X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Nestled deep in the heart of the Mississippi Delta, Claiborne County, Miss., is a patchwork of kudzu-covered hills, coffee-colored alluvial soil, and lush cotton fields. It’s one of the poorest counties in America, where one in three residents live below the poverty line and 84 percent are black. It’s also home to roughly 1.2 million pounds of high-level radioactive waste stored at the Grand Gulf power station, the only nuclear power plant in the state of Mississippi. An effort to expand that plant has made Claiborne County something of a nuclear litmus test for a controversial concept known as “environmental justice.” And the fallout from a legal battle before the Nuclear Regulatory Commission between Grand Gulf’s owners and an alliance of civil rights and environmental groups could have wide-ranging implications for nuclear sites across the nation. “This case is very important, and it’s very clear it will have an impact on all future [environmental justice] cases at the NRC,” says Robert Bullard, director of the Environmental Justice Resource Center at Clark Atlanta University and an expert witness for the civil rights and environmental groups in the case. Among those likely affected by the case are a host of nuclear energy companies, as well as Navajos opposed to the opening of a uranium mine on the reservation in New Mexico, Goshute Indians seeking to prevent the temporary storage of radioactive waste near traditional lands in Utah, and Western Shoshone Indians who claim land near the proposed national nuclear waste dump at Yucca Mountain in Nevada. Like affirmative action, environmental justice is a controversial principle. At its core is the idea that certain groups should be granted special consideration because of their race. It seeks to remedy what is often referred to as environmental racism — the notion that poor, minority communities often suffer most from the impacts of large polluters and receive the fewest benefits. It’s an argument that takes into account more than just a plant’s impact on human health and the environment. In looking at the burden imposed by a proposed or existing facility, considerations such as emergency preparedness and the risk of harm to the community in the event of an accident can be considered. And in examining the benefits to a community from a facility, those benefits can take the form of jobs that a facility provides or tax money that flows back to the residents. After a decade of activism by civil rights and environmental groups and the publication of a host of reports showing minorities suffer disproportionately from air, water, and hazardous-waste pollution, and benefit least from cleanup efforts, the concept of environmental justice became part of the federal environmental review process by executive order of President Bill Clinton in 1994. But on Aug. 24, the NRC — which licenses the nation’s 104 nuclear power plants — declared it will no longer separately consider environmental justice contentions in its permitting process. As an independent agency, the NRC says it had voluntarily adopted environmental justice as part of its review process, but argues that it was not legally bound by Clinton’s order. Steven Hayward, a fellow with the conservative American Enterprise Institute, has long questioned the goals and methods of the environmental justice movement. “[T]he amalgam of politicized civil rights groups and politicized environmentalists often summons the worst reflexes of both movements,” Hayward wrote in December 2003, “combining frivolous charges of racism along with unfounded environmental scares.” But the NRC’s critics say the agency’s about-face reflects the lobbying clout of the nuclear power industry, an industry known for rewarding its political allies with generous campaign contributions. The critics also say it’s evidence of a regulator increasingly captive to the industry it’s supposed to oversee. “Under Bush, there’s not a whole lot of enforcement of that [environmental justice] mandate,” says Sheila Foster, a law professor at Fordham University who studies the subject. “You saw a lot of activity in the late ’90s that you don’t see anymore.” Foster says the NRC has gone further than any other agency in rolling back environmental justice policies. The NRC’s current move to abolish consideration of so-called environmental justice issues targets a handful of current and potential environmental complaints before the commission, says Diane Curran, an environmental justice specialist at D.C.’s Harmon, Curran, Spielberg & Eisenberg. Curran, who represents the National Association for the Advancement of Colored People of Claiborne County, the Sierra Club of Mississippi, the Nuclear Information and Resource Service, and Public Citizen, is seeking to block a preliminary permit that would clear the way for Grand Gulf to triple in size — making it one of the largest