in setting up of the
KKNPS at Kudankulam and on its safety and security.

Description

NLB Issue(Judgment of theThird Petty
n/aBench of theSupreme Courtof 22 Sept. 1992,
Minshu Vol. 46,
No. 6, p. 571)

(行ツ: Gyo-Tsu)
No. 130

1989 (Heisei 1)(Judgment of theFirst Petty Bench n/aof the Supreme
Court of 29 Oct.
1992, Minshu Vol.
46, No. 7, p.
1174)(行ツ: Gyo-Tsu)
No. 133

1985 (Showa 60)

Civil Appeal
NLB 91,
No. 4440 of 2013 p. 107

Citation

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Court

The Court granted a temporary injunction against the restart of Takahama Nuclear Power
Plant Units 3 and 4 finding that nuclear regulatory requirements must be strict enough toensure that a severe disaster never occurs at a nuclear power plant operating in conformancewith the regulatory requirements. In reviewing the Nuclear Regulation Authority’s (NRA’s) new Fukui District
Court
regulatory requirements, the District Court found that they do not address post-Fukushimasafety measures and thus are not justified. The Court also reviewed the risk of the Takahama
units without reference to the NRA’s new regulatory requirements, finding that the units have
many weaknesses that need to be addressed, with the Court outlining the required measures.

LR

LR

Masada Tadashi and2015 others v. Kansai ElectricPower Co. Ltd.

Decision regarding
2017 operations at the Ikata
Nuclear Power Plant

Japan

Japan

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024Japan

The Plaintiff sought a preliminary injunction against operations at the Ikata Nuclear Power
Plant. The Hiroshima District Court ruled against the Plaintiffs and denied their petitions. The
District Court determined that the Volcanic Effects Assessment Guide was based on thepremise that the timing and extent of any eruption could be predicted with considerable
Hiroshima
accuracy and a considerable time in advance and concluded that this premise was not
District Court
realistic. Thus, the Nuclear Regulation Authority’s decision is consistent with the purpose of
the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors, even
if the site is deemed appropriate. The Court held that the NRA’s determination and thelocation of the Ikata plant were appropriate.

Kagoshima
District Court

The Court rejected the claim against the restart of Sendai Nuclear Power Plant finding that thesafety goals established by the NRA took into account the latest expertise, including
experience in the Fukushima Daiichi Nuclear Power Plant accident and that as long as thesesafety goals are assured, the risk of a severe accident with the release of radioactive materials
causing health damage should be insignificant to the public, if not assuring absolute safety;
therefore, the Court did not consider that there was any actual risk against the rights ofresidents.

In this case, the legal issue before the Supreme Court was whether the residents who had
already filed another civil lawsuit seeking an injunction against the fast breeder reactor (FBR)
called “Monju” had standing to sue under the Article 36 of the Administrative Case Litigation
Act (Act No. 139 of 1962). The Supreme Court ruled in favour of the residents, stating that they
Supreme Court
had standing to sue under the Article 36 of the Administrative Case Litigation Act. This
Supreme Court case is known as the leading case judging the relationship of a civil injunction
lawsuit and an administrative lawsuit for nullity of an administrative disposition such as
granting a permission.

Description

Petition filed by citizens
from Kagoshima opposedto the restart of Units 1
LR2015 and 2 of the Sendai
Nuclear Power Plant v.
Kyushu Electric Power
Company

LR

Topic

1992

Monju Fast Breeder
Reactor CaseYear Case nameJapan

CountryNLB Issue(Judgment of the
NLB 102,
Hiroshima
District Court of pp. 82-84
30 Mar. 2017,
Hanrei Jihou
Vol. 2357/2358,
p. 160)2016 (Heisei 28)(ヨ) No. 38,
No. 109(Judgment of the
NLB 96,
Fukui District
Court of 24 Dec. pp. 71-72
2015, Hanrei
Jihou Vol. 2290,
p. 73)

2014 (Heisei 26)(ヨ) No. 31(Judgment of the
NLB 96,
Kagoshima
District Court of pp. 71-72
22 Apr. 2015,
Hanrei Jihou
Vol. 2290, p. 147)

2014 (Heisei 26)(ヨ) No. 36(Judgment of theThird Petty
n/aBench of theSupreme Courtof 22 Sept. 1992,
Minshu Vol. 46,
No. 6, p. 1090)(行ツ: Gyo-Tsu)
No. 1311989 (Heisei 1)

Citation

NUCLEAR LAW CASE CHART

181

182

Japan

LR

LR

Decision regarding
2018 operations at the Ikata
Nuclear Power Plant

Japan

Decision regarding
2020 operations at the Ikata
Nuclear Power Plant

LR

Decision regarding
2017 operations at the Ikata
Nuclear Power Plant

Japan

Topic

Year Case nameCountry

Hiroshima HighCourt

The Plaintiffs appealed the Hiroshima District Court decision and the Hiroshima High Court
issued a decision in favour of the Plaintiffs approving the injunction suspending operation of
the Ikata Nuclear Power Plant. The High Court decided there was insufficient evidence tosupport the judgment that the possibility of volcanic activity was sufficiently small during theperiod of operation and determined that the siting of the Ikata plant was inappropriate
because such an evaluation was impossible to carry out based on submitted arguments andpremises. However, the High Court did conclude that, apart from this issue, the Nuclear
Regulation Authority’s Volcanic Effects Assessment Guide was consistent with international
standards and affirmed that its content was appropriate.

The Hiroshima High Court issued a second preliminary injunction suspending operation of the
Ikata Nuclear Power Plant. Plaintiffs brought this case on the grounds that it infringed theirpersonal rights. The Court held that the safety assessments conducted by the operator wereinsufficient in assessing potential earthquake and volcano impacts and therefore the Nuclear
Regulation Authority erred in granting a licence. The High Court held that the Ikata plant
could not pass the Site Assessment in accordance with the Volcanic Effects Assessment Guide. Hiroshima High
Court
However, since social common sense accepts, to a certain extent, the risk of catastrophic
eruptions, it would violate that principle to conclude that the plant does not recognise theexistence of specific hazards based on this reason alone. In response, the High Court partiallymodified the Volcanic Effects Assessment Guide in consideration of social common sense to
assume an eruption of a level just below that of the subject volcano’s (Mount Aso) fourthlargest eruption.

The Defendant petitioned the Hiroshima High Court with an objection to the injunction,
resulting in an appeal where the decision was overturned, and the Plaintiff’s complaint was
dismissed. Like in the District Court decision, the High Court noted the Volcanic Effects
Assessment Guide was based on an unrealistic premise. Therefore, assumption of risk should
be based on social common sense, meaning when risk is of such sufficiently low frequency as Hiroshima Highto not be regarded as a problem by the general public. Applying the theory of social common Court
sense to this case, the Court found that the Nuclear Regulation Authority’s (NRA)
determination was not contrary to the purpose of the Act on the Regulation of Nuclear Source
Material, Nuclear Fuel Material and Reactors and concluded on appeal that the NRA’s
determination and the location of the Ikata plant were appropriate.

Court

Description

NLB 102,
pp. 82-84

NLB 102,
pp. 82-84

NLB Issue(Judgment of the NLB 104,
Hiroshima High pp. 10-12
Court of 17 Jan.
2020, on the
Court website)

2019 (Heisei 31)(ラ) No. 48(Decision of theHiroshima High
Court of 25 Sept.
2018, on the
Court website)

2017 (Heisei 29)(ウ) No. 62(Decision of theHiroshima High
Court of 13 Dec.
2017, Hanrei
JihouVol. 2357/2358,
p. 300)2017 (Heisei 29)(ラ) No. 63

Citation

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Chiba District
Court

Fukushima
District Court

The Court rejected the claim that the government of Japan should be held liable for failure to
exercise regulatory authority over the Tokyo Electric Power Company (TEPCO) but foundliability on the part of TEPCO for the Fukushima Daiichi Nuclear Power Plant accident. While
recognising that the Government did not take preventive measures against tsunamis, theCourt found that the Government was not irrational in prioritising preventive measuresagainst earthquakes.

The Court recognised that both the government of Japan and the Tokyo Electric Power
Company (TEPCO) were liable for the Fukushima Daiichi Nuclear Power Plant accident. The
Court determined that the Government could foresee the tsunami and failed to exercise
effective regulatory authority over TEPCO. The failure to take preventive measures was foundto be irrational and illegal. The Government and TEPCO were ordered to pay equal
compensation for damages as both parties were found at fault.

Petition filed by citizens
from Fukushima v.
LR2017
government of Japan and
TEPCO

Petition filed by citizens
from Fukushima v.
LR2017
government of Japan and
TEPCO

Japan

Japan

Japan

Court

The Court acknowledged that both the government of Japan and the Tokyo Electric Power
Company (TEPCO) were liable for the Fukushima Daiichi Nuclear Power Plant accident. The
Maebashi
Court determined that the Government not only failed to account for a tsunami but also failed
District Court
to exercise its regulatory authority over TEPCO, considering these failures to be irrational andillegal. The Government and TEPCO were ordered to pay equal compensation for damages.

Description

Petition filed by citizens
from Fukushima v.
LR2017
government of Japan and
TEPCO

Topic

Year Case nameCountryNLB Issue

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

NLB 100,(Judgment of the pp. 87-89
Fukushima
District Court of
10 Oct. 2017,
Hanrei Jihou
Vol. 2256, p. 3)

2014 (Heisei 26)(ワ) No. 14,
No. 165, No. 166

2013 (Heisei 25)(ワ) No. 38,
No. 94, No. 175(Judgment of the NLB 100,
Chiba District
p. 87-89
Court of 22 Sept.
2017
Shouhishahou
News Vol. 114,
p. 224)2013 (Heisei 25)(ワ) No. 515,
No. 1476,
No. 1477

NLB 100,(Judgment of the pp. 87-89
Maebashi District
Court of 17 Mar.
2017 Shoumu
Geppou Vol. 64,
No. 4, p. 481)

2014 (Heisei 26)(ワ) No. 111,
No. 466

2013 (Heisei 25)(ワ) No. 478

Citation

NUCLEAR LAW CASE CHART

183

184
Sendai HighCourt

The Court reviewed a class action lawsuit in which the Plaintiffs sought compensation fordamages from both the government of Japan and TEPCO after being forced to evacuate theirhomes due to the Fukushima Daiichi nuclear accident. Basing its judgment on Supreme Court
precedents, the Court acknowledged the Government’s responsibility by following theconventional framework that dictates whether a claim for compensation is justified or notbased on the Government’s non-intervention. The Court found both the Government andTEPCO equally liable and ordered compensation of approximately JPY 1.01 billion. This marks
the first time the appellate court explicitly ruled the illegality of the Government in acompensation lawsuit over the Fukushima accident. In response to this judgment, TEPCO andthe Government appealed to the Supreme Court.

Sendai District Court denied the petition for a preliminary injunction to block the prior consent
of the local government for the restarting of the Onagawa Nuclear Power Plant. The Plaintiffs
were residents close to the Onagawa plant who sought an injunction blocking the local
government’s prior consent claiming that the consent procedures are a crucial condition ofrestart and therefore present a significant threat or hazard to their personal rights. The Court
held that there was no significant infringement on the personal rights of the Plaintiffs as
Sendai District
consent is not a necessary legal procedure for restart and there are other procedural
Court
regulations that must be carried out by the Nuclear Regulatory Authority (NRA). Furthermore,
the Plaintiffs failed to present prima facie evidence that these other regulations are a mere
formality as they claimed, so it cannot be said that the Onagawa plant will immediately restart
based on this prior consent. Therefore, an injunction against the consent is not warranted.
However, this does indicate that there are more ways for individuals and groups to request
injunctions than have previously been seen.

Petition filed by citizens
from Fukushima andLR2020 nearby prefectures v.
Government of Japan and
TEPCO

Decision regarding therequest for injunction
2020 against prior consent torestart Onagawa Nuclear
Power Plant

Japan

Japan

LR

Nagoya District
Court

2019

Petition filed by citizens
from Fukushima v.
LRgovernment of Japan and
TEPCO

Japan

Plaintiffs filed a lawsuit seeking a total of JPY 1.44 billion in damages against the governmentof Japan and TEPCO. The Court allowed the claim against TEPCO but denied Government
responsibility, which both parties appealed. The decision was rendered on the following
points: whether the Government had regulatory authority; whether the tsunami wasforeseeable; and whether the accident could have been prevented had regulatory authority
been exercised. The Court found that the Government did have the regulatory authority toorder TEPCO to enact protective measures. However, the level of foreseeability of the tsunami
was low and, even if regulatory authority had been exercised, the protective measures
advocated by the Plaintiffs likely would have been incomplete at the time of the Fukushima
accident. The Court found that the government did not act unreasonably by failing to order
the adoption of protective measures and therefore liability cannot be established under theState Redress Act.

Topic

Court

Year Case name

Description

Country

NLB 103,
pp. 47-49

NLB Issue

2019 (Reiwa 1)(ヨ) No. 99

NLB 105,
pp. 88-90

NLB 106,(Judgment of the pp. 25-27
Sendai High
Court of 30 Sept.
2020, Hanrei
Jihou Vol. 2484,
p. 185)2020 (Reiwa 2)(ネ) No. 56,
No. 622017 (Heisei 29)(ネ) No.373(Judgment of the
Nagoya District
Court of 2 Aug.
2019, Shoumu
Geppou Vol. 67,
No. 1, p. 1)

2016 (Heisei 28)(ワ) No. 612,
No. 5238

2014 (Heisei 26)(ワ) No. 884

2013 (Heisei 25)(ワ) No. 2710,
No. 5612

Citation

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

People living about 60 kilometres (km), 100 km and 130 km away from the Ikata Nuclear
Power Plant filed a petition for a provisional disposition order of an injunction against theoperation of Unit 3 at the site operated by Shikoku Electric Power Company (SEPCO), based on
the specific risk that such operation might infringe on their personal rights for life etc. because
Hiroshima
the plant lacks safety against earthquakes. The Court decided not to grant a provisional
District Court
injunction and dismissed the petition. One of the remarkable aspects of the decision is that
the Court did not adopt the Ikata decision framework established by the Supreme Court in1992 because this framework should be applied to administrative litigation and not to civil
provisional remedies.

