Blawg Review #304—The "Spooked by Nukes" Edition
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"A nuclear era, but I have no fear...."
—The Clash, "London Calling
"No one will have the endurance
to collect on his insurance:
Lloyd's of London will be loaded when they go."
—Tom Lehrer, "We Will All Go Together When We Go"
Introduction
Six years ago today, on March 28, 2005, a major earthquake registering 8.7 on the Richter Scale occurred off the coast of Sumatra, in Indonesia. It came little more than three months following the horrific 9.1 quake and tsunami of December 24, 2003, and stood as the second strongest quake of the new century until it was surpassed by the Chilean earthquake of February, 2010 (8.8) and, of course, the 9.0 earthquake and ensuing tsunami that struck northeastern Japan on March 11 of this year. In the midst of the unimaginable devastation of the quake and tsunami, enormous attention has also been turned toward the damage to the Fukushima nuclear power plant, and the resulting releases of radioactive material.
It is that nuclear element that provides our theme today for the 304th edition of Blawg Review, because March 28 is a date of some significance in relation of Our Friend, the Atom, and to both the military and civilian uses of the power of nuclear fission.
On March 28, 1946, the U.S. Department of State made public the so-called Acheson-Lilienthal Report, officially titled A Report on the International Control of Atomic Energy. At the time, the United States was the world's sole nuclear power, although the Soviet Union had begun the work that would lead to its possession of atomic weapons by 1949. The Acheson-Lilienthal Report endorsed imposition of international controls over all sources of potential nuclear material, with distribution of such materials in controlled amounts to individual nations for use in developing peaceful uses of nuclear energy. It also proposed that the United States voluntarily give up its monopoly on nuclear weaponry, providing the Soviet Union with access to American knowledge on the subject in exchange for a mutual agreement to halt any further production of atomic munitions. The report's proposals ultimately failed in the United Nations Security Council, being deemed unsatisfactory to both U.S. and Soviet interests, and the Cold War nuclear arms race was on.
More to the point, thirty-three years to the day after publication of the Acheson-Lilienthal report, on March 28, 1979, a cooling system malfunctioned in the Unit 2 Reactor at the Three Mile Island nuclear power plant, located outside Harrisburg, Pennsylvania. While the reactor shut down automatically, it did not do so before a release of radioactive steam within the reactor core. Some of that radiation in turn made its way into the surrounding environment.
Here, an excerpt from the report of the incident on NBC's Nightly News for March 28, 1979. Note, in addition to the stylish hair and clothing styles of the day, the relative calm of all concerned. The full version of the report—which was available via Hulu.com last week but has since been withdrawn—discloses that NBC gave the story only five minutes—an eternity now, but not remarkable for a major story of the day in 1979—before moving on to a report on that day's argument in the U.S. Supreme Court in the affirmative action case of United Steelworkers of America v. Weber:
ABC's evening news report of March 28, 1979, is not available for embedding, but it can be viewed here; it includes a useful animation of what was understood to have occurred that day.
Nuclear and Related Risk: Who You Gonna Call?
I mention the calm demeanor of those reports because discussions of the ongoing nuclear incident in Japan has been anything but calm, at least in this country. Notwithstanding that Japan is some 5000 miles away, Californians have been treated to scary animations showing a "plume" of radiation—measured less than comfortingly in "arbitrary units"—headed for Los Angeles, triggering a run on kelp tablets. Fortunately, intrepid investigative journalists pursuers of truth are unfazed by the Molecular Menace. Exhibit "A," prosecutor turned CNN host Nancy Grace:
It is a simple fact: Radiation scares us, and not without reason. And yet, it is worth recalling that although the phrase "Three Mile Island" haunts the policy landscape as a threatening rhetorical spectre, the number of deaths attributable to the actual Three Mile Island radiation release is generally accepted to be . . . none at all. Long-term health impacts from Three Mile Island are generally (albeit not universally) agreed to have been negligible. Even the far more serious 1986 Chernobyl disaster —the 25th anniversary of which will arrive on April 26, 2011—was deemed responsible for fewer than 50 actual deaths by 2005, although its long-term consequences also include at least 4000 diagnosed cases of thyroid cancer (99% of them non-fatal, however, by 2005). Radiation is, in short, nasty stuff and not to be trifled with, but perhaps not nearly so threatening as we may bring ourselves to believe.
The relatively (surprisingly?) low number of actual deaths from radiation accidents and exposures drives this chart—subject of frenzied rounds of blogging and tweeting this past week—comparing the number of deaths per terawatt hour of power produced by various energy sources:
Image via Seth Godin's Blog; more colorful and detailed version here and underlying statistics and calculations here.