nuclear power plants in the United States. Curran says that Grand Gulf is a textbook case of environmental racism — that the impoverished residents of Claiborne County bear a disproportionate risk from the plant while being denied its economic benefits. But the new NRC policy makes that kind of argument a tougher sell, leaving Curran only to contend that the county’s residents are suffering a disparate impact under the National Environmental Policy Act. Kathryn Sutton and David Repka, lawyers for Grand Gulf’s owner, the Entergy Corp., reject any sort of “disparate impact” claim and say the only issue that the NRC should consider is whether the proposed expansion would have a “significant environmental impact” on Claiborne County, which, they say, it would not. The Winston & Strawn D.C. partners also say that Curran’s main argument in the case — that the county lacks the financial resources to provide adequate emergency services — is irrelevant when considering impact on the environment. Entergy says that Claiborne County residents’ true gripe is with the state of Mississippi — which has denied the county tax revenue from the power plant for more than 10 years — and not with the plant itself. But as several environmental justice proponents see it, if race and disparate treatment should ever be considered as a part of the permitting process, it would be hard to find a better case study than that of Grand Gulf and Claiborne County. “This is a classic in-your-face, slam-dunk case of racial discrimination,” Bullard says. The residents of Claiborne County have “hosted a plant for many years without deriving a benefit from it.” Bullard says that’s not only because the vast majority of Claiborne County residents are black, but also because it’s a county where the legacy of Jim Crow still hovers in the not-too-distant past, a place where in the heat of the civil rights struggle, a group of white merchants sued the local chapter of the NAACP for boycotting their businesses. That suit, upheld by the Mississippi Supreme Court and supported by the largely white state legislature, wasn’t dismissed until it reached the U.S. Supreme Court in 1982. DREAMS AND DISILLUSIONMENT Ground was broken on the Grand Gulf nuclear power plant in 1974, but like many other nuclear plants built during the period, its construction was plagued by delays and cost overruns. Despite its inauspicious beginning, by 1985, when the plant opened, many in Claiborne County looked forward to an economic renaissance. A county whose population had historically depended on sharecropping anticipated a tide of secure, good-paying jobs. The $20 million in annual taxes Grand Gulf was expected to generate led local officials to envision ribbons of asphalt covering the county’s spider web of dirt roads, the latest in technology for its police and fire crews, and gleaming new school rooms for its 2,000, mostly poor, students. But two decades later, many of those dreams have been left unfulfilled. The first blow came just a year after the plant opened. Grand Gulf’s cost overruns had affected more than just the pocketbooks of shareholders of Entergy, the plant’s owner, which absorbed a $900 million loss from the plant in 1989. Mississippi’s electricity customers also were forced to shoulder a portion of the costs in the form of higher rates. To quell discontent among consumers, the Mississippi Legislature passed a bill that allowed the state to ultimately claim 70 percent of Claiborne County’s revenues from Grand Gulf for redistribution to the 44 counties in Mississippi hit by higher power prices. Today, Grand Gulf generates about $23 million annually in taxes — money that is spread across the state of Mississippi. Claiborne County receives 30 percent of that. The law, according to the complainants, made Grand Gulf the only power plant in Mississippi and the only nuclear plant in the United States to pay the majority of its property taxes to the state rather than to local government. Passed in the same year as the catastrophic meltdown at Chernobyl, the bill may have eased hostility to Grand Gulf from the state’s electricity customers. But it left Claiborne County’s 11,000 residents with just a fraction of the revenue they had been promised. ASSUMPTION OF RISK A.C. Garner, the county’s director of emergency management at the time and now legal affairs liaison for the local NAACP, says that even two decades later, the lost revenue has left local residents vulnerable in the event of a possible nuclear accident at Grand Gulf. “It has brought a hardship on Claiborne County,” Garner says. “I feel like if Claiborne County was 84 percent white, this situation would have never occurred.” County services in Grand Gulf’s 10-mile emergency zone have been strained by the lost revenue as well, according to declarations in the case filed by the plant’s opponents. Sheriff Frank Davis’ entire nighttime patrol of Claiborne County’s 