Prosecution on charges ofprofessional negligenceLR2019 resulting in death andinjury for the former
TEPCO executives

Judgment framework of
the court on theprovisional disposition
2020
against the operation of
the Ikata Nuclear Power
Plant

Japan

Japan

LR

Three former executives of Tokyo Electric Power Co. (TEPCO) were acquitted by the Tokyo
District Court of charges of professional negligence resulting in the death and injury of people
living in the Fukushima prefecture at the time of the Fukushima Daiichi Nuclear Power Plant
accident. The Tokyo District Court determined that in order to avoid the consequences fromthe accident, the Defendants would have had to take certain actions before early March 2011.
However, the Court stated that it is doubtful that TEPCO could have completed theseTokyo Districtmeasures before the accident and the only realistic way TEPCO could have avoided the
Courtconsequences from the accident was to have suspended the operation of the nuclear power
plant before early March in 2011. The Court concluded that the former TEPCO executives did
not have an obligation to suspend operation of the nuclear power plant before early March
2011, because it was not possible to foresee, beyond a reasonable doubt, the occurrence of atsunami of sufficient scale to cause the Fukushima Daiichi accident. On appeal, the Tokyo High
Court upheld the Tokyo District Court judgment on 18 January 2023.

Japan

Court

The Mito District Court issued an injunction against Japan Atomic Power Company (JAPC) to
Mito Districtprohibit the operation of the Tokai No. 2 nuclear power plant on the ground that the
Courtevacuation plans in the event of a nuclear accident were inadequate. JAPC filed an appeal to
the Tokyo High Court on 19 March 2021. As of the date of publication, the case is still pending.

Description

Injunction against nuclear
power plant operationLR
2021
based on inadequate
evacuation plans (Tokai-2)

Topic

Year Case nameCountryNLB Issue(Decision of theHiroshima
District Court of
4 Nov. 2021, on
the Court
website)2020 (Reiwa 2)(ヨ) No. 35
NLB
108/109,
pp. 97-100(Judgment of theTokyo District
NLB 107,
Court of 19 Sept. pp. 55-56
2019, Hanrei
JihouVol. 2431/2432,
p. 5)2016 (Heisei 28)(刑わ) No. 374(Judgment of the
Mito District
NLB 107,
Court of 18 Mar. pp. 51-55
2021, Hanrei
JihouVol. 2524/2525,
p. 40)

2012 (Heisei 24)(行ウ) No. 15

Citation

NUCLEAR LAW CASE CHART

185

186

South Africa

LR

Joint Nuclear Power Plant
Netherlands B.V. v.
LRMinisters of Economic
Affairs and of Finance

McDonald & others v.
2007 Minister of Minerals andEnergy & others

2021

LR

Greenpeace Netherlands
Foundation et al. v.
2013 Minister of Economic
Affairs, Agriculture andInnovation

The
Netherlands

The
Netherlands

Topic

Year Case nameCountry

Cape High Court
2007 (5) SA 642(Cape Provincial(C)
Division)

ECLI:NL:RVS:
2021:2442

The operator of the Dodewaard Nuclear Power Plant brought a claim against the State
Secretary of Infrastructure and Water Management and the Minister of Finance for rejecting its
application for decommissioning on the basis that it failed to meet the financial security
requirements of dismantling and decommissioning. The operator claimed that theirpermanent incapability to meet the financial security requirements for decommissioning
Raad van State
meant their application should be approved. The Court found that regardless of whether the[Council ofoperator is incapable of ever having sufficient financial resources, its financial status cannot
State]
lead to an annulment of the decision as the Nuclear Energy Act and the Nuclear Installations,Fissionable Materials and Ores Decree do not contain any provisions for the Ministers toapprove the application if there is no financial security to cover the costs of decommissioning.
Moreover, the Court did not establish at the hearing that the operator is unable to gather
sufficient resources, and a procedure is still pending in civil court on this matter. The appeal
was found to be without merit and dismissed.
The Court held that Regulation 3 of the National Nuclear Regulator Act 47 of 1999 (NNRA) wasinvalid based of the maxim delegates delegare non potest and represented an unauthorised
delegation of the Minister of Minerals and Energy’s regulatory power to the National Nuclear
Regulator (Regulator). The Plaintiffs sought to challenge the restriction of development ofproperty located within a 5 km radius of the Koeberg Nuclear Power Station on the basis that
Regulation 3 and any requirements created by the Regulator were invalid. The Court held thatsuch delegation by the Minister under Regulation 3 was clearly unauthorised and amounts toan impermissible abdication by the Minister of the power to regulate. Further, the Court
denied the Regulator’s request to suspend operation of the judgment for a period of a year to
avoid any gap created by the setting aside of the regulation and the requirements asdevelopment within the 5 km zone from the Koeberg plant is still governed by the terms of
the Structure Plan (Guide Plan), which has statutory force and effect independently of the
NNRA and one of the provisions of the Guide Plan is a restriction on further development
within a 5 km radius of the Koeberg plant unless such development forms an integral part of
the Koeberg plant.

ECLI:NL:RVS:
2013:BZ1263

Raad van State[Council ofState]The Appellants appealed the decision of the Minister of Economic Affairs, Agriculture andInnovation to issue a licence for fuel diversification at the Borssele Nuclear Power Plant. The
Appellants claimed the licence should not have been issued because the Minister erred in notincluding relevant information on how the use of MOX (mixed oxide) fuel could impact a
potential accident and that the probabilistic safety assessment (PSA) method misjudges thelikelihood of a meltdown. The appeal of the Appellant who lives approximately 130 km fromthe Borssele plant was declared inadmissible. The Court dismissed the other aspects of theappeal as unfounded. It held that the Borssele plant meets all safety requirements and theMinister’s decision did not need to take into account further study on the impact of MOX fuelon the course of an accident in their assessment. Further, the Court was not convinced that
the PSA incorrectly misjudges the likelihood of a meltdown.

Citation

Court

Description

NLB 80,
p. 66

n/a

n/a

NLB Issue

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Swedish Nuclear Fuel and2018 Waste Management
LR
Company (SKB)

SwedenLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

LR

DETEC and Forces
motrices bernoises (FMB)
2013 Energie SA v. Ursula
Balmer-Schafroth andothers

Switzerland

LR

Ursula Balmer-Schafrothand others v. DETEC

2012

Switzerland

LR

2012

Switzerland

Ursula Balmer-Schafrothand others v. DETEC

LR

2006 Ringhals Aktiebolag

SwedenTopic

Year Case nameCountry

The long-term responsibility for the final repository according to theEnvironmental Code has been clearly assigned.

•n/a

NLB Issue

A 6030/2011

FederalAdministrative
Court

FederalSupreme Court

Court provided that DETEC must examine the merits of a request to revoke the operating
licence for the Mühleberg Nuclear Power Plant due to serious safety concerns.
Court found in favour of DETEC and FMB, deciding that the Mühleberg Nuclear Power Plant
should be granted an unlimited-duration operating licence. FMB alleged primarily that the
new time limit and the new deadline were illegal and arbitrary, while DETEC focused mainly
on issues of institutional law, since it considered that the decision of the Federal
Administrative Court went against the distribution of competencies purposely
institutionalised by legislation between the administration (i.e. DETEC and the Swiss Federal
Office of Energy – SFOE) and the safety authority (ENSI).

BGE 139 II 185,
2C_347/2012;
2C_357/2012

A 667/2010

NLB 91,
p. 108NLB 90,
pp. 109110

NLB 89,pp. 110111

Case no. M 1333n/a
11

MÖD 2006:70

Citation

The Mühleberg Nuclear Power Plant was originally granted a 40-year licence, to expire in 2012.
In 2009, the Federal Department of the Environment, Transport, Energy and Communications(DETEC) repealed the time limitation in light of the establishment of the Swiss Federal Nuclear
Safety Inspectorate (ENSI). This decision was appealed to the Federal Administrative Court,
Federalwhich was approved in part. The Court confirmed the revocation of the original time limitation
Administrative
but stated that a new time limitation was required for policy reasons and DETEC had until midCourt2013 to establish the new time limitation. The Court cited safety concerns as the reason andstated that if the licensee wishes to extend the licence beyond the time limitation, it must filean application for such extension with DETEC accompanied by a comprehensive maintenanceplan for the plant.

The Court gave this opinion to the Swedish Government. It is now up to the government todecide.

Before permission is given, SKB must also provide a comprehensive report of the activity’s
surface operations and indicate the siting of two possible ventilation towers.

SKB produces evidence that the repository in the long term will meet therequirements of the Environmental Code, despite remaining uncertainties
regarding how the protective capability of the canister may be affected bycorrosion.

•
Land andEnvironmental
Court

Land andEnvironment
Court of Appeal

Permit procedure for nuclear power plant according to the Environmental Code. The Court
found that an appropriate balance is established between, on the one hand, thegovernmental authorities for nuclear activities and, on the other hand, the environmental
court if the authorities regulate the activity in more detail and the Court makes a general
assessment between the cost and the benefit that will be presented through the prescribed
permit condition on further investigation measures.
The Court concluded that the activity (i.e. the final repository for spent nuclear fuel) is
permissible if:

Court

Description

NUCLEAR LAW CASE CHART

187

188

United States

2021

Switzerland

LR

Petitioner challenged the licence renewal application submitted to the US NRC by Baltimore
Gas and Electric Company. Petitioner submitted its petition to intervene/request for hearing in
Commission ofa timely manner, but it missed the deadline to file its contentions. The contentions were filed
the US NRC
late and failed to address the standards governing the admissibility of late-filed contentions
found in 10 CFR 2.714(a) leading to the denial of their petition. This decision was appealed to
the Commission of the US NRC who affirmed the dismissal of Petitioner’s contentions.

CLI-98-25,
48 NRC 325(1998)

2C_206/2019

Several private individuals
v. Axpo Power AG andLR
Federal Nuclear Safety
Inspectorate

Citation

The Court rejected the main ground of an appeal concerning the seismic safety assessment for
the Beznau Nuclear Power Plant requested by the Swiss Federal Nuclear Safety Inspectorate(ENSI) after the Fukushima Daiichi Nuclear Power Plant accident in 2011. ENSI had already
requested seismic safety assessments from the Beznau Nuclear Power Plant in 2016 and in2017, it was determined that they fully complied with applicable legal requirements. ENSI was
therefore not required to request new ones. However, the Court did partially grant the appeal Federal
Supreme Court
as, according to the applicable law in 2017 (at the time of the decision), ENSI should haverequested an additional safety assessment. The Court held that in such a case, ENSI must ask
the Beznau Nuclear Power Plant’s operator for the relevant additional safety assessment,
unless it had already requested new fault analyses in the meantime. As this was indeed thecase and the review of the safety assessments provided was completed in February 2021, ENSI
has no obligation to request new assessments.

Court

BGE 140 II 315,
2C_255/2013

Description

LR

Federal Nuclear Safety
Inspectorate v. A. and B.

Baltimore Gas & ElectricCo. (Calvert Cliffs Nuclear
1998
Power Plant, Units 1
and 2)2014

Topic
The Swiss Federal Nuclear Safety Inspectorate (ENSI) appealed the decision of Federal
Administrative Court requiring it to perform a substantive assessment of the safetyassessment of the Mühleberg Nuclear Power Plant to the Federal Supreme Court. The Federal
Supreme Court dismissed ENSI’s appeal and upheld the decision of the Federal Administrative
Court finding that the Claimants living within Emergency Protection Zone 1 (i.e. within a 3 to 5 Swiss Federal
kilometre radius of the plant) have a legitimate interest that entitles them to take legal action Supreme Court
and request an order on administrative acts. The fact that an accident to be assessed occurs
only rarely does not alter the legitimacy of the interest. A legitimate interest for residents in
Emergency Protection Zone 2 (i.e. within a 20 kilometre radius of the plant) was not examined
and remains unresolved.

Year Case name

Switzerland

Countryn/a

NLB 106,
pp. 27-28

n/a

NLB Issue

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LR

LR

LR

Spano v. US Nuclear
Regulatory Commission

Public Citizen, San Luis
Obispo Mothers for2009 Peace, and State of New
York v. US Nuclear
Regulatory Commission

Entergy Nuclear Vermont
Yankee, LLC and Entergy
2010 Nuclear Operations, Inc.
(Vermont Yankee Nuclear
Power Station)

United States

United States

Topic

2008

Year Case name

United States

Country

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

n/aPetitioners were granted the right to intervene in the licensing procedure over whether the
licensee had adequately demonstrated that certain reactor components would not fail due tometal fatigue during the period of extended operation. The Atomic Safety and Licensing
Board Panel (ASLBP) issued a partial initial decision concluding, inter alia, that the licensee’s
metal fatigue analyses did not comply with the time-limited aging analysis (TLAA)
requirements and did not provide the reasonable assurance of safety required by 10 CFR
Commission of
54.29. Accordingly, the ASLBP ruled that the licence renewal was not authorised and could not
the US NRC
be granted until 45 days after the licensee satisfactorily completes TLAA metal fatigue
calculations and serves them on the US NRC Staff and the other parties to the proceeding. The
US NRC Staff appealed the ASLBP’s partial initial decision to the Commission of the US NRC,
which ruled that the applicant’s metal fatigue calculations, as originally prepared, compliedwith the relevant regulation. The Commission of the US NRC determined that the licence
renewal application was legally and technically sufficient.