I offer this image not necessarily to endorse its findings, but instead to raise those old favorite problems: actual risk vs. perceived risk and the sometimes uncomfortable balance of frequency of loss vs. severity of loss. To oversimplify as least slightly, nuclear power accidents have been marked, over the past half-century, by relative infrequency, and their actual severity has been, while serious, not insurmountable. The worst case really has not happened. The "worst possible case," however, is still by definition a possible case, and it would have a severity that is, shall we say, seriously unpleasant to contemplate.
Liability for damage to persons and property arising from potential nuclear accidents is sufficiently serious or incalculable that the risk is uninsurable in the standard insurance markets. Indeed, virtually every policy of liability insurance will include an explicit exclusion of coverage for nuclear exposures. Many of the policy decisions relating to liability for nuclear damage have been made on a nation by nation basis. Some international agreements on responsibility for nuclear losses have been adopted, largely under the auspices of the International Atomic Energy Agency [PDF], but the United States is not a signatory to those agreements.
In general, as summarized by the IAEA, liability for nuclear accidents is imposed on a strict liability basis—i.e., liability exists regardless of the actual cause of the loss, whether by negligence, recklessness, willful misconduct, or pure accident—on the operator of the nuclear facility, and only on that operator. Others who do not themselves operate the nuclear plant are free from liability exposure, even if they were intimately involved in day to day activities and decisions. Thus, Fox Business could report that General Electric, on whose design the Fukushima plant is based and which "supplied technical assistance" at the plant, likely faces no direct liability as a result of recent events.
At Legal Frontiers, McGill University's blog on internation law, Brett Hodgins opines on "Economics v. Justice? International Nuclear Liability Regimes:"
All systems of liability have built-in biases and values. Every legal system balances the interests of plaintiffs and defendants, of society and the individual, of justice and economics. On the latter measure, international nuclear liability regimes clearly favour economics over justice for the victims, who may not be fully compensated because of limitations on the scope and amount of liability. Recognising this value system won’t change the legal aftermath of the Fukushima I disaster, but is important that we bear it in mind as nuclear liability regimes continue to evolve. Because after all, there has to be a limit on how much we allow monetary calculations to trump our own humanity.
In the U.S., the Price-Anderson Act governs the insurance and financial responsibility requirements imposed on nuclear operators:
The Price-Anderson Act, which became law on September 2, 1957, was designed to ensure that adequate funds would be available to satisfy liability claims of members of the public for personal injury and property damage in the event of a nuclear accident involving a commercial nuclear power plant. The legislation helped encourage private investment in commercial nuclear power by placing a cap, or ceiling on the total amount of liability each holder of a nuclear power plant licensee faced in the event of an accident. Over the years, the "limit of liability" for a nuclear accident has increased the insurance pool to more than $12 billion.
Under existing policy, owners of nuclear power plants pay a premium each year for $375 million in private insurance for offsite liability coverage for each reactor unit. This primary, or first tier, insurance is supplemented by a second tier. In the event a nuclear accident causes damages in excess of $375 million, each licensee would be assessed a prorated share of the excess up to $111.9 million. With 104 reactors currently licensed to operate, this secondary tier of funds contains about $12.6 billion. If 15 percent of these funds are expended, prioritization of the remaining amount would be left to a federal district court. If the second tier is depleted, Congress is committed to determine whether additional disaster relief is required.
The insurance coverage, particularly for the so-called "second tier," comes from a single source, American Nuclear Insurers, a pool of major commercial insurers jointly underwriting the potential risk. In the event a nuclear incident ever exceeds the available Price-Anderson insurance coverage, the Great and Good American People, through the federal government, would likely step in.
In the wake of the recent earthquake and tsunami, the situation at the Fukushima nuclear facility remains in flux from day to day, with the ultimate losses directly attributable to it (as opposed to the larger geophysical disaster) still unknown.
Other Timely Nuclear, Earthquake and Insurance Blogging
On The Atlantic’s Business Blog, Daniel Indiviglio asks: Does Japan's Earthquake Show That Catastrophe Bonds Are Useless? Indiviglio provides a useful laypersons' discussion of "cat bonds," and concludes:
The recent earthquake in Japan was about as serious a quake as can occur, but since it was more than 70 miles from Tokyo, the cat bonds will barely help the insurance companies that spend millions of dollars on them.
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For now, investors seem to be doing a better job than insurers at determining criteria to make cat bonds lucrative, but that can change very quickly. Insurers may come to decide that they're paying too much for this protection, however. After all, if they had saved the premiums they paid in the past five years, they would be 64% of the way towards having enough money to cover the costs from a major disaster that cat bonds would provide.
