Beyond Fukushima: Disasters, Nuclear Energy, and Energy Law

I. INTRODUCTION Fukushima changed everything. That, at least, was a popular view espoused after the disaster of March 11, 2011 - in the press, by the talking heads in the international media, and across the blogosphere.1 A nuclear meltdown in such a densely populated, welldeveloped nation could scarcely do anything less than utterly transform how nuclear energy would be seen, used, and not used for years to come. That was the immediate reaction. As we inch away in time from the epicenter of the nuclear crisis at Fukushima Daiichi, however, the picture has become less stark than it often was painted in the days and weeks after the earthquake sounded, the tsunami struck, and a series of misjudgments, miscalculations, and chain reactions led to a partial meltdown of the Fukushima No. 1 power plant. Nuclear power long has occupied a precarious position in our collective energy landscape. "Our country, indeed the world, has always viewed nuclear power with fear and fascination."2 When a tragedy like Fukushima transpires, this fear and fascination spike. Though the harnessing of atoms to create electricity turned "swords into plowshares" long ago,3 there remains a view today that nuclear power - and its proponents - are "clearly evil."4 Nuclear disasters like Fukushima create an opportunity for those who hold such views to advocate for a new energy course: one that abandons this energy source. Indeed, in the months after Fukushima, some nations announced their decision to forsake nuclear energy, Germany most prominent among them.5 Others, like Japan, weighed the idea, only to subsequently reject it,6 at least for the time being. By contrast, in the United States the non-nuclear option received little national political attention.7 Why? This Article takes up the tragedy at Fukushima Daiichi as a vehicle for parsing the role that disasters play in nuclear energy policy - and, by extension, in U.S. energy law generally. In the public discourse, energy law often orbits disasters. No one talks about our oil dependence until there is an Exxon Valdez or a Deepwater Horizon, and then it is conversation fodder for Starbucks runs. We flip switches all day long without wondering where our electrons come from, and then there is a Chernobyl, or Three Mile Island, or Fukushima, and anti-nuclear protestors take to the streets.8 "Energy policy-making in the United States is a cyclical enterprise," Gary Bryner observed a decade ago.9 When there is a crisis on the news, "energy dominates the political agenda."10 When there is not, "it fades into the background."11 Energy disasters thus hold a tenuous relationship with energy policymaking. They create opportunities for change,12 but they also risk misdirecting the debate away from the truly important questions. This Article posits that energy disasters in the United States tend to perpetuate both of these effects. They often cause change, but this change tends to be incremental. At the same time, by "solving" the proximate causes of the disasters - and those causes alone - these modifications to energy law obfuscate the need to look more deeply at the underlying, root causes of our energy dilemmas.13 These phenomena are largely a result of the dominant energy paradigm that dictates our energy laws and policy today.14 To mitigate the role that disasters play in shaping our law, disasters must be deemphasized as clarions for change. Alone, however, this will not be enough. A fundamental shift in our energy policy objectives and processes also is needed. By using nuclear energy itself as a metaphor for conceptualizing how U.S. energy law functions, this Article suggests that there are two primary changes that should be made to our system of energy governance. First, the goals of energy law should be realigned to reflect greater emphasis on sustainability. Second, energy law should employ more, and more robust, planning. Making these changes will not be easy. …