CLI-10-17,
72 NRC 1 (2010)

NLB 84,
pp. 120122

NLB 82,
pp. 116117

NLB Issue

The US Nuclear Regulatory Commission (NRC) determined that air-based attacks were beyond
the scope of the design basis threat rule because the federal government was responsible for
defending against such threats. The Petitioners alleged that in doing so, the NRC had acted
arbitrarily, capriciously and in violation of law. The Court held that the NRC had acted lawfully
573 F.3d 916
in excluding air-based threats from the scope of the rule. In its decision, the Court recognised Federal Circuitthat the design basis threat rule considered the credibility of the threat, whether private forces Court of Appeals (9th Cir. 2009)
could reasonably be expected to actively engage that threat and that there was also a low
likelihood of damaging the reactor core and releasing radioactivity that could affect publichealth and safety. It also highlighted that relying on other governmental bodies to address therisk is not equivalent to ignoring the risk.

Federal Circuit
293 F. App’x 91
Court of Appeals (2nd Cir. 2008).

The Federal Court of Appeals for the Second Circuit dismissed the Petitioners’ appeal of thedenial by the US Nuclear Regulatory Commission (NRC) of their petitions to revise the NRC’s
nuclear power plant licensing regulations so that a licence renewal would be subject to thesame standards as an initial licence application. Petitioners challenged the denial on the
grounds that the NRC did not provide Petitioners with an opportunity to supplement theirpetitions, did not hold a hearing or conduct fact-finding, improperly relied on the existence ofother administrative remedies and did not consider the “new information” and “new issues”
raised in the petitions. The Court dismissed the claim that the NRC did not allow the
Petitioners to supplement their petitions, noting the distinction between an incomplete
petition for rulemaking and one that is merely unpersuasive. Furthermore, the Court held that
NRC’s decisions to not hold a hearing or conduct fact-finding, rely on other administrative
remedies and not consider “new information” and “new issues” raised in the petitions werereasonable.

Citation

Court

Description

NUCLEAR LAW CASE CHART

189

190

United States

United States

Calvert Cliffs Nuclear
Project, LLC
LRSouth Carolina Electric &Gas Company and South
Carolina Public Service
2012 Authority (also referred to LR
as Santee Cooper) (Virgil
C. Summer Nuclear
Station, Units 2 and 3)

2012

New Jersey
2011 Environmental Federation LR
v. US NRC

United States

Topic

Year Case nameCountry

LBP-12-19,
76 NRC 184(2012)

CLI-12-9,
75 NRC 421(2012)NRC Atomic
Safety andLicensing Board

In response to the granting of a combined licence application to build and operate two
additional units at the V.C. Summer Nuclear Station, the Claimants requested a hearing before
the US Atomic Safety and Licensing Board Panel (ASLBP). The ASLBP found that only the Sierra
Club had demonstrated standing but that none of the proposed conditions by any Petitioner
was admissible. The ASLBP therefore denied the hearing requests. All three parties appealed
to the Commission of the US NRC, which affirmed the ASLBP’s decision except with respect to
one proposed contention, relating to the requirement to consider energy alternatives andremanded the issue to the ASLBP for further consideration. On remand, the ASLBP concluded
that the contention was inadmissible, which the Commission of the US NRC affirmed on
Commission of
appeal. Friends of the Earth and the South Carolina Chapter of the Sierra Club joined in a
the US NRC
petition to suspend licensing decisions while the Commission of the US NRC considered theimpacts of the earthquake and tsunami at the Fukushima Daiichi Nuclear Power Plant inJapan. The Commission of the US NRC granted the petition in part and denied it in part. The
Commission determined that the agency’s safety and environmental review was consistent
with the requirements of the US Atomic Energy Act and the National Environmental Policy
Act. The Commission of the US NRC authorised the US NRC Staff to issue the licences. In
addition, it directed the US NRC Staff to include in the licence certain conditions related to asurveillance programme for squib valves and the development of strategies to address
beyond design basis external events.

The Board concluded that because Applicants in this case are owned by a US corporation thatis 100% owned by a foreign corporation, Applicants are rendered per se ineligible,
notwithstanding any other factors such as a negation action plan, to apply for or obtain alicence as long as the current ownership arrangement is in effect. The Atomic Energy Act
states that a licence cannot be issued to any corporation if they are owned, controlled, or
dominated by a foreign corporation or foreign government.

Federal Circuit
645 F.3d 220
Court of Appeals (3d Cir. 2011)

Court ruled that the NRC properly rejected the technical challenges related to concrete andthe drywell shell because they were filed after the initial deadline for contentions and were
not based on new, previously unavailable information. Regarding a technical contention on
metal fatigue, the Court ruled that the NRC reasonably applied the elevated pleading
standards in its regulation governing the reopening of a closed record. Finally, the Court
deferred to the NRC’s conclusion that its regulations require disputes to be raised with anapplicant’s submissions, not with the Staff’s review.

Citation

Court

Descriptionn/a

NLB 90,
pp. 113114

NLB 88,
pp. 72-73

NLB Issue

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Supreme Court

LR

Virginia Uranium, Inc. v.
Warren2019

United States

The Supreme Court upheld the decision of the 4th Circuit Court that the Virginia ban on
uranium mining on private land is not pre-empted by federal law. However, while the Court
felt it was inappropriate in this instance to ascertain the motivation of the state of Virginia increating the ban, the decision did not rule out the possibility that a state’s regulation, which
was found to either intend to interfere, or have the effect of interfering, with matters close to
the core of the NRC’s authority could be pre-empted.

Federal Circuit
848 F.3d 590
Court of Appeals (4th Cir. 2017)

The Court found that under the Atomic Energy Act conventional uranium mining on nonfederal land is not regulated by the US Nuclear Regulatory Commission (NRC). Therefore, astate moratorium on uranium mining is not pre-empted by federal law.

LR

Virginia Uranium, Inc. v.
Warren2017

139 S. Ct. 1894(2019)

NLB 103,
pp. 49-50

NLB 99,
pp. 71-72

NLB 94,
pp. 117118

United States

LBP-14-3,
79 NRC 267(2014)NRC Atomic
Safety andLicensing Board

Nuclear Innovation North
2014 America LLC (South Texas LR
Project Units 3 and 4)

United States

United States

The applicant sufficiently demonstrated by a preponderance of the evidence that it is not
subject to impermissible foreign ownership, control or domination, contrary to the Atomic
Energy Act and NRC regulations. The applicant is pursuing two new reactor licences as part ofa joint venture with Toshiba American Nuclear Energy Corporation (TANE), which is a whollyowned subsidiary of Toshiba America, Inc., which in turn is a wholly-owned subsidiary ofToshiba Corporation, a Japanese corporation. Decision was appealed to the Commission of
the US NRC.

Shaw AREVA MOX
Services, LLC (Mixed2014 Oxide Fuel Fabrication
Facility Possession and
Use License)

United States

LBP-14-1,
NLB 93,79 NRC 39 (2014) pp. 93-94

LR

Shieldalloy MetallurgicalCorp. (Decommissioning
2013
of the Newfield, New
Jersey Site)

NRC Atomic
Safety andLicensing BoardLR

Shieldalloy MetallurgicalCorp. v. NRC

2013

United StatesLR

NLB Issue

Applicant submitted a Fundamental Nuclear Material Control Plan, which contained a
proposed automated material control and accounting system to satisfy certain NRC
requirements for the control and accounting of special nuclear material. After two evidentiary
hearings, it was found that the applicant’s Fundamental Nuclear Material Control Plancomplies with NRC requirements. Decision was appealed to the Commission of the US NRC.

Citation

NLB 92,
pp. 94-95

Court

CLI-13-6,
78 NRC 155(2013)

Description

The NRC responded to the DC Circuit’s remand, explaining that because the state has adopted
the objective of seeking to limit the use of restricted release, and because the state has
Commission of
adopted more stringent criteria for licence termination under restricted release than forunrestricted release, as well as more conservative criteria than the NRC’s, the NRC deemed the the US NRC
state’s regulations to be compatible with its programme under its agreement state policy.
Therefore, the NRC reinstated its transfer of authority over the Shieldalloy site to the state.

Topic

NLB 91,
pp. 111112

Year Case name
The Court deferred to the NRC’s conclusions that: (1) the agency lacks authority under the
Atomic Energy Act to retain jurisdiction over a site at a licensee’s request where the state is
willing to assume regulatory authority over the site and meets other applicable criteria; and (2)the NRC’s agreement state assessment, which requires that discontinuance of the NRC’s
Federal Circuit
707 F.3d 371
regulatory authority not result in interference or interruption of the licensing process, did not
Court of Appeals (DC Cir. 2013)
compel the NRC to retain jurisdiction over the Shieldalloy site. However, on a third issue, theCourt found that the NRC failed to explain how the state’s rules governing licence termination
were compatible with the NRC’s restricted release provision. The case was remanded to the
NRC for further explanation of this issue.

Country

NUCLEAR LAW CASE CHART

191

192
LR

LR

Public Watchdogs v.
2020 Southern California
Edison Co.

United States

LR

Holtec International (HI2021 STORE Consolidated
Interim Storage Facility)

United States

United States

LR

Holtec International (HI2019 STORE Consolidated
Interim Storage Facility)

United States

Public Watchdogs v.
2019 Southern California
Edison Co.

TopicYear Case nameCountry

LBP-19-4,
89 NRC 353(2019)

CLI-21-7,
93 NRC 215(2021)

No. 19-CV-1635
JLS (MSB),
2019 WL
6497886(S.D. Cal. 2019)(unpublished)

NRC Atomic
Safety andLicensing Board

Fasken Land and Minerals, Ltd. And Permian Basin Land and Royalty Owners (together,
Fasken) sought to reopen a proceeding regarding Holtec International’s application for alicence to build and operate a consolidated interim storage facility (CISF). Fasken argued thatthe proposed CISF would interfere with mineral development in the area and that the NRC
staff had insufficiently analysed this issue. The Commission denied Fasken’s appeal andupheld the Board’s previous determination. The Commission also rejected Fasken’s motion to Commission ofreopen the record to litigate issues concerning the NRC staff’s analysis of land use, rights, and the US NRC
restrictions under and around the proposed facility, rejecting Fasken’s argument that new andmaterially different information that had come to light in the form of public comments on the
NRC’s draft environmental impact statement. The NRC’s licensing decision is pending. A
subsequent appeal brought before the DC Circuit is currently being held in abeyance pending
said licensing decision.

Federal District
Court

Federal Circuit
984 F.3d 744
Court of Appeals (9th Cir. 2020)

The NRC Atomic Safety and Licensing Board (ASLB) issued a decision denying challenges tothe licence application by Holtec International to build and operate a consolidated interim
storage facility (CISF) for spent nuclear fuel and greater-than-Class C waste (SNF) in Lea
County, New Mexico. Holtec is seeking a 40-year licence to store canisters of SNF. While the
ASLB held that three Petitioners demonstrated standing, it determined that none of theircontentions were admissible. Appeals of the ASLB’s ruling are pending before the NRC
Commission and the NRC staff’s review of the application is ongoing.

In August 2019, the public interest group “Public Watchdogs” brought suit against thelicensees for the San Onofre Nuclear Generating Station (SONGS), Holtec International(Holtec), the US Nuclear Regulatory Commission (NRC), and others allegedly involved in
negligent decommissioning activities at SONGS. It challenged, amongst others, licenceamendments that the NRC issued for SONGS in 2015. The District Court for the Southern
District of California dismissed the complaint for lack of jurisdiction and held that under the
Administrative Orders Review Act (“The Hobbs Act”), a court of appeals had exclusive
jurisdiction to hear Public Watchdogs’ claims.
In December 2020, the Court of Appeal affirmed the lower court’s decision to dismiss thecomplaint. Under the Hobbs Act, courts of appeals have exclusive jurisdiction to review “finalorders” of the NRC, which should be read broadly to include all NRC decisions that are
preliminary, ancillary or incidental to licensing proceedings. As all of Public Watchdogs’ claims
related to NRC decisions on licensing, the claims fell under the scope of the Hobbs Act andtherefore, the lower court lacked jurisdiction to hear them.

Citation

Court

Description

NLB 106,
pp. 28-29

NLB 106,
pp. 28-29

NLB 107,
pp. 57-58

NLB 103,
p. 50

NLB Issue

NUCLEAR LAW CASE CHARTLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

LR

LR

LR

RWM

Public Watchdogs v. US
NRC

Virginia Electric andPower Company (North
2021
Anna Power Station,
Units 1 and 2)

NextEra Energy Point
Beach, LLC (Point Beach
2021
Nuclear Plant, Units 1
and 2)

Barngarla Determination
Aboriginal Corporation
2020
RNTBC v District Councilof Kimba (No. 2)

United States

United States

Australia

Topic

2021

Year Case name

United States

Country

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

The Federal Court of Australia dismissed the appeal by Claimants regarding their eligibility tovote in a local ballot on land being considered as a potential national radioactive waste
management facility site. The claim was based on the issue of native title, which recognisesthat Aboriginal people have rights and interests to particular land that come from theirtraditional laws and customs and can co-exist with non-Aboriginal proprietary rights. The
Claimants hold native title to particular land in the local government but reside outside theboundaries of the local government; they argued they had the right to vote based on theirnative title. It is important to note that native title for the nominated land is not recognised.