Business Insurance reports that Japan forecasts earthquake damage may swell to $309 billion. That figure largely excludes nuclear issues, focusing on the broader destruction and injury from the earthquake and tsunami.
The direct victims themselves may well have only limited insurance resources available to them. In the immediate aftermath of the earthquake, Tyler Cowen pointed to an article in the Globe and Mail that notes:
[V]ery few people in that region of Japan held earthquake insurance, and also because of strict loss limits imposed by the Japanese government. For instance, residential buildings and furniture can be covered, but very expensive jewelry and artwork cannot, and there are rules that ban people from taking out insurance once an earthquake warning has been issued.
Mr. McGillivray said the Japanese government protected domestic insurers by limiting foreign participation in the system and, to keep the risks manageable, limited the payouts.
As the Wall Street Journal's Law Blog reports, "Japanese Taxpayers [are] Likely to Shoulder Nuclear Liability.
The Case Western Reserve law school library's blog, Just in Case, provides a quick guide to the U.S. Nuclear Regulatory Commission.
Nuclear exposures, without regard to earthquakes, are not limited to the U.S. or Japan, but affect most of the world's developed nations. by way of example, The Argumentative Indian blog asks: Who would be liable for a Japan-like nuclear accident in India?
Diverse and Sundry Blawging
Now we come to the point at which it is traditional to cast aside the purported theme of a Blawg Review, and to shift to pointing out recent blawging that tickles the host's particular interests and fancies, or that has slipped in for any of a hundred other reasons. Let's take the plunge, shall we? In no particular order:
Stephen Rosenberg’s Boston ERISA & Insurance Litigation Blog points to a post by Adam Pozek explaining the connection between 401(k) plans and werewolves.
Via Above the Law: Judge Easterbrook minces no words, whilst making mincemeat of an attorney’s performance.
Scott Greenfield is dismayed by the devil-may-care, Beatles-citing manner in which a California court of appeal has treated the concept of “proof beyond a reasonable doubt”. Greenfield learned of the case (People v. Moore) via Prof. Shaun Martin’s California Appellate Report blog, here.
And speaking of devil may care attitudes: howzabout Mr. Greenfield's take on the less-than-experienced Indiana prosecutor who wishes criminal defendants would help the state save some money by giving those pesky jury trials a miss?
I can't speak to what went through the minds of the good people of Starke County, Indiana, when they decided to hand over to a kid whose entire legal experience was shorter than the shelf life of refrigerated blue cheese salad dressing the authority and discretion to put people in prison, but it seems that his assertion that defendants charged with felonies are less concerned with having a jury trial than saving the county some money.
To his credit, [prosecutor Nicholas] Bourff recognizes that the elimination of jury trials isn't entirely in his hands:
'The one major drawback there is that if a defendant wants a jury trial, he or she has that right. If the defendant agrees to a bench trial, then it would save thousands of dollars and it would shave off quite a bit of time as far as eliminating the need for jury selection. '
One might think that the major drawback is that the new prosecutor advocates the evisceration of a constitutional right for the benefit of the taxpayers, not to mention those criminal defense lawyers who really hate wasting all that time picking a jury before their clients get convicted.
And just think of the savings if we weren't such silly sticklers for the whole "presumption of innocence" thing!
- Tip to future Blawg Review hosts: If pressed for time, you can still produce a pretty good (albeit short) Blawg Review edition by giving your readers just one bit of advice: go read Scott Greenfield. This idea did not come to me until well into the hosting process, so I was unable to save time by following hit here. You're welcome to it, though.
The At the Lectern blog specializes in following the actions and rulings of the California Supreme Court. This week, they pointed out the unexpected fact that the Supreme Court may well get through the entire month without issuing a single decision. The retirement of Justice Carlos Moreno is the principal cause.
Here's a tip: Holden Oliver, channeling his compatriot Dan Hull at What About Clients?, advises, ""Be excellent, not perfect."
On Maryland's Eastern Shore, chicken farming is a mainstay of the economy. The State of Maryland likes its chicken farmers, and wants to encourage the industry. So why, wonders Cato's Carter Wood at PointofLaw.com, is the Environmental Law Clinic of the State-supported University of Maryland trying so hard to shut the industry down?
Whatever it is we are doing in Libya, we are assured by the Administration that we are not at war. We are, it seems, engaged in kinetic military action (as opposed to military action in which one stands around motionless). By whatever name, Yale Law Professor Bruce Ackerman is of a mind that it's unconstitutional.
