atw - International Journal for Nuclear Power | 04.2019

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atw Vol. 64 (2019) | Issue 4 ı April DECOMMISSIONING AND WASTE MANAGEMENT 222 | | Fig. 1. The Four Compartments of a Sustainable Radioactive Waste Management Program. investigated and taken into consideration; (3) the assurance that the science and technology employed are up to date and sound, being free from political influences; (4) that the waste management facility siting, design, construction and operation reflects the desires and will of the society; and, (5) that all actions provide for stability throughout any legal action and/or policy making decisions under taken by the nation state to guarantee that such actions are performed in accordance with the rule of law found within that society [8]. The values represented within these four compartments are required and important tools in developing a stable and legitimate framework for creating the necessary laws, statutes, regulations, and rules in a nuclear waste management program. As each compartment harmoniously interacts with the other, the process of effectively meeting all the aspects of a nuclear waste management program from inception, to a time point far into the future is achieved. 3.1 The concept of legal stability The primary objective for designing and operating a nuclear reactor is “the utilization of the energy or radiation released by controlled chain reaction… [h]owever the achievement of a stable chain of fission reactions is only a part of the responsibility of the nuclear engineer. In addition, he must learn how to extract and use the energy liberated in these fission reactions” [10]. Equally, only part of the responsibility of the policymaker’s primary objective is to provide the written laws, statutes, regulations, and rules, but more so, he must be able to seize the ability to utilize the energy or legal force created toward a series of relevant actions, in a controlled and sustained environment, for achieving the desired end outcome. The “issue of stability and change in constitutional law” [11] is continually hotly debated by academics, having fervent partisans on each side of the equation. ‘Stability’ is a word that is commonly used to present something that is stationary or unchangeable [12], or when discussing legal stability, we usually refer to the basic building block structuring the personality of the common law – stare decisis 2 [13]. Thus, the judicial or political system has made some determination of a particular path of progression so that those engaged in an activity may know with certainty that the decision/ determination is not an arbitrary one and may therefore be relied upon through a future time period. However, a purpose of government, and a duty of the courts, is to process change as society and technology alters, all while seeking to contain this “ constant and restless motion [of government]” [14] as it seeks a new stable footing. The force called ‘stability’ creates an exceptional central challenge for nuclear waste management programs, as laws, statutes, regulations, and rules written today, as promulgated, are for an intended extended outward period, projecting forward today’s burden for tomorrow’s generations to manage. Such laws, statutes, regulations, and rules are not promulgated in a vacuum of peace and tranquility, but within complex political systems, which at times display outward chaotic change, even though law should portray a sense of stability [15]. In the 1930’s, Goodwin declared: “We are wont to look upon our government as something permanent, indestructible, and, in its fundamentals, unchangeable. Anyone who accepts this thought unqualifiedly disregards world history. Governments and civilizations arise, prosper, and disintegrate.” 3 [16]. Human history is fraught with political systems where seemingly stable states become unstable and falter. 4 The concern arises of what happens to a nuclear waste management program in a nation state should that state cease to exist, because that particular political or legal system is unable to process change, in its pursuit of a constant arrangement of ‘ stability’. 5 It is time consuming and difficult to delve into the causes leading to instability within any nation state, and this would necessitate contemplation of multiple and varied factors, and thus will not be intimately discussed within this article. Suffice is to say, Posner explains that political instability is an inherent trait in all systems of government, acknowledging that though “[a]uthoritarian regimes may suppress the symptoms of political instability… [it would be incorrect to assume that] only reliably stable regimes are those in which the symptoms of political unrest are absent despite their not being forcibly suppressed” [17]. Thus, as its most basic function, government is designated with the obligation to insure a stable political and legal framework through mechanisms “designed [with the preservation of] certainty” [14]. Conflictingly, given the reality that the human race and their judicial and political systems function in a world surrounded by alteration, these societies must continue in a forward progression where Decommissioning and Waste Management A World’s Dilemma ‘Upon Which the Sun Never Sets’: The Nuclear Waste Management Strategy: Russia, Asia and the Southern Hemisphere Part I ı Mark Callis Sanders and Charlotta E. Sanders
atw Vol. 64 (2019) | Issue 4 ı April “living law [flourishes and is not] imprisoned by the past” [18]. It is the continual conflict between the dynamics of ‘stability’ and ‘change’ which determines if a political or legal system will collapse in on itself, or if it will survive. Walker, et al., provides a line of inquiry regarding a bridging force for the ability of a stable system to successfully process change: “It is assumed that patterns of behavior will be more stable and enduring if they can be characterized as legitimate; that actors who have legitimacy attributed to them will be more able to induce compliance than those who do not share that attribute…” [19]. 3.2 The concept of legal legitimacy The search for legitimacy in any political system may be considered “the oldest problem of political theory” [20]. Given that a nuclear waste management program is expected to last for hundreds of years from inception to end of life, this search for legitimacy when creating a nuclear power and waste management program is of great importance, as a citizen living under any political system must “have confidence in [the] administrative processes [found within that system], and [in the final outcome, be able to] respect and accept [those] decisions” [21]. Each political system, whether democratic or authoritarian in nature, shares certain legal traditions, which provide it with legitimacy. These traditions not only entail a similarity of various institutions (e.g., parliament/ legislature, courts, and administrative agencies) and processes, they encompass common core values, such as lawfulness, expertise, efficiency, and effectiveness [22]. Because legitimacy is such an essential quality of the law, it is a subject that has, and continues to, preoccupy legal scholars [23]. Barnett argues law proceeds from two binding sources: (1) laws created through the people’s voice, though not all may agree, and (2) laws created where the State embarks on a course of action believing it is the best arbiter of what is appropriate without the full input of such non-consenting persons [24]. Barnett’s model rests upon the precept that any government is established, and endowed, with powers of competencies to do what is required in fashioning the legal structure for executing the desired undertaking and is sufficiently broad in its scope to encompass the similarities shared for rule making by both democratic and authoritarian regimes. This is that the primary reason for any government, as a function of its political system, is to fashion a framework for what is deemed by that system as necessary and proper for initiating, building, financing and operating a civilian nuclear power and/or nuclear waste management program. A central notion that forms the core of the concept of legitimacy is the way a political system establishes procedures “for law-making and implementation [that appear to the beholder] as acceptable, i.e., appropriate and binding” [25]. The highest ideal for any nation state should be to promulgate laws, statutes, regulations, and rules in a transparent, fair, and equitable system. However, it is respected that the world’s myriad of intricate political systems each have their own unique complexities, which are acted upon by enormous pressure from numerous interest groups, leaving one to question one’s personal consent granted to the governing body within any system of government. This raises questions regarding the ability of access by individuals to a political/legal system, and its assurance that individual rights and/or concerns have been considered and protected. For citizens living under an authoritarian system of government, the anxiety arises whether the governing body has considered the inherent needs of the citizenry throughout the decision-making and administrative process, more so than with matters of consent, as consent is implied. Within both systems, the administrative process initiates similar concerns given that all bureaucratic systems do not provide for political accountability of these unelected individuals with expansive powers and “[with] the public lack[ing the necessary] tools | | Fig. 2. Milestone Demarcation for “Change” in a Nuclear Power & Waste Management Program. DECOMMISSIONING AND WASTE MANAGEMENT 223 Decommissioning and Waste Management A World’s Dilemma ‘Upon Which the Sun Never Sets’: The Nuclear Waste Management Strategy: Russia, Asia and the Southern Hemisphere Part I ı Mark Callis Sanders and Charlotta E. Sanders
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