RADIOACTIVE WASTE MANAGEMENT (RWM)

Federal Court ofAustralia

The NRC’s Atomic Safety and Licensing Board recently issued a decision denying intervention
in subsequent licence renewal (SLR) proceedings concerning an application submitted by
NextEra Energy Point Beach, LLC (NextEra) for a second 20-year renewal of its operating
NRC Atomic
licences for two nuclear power reactor units at its Point Beach Nuclear Plant in Wisconsin.
Physicians for Social Responsibility Wisconsin filed a hearing request, seeking to admit various Safety andLicensing Board
contentions challenging the adequacy or accuracy of safety-related and environmental
information provided by NextEra in its SLR application. The Board denied their hearing finding
their environmental contentions inadmissible and their safety-related contentions
impermissible. An appeal of the Board’s denial is pending before the Commission.

NRC Atomic
Safety andLicensing Board[2020] FCAFC 39

LBP-21-5,
94 NRC 1 (2021)

LBP-21-4,
93 NRC 179(2021)

NLB 104,
p. 9

NLB 107,
p. 59

NLB 107,
p. 59

NLB Issue

The NRC’s Atomic Safety and Licensing Board recently issued a decision denying intervention
in subsequent licence renewal (SLR) proceedings concerning an application submitted by
Virginia Electric and Power Company (VEPCO) for a second 20-year renewal of its operating
licences for 2 nuclear power reactor units at the North Anna Power Station in Virginia. Various
environmental organisations filed a hearing request, contesting portions of VEPCO’s SLR
application on the basis that it failed to discuss the environmental significance of the 2011
Mineral, Virginia earthquake. The Board denied the request for a hearing on the grounds thatthe safety impact of the 2011 Mineral earthquake had already been fully assessed by VEPCO
and the NRC staff by a post-incident review and a seismic probabilistic risk assessment. An
appeal of this decision is currently pending before the Commission.

Citation

NLB 106,
pp. 28-29

Court

In September 2019, Public Watchdog challenged the NRC’s denial of its petition under 10 CFR
2.206 for an order suspending decommissioning operations at the San Onofre Nuclear
Generating Station (SONGS). A decision not to institute an enforcement proceeding ispresumptively unreviewable unless the NRC “consciously and expressly adopted a general
Federal Circuit
833 F. App’x 460
policy that is so extreme as to amount to an abdication of its statutory responsibilities” or
Court of Appeals (9th Cir. 2021)
there is law providing “meaningful standards for defining the limits of [the NRC’s] discretion”
in declining to take enforcement action. Public Watchdogs did not overcome the presumptionthat the NRC’s denial of the 2.206 petition is unreviewable and the Court dismissed thepetition for review

Description

NUCLEAR LAW CASE CHART

193

194

Greenpeace France v.
ORANO CYCLE

2018

Local referendum in theCommune of Różan
2015 regarding a new
radioactive waste
repository

FrancePoland

RWM

RWM

RWM

Masovian Voivod annulled a resolution adopted by the Municipal Council to hold a local
referendum regarding siting a new radioactive waste repository for both procedural andsubstantive objections. The Voivod concluded that a local referendum is not a tool to prohibit
the siting of a specific type of construction investment on the commune territory because theMunicipal Council has exclusive competence on this field.

The Court dismissed Greenpeace’s France’s request for summary judgment to view thecontracts between the Australian Nuclear Science and Technology Organisation (ANSTO) and
ORANO CYCLE regarding a trade agreement on the reprocessing of spent fuel from an ANSTO
research reactor. The Court dismissed Greenpeace’s claims, specifying that although Article L.
542-2 of the French Environmental Code prohibits the disposal of radioactive waste
originating from a foreign country, it is possible to introduce and store waste and spent fueloriginating from a foreign country for treatment or reprocessing if certain requirements aremet.

Masovian
Voivod(Governor)

Judgment of
3 July 2015

Cherbourg HighNo. 18-00061
Court

Decision(Request
No. 358882)

EDF v. Republic and2014 Canton of Geneva andCity of Geneva

The French Environmental Code provides that decrees authorising the construction of the
ICEDA (radioactive waste conditioning and storage facility) can be challenged by third parties
in particular due to the dangers that the operation of the INB may cause to the environment
Conseil d’État
and to human health but here, the Conseil declared that the Petitioners have not[State Council]
demonstrated a direct and certain interest to seek an annulment of the decree authorising theconstruction of the ICEDA facility taking into account its activity, its characteristics and theirdistance from the site.

FranceDecision(Request
No. 362001)

2014

FranceConseil d’État[State Council]

2012

EDF v. Roozen France and
RWM
Scté des Serres

Citation

The Conseil found that the ICEDA facility must be regarded as connected with and necessary
to the activity of the Bugey Nuclear Power Plant, although it will also be used, even if in asignificant way, for the conditioning and storage of waste originating from other facilities.
Therefore, the Conseil overturned the Court of Appeals ruling confirming the annulment of
the construction licence for the ICEDA facility and referred the case back to the Court ofAppeals.

Court

Judgments
Nos. 12LY00233
and 12LY00290

Description

EDF v. Roozen France and
RWM
Scté des Serres

Topic
A Saint-Vulbas regulation on local development planning prohibits “land uses andoccupations not connected with or necessary to the activity of the nuclear power station”. The
Prefect of Ain issued EDF a licence for the construction of a packaging and storage facility for
Administrative
radioactive waste (ICEDA – Installation de Conditionnement et d’Entreposage de Déchets
Activés) on land in the Saint-Vulbas municipality, which is already home to the Bugey Nuclear Court of Appealof LyonPower Plant. The Court found that ICEDA could not be regarded as only necessary to theactivity of the Bugey plant as its purpose is the conditioning and storage of nuclear waste
resulting from the decommissioning of the Bugey reactor 1 as well as radioactive waste fromother reactors at plants in the process of being dismantled.

Year Case name

FranceCountry

NLB 96,
pp. 72-75

NLB 102,
pp. 81-82

NLB 94,
p. 115NLB 94,
pp. 115116

NLB 90,p. 101NLB Issue

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LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

United States

2010

2011 In re: Aiken County

United States

United States

EnergySolutions, LLC v.
State of Utah

EnergySolutions, LLC v.
Northwest Interstate
Compact on Low-Level
Radioactive Waste
2009 Management, Michael
Garner, the State of Utah,and the Rocky Mountain
Low-Level Radioactive
Waste Compact

RWM

RWM

RWM

RWM

Carolina Power & Light
Co. v. US

Poland2008

RWM

Local referendum in theCommune of Różan
2015 regarding a new
radioactive waste
repository

United States

Topic

Year Case nameCountryn/a

NLB 88,
pp. 73-74

The issue in this case is whether the Northwest Interstate Compact on Low-Level Radioactive
Waste allows its member states to exclude LLRW from disposal at a Utah site. EnergySolutions
is the owner and operator of a facility for the disposal of LLRW located in Clive, Utah. Utah is amember state of the NorthwestCompact, and required EnergySolutions to obtain permission
pursuant to the Compact for the importation and disposal of LLRW from a decommissioned
reactor in Italy. The member states, including Utah, voted to deny this approval, based on
exclusionary authority it claimed through the federal statute approving the terms of theFederal Circuit
625 F.3d 1261
Compact. EnergySolutions contends the Clive Facility should not be subject to the authority of Court of Appeals (10th Cir. 2010)
the Northwest Compact. It claims the Compact has limited authority only over regional
disposal facilities, which does not include the Clive Facility. The District Court concluded theNorthwest Compact does not regulate the disposal of waste at the Clive Facility. The 10th
Circuit Court disagreed, holding that the terms of the Compact control in this situation, andthe member states were within the bounds of their authority when they denied permission
regarding this waste. The case was reversed and remanded.
Petitioners challenged the Department of Energy’s (DOE) attempt to withdraw its application
645 F.3d 428
for a licence to construct a repository for high-level waste at Yucca Mountain. Petitioners also Federal Circuit
challenged the DOE’s apparent decision to abandon development of the repository. The Court Court of Appeals (DC Cir. 2011)
determined that Petitioners’ claims were not ripe.

In 2007, a company operating a private low-level waste (LLW) disposal facility in Utah(“EnergySolutions”) applied to the NRC for a licence to import LLW from Italy. The Northwest
Interstate Compact on Low-Level Radioactive Waste Management (“NW Compact”, which
includes Utah) passed a 2008 Resolution prohibiting EnergySolutions from importing foreign
Federal District
LLW for disposal at the Utah site. EnergySolutions then sued the NW Compact. The Court ruled
Courtthat Congress did not grant the NW Compact any authority over non-Compact LLW disposed
in private facilities. Interstate compacts cannot regulate or otherwise burden interstate
commerce in the absence of unambiguous, explicit consent from Congress. The NW Compact
and Utah appealed the decision.

NLB 82,
pp. 114116

NLB 97,
pp. 76-78

NLB Issue

NLB 84,
No. 2:08-CV-352
pp. 124TS (D. Utah 2009)127

82 Fed. Cl. 23(Ct. Cl. 2008)

Court of Federal
ClaimsThe Plaintiffs Carolina Power & Light Company and Florida Power Corporation (collectively“Progress Energy”) claimed damages of approximately USD 91m from the US Department ofEnergy (DOE), under the terms of DOE’s Standard Contract for Disposal of Spent Nuclear Fuel
and/or High-Level Waste (Standard Contract). DOE’s liability was previously established andthe amount of damages was the sole issue in this case. The Court considered Progress
Energy’s claimed damages and the DOE’s counterclaims, rendering a final judgment for
Progress Energy in the amount of approximately USD 83m.

Citation
Judgment of
28 December
2015

Court

Masovian Voivod annulled a second resolution by the Municipal Council to hold an identical
Masovianreferendum regarding the siting of a new radioactive waste repository in the commune of
VoivodRóżan. The Municipal Council appealed this decision to the relevant voivodship administrative(Governor)
court.

Description

NUCLEAR LAW CASE CHART

195

196

US Department of Energy
2013 (High-Level Waste
RWM
Repository)

RWM

RP

2018 Texas v. United States

Association française des2011 maladies de la thyroïde
and CRIIRAD v. Pierre X.

United States

United States

France

RWM

2013 In re: Aiken County

United States

Topic

Year Case nameCountry

CLI-13-8,78 NRC
219 (2013)

Following the Chernobyl accident, a complaint for “involuntary grievous bodily harm” wasfiled alleging that authorities had minimised the significance of radioactive pollution in France
and that they were therefore responsible for an increase of thyroid-related illnesses since1986. The trial judge found that the elements of “involuntary grievous bodily harm” were notsatisfied but she charged the former Director of the Central Department for Protection against
Court of Appeal
Ionising Radiation with “aggravated deceit”. The Court of Appeals dismissed the case againstof Paristhe Director of the Central Department for Protection against Ionising Radiation as it was notdemonstrated that he had in bad faith given wrong, inexact or substantially inaccurate
information, failed to provide appropriate controls of foodstuffs tainted by radioactivity or
failed to take precautions after the Chernobyl accident, and that, as a result, the elements ofdeceit or other crimes are not satisfied.

RADIOLOGICAL PROTECTION (RP)

Investigation
Chamber, CA
Paris 4° section,
7.09.11 (rejet)

The Petitioner sought relief under the Nuclear Waste Policy Act claiming the DOE’s intentionof consent-based siting was a violation of the Act and holding the NRC proceedings on Yucca
Mountain in abeyance was also a violation of the Act and the Court’s decision in In re Aiken
County. As a majority of the Petitioner’s claims fell outside the 180-day limitation period
Federal Circuit
891 F.3d 553
prescribed in 42 USC Sec. 10139(a)(1) the Court addressed this issue and held that thelimitation period was not jurisdictional. The Court also held that the Petitioner lacked any basis Court of Appeals (5th Cir. 2018)
to challenge the discrete actions that were not time-barred as they were of “no legal
consequence” and did not constitute a final decision or action subject to challenge under the
Nuclear Waste Policy Act. The Court dismissed all of the Petitioner’s claims, concluding thatthey did not meet the statutory requirements of timeliness or finality.

Commission of
the US NRC

NLB 88,p. 71

NLB 101,
pp. 72-74

NLB 93,
pp. 92-93

NLB Issue

Commission issued an order setting forth an incremental course of action for resumption of
the Yucca Mountain licensing process consistent with the Circuit Court’s decision and theresources available to the NRC. This order instructed the NRC staff to complete the remaining
volumes of the safety evaluation report and requested that the Department of Energy
complete the environmental impact statement supplement for consideration and potential
adoption by the NRC staff. The Commission declined to resume the contested adjudication.

Citation

NLB 92,
p. 92

Court

Petitioners asked for a writ of mandamus in 2011 ordering the NRC to resume the licensing
process for a nuclear waste repository at Yucca Mountain in Nevada. At the time the Court
held the case in abeyance for Congress to clarify the issue. In 2013, with neither Congress nor
the NRC having acted to change the status quo, the DC Circuit granted the petition, reasoning
Federal Circuit
725 F.3d 255
that NRC’s inaction had gone on too long in spite of explicit direction from the Court and,Court of Appeals (DC Cir. 2013)
therefore, that the circumstances merited mandamus. The Court held that the NRC must
continue the licensing process so long as funds remain and that the NRC may not rely on
communication from the President or members of Congress to violate its statutory
obligations.