By any name and in any place, military action can bring out some of the best and much of the worst in human nature. Charon QC noted the revelation by Germany's Spiegel of photos documenting the bloody work of a rogue self-styled "kill team" in Afghanistan: "This… is why we need the Rule of Law."
Taking care of all those soldiers and veterans is expensive, to the point that Secretary of Defense Robert Gates has suggested that the spiraling Defense Department health care budget has itself become a national security concern. On his GovtFraudLawyer blog, Dan Hargrove wonders: "Is Fraud to Blame?"
The third rejection by the court of a proposed settlement in the ongoing class litigation involving Google Books has been the talk of the IP community. Writing at The Laboratorium, Prof. James Grimelman takes us, in extravagant detail, "Inside Judge Chin's Opinion."
Elsewhere in IP land: does anyone remember LimeWire, a peer-to-peer filesharing service popular among music-sharers in the days when Napster was still really Napster and everyone dreamed of the Web as a [free!] Universal Jukebox? You don't? The music industry does: they continue so sue LimeWire for infringement and this week informed the Court that damages should amount to $75 trillion. Overlawyered reports here on the judge's reaction. I.P. Blawg weighs in here.
Oh, look: something had a birthday last week!
On that same occasion, the China Law Blog wondered: Is Twitter Relevant for China?
Jonathan Turley marvels at the hyperbole of federal prosecutors seeking to declare the graven image of Rep. Ron Paul on a gold coin "Instruments of Domestic Terrorism."
Writing at Forbes' She Negotiates blog, Victoria Pynchon posts a remembrance of Rep. and Vice Presidential candidate, Geraldine Ferraro.
"Libel tourism" is the practice of filing defamation actions in London courts to take advantage of the UK laws that are highly [some would say absurdly] favorable to plaintiffs. Efforts are now afoot to reform British defamation law to cut back on suits that have nothing else to do with the country. On his Trial Warrior Blog, Antonin Pribetic reports on "UK Libel Reform and the US SPEECH Act: A View from Canada."
Finally, to round out our theme, a musical public service message from songwriter Joseph Aronesty and son Andrew Aronesty: a song written in 1979, now updated and videofied to acknowledge ongoing events in Japan. The views expressed are those of the singer, and no endorsement or warranty, express or implied, is made or given by this blog (which has no particular quarrel with either solar or nuclear power in theory), Blawg Review, or any other person or institution. Void where prohibited. Prohibited where void.
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Particular thanks to the Anonymous Editor of Blawg Review for his assistance in tracking down worthy links for inclusion in this edition.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
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A Closing Blawg Bleg:
Who am I kidding? I am next week's Blawg Review host, at my personal/cultural blog, a fool in the forest. For reasons that will become clear in good time, I am particularly interested for the next edition in blog posts that examine, or that exemplify, Things That the Law, or Lawyers, Could Do Without. Your submissions and suggestions, early and often but mostly early [hint hint, nudge nudge], will be welcome and appreciated.
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Photos [top to bottom]:
Civil Defense Shelter Sign, Memorial Park, Pasadena, California. Photo by the blogger.
Plane landing at Harrisburg, PA airport, with Three Mile Island cooling towers in the background, by Flickr user audreyjm529, used under Creative Commons license.
Three Mile Island (with duck crossing) by Flickr user avidd, used under Creative Commons license.
Three Mile Island souvenir table lamp, in National Atomic Museum, Albuquerque, NM, by Flickr user Marshall Astor - Food Pornographer, used under Creative Commons license.
Three Mile Island HDR by Flickr user L Hollis Photography, used under Creative Commons license.
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Excellent review!
I saw that image when Seth posted it this past week and had the same thoughts RE: "actual risk vs. perceived risk and the sometimes uncomfortable balance of frequency of loss vs. severity of loss."
Generally speaking, people are very, very poor at math and statistics. People become panicky at the thought of 100 people dieing in one large incident, but are largely oblivious to 1000 people dieing in small incidents over a 5 year period.
As an aside, http://www.riskmanagementmonitor.com has had some good coverage of the disaster from an insurance angle as well.
Posted by: Associatesmind | March 28, 2011 at 07:19 AM
Well done, as usual, sir.
Posted by: Dan Hull | March 28, 2011 at 08:57 AM
Life can be such an odd and ironic entity. All that destruction in Japan happens and so many good people dead because of it. And yet somehow Alexandra Wallace was not there to sun herself the whole time. Well, at least she kicked herself out of school: http://lawblog.legalmatch.com/2011/03/21/why-ucla-needed-racist-student-to-kick-self-out-of-school/
Posted by: Rickyman | March 28, 2011 at 04:25 PM