U.S. Supreme Court Declines to Hear Beyond Nuclear v. NRC Appeal on Fermi 3

The U.S. Supreme Court has refused to hear Beyond Nuclear's appeal against the proposed new Fermi 3 atomic reactor. Despite this, the environmental coalition has vowed to continue its resistance.

The appeal focused on the U.S. Nuclear Regulatory Commission's (NRC) exclusion of the transmission line corridor from the National Environmental Policy Act's (NEPA) required "hard look" at all environmental impacts of major federal actions, such as NRC approval of a combined construction and operations license application (COLA) for the Fermi 3 atomic reactor, a General Electric-Hitachi (GEH) so-called "Economic Simplified Boiling Water Reactor" (ESBWR). Fermi 3 is the flagship ESBWR in the U.S., and internationally.

The Fermi nuclear power plant is located in southeast Michigan, on the Lake Erie shoreline, south of Detroit, north of Toledo, immediately adjacent to Ohio and Ontario, Canada.

"We regret that the Supreme Court didn't take the opportunity to teach an instructive lesson to an important regulatory agency that NEPA, the environmental impact statement law, can't be weakened to address only the environmental damage that the agency wants the public to know about," said Terry Lodge, attorney for Beyond Nuclear and the other grassroots opponents of Fermi 3. "The NRC's decision to allow its staff to reshape the project undermines the public's right to know, and worse, mocks the public's right to participate in very important decisions."

Lodge, a Toledo-based attorney, has represented an environmental coalition opposed to Fermi 3 (Beyond Nuclear, Citizens for Alternatives to Chemical Contamination, Citizens Environmental Alliance of Southwestern Ontario, Don't Waste Michigan, and Sierra Club) since NRC docketed the DTE (formerly Detroit Edison) Fermi 3 license application filed in September 2008. DTE first announced its intention to construct and operate Fermi 3 in February 2007.

"DTE investors will be forever indebted to environmental intervenors for having held the company's feet to the fire long enough for them to realize what an economic boondoggle the pursuit of a Fermi 3 reactor would be, one that would leave their company in economic ruin," said Michael Keegan, a four-decade watchdog on the Fermi nuclear power plant in Monroe, MI. "This is now the case at two failed reactors at Summer, SC and at two more failing reactors at Vogtle, GA. Westinghouse has gone bankrupt, and General Electric is on the ropes. The 'Nuclear Renaissance' has failed miserably, and DTE has dodged that radioactive economic bullet, by not proceeding with Fermi 3. Intervenors prevented DTE from breaking ground in January 2011 by forcing compliance with the National Environmental Policy Act. We will be there again to force compliance should a transmission line corridor commence, or any other aspect of this proposed new atomic reactor," stated Michael J. Keegan with Don't Waste Michigan.

NRC's decision to not include the transmission line corridor at Fermi 3 in its NEPA-required Environmental Impact Statement (EIS) followed a 2007 agency rule change spearheaded by NRC Commissioner Jeffrey Merrifield. Changes to the definition of "Limited Work Authorizations" (LWAs) for "pre-construction activities" - to include major features such as Fermi 3's proposed 11-mile long, 300-feet wide transmission line corridor - represented a reversal of decades-old NRC policy. In fact, NRC had previously defended its right to regulate transmission line corridor construction and operation, asserting its jurisdiction to include such safety-related structures, systems, and components in its environmental impact statements, at not only Fermi, but other proposed Michigan reactors, as well as those in other states. Merrifield's rule change redefined the word "construction" under NRC regulations, creating a huge loophole in NEPA to excuse major "non-nuclear" construction projects from agency EIS's, despite their major impacts on the environment.

After orchestrating the Orwellian rule change, NRC Commissioner Merrifield went immediately to work for the Shaw Group, an atomic reactor construction firm engaged at that time in new build underway in the U.S. Southeast, for an annual salary of more than one million dollars. An NRC Office of Inspector General investigative report documented that NRC Commissioner Merrifield had been courting his private sector job in the many months during which he also led the LWA rule change, an ethical violation that prompted U.S. attorneys to consider criminal charges, which were ultimately not pursued. The "Merrifield-Go-Round" revolving door scandal is considered one of the worst in NRC's history. (See the Beyond Nuclear comprehensive backgrounder, posted online at: https://www.beyondnuclear.org/new-reactors/2015/7/29/beyond-nuclear-appeals-scandalous-nrc-rule-that-has-long-und.html ).

"We have not yet begun to fight," said Kevin Kamps of Beyond Nuclear. "Whether it is educating elected officials at the local, state, and federal level, opposing ratepayer and/or federal taxpayer subsidies, and even non-violent civil disobedience and direct action in the spirit of the Rev. Dr. Martin Luther King, Jr., we will remain vigilant until Fermi 3 in cancelled once and for all, Fermi 2 is permanently shut down, and the 'We Almost Lost Detroit' Fermi 1 nuclear power plant is decommissioned, all of the nuclear complex's radioactive contamination completely cleaned up, and its forever deadly highly radioactive wastes safeguarded and secured."

"We Almost Lost Detroit" is the title of a 1975 book by John G. Fuller, as well as a song by Gil Scott-Heron, documenting the October 5, 1966 partial meltdown at the Fermi Unit 1 atomic reactor. Fermi 3 would be built on the exact spot where Fermi 1 partially melted down, as noted by environmental intervenors on the official NRC record (see: https://www.beyondnuclear.org/home/2012/7/3/declaration-of-independence-from-proposed-fermi-3-new-atomic.html). The environmental coalition marked the 50^th annual commemoration of the Fermi 1 meltdown on October 5, 2016 in downtown Monroe, MI (see: https://www.beyondnuclear.org/nuclear-power/2016/9/26/october-5-2016-50-years-since-the-we-almost-lost-detroit-par.html), three years to the month after the bitterly contested Fermi 3 NRC Atomic Safety and Licensing Board hearings in the same location.

In this sense, today's resistance to Fermi 3 carries on the tradition of United Auto Workers attorney Leo Goodman, who challenged the Fermi 1 license on behalf of the health and safety of the union's 500,000 members, and their families, in the immediate area, in the late 1950s and early 1960s. In that case, the U.S. Supreme Court ruled in favor of the U.S. Atomic Energy Commission (AEC, NRC's forerunner), by a vote of 7 to 2. However, the dissenting opinion, in strong language, described the enabling Atomic Energy Act of 1954, granting the nuclear power industry, and its so-called regulatory agency, carte blanche to put the public at risk, as a dark day for democracy - not to mention for the protection of health, safety, and the environment - in the United States.

The ongoing resistance includes an event on Wed., April 18, 2018, as announced by the Alliance to Halt Fermi 3 at its website: https://www.athf3.org/. The "Radiation Knows No Borders" Emergency Preparedness Forum, will feature presentations by: Paul Gunter of Beyond Nuclear; Shawn-Patrick Stensil of Greenpeace Canada; Bushra Kazmi, M.D. of the Infection Prevention Program at Garden City Hospital; and Michael Keegan of Don't Waste Michigan, and the Coalition for a Nuclear-Free Great Lakes, and a Monroe County Emergency Planning Zone resident. The event, to be held at the University of Detroit Mercy, Life Sciences Building, Room 113, 4001 West McNichols Road, Detroit, MI 48221, will take place from 7-9pm, Wed., April 18, 2018 - eight days before the 32^nd annual commemoration of the Chernobyl nuclear catastrophe. The title for the event is "Lessons NOT Learned from Chernobyl: Radiation Knows No Borders."