Description

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LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

The United Kingdom (UK) Atomic Energy Authority pled guilty to breaching various sectionsof the Health and Safety at Work Act 1974 after two workers at the Dounreay nuclear plant
were exposed to radioactive plutonium while carrying out work related to the storage of leadbricks and their disposal as intermediate level waste. A GBP 15 000 fine was issued and the UK
Atomic Energy Authority has since implemented improvements required by the nuclear
installations inspectorate.

Decision of the Wick
Sheriff Court Fining
2007
UKAEA for Plutonium
Exposure

PolandUnitedKingdom
RP

Tribunal stated that by issuing a regulation implementing a Euratom Directive that
determines the conditions for safe use of ionising radiation for all types of medical exposureand the qualifications required from medical physicians to control radiological equipment, the Constitutional
Minister of Health exceeded its competences provided by the Polish Constitution. Moreover,
Tribunal
requirement for medical physician to obtain a relevant certificate is not a limitation of thefreedom of occupation as it is beneficial to them.

Petition submitted by thePolish Commissioner for
Human Rights on the2013 constitutionality ofRPprovision of theRegulation of the Ministerof Health of 18 Feb. 2011

Wick Sheriff
Court

NLB 88,
pp. 70-71

NLB 91,
p. 106NLB 91,
pp. 106107

NLB Issue[Unknown]

NLB 80,p. 67

Judgment of
NLB 96,30 July 2013 (Ref.
pp. 75-78
No. U 5/12)

ECLI:EU:C:
2011:10

RP

Greenland

Court of Justiceof the European
Union (5thChamber)

Court dismissed three appeals from Danish workers involved in clean-up activities of nuclear
pollution after a US military plane carrying nuclear materials crashed in Greenland in 1968 andcaused widespread pollution. The Plaintiffs argued that their subsequent illnesses (or death)
were a result of their involvement in this incident, which entitled them to damages. The
Plaintiffs sued the European Commission for the Commission’s failure to adopt measuresagainst Denmark. The Court found that there was no unlawful conduct by the Commission for
not adopting measures against Denmark to comply with the 1996 Basic Safety Standards andthat the Commission’s only possibility to act was to bring an infringement procedure against amember state, but this is a discretionary power.

Heinz Helmuth Eriksen,
Bent Hansen and Brigit
2011
Lind v. European
Commission

Judgment
No. 1200867

RP

FranceIn 2010, a significant amount of radioactive effluents from a nuclear power plant operated by
Électricité de France (EDF) was accidentally released into the environment following a series oftechnical faults. The Court dismissed charges against EDF relating to the absence of
Court of Appeal
environmental protection training for staff, insufficient volume of fluid retention in case ofof Toulouse
accident and insufficient volume of the sump pit. The Court found EDF guilty for the absenceof an alarm system appropriate to the risk and for non-compliant storage and disposal ofliquids.

Radioactive effluent of
Golfesh, Fédération2012 Réseau Sortir duNucléaire and others v.
EDF

Decision
No. 11-87531

RP

FranceCourt of
Cassation,
Criminal
Chamber

Court confirmed the Court of Appeal’s judgment dismissing the charge of “aggravated deceit”
against the former Director of the Central Department for Protection against Ionising
Radiation because the causal link was not proven with certainty and bad faith was notdemonstrated.

Association française des2012 maladies de la thyroïde
and CRIIRAD v. Pierre X.

Citation

Court

Description

Topic

Year Case nameCountry

NUCLEAR LAW CASE CHART

197

198

1987

1994

CanadaCanadaGEN

GEN

Sevidal et al. v. Chopra etal. (H.C.J.)

Energy Probe v. Canada(Attorney General)

GEN

Constitutionality of the2008 Programme Act

Belgium

2010

Commission of theEuropean Communities v.
2007 United Kingdom of Great RP
Britain and Northern
IrelandUnitedKingdom

Topic

Year Case nameCountry

Court of Justiceof the European
Union (3rd
Chamber)

The Court of Justice of the European Union (CJEU) held that the United Kingdom failed to fulfil
its obligations under Article 53 of Council Directive 96/29/Euratom. Article 53 of the Directive
obliges member states to bring into force laws, regulations and administrative decisions toensure that “where Member States have identified a situation leading to lasting exposure
resulting from the after-effects of a radiological emergency or a post practice”, specificmeasures are to be taken. However, the UK has only imposed an obligation to intervene if asituation of radioactive contamination results from a present or past activity for which alicence was granted. The UK Government admitted the validity of the Commission’s claims
and stated that transposition of the article into national legislation is in process.

Constitutional
Court

Ontario (High
Court of Justice)Ontario Court(GeneralDivision)

Court found that the nuclear taxes imposed by Belgium on nuclear operators andshareholders of Belgian nuclear power plants in 2008 are lawful. The Court found that there isno unreasonable difference in treatment between them and the producers of non-nuclear
generated electricity and other players in the Belgian electricity market, such as electricity
importers, transporters, distributors and suppliers.
Plaintiffs brought an action against the vendors, the real estate agent and the Atomic Energy
and Control Board (AECB) over a breach of duty of care in purchasing a property. The Plaintiffs
bought a piece of property from the vendors and the real estate agent who failed to disclose
the presence of contaminated soil at the property. Further the AECB disclosed the presence ofcontaminated soil to the vendors, but not the Plaintiffs. The Court found that the AECB
assumed responsibility for disseminating information about radioactivity and employed an
officer to carry out part of that task. It failed to exercise the standard of care required in thecircumstances, and the AECB staff member’s information had constituted negligent
misrepresentations. The Court found that the AECB, through its employees, owed a duty ofcare to the Plaintiffs and had been negligent in the performance of that duty. The Court heldthat all the defendants were liable. Further, the Court also denied the AECB’s claim forindemnity.
Plaintiff brought a claim against the government of Canada over the legality of the Canadian
Nuclear Liability Act (NLA). They claimed that certain provisions of the NLA are beyond thelegislative authority of the Parliament of Canada and the NLA infringes the constitutionalrights of Canadians by providing for a lower degree of nuclear safety. The Court held that the
Canadian Parliament has legislative competence over the development, application and useof nuclear energy, using its federal power to legislate for the peace, order, and good
government of Canada under section 91 of the Constitution Act. Further, the Court rejected
the claim that a liability scheme made operators act less safely, as the Plaintiffs failed to show
on a balance of probabilities that nuclear reactors are less safe because of the NLA. Theiraction was dismissed.

GENERAL LITIGATION (GEN)

Court

Description[1994] O.J.
No. 553[1987] O.J.
No. 732

Decision
No. 32/2010

Case C-127/05;
ECLI:EU:C:
2007:338

Citationn/an/a

NLB 85,
p. 93

NLB 81,p. 99

NLB Issue

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Atomic Energy of Canada
2009 Ltd (AECL) v. AREVA NP
Canada Ltd

2009 R v. Bruce Power Inc.

CanadaLEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Canada

GEN

GEN

GEN

2009

CanadaLinda Keen v. Attorney
General of Canada

2008

GEN

Topic

Brunswick News Inc. v.
Her Majesty the Queen

Year Case nameCanadaCountry

2009 FC 980

Federal Court

Ontario Court of2009 ONCA 573
AppealCourt dismissed the major aspects of a claim that was brought by AECL against AREVA
alleging violation of its intellectual property rights (trademark infringement, passing off andcopyright infringement), considering that the sophistication of the industry and the lengthy
and detailed procurement processes would make any chance of “subtle influence on
consumer behaviour” effectively impossible.
The Court found that when the Crown prosecutor comes into possession of a defendant’s
document that is protected by solicitor-client privilege and litigation privilege, it will be
presumed that prejudice will be caused by use of the document. Although this is a rebuttablepresumption, here, the presumption had not been rebutted. The Court held that the purposeof the internal investigation was to prepare a strategy for litigation in contemplation of
charges and underlined that it is abusive to seek to use such information against a person, thesanctioning of which could be seen to erode the notion of solicitor-client privilege that isfundamental to the Canadian justice system. The Court was satisfied that the appropriate
remedy in this matter was a stay of the charges laid against Bruce Power.

2008 NBQB 299,
[2008] N.B.J.
No. 329

2009 FC 353

New Brunswick
Court of
Queen’s BenchThe Plaintiff applied to the New Brunswick Minister of Energy under the provincial Right toInformation Act for copies of two feasibility studies concerning the construction of a second
nuclear power reactor at Point Lepreau, New Brunswick. The Minister provided a copy of one
study but refused access to the other study in its entirety based on certain provisions of theAct. In addition to the grounds provided by the Minister, Atomic Energy of Canada Ltd. (AECL)
claimed the study was legally protected by the Act’s confidentiality provision, para. 6(a). The
Court concluded that the study in its entirety was not subject to release on the basis of theconfidentiality provision. To note, a new provision was added to the federal Access toInformation Act to provide a general exclusion from the provisions of the legislation withrespect to records containing information under the control of AECL, and the Canadian
Parliament has expressed an intention to exclude records from the Access to Information Act
such as the ones considered in this case. However, it is too early to determine the extent towhich such a provision may be interpreted by Canadian courts in the future.

Citation

Ms. Keen, the former President of the Canadian Nuclear Safety Commission (CNSC), submitted
an application for judicial review challenging the legality of the Order in Council that removed
her as CNSC President. The Court dismissed the application, finding that the decision had
Federal Court ofbeen lawful as the minimum procedural fairness obligations that were required in order to
Canadaremove an “at pleasure” appointee had been observed. The Court’s decision also confirms thatremoval of a designation as President does not silence the decision-making voice of aCommission member.

Court

Description

NLB 84,
pp. 115118

NLB 85,
pp. 94-99

NLB 83,
pp. 87-91

NLB 82,
pp. 111113

NLB Issue

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200

UnitedKingdom

Spain

2018

Republic of Austria v.
European Commission
GEN

GEN

GEN

Regan Dow v. Canadian2021 Nuclear Safety
Commission

CanadaAscó Vandellós Nuclear
Association (ANAV) et al.
2020
v. Single Investigating
Court of Gandesa

Topic

Year Case nameCountry

NLB 105,
pp. 90-91

Case T-356/15;
ECLI:EU:T:
2018:439

Austria challenged a 2014 decision by the European Commission declaring state aid
compatible with measures to support Hinkley Point C nuclear power station on the grounds
that supporting nuclear energy was not an objective of common interest because of conflicts
with environmental objectives or principles. Austria also challenged the necessity andproportionality of the decision. In 2018, the General Court dismissed Austria’s claims on thebasis that the measures to support Hinkley Point C were necessary to fulfil the objective of
public interest of promotion of nuclear energy set out in the Euratom Treaty.

The General
Court (Fifth
Chamber)

Resolution
No. 226/2020;
n/a
ECLI:ES:APT:2020:1411ANLB 107,
pp. 45-47

NLB Issue

The Appellants (Ascó Vandellós Nuclear Association [ANAV] and three former directors of the
Ascó Nuclear Power Plant) appealed the order of the Single Investigating Court of Gandesa to
initiate the abbreviated procedure (a special criminal procedure to expedite the investigation,prosecution and verdict of certain crimes to try offences that carry a punishment of up to nine
years in prison or other noncustodial sentences). The Appellants challenged the absence ofrational evidence of criminality justifying their indictment as perpetrators of a crime under theProvincial Court
Criminal Code, since it has not been established that the exposure to ionising radiationof Tarragona
resulting from an operational incident at the Ascó plant constituted a serious danger tohuman life or health or the environment. The Court found that a report by the Nuclear Safety
Council failed to find sufficient evidence of danger to life, integrity or health to warrant thecriminal charges brought against the Appellants and therefore does not sufficiently justify theprosecution for the criminal offences established in the order, nor does it adequately establish
why it considers the facts as described to constitute criminal offences. The Court granted theappeal, revoked the order and archived the case.

Citation

2021 FCA 117

Court

The Federal Court of Appeal (FCA) of Canada upheld the ruling of the lower courts that the
CNSC is not empowered to adjudicate disputes between private parties or grant remedies tothose who submit external complaints. The Complainant alleged their former employer hadtaken disciplinary action against them for giving information to the CNSC. The CNSC
investigated the complaints and failed to find an evidentiary basis to substantiate the claims
or to ground the prosecution of a regulatory offence under the Nuclear Safety and Control Act(NSCA). The Complainant applied to the Federal Court for judicial review. The Court dismissed
the application for judicial review, finding that the Complainant lacked standing because they Federal Court ofAppealwere not directly affected by the decision. The Court also determined that the disposition of
the complaint does not deprive the Complainant of a legal remedy to which they mightotherwise have had recourse. The Complainant appealed the decision to the FCA. In
upholding the lower court’s decision, the FCA confirmed the CNSC’s and the lower court’s
understanding of the NSCA and its offence provision in paragraph 48(g). The FCA ruled thatwhile the offence provision is meant to prevent and punish a licensee for taking action against
any would-be whistleblower and discourage retaliation, it is not a true whistleblower
protection provision as the NSCA provides no remedial powers relevant to the whistleblower.

Description

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LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

Virginia Uranium, Inc. v.
WarrenUnited States

United States

GEN

United States v. Energy
Solutions, Inc.; Rockwell
Holdco, Inc.; Andrews
GEN
2017County Holdings, Inc.; andWaste Control Specialists,
LLC.

