TEPCO: That Ain't My Isotope

Written by dkoplow Posted: 01/4/2012 10:4 AM EST

When the World Nuclear Association (WNA), the nuclear industry's global cheerleader, describes potential damages from a reactor accident, they do so in a strategically simplistic way:

Operators of nuclear power plants are liable for any damage caused by them, regardless of fault. They therefore normally take out insurance for third-party liability, and in most countries they are required to do so.

The potential cross boundary consequences of a nuclear accident require an international nuclear liability regime, so national laws are supplemented by a number of international conventions.

Liability is limited by both international conventions and by national legislation, so that beyond the limit (normally covered by insurance) the state can accept responsibility as insurer of last resort, as in all other aspects of industrial society.

To paraphrase here:  we've got you covered even if contamination came in across national boundaries; and in the tiny, tiny, tiny chance of an accident where our pot of money isn't big enough to cover, we have the backing of our governments.  No, this backing is not "special" (and therefore a subsidy).  It is simply what every other industry in an "industrial society" gets so the countries can get on with the business of economic growth and development.

Unfortunately, when there are real accidents and real money is at stake, WNA's happy town starts to break down.  As Rick Wallace writes in The Australian:

In terms of sheer chutzpah, Tokyo Electric Power Co's claim that it no longer owns the radioactive isotopes that spewed out of its Fukushima Daiichi nuclear plant in March takes some beating.

In defending a lawsuit from a Fukushima Prefecture golf club, lawyers said the radioactive cesium that had blighted the Sunfield Nihonmatsu golf course's fairways and greens was the club's problem. The utility has taken a similarly hard line defending claims from ryokan (inn) and onsen (spa) owners.

TEPCO's lawyers used the arcane legal principle of res nullius to argue the emissions that escaped after the tsunami and earthquake triggered a meltdown were no longer its responsibility. "Radioactive materials (such as cesium) that scattered and fell from the Fukushima Daiichi nuclear plant belong to individual landowners, not TEPCO," the utility told Tokyo District Court.

The chief operating officer of the prestigious golf course, Tsutomo Yamane, told The Australian that he and his staff were stunned: "I couldn't believe my ears. I told my employees, 'TEPCO is saying the radiation doesn't belong to them', and they said 'I beg your pardon'."

That's right:  the radiative cesium "belongs" to whomever it lands on.  Luckily, the court rejected TEPCO's argument, though still dumped the liability on the municipality to clean up.

Compare and contrast to Monsanto and similar "aerial drift" issues.  In that case, it wasn't radioative cesium that clearly came from TEPCO's plant, but "Roundup-ready" (Roundup is a Monsanto pesticide) Canola seeds that clearly came from surrounding farms that were planting the stuff to boost yields.  Some of these seeds drifted in by air to a nearby farm that had neither licensed them or sought to plant them.  That farmer didn't rush to pay royalties to Monsanto for the unasked-for plants; nor did he pull them up one-by-one.  Unlike TEPCO, Monsanto did not conclude that these emissions "belonged to the individual landowners" on which the seeds fell.  Rather, the firm sued for copyright infringement (Monsanto v. Schmeiser, nicely summarized in this article by Stephanie Bernhardt).  The case went all the way to the Canadian Supreme Court, which ruled that intent didn't matter and that Monsanto deserved payments.  Monsanto had launched 138 "seed piracy" suits in the United States alone through 2009; no word yet of any "cesium piracy" suits bubbling up in Japan.

An obvious question here is what happens when the aerial drift of Monsanto's seeds spreads not benefits, but harm.  After all, organic produce requires certification, and obtains premium market prices.  Contamination with genetically modified seed attributes can destroy both.  These are not theoretical problems: the USDA views such contamination as unavoidable.  Further, USDA's national organic certification does not require testing for GMOs, and by removing the economic pressure to avoid it, the USDA loophole actually makes the spread of such cross-contamination more likely.  Indeed, this Austrialian apple farmer has already suffered damages. 

Facing both the risk of damages to crop value from crop contamination and the ironic risk that Monsanto will then sue them for violating crop genetic copyrights, a consortium of organic farmers launched a pre-emptive suit against Monsanto in March 2011.  Monsanto has argued the case should be summarily dismissed; oral arguments will begin later this month

Residents surrounding reactors ought to take note of both the TEPCO and Monsanto cases, as it is clear that WNA's happy assurances about industry responsibility for accidents are 90% symbolic.