487-square miles — an area eight times that of Washington, D.C. — consists of a single deputy. At the county hospital, the administrator’s declaration states that, in the event of an emergency, she would not have enough doctors and nurses to staff both the emergency room and the radiological decontamination unit. And as the Nuclear Information and Resource Center has pointed out, one of the evacuation routes listed in Grand Gulf’s 2004 emergency planning brochure has been washed out and impassable for three years. And in a county where median household income is barely half the national average, Grand Gulf hasn’t provided a surfeit of jobs — at least not to Claiborne County residents. According to Entergy, just one in five of Grand Gulf’s nearly 800 employees live in Claiborne County. Of those, the NAACP says, fewer than 50 are black. “We don’t feel like an expansion would bring many jobs because they don’t employ that many [local] people now,” Garner says of Grand Gulf. “I don’t feel it is fair to take the money out and not have people prepared in case of emergency.” Carl Crawford, a spokesman for Entergy, disagrees with the NAACP’s assessment. He says the company, America’s second-largest nuclear operator, has diligently sought to hire more minorities through community outreach and training programs. “There’s no doubt it’s a poor community,” he says. “It’s difficult for many of the residents to qualify for jobs at Grand Gulf.” As Crawford sees it, the legal duel in Washington between Entergy and its opponents is less a battle over environmental justice and the risks posed by an expanded nuclear power plant than an effort by the NAACP to get more property tax paid to Claiborne County. That’s a goal he says he understands, but says that Entergy shouldn’t be punished for the state of Mississippi’s tax laws. “We get our tax bill and pay it,” he says. Sutton, the nuclear regulatory specialist representing Entergy, also points out that Grand Gulf meets all safety standards of the Nuclear Regulatory Commission as well as those of the Federal Emergency Management Agency and the state of Mississippi. “The arguments about taxes and preparedness are not really relevant,” she says. Hope Blackwell, an environmental justice specialist at Georgetown University’s Environmental Law and Policy Institute, disagrees. “Both jobs and emergency planning are litigable,” she says. But the largest question raised by the Grand Gulf dispute may not be whether property tax policies can be used as evidence of environmental racism, but whether the NRC itself is an independent regulator. Critics of the commission, including former high-ranking staff and commissioners, say the NRC has lost its way since coming under furious congressional attack in 1998 from Sen. Pete Domenici (R-N.M.) and other allies of the nuclear power industry. It was in that year that a Senate subcommittee voted to slash the NRC budget in the wake of its first environmental justice ruling, a vote that would have eliminated 700 of the NRC’s 3,000 employees. After that, says Robert Alvarez, a former senior adviser in the Clinton Energy Department, “the commission did an about-face.” As a result, “they’ve pretty much fallen in line with the industry outlook, the administration, the Congress,” says Victor Gilinsky, a former commissioner under Presidents Ford, Carter, and Reagan who now advises the state of Nevada on Yucca Mountain. “They’re not the independent regulators they should be.” That, critics say, is demonstrated in the NRC’s newly adopted environmental justice policy, which was written in response to a Dec. 20, 2002, letter on the issue from the Nuclear Energy Institute, the lobbying arm of the industry, which argued that the Clinton administration’s environmental justice policy did not “provide a legal basis” for challenging NRC licensing proceedings. A spokesman for the institute declined comment. Registrations filed with the Senate show that the institute spent $880,000 in 2003 lobbying Congress. NRC spokeswoman Sue Gagner challenges the contention that the commission has shed its independence. “We have detractors on both sides [of the debate],” she says. “But we have very strict requirements both for getting a license and building facilities.” As for the revised policy statement, Brooke Smith, the NRC attorney who penned it, calls it a “fair and balanced policy” that falls well short of everything the Nuclear Energy Institute demanded in its 2002 letter. Meanwhile, as the legal battle continues in Washington, the citizens of Claiborne County are hopeful they’ll never have to find out just how well-prepared they are for a nuclear crisis. “It’s hard to have someone in Washington, D.C., telling you you’ll be alright,” says the NAACP’s Garner. “We look at Three Mile Island. We look at Chernobyl. We understand that things can happen. It doesn’t have to happen but one time.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.