2017

2013

United States

GEN

2012

United States

Entergy Nuclear Vermont
Yankee, LLC v. Shumlin

GEN

GEN

Republic of Austria v.
2020
European Commission

UnitedKingdom

Topic

Entergy Nuclear Vermont
Yankee, LLC v. ShumlinYear Case nameCountry

Court of Justiceof the European
Union (Grand
Chamber)

The Court of Justice of the European Union (CJEU) rejected Austria’s appeal of the decision of
the General Court, affirming the judgment and the Commission decision. The CJEU stated that
the Commission correctly identified the development of nuclear energy production as an
economic activity and confirmed that the aid measures adopted by the United Kingdom were
proportionate. In line with the reasoning of the Advocate General (ECLI:EU:C:2020:352), theCJEU established that the compatibility of state aid pursuant to the TFEU does not depend on
the pursuit of an objective of common interest. The Court also held that state aid for an
economic activity falling within the nuclear energy sector cannot be declared compatible with
the internal market when it is shown to contravene EU environmental law. Finally, the Court
acknowledged that a member state is free to determine the conditions for exploiting its
energy resources, its choice between different energy sources and the general structure of its
energy supply.

Petitioners argued that under the Supremacy Clause of the US Constitution, a state
conventional uranium mining ban was pre-empted by the Atomic Energy Act because it was
motivated by radiological safety concerns associated with downstream activities that the NRC
regulates: milling and tailings storage. Court affirmed a US District Court ruling thatconventional uranium mining is not under the exclusive regulatory authority of the US
Nuclear Regulatory Commission under the AEA, and it can therefore be regulated by Virginia
under state law.

838 F. Supp. 2d
183(D. Vt. 2012)

Case C-594/18 P;
ECLI:EU:C:
2020:742

Citation

Federal Circuit
848 F.3d 590
Court of Appeals (4th Cir. 2017)2017 WL
2991799(D. Del. 2017)Federal Circuit
733 F.3d 393
Court of Appeals (2nd Cir. 2013)

Court enjoined Energy’s Solutions’ acquisition of Waste Control Specialists, two competitors in
the market of the disposal of low-level radioactive waste, as the acquisition would have
Federal District
anticompetitive effects. Because the case did not involve health and safety issues or
Court
protection of the public from radiological hazards, the US Nuclear Regulatory Commission was
not a party to the case and did not take a position with respect to the proposed acquisition.

Court upheld the District Court conclusion that the state legislature was primarily motivatedby radiological safety concerns and expressly sought to avoid expressing those concerns inorder to evade federal pre-emption. Because the state was primarily motivated by concerns
about radiological safety, and because the state’s stated purposes for the laws were
unpersuasive, the Court upheld the grant of permanent injunction based on its finding thatthe two laws are pre-empted by the Atomic Energy Act.

Court granted a permanent injunction against the enforcement of two state laws based on its
finding that these laws were primarily motivated by radiological safety concerns and therefore
pre-empted by the Atomic Energy Act (AEA). As the US Supreme Court had previously ruled,Federal District
the AEA vests exclusive jurisdiction over the radiological health and safety of a nuclear power
Court
plant in the NRC and states are pre-empted under the US Constitution from regulating suchmatters – states are only allowed to regulate economic and other non-safety aspects ofnuclear power.

Court

Description

NLB 100,
pp. 90-92

NLB 99,
pp. 72-73

NLB 92,
pp. 93-94

NLB 89,pp. 111112

NLB 105,
pp. 90-91

NLB Issue

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202

State of Nevada v. US
Nuclear Regulatory
GEN
2019
Commission and David A.
WrightUnited States

GEN

Topic

2019

Virginia Uranium, Inc. v.
WarrenYear Case name

United States

Country

Court

The state of Nevada brought a petition for review challenging the decision of Commissioner
David Wright of the US Nuclear Regulatory Commission (NRC) not to recuse himself from thelicensing proceeding for a proposed nuclear waste repository at Yucca Mountain, Nevada.
Referencing past decisions and statements regarding Yucca Mountain made by theCommissioner, Nevada felt he could not be an unbiased judge in the licensing process. The
NRC moved to dismiss Nevada’s petition. The Court issued an unpublished per curiam opinion
granting the NRC’s motion to dismiss on the ground that the case was not ripe for review
because it “rests upon contingent future events that may not occur as anticipated, or indeed
may not occur at all[,]”.

139 S.Ct. 1894(2019)

Citation

No. 18-1232
Federal Circuit(unpublished)
Court of Appeals(DC Cir. 2019)The Supreme Court upheld the decision of the 4th Circuit Court that Virginia ban on uranium
mining on private land is not pre-empted by federal law. However, while the Court felt it was
inappropriate in this instance to ascertain the motivation of the state of Virginia in creating theSupreme Court
ban, the decision did not rule out the possibility that a state’s regulation, which was found toeither intend to interfere or have the effect of interfering with matters close to the core of the
NRC’s authority could be pre-empted.

Description

NLB 102,
p. 87

NLB 103,
pp. 49-50

NLB Issue

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RELEVANT LAWS

Annex 2:
Relevant laws

Australia• Australian Radiation Protection and Nuclear Safety Act 1998, No. 133• Work Health and Safety Act 2011, No. 137

Austria• Radiation Protection Act 2020 (StrSchG) // Bundesgesetz über Maßnahmen
zum Schutz vor Gefahren durch ionisierende Strahlung(Strahlenschutzgesetz 2020, StrSchG), BGBI. I Nr. 50/2020• Environmental Impact Assessment Act 2000 (UVP-G 2000) // Bundesgesetzüber die Prüfung der Umweltverträglichkeit(Umweltverträglichkeitsprüfungsgesetz 2000 – UVP-G 2000), BGBl. Nr.
697/1993• General Administrative Procedure Act 1991 (AVG) // Allgemeines
Verwaltungsverfahrensgesetz 1991 (AVG)• Administrative Penal Act 1991 (VStG) // Verwaltungsstrafgesetz 1991 (VStG),
BGBl. Nr. 52/1991• Administrative Enforcement Act 1991 // Verwaltungsvollstreckungsgesetz
1991 (VVG), BGBl. Nr. 53/1991• Administrative Court Act 1985 // Verwaltungsgerichtshofgesetz 1985
(VwGG), BGBl. Nr. 10/1985• Constitutional Court Act 1953 // Verfassungsgerichtshofgesetz 1953 (VfGG),
BGBl. Nr. 85/1953• Federal Constitutional Act for a Nonnuclear Austria // AtomfreiesÖsterreich, BGBl. I Nr. 149/1999

Belgium• Federal Act of 15 April 1994 related to the protection of population andenvironment against the hazards of ionising radiation and on the Federal
Agency for Nuclear Control• Coordinated Acts of 12 January 1973 related to the State Council

Canada• Nuclear Safety and Control Act (SC 1997, c. 9)• Federal Courts Act (RSC 1985, c. F-7)
• Federal Courts Rules (SOR/98-106)• Crown Liability and Proceeding Act (RSC 1985, c. C-50)

Czechia• Act No. 263/2016 Coll., Atomic Act• Act No. 100/2001 Coll., on Environmental Impact Assessment• Act No. 150/2002 Coll., Code of Administrative Justice• Act No. 183/2006 Coll., On Town and Country Planning and Building Code
(Building Act)• Act No. 500/2004 Coll., Code of Administrative Procedure

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

203

RELEVANT LAWS

• Act No. 99/1963 Coll., on Civil Procedure• Act No. 114/1992 Coll., on Nature and Landscape Protection• Act No. 106/1999 Coll., on Free Access to Information
Finland• Nuclear Energy Act (990/1987)• Administrative Judicial Procedure Act (808/2019)• Administrative Procedure Act (434/2003)

France• Environmental Code• Criminal CodeGermany• Basic Law // Grundgesetz• Atomic Energy Act // Atomgesetz (AtG)• Code of Administrative Court Procedure (VwGO) //Verwaltungsgerichtsordnung (VwGO)• Code of Civil Procedure (ZPO) // Zivilprozessordnung (ZPO)• Code of Criminal Procedure (StPO) // Strafprozeßordnung (StPO)Japan• Atomic Energy Basic Act, Act No. 186 of 19 December 1955
• Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material andReactors, Act No. 166 of 10 June 1957
• Administrative Case Litigation Act, Act No. 139 of 16 May 1962
• Administrative Complaint Review Act, Act No. 68 of 13 June 2014
• Civil Provisional Remedies Act, Act No. 91 of 22 December 1989
• Code of Civil Procedure, Act No. 109 of 26 June 1996
• Code of Criminal Procedure, Act No. 131 of 10 July 1948
• State Redress Act, Act No. 125 of 27 October 1947

Korea

• Framework Act on Atomic Energy, Law No. 483 of 11 March 1958, as
amended• Nuclear Safety Act (NSA), Law No. 10911 of 25 July 2011
• Administrative Litigation Act

Netherlands• Nuclear Energy Act // Kernenergiewet (Kew) (Stb. 1963, No. 82)• General Administrative Law Act // Algemene wet bestuursrecht (Awb)

Poland• Atomic Law Act of 29 November 2000 // Ustawa z dnia 29 listopada 2000 r. –Prawo atomowe (Dz. U. z 2023 r. poz. 1173)• Code of Administrative Procedure of 14 June 1960 // Ustawa z dnia 14
czerwca 1960 r. Kodeks postępowania administracyjnego (Dz. U. z 2023 r.
poz. 775)• Law on Proceedings before Administrative Courts of 30 August 2002 //Ustawa z dnia 30 sierpnia 2002 r. - Prawo o postępowaniu przed sądami
administracyjnymi (Dz. U. z 2023 r. poz. 259, 803)

204

LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

RELEVANT LAWS

Portugal• Decree-Law 262/2012 of 17 December 2012 that establishes the conditions
for nuclear installations operators.
• Decree-Law 108/2018 of 3 December 2018, amended by Decree-Law 81/2022,
of 6 December, that establishes the radiological protection regime• Code of Administrative Courts Procedure, approved by Law No. 15/2002, ofFebruary 22 (amended by Law No. 118/2019, of September 17)• Code of Administrative Procedure, approved by Decree-Law 4/2015, of 7
January 2015 (amended by the Decree-Law 11/2023 of 10 February 2023)

Romania• Law No. 111/1996 on the Safe Conduct, Regulation, Authorisation andControl of Nuclear Activities• Law No. 554 /2004 on Administrative Litigation• Civil Code, Law No. 287/2009• Criminal Code, Law No. 286/2009

Russia• Federal Law No. 170-FZ of 21 November 1995 “On the Use of Atomic Energy”• Government Decree No. 401 of 30 July 2004 “On the Federal Service forEnvironmental, Technological and Nuclear Supervision”• Civil Procedure Code, No. 138-FZ of 14 November 2002
• Arbitration Procedural Code, No. 95-FZ of 24 July 2002
• Administrative Procedure Code, No. 21-FZ of 8 March 2015
• Criminal Procedure Code, No. 174-FZ of 18 December 2001

SlovakRepublic• Act No. 541/2004 Coll. on the Peaceful Use of Nuclear Energy (Atomic Act)and on the amendments and supplements to some acts, as amended• Act No. 71/1967 Coll. on Administrative Proceedings, as amended (Act on
Administrative Order)• Act No. 162/2015 Coll. on Administrative Court Proceedings, as amended• Act No. 24/2006 Coll. on Environmental Impacts Assessment and on
amendments and supplements to certain acts, as amended• Act No. 50/1976 Coll. on Town and Country Planning and Building Code
(Building Act), as amended• Act No. 200/2022 Coll. on Spatial Planning, as amended• Act No. 201/2022 Coll. on Construction, as amended• Act No. 757/2004 Coll. on Courts and on amendment and supplement ofcertain acts, as amended• Act No. 314/2018 Coll. on Constitutional Court and on amendment andsupplement of certain acts, as amended

Slovenia• Nuclear Safety and Radiation Protection Act (ZVISJV-1), Official Gazette of the
Republic of Slovenia, No. 76/17 and 26/19

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RELEVANT LAWS

Spain

• Law 25/1964 of 29 April, on Nuclear Energy• Law 39/2015 of 1 October, on the Common Administrative Procedure of
Public Administrations• Law 29/1998 of 13 July, on Contentious Administrative Jurisdiction• Law 15/1980 of 22 April, creating the Nuclear Safety Council• Organic Law 10/1995 of 23 November, on the Penal Code

Sweden• Nuclear Activities Act (1984:3)• Radiation Protection Act (2018:396)• Administrative Procedure Act (2017:900)• Environmental Code (2000:61)

Switzerland• Federal Nuclear Energy Act of 21 March 2003 (NEA) (RS 732.1)• Federal Act on Administrative Procedure of 20 December 1968 (APA) (RS
170.021)• Federal Administrative Court Act of 17 June 2005 (FACA) (RS 173.32)• Federal Supreme Court Act of 17 June 2005 (FSCA) (RS 173.110)

Türkiye• Nuclear Regulatory Law (Law No. 7381)• Procedure of Administrative Justice Act (Act No. 2577)• Turkish Code of Obligations (Law No. 6098)• Turkish Criminal Law (Law No. 5237)

Ukraine• The Constitution of Ukraine• Law of Ukraine on the Nuclear Energy Use and Radiation Safety

UnitedKingdom• Energy Act 2013
• Nuclear Installations Act 1965
• Health and Safety at Work etc. Act 1974

United States • Atomic Energy Act of 1954 (42 USC sections 2011-21, 2022-86, 2296-97)• Administrative Procedure Act (5 USC sections 551-559)• National Environmental Policy Act of 1969 (42 USC sections 4321, 4331-35,
4341-47, 4361-70j)• Clean Water Act (33 USC section 1251 et seq.)• Clean Air Act (42 USC sections 7401-7671q)• National Historic Preservation Act (54 USC sections 300101-307108)• Coastal Zone Management Act (16 USC sections 1451-1464)

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Annex 3:
Survey on legal challenges related to nuclear safety

Country Name:

Respondent(s):For now, the responses to this survey will only be shared with the Working Party on the
Legal Aspects of Nuclear Safety (WPLANS) and the Nuclear Law Committee (NLC). If a reportis published based on the survey, can your survey response be included in an Appendix?
☐☐☐

YES, please include this survey response.
NO, do not include this survey response.
I will decide later.

For any questions with this Survey, please do not hesitate to contact Kimberly Sexton NICK at:
Tel.: +33 (0)1 73 21 28 63
Email: kimberly.nick@oecd-nea.org

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SURVEY ON LEGAL CHALLENGES RELATED TO NUCLEAR SAFETYWPLANS Survey Summary
This Survey is intended to obtain information related to Intermediate Output Result 1.2,
“Framework for Legal Challenges related to Nuclear Safety” in the 2019-2020 Working Party on
the Legal Aspects of Nuclear Safety (WPLANS) Programme of Work [NEA/NLC/WPLANS(2018)2].
As explained in that document, each country’s framework for legal challenges related to thepeaceful use of nuclear energy depends on its national legal culture, which in many respects
also depends on each country’s national culture. Because each country’s national legal culture
is different, it is important for lawyers, as well as law- and policy-makers, to have acomparative understanding of the different frameworks for legal challenges.
The survey is intended to compile information and identify commonalities and differencesin OECD Nuclear Energy Agency (NEA) member country frameworks for legal challenges
related to nuclear safety, without, however, making any general recommendations. In
accordance with the Programme of Work, the main specific areas of study will be:•types of procedures for legal challenges related to nuclear safety;•

stages of the legal challenge process, both internal to an agency and in a judicial forum;•

identifying the parties to proceedings and how they become parties; and•types of decisions/actions related to nuclear safety that can be challenged.

Basic Information
Respondent(s): The individual(s) listed as Respondent(s) will be the NEA Secretariat’s point(s)of contact for any questions.
Subject of Responses: This survey focuses on legal challenges related to nuclear safety, 94 which
may include both technical and environmental issues. This includes not only specific decisions
made (such as issuing licences 95 and authorisations 96) and approvals 97 granted by regulatory
authorities and the government related to nuclear safety, but it may also include possible
challenges made to all operations associated with the production of nuclear energy. 98 In addition,
responses to the survey could also include legal challenges related to policies, plans andprogrammes related to the production of nuclear energy as they relate to nuclear safety.

94. “The achievement of proper operating conditions, prevention of accidents or mitigation of accident
consequences, resulting in protection of workers, the public and the environment from undueradiation risks.” IAEA (2014), Radiation Protection and Safety of Radiation Sources: International Basic Safety
Standards, General Safety Requirements Part 3, IAEA Doc. No. GSR Part 3, p. 405.
95. “Any authorization granted by the regulatory body to the applicant to have the responsibility for thesiting, design, construction, commissioning, operation or decommissioning of a nuclear installation.”
Convention on Nuclear Safety (1994), IAEA Doc. INFCIRC/449, 1963 UNTS 293, entered into force 24
October 1996 (CNS), Article 2(iii).
96. “The granting by a regulatory body or other governmental body of written permission for a person ororganization (the operator) to conduct specified activities.” IAEA (2014), supra note 1, p. 383; IAEA
(2019), IAEA Safety Glossary: Terminology Used in Nuclear Safety and Radiation Protection (2018 Edition),
IAEA Doc. STI/PUB/1830, p. 27.
97. “The granting of consent by a regulatory body. NOTE: Typically used to represent any form of consent
from the regulatory body that does not meet the definition of authorization.” IAEA (2014), supra note 1,
p. 382; IAEA (2019), supra note 3, p. 21.
98. According to the IAEA definition of “nuclear fuel cycle”, this includes: “(a) Mining and processing of
uranium ores or thorium ores; (b) Enrichment of uranium; (c) Manufacture of nuclear fuel; (d) Operationof nuclear reactors (including research reactors); (e) Reprocessing of spent fuel; (f) All waste management
activities (including decommissioning) relating to operations associated with the production of nuclear
energy; (g) Any related research and development activities.” IAEA (2019), supra note 3, pp. 153.

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Procedure Used to Challenge Nuclear Safety: In many countries, the type of legal procedureused to carry out challenges to nuclear safety will change based on the subject matter of thechallenge. For example, if one is challenging a licence application, the procedure may be
administrative. If one is challenging a law, the procedure may be civil. The type of legal
procedure can impact many different aspects of the legal challenge addressed within thissurvey like legal basis, standing, legal process, judgment, remedies, etc. In answering
questions 8 and 10, respondents are asked to please provide a general overview of how theprocedure changes according to the subject of the challenge. In answering the questions in
Parts 2-5, please respond based on the most commonly employed procedure used to challenge
nuclear safety. More detailed responses can be provided in response to the open-ended
questions at the end of each Part of this survey.

INTRODUCTORY QUESTION
1

Are legal challenges related to nuclear safety allowed? [please tick the appropriate box]☐

2

YES, legal challenges are allowed☐

NO, legal challenges are not allowed

If legal challenges are not allowed, are there other mechanisms or types of recourse formembers of the public and other stakeholders to raise safety concerns and receive a response?
ANSWER:3

If legal challenges are not allowed, is there a legal principle or specific law that prohibits such
legal challenges? Or, are legal challenges simply not provided for? [please tick the appropriate
box]
☐

4

☐

Legal challenges are prohibited

Legal challenges are not provided forIf legal challenges are prohibited, what is the legal principle or specific law that prohibits such
legal challenges?
ANSWER:

PART 1: RAISING A LEGAL CHALLENGE
5

What is the name of the main law(s) (including citation) that provides for legal challenges
related to nuclear safety?
ANSWER:6

Has nuclear safety been subjected to a legal challenge in your country? [please tick theappropriate box]
☐

7

YES

☐

☐

NO

OTHER (see e.g. question#29 below)

Are there specific procedures to challenge nuclear safety? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is YES, are these unique procedures specific to nuclear energy? [please tick theappropriate box]☐

ALL procedures are unique to nuclear
power

☐

SOME procedures are unique to nuclear
power

☐

NO procedures are unique to nuclear
power

☐

Other [please specify]:

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SURVEY ON LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY

8What type of procedure(s) is/are used to carry out challenges related to nuclear safety? [pleasetick all that apply]
☐
☐

9

10

Civil
Criminal☐☐

Administrative
Other [please specify]:

Which of these may be subjected to a legal challenge related to nuclear safety? [please tick allthat apply]☐

Current general state of safety at a
facility (regardless of whether there is aviolation of a law or regulation)☐

Current specific safety concern(regardless of whether it is a violation ofa law or regulation)☐

Current general state of safety at a
facility based on a potential violation ofa law or regulation☐

Current specific safety concern based on
an asserted violation of a law or
regulation☐

Design certification☐

Site permit / licence☐

Construction authorisation / permit /licence☐

Operation authorisation / licence☐

Combined construction and operation
licence☐

Licence amendment☐

Request to restart a facility following a
shutdown☐

Refurbishment☐

Licence renewal☐

Long-term operation authorisation☐

Licence extension☐

Periodic safety review☐

Licence suspension☐

Licence termination☐

Licence transfer☐

Decommissioning☐

Enforcement action taken by theregulatory body☐Issuance of a new law☐

Amendment of an existing law☐

Issuance of a new rule / regulation /decree☐Amendment of an existing rule /regulation / decree☐

Issuance of a nuclear energy-related
plan or policy☐

Amendment of the country’s
constitution☐

Other [please specify]:

Does the procedure (in question #8 above) change depending on the subject matter (i.e. theitems in question #9 above) of the challenge? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is YES, can you please explain?
ANSWER:

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11

On what legal basis can nuclear safety be challenged (e.g., decision based on erroneousfindings of fact, lack of legal authority to make a decision, misapplication of substantive law,
illegality of the regulation under which a decision was made, the government’s failure to act,etc.)?
ANSWER:

12

Is there any requirement for the governmental body making a decision or taking an action to
inform members of the public about their right to challenge such decision or action? [pleasetick the appropriate box]
☐

13

YES

☐

NO

Can applicant / licensee / operator actions (unrelated to the subjects listed in question #9
above) be challenged? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is YES, what actions can be challenged?
ANSWER:
14

If any of your answers to the questions in Part 1 change depending on the subject matter ofthe challenge, please provide more information here.
ANSWER:15

Is there any additional / clarifying information that might be useful for NEA member
countries?
ANSWER:

PART 2: PARTIES
16

Who can legally raise a challenge to nuclear safety? [please tick all that apply]☐

A single individual☐

A group of individuals who are not partof a formal group or organisation☐

Non-governmental organisations(regardless of their subject matter ofinterest)☐

Non-governmental organisations
focused on nuclear safety matters☐

Non-governmental organisations
focused on environmental matters☐

A governmental entity, like a city, state,county, or self-governing regional or
local entity [please specify:]☐

A foreign governmental entity, like anational governmental body, city, state,county, or self-governing regional or
local entity [please specify:]☐

Indigenous Peoples / Native American
Tribes / First Nations / etc.

☐

National minorities / ethnic groups☐

Operator☐

Applicant / licensee☐

Vendor / supplier / other privatecompany☐

Other [please specify]:

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17

If a group of individuals can raise a challenge, is there any requirement regarding
commonality (i.e. there are questions of law or fact that are common to the class of
individual)? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is YES, please explain:18

If non-governmental organisations are able to raise a challenge, are there any special
requirements that apply (such as being officially recognised by the state or having the subjectof their challenge be within their governing or organisational document(s))?
☐

YES

☐

NO

If your answer is YES, please explain:
19

How does a prospective party establish standing to raise a legal challenge? 99 [please tick allthat apply]☐

Injury in fact: The plaintiff(s) will
directly suffer an actual harm as a resultof that which is being challenged. The
injury must not be hypothetical or
conjectural.

☐

Injury in fact: The plaintiff(s) will directly
suffer an imminent harm as a result ofthat which is being challenged. The
injury must not be hypothetical or
conjectural.

☐

Injury in fact: The plaintiff(s) may assert
the rights of others even if they
themselves are not directly suffer an
actual harm as a result of that which is
being challenged☐

Injury in fact: The plaintiff(s) may assert
the rights of others even if they
themselves will not directly suffer animminent harm as a result of that which
is being challenged☐

Causation: The actual or imminent
harm can be traced to the defendant☐

Redressability: The injury suffered or tobe suffered by the plaintiff(s) can beredressed by a favourable decision☐

Legal interest: The interest to protect isarguably within the zone of interests tobe protected or regulated by that which
is being challenged☐

Geography is a component (such as arequirement to reside within a certain
distance from the nuclear power reactor)☐

Automatic standing based on
geography (such as a requirement toreside within a certain distance fromthe nuclear power reactor)☐

Other [please specify]:

Would you like to provide any additional clarifying information related to how a prospective
party establishes standing?
ANSWER:20

If there is a geographic component to standing, what is the geographical component?
ANSWER:

99. The boxes below relate to general principles of judicial standing – injury, causation and redressability– as well as additional criteria that may be included by law, regulation or legal judgments.

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21

Is government funding (such as free legal aid or jurisdictional assistance) either automaticallyprovided to or made available to (subject to an application) plaintiffs or prospective plaintiffs
specifically to raise their challenges? [please tick the appropriate box]☐

YES, government funding is madeavailable to prospective plaintiffs(subject to an application to thegovernment and other possible
conditions)☐

YES, government funding is madeavailable to plaintiffs (subject to an
application to the government and otherpossible conditions)☐

YES, government funding is
automatically provided to prospective
plaintiffs☐

YES, government funding is
automatically provided to plaintiffs☐

NO, there is no government funding to either prospective plaintiffs or plaintiffs

If your answer is YES, please describe the nature of the funding (how much is available andwhat are the conditions to obtain it):If your answer is YES, is the government funding provided for in law, regulation, policy orsome other way? [please tick all that apply]
☐

Law

☐

Regulation☐

Policy☐Other [please specify]:

If your answer is YES, please provide the name of the law / regulation / policy / other andcitation.
ANSWER:
22

23

Who may be the subject / defendant of the nuclear safety challenge? [please tick all that apply]☐

Operator☐

Applicant / licensee☐

Vendor / supplier☐

Nuclear safety authority (or nuclear
regulatory body)☐

Another governmental body [please
specify]:☐

Other [please specify]:

If only the nuclear safety authority (or nuclear regulatory body) or other governmental bodycan be sued, does the operator have an automatic right to participate in the proceeding?
[please tick the appropriate box]
☐

24

YES

☐

NO

If any of your answers to the above questions change depending on the subject matter of thechallenge, please provide more information here.
ANSWER:25

Is there any additional / clarifying information that might be useful for NEA member
countries?
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SURVEY ON LEGAL CHALLENGES RELATED TO NUCLEAR SAFETYPART 3: PRELIMINARY LEGAL PROCESS
26

Is there a statute of limitations / prescription period / legal time limit set for raising achallenge? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is YES, what is the statute of limitations / prescription period / legal time limit
set for raising a challenge?
ANSWER:
27

If your answer to question #26 is YES, does the statute of limitations / prescription period /legal time limit set differ depending on the subject matter of the challenge? [please tick theappropriate box]
☐

YES

☐

NO

If your answer is YES, can you please explain?
ANSWER:
28

Does a legal challenge generally stay the effectiveness of (i.e. suspend the execution or
enforcement of) the decision / action being challenged? [please tick the appropriate box]☐

ALWAYS☐

CASE-BY-CASE BASIS

☐

NEVER

☐

Other [please specify]:

If your answer is ALWAYS or CASE-BY-CASE BASIS, is there any way to make the decision /action effective pending resolution of the challenge?
ANSWER:If your answer is NEVER, is there any way to petition / request to stay the effectiveness of (i.e.
suspend the execution or enforcement of) the decision / action pending resolution of thechallenge?
ANSWER:29

Are pre-trial or alternative dispute resolution mechanisms available?
☐

YES

☐

NO

If your answer is YES, which of the following mechanisms are provided for:☐Arbitration☐

Mediation☐

Negotiation☐

Other [please specify]:

If your answer is YES, are the pre-trial or alternative dispute resolution mechanisms
mandatory or voluntary prior to litigating a challenge to nuclear safety?
☐

Mandatory☐

Voluntary

If your answer is YES, do pre-trial or alternative dispute resolution mechanisms suspend thestatute of limitations / prescription period for raising a challenge?
☐

214

YES

☐

NO

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Are formal written requests for documents that contain relevant information within the otherparty’s possession, custody or control allowed? [please tick the appropriate box]
☐
☐

YES

☐

NO

CASE-BY-CASE BASIS (please explain):If your answer is YES, must certain documents be produced automatically, without therequirement of a written request (i.e. document production is required according to law / rule /regulation / decree)?
☐
31

YES

☐

NO

Are oral depositions of parties and potential witnesses allowed (deposition here is defined as“the taking and recording of testimony of a witness under oath before a court reporter in aplace away from the courtroom before trial” 100)?
☐
☐

YES

☐

NO

CASE-BY-CASE BASIS (please explain):If your answer is YES, are there any conditions associated with the ability to conductdepositions?
ANSWER:32

Are written interrogatories (questions and answers written under oath or other similar
obligation to tell the truth) allowed? [please tick the appropriate box]
☐
☐

YES

☐

NO

CASE-BY-CASE BASIS (please explain):If your answer is YES, are there any conditions associated with the ability to conductdepositions?
ANSWER:33

Are motions for summary judgment allowed? (Summary judgment here is understood to meana judgment by a court either before trial or at an early stage of the proceedings that either
disposes of the entire case or certain issue(s) of the case without a full trial. 101) [please tick theappropriate box]
☐
☐

YES

☐

NO

CASE-BY-CASE BASIS (please explain):

On what basis may a party make a motion for summary judgment?
ANSWER:

100. Law.com (n.d.), “deposition”, https://dictionary.law.com/Default.aspx?typed=deposition&type=1. For
more information on oral depositions, please see Cornell Law School (n.d.), “Deposition”,
www.law.cornell.edu/wex/deposition.
101. For more complete definitions, see Law.com (n.d.), “summary judgment”, https://dictionary.law.com/
Default.aspx?selected=2063 and Thomson Reuters Practical Law (n.d), “Summary judgment”,
https://uk.practicallaw.thomsonreuters.com/Glossary/UKPracticalLaw/I25019b53e8db11e398db8b09b4f04
3e0?transitionType=Default&contextData=(sc.Default)&navId=4EF7A6C346911A87BDEB08455FEE8E5B&c
omp=pluk.

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If any of your answers to the above questions change depending on the subject matter of thechallenge, please provide more information here.
ANSWER:35

Is there any additional / clarifying information that might be useful for NEA member
countries?
ANSWER:

PART 4: LEGAL PROCESS
36

37

By what method is the legal challenge adjudicated? [please tick the appropriate box]☐

Solely written pleadings / motions /statements☐

Solely oral hearing☐

Combination of written pleadings /motions / statements and an oral
hearing☐

Other [please specify]:

If an oral hearing is allowed, can witnesses be called? [please tick the appropriate box]
☐
☐

38

☐

NO

CASE-BY-CASE BASIS (please explain):

If witnesses can be called, is cross-examination allowed? [please tick the appropriate box]
☐
☐

39

YES

YES

☐

NO

CASE-BY-CASE BASIS (please explain):

Are there any unique features of the adjudication process that you would like to specify?
ANSWER:

40

41

Are the proceedings open to the public? [please tick the appropriate box]☐

YES, all material is released in real time☐

YES, but only after the conclusion of theproceeding☐NO, the proceedings are never madepublicly available☐

Other [please specify]:

Before which court / body / authority must the challenge first be raised?
ANSWER:

42

What type of court / body / authority is this? [please tick all that apply]☐☐

43

Criminal☐☐

Administrative
Other [please specify]:

Who renders an initial verdict? [please tick all that apply]
☐
☐
☐

216

Civil

Single judge (civil or administrative)
Administrative officer(s)
Jury

☐
☐
☐

Panel of judges (civil or administrative)
Administrative body
Other [please specify]:

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44

Can the initial decision be appealed to a higher court / body / authority? [please tick theappropriate box]
☐

45

YES

☐

NO

On what legal basis can the first decision be appealed?
ANSWER:46

In front of which court / body / authority must the appeal of the initial decision be brought?
ANSWER:

47

What type of court / body / authority is this? [please tick all that apply]
☐
☐

48

☐
☐

☐

Administrative
Other [please specify]:

Single judge (civil or administrative)
Administrative officer(s)
Jury

☐
☐
☐

Panel of judges (civil or administrative)
Administrative body
Other [please specify]:

Can the appellate decision be appealed again to a higher court / body / authority? [please tick
the appropriate box]☐

50

Criminal☐

Who renders the verdict on appeal? [please tick all that apply]
☐

49

Civil

YES

☐

NO

On what legal basis can the appellate decision be appealed?
ANSWER:51

In front of which court / body / authority must the appeal of the appellate decision be brought?
ANSWER:

52

What type of court / body / authority is this? [please tick all that apply]☐☐53

Criminal☐☐

Administrative
Other [please specify]:

Who renders the verdict on appeal? [please tick all that apply]
☐
☐
☐

54

Civil

Single judge (civil or administrative)
Administrative officer(s)Jury (civil or criminal)☐☐☐

Panel of judges (civil or administrative)
Administrative body
Other [please specify]:

Is this the court / body / authority of last resort (i.e. the court / body / authority of highest
power on these matters)? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is NO, what is the court / body / authority of last resort and what is the process
for achieving finality of decision?
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55

What type of court / body / authority is this? [please tick all that apply]
☐
☐

56

Civil
Criminal☐☐

Administrative
Other [please specify]:

If any of your answers to the above questions change depending on the subject matter of thechallenge, please provide more information here.
ANSWER:

57

Is there any additional / clarifying information that might be useful for NEA member
countries?
ANSWER:

PART 5: JUDGMENT AND REMEDIES
58

What type of legal remedies can result from a final decision related to nuclear safety? [pleasetick all that apply]☐Affirm original decision☐

Overturn original decision☐

Modify original decision☐

Remand decision back to the originaldecision-maker for new or additional
analysis☐

Injunction☐

Damages☐

Civil monetary penalty / fine☐Issuance of a licence / authorisation /permit☐Amendment of a licence / authorisation/ permit☐

Suspension of a licence / authorisation /permit☐

Revocation of a licence / authorisation /permit☐Issuance of a new law / rule / regulation/ decree☐Amendment of an existing law / rule /regulation / decree☐

Repeal of an existing law / rule /regulation / decree☐

Repeal a constitutional amendment☐

Criminal penalties (please specify:☐

Other [please specify]:)

Please provide any additional / clarifying information that might be useful for NEA member
countries.
ANSWER:
59

218

Is the prevailing party awarded legal fees as part of the judgment? [please tick the appropriate
box]☐

YES, but only the plaintiff☐

YES, but only the defendant☐

YES, either the plaintiff or the
defendant☐

NO

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Are legal remedies (monetary damages) available should a party believe they have suffered an
injury (any harm, whether economic, physical, reputational, etc.) as a result of the legal
challenge? [please tick the appropriate box]
☐

YES

☐

NO

If your answer is YES, what sort of legal remedies are available?
ANSWER:If your answer is YES, on what basis may the injured party request said remedy?
ANSWER:
61

Approximately how long, on average, does it take to conclude a proceeding (from start tofinish)?
ANSWER:

62

If any of your answers to the above questions change depending on the subject matter of thechallenge, please provide more information here.
ANSWER:

63

Is there any additional / clarifying information that might be useful for NEA member
countries?
ANSWER:LEGAL CHALLENGES RELATED TO NUCLEAR SAFETY, NEA No. 7664, © OECD 2024

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REPORTING ORGANISATIONS AND CONTACT PERSONS

Annex 4:
Reporting organisations and contact persons

We would like to thank our numerous contacts worldwide in national administrations and in
public companies for their helpful co-operation.
Australia

Martin Reynolds, Australian Radiation Protection and Nuclear Safety Agency

Austria

Dominik Bischof, Federal Ministry for Climate Action, Environment, Energy,
Mobility, Innovation and Technology
Robert Muner, Federal Ministry for Climate Action, Environment, Energy,
Mobility, Innovation and Technology

BelgiumAnne Bonet, FPS Economy, SMEs, Self-employed and Energy (formerly)
Roland Dussart-Desart, Chair, Nuclear Law Committee

CanadaJasmine Saric, Canadian Nuclear Safety Commission
Lisa Thiele, Canadian Nuclear Safety Commission

Czechia

Eduard Klobouček, State Office for Nuclear Safety
Karel Künzel, State Office for Nuclear Safety

Finland

Iida Huhtanen, Ministry of Economic Affairs and Employment

FranceLaurence Chabanne-Pouzynin, ORANO
Fiona Geoffroy, Électricité de France
Valérie Nicholas, French Alternative Energies and Atomic Energy Commission
Olivia Passerieux,
Commission

FrenchAlternative

EnergiesandAtomicEnergyFlorence Touïtou-Durand, French Alternative Energies and Atomic Energy
Commission
Michael Varescon, Électricité de France
Germany

Thomas Christian Helling-Junghans, Federal Ministry for the Environment,
Nature Conservation, Nuclear Safety and Consumer Protection
Andrea Küppers, Gesellschaft für Anlagen- und Reaktorsicherheit (GRS)gGmbH

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REPORTING ORGANISATIONS AND CONTACT PERSONSJapan

Seitaro Hanami, Nuclear Regulation Authority
Taro Hokugo, Nuclear Damage Compensation and Decommissioning
Facilitation Corporation
Toyohiro Nomura, Japan Energy Law InstituteRuri Sakamoto, Nuclear Regulation Authority (formerly)
Minami Sakaue, Nuclear Regulation Authority (formerly)
Kazuhiro Sawada, Ministry of Education, Culture, Sports, Science andTechnology; Permanent Delegation of Japan to the OECD (formerly)

Korea

Ho Byeong Chae, Korea Institute of Nuclear Safety

Netherlands

Esin Cumert, Ministry of Infrastructure and Water Management
Patricia Sormani, Authority on Nuclear Safety and Radiation Protection
Yvette Staal, Authority on Nuclear Safety and Radiation Protection(formerly)

PolandJacek Łatka, National Atomic Energy Agency

Portugal

Maria Manuel Meruje, Instituto Superior Técnico

Romania

Liliana Cenusa, National Commission for Nuclear Activities Control
Laura Constantin, S.N. Nuclearelectrica S.A.

RussiaDenis Aleksandrovich Grigoryants, Rosenarogatom
Diana Urmanova, Scientific and Engineering Centre for Nuclear andRadiation Safety

SlovakRepublic

Katarína Manczalová, Nuclear Regulatory Authority of the Slovak Republic

SloveniaNeža Kompare, Slovenian Nuclear Safety Administration

Gabriela Špačková, Nuclear Regulatory Authority of the Slovak Republic

Aleš Škraban, Slovenian Nuclear Safety Administration
Spain

David García López, Nuclear Safety Council

SwedenHelen Blomberg, Ministry of Climate and Enterprise
Robert Petersson, Ministry of Climate and Enterprise

Switzerland

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Sandra Knopp Pisi, Federal Department of the Environment, Transport,
Energy and Communication, Swiss Federal Office of Energy

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REPORTING ORGANISATIONS AND CONTACT PERSONS

TürkiyeFatma Elif Aksoy, Nuclear Regulatory Authority
Feyzanur Baykut, Nuclear Regulatory Authority
Zeynep Melissa Savas Sahin, Nuclear Regulatory Authority

UkraineIllia Krasnukha, SE NNEGC Energoatom
Liliia Kukharchuk, SE NNEGC Energoatom

UnitedKingdom

Kathleen Becker, Department for Business, Energy & Industrial Strategy(formerly)
Sarah Chatterley, Department for Business, Energy & Industrial Strategy(formerly)

UnitedStatesAndrew Averbach, US Nuclear Regulatory Commission
Brooke Clark, US Nuclear Regulatory Commission
Marian Zobler, US Nuclear Regulatory Commission

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Legal Challenges Related to Nuclear Safety
There are many types of legal challenges that can be raised in the context of the peaceful uses of nuclear
energy. Each country’s framework for legal challenges related to the peaceful use of nuclear energy depends
on its national legal system. Because each country’s national legal structure is distinct, it is important for
lawyers, as well as law and policy makers, to have a comparative understanding of the different frameworks
for legal challenges.
Focusing only on legal challenges related to nuclear safety, the aim of this report is to provide insights into theframeworks for legal challenges related to nuclear safety and, without making any general recommendations,
identify commonalities and differences that contribute to different countries’ approaches. By collecting
information from nearly 25 NEA member and non-member countries, this report provides an overall reviewof the different approaches taken by countries to legal challenges related to nuclear safety, as well as nearly
40 case summaries by 11 different countries and an extensive chart of nuclear law cases from 1987 to thepresent day.

Nuclear Energy Agency (NEA)
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92100 Boulogne-Billancourt, France
Tel.: +33 (0)1 73 21 28 19
nea@oecd-nea.org www.oecd-nea.org

NEA No. 7664