I’m Gary Nissenbaum.

Welcome to another edition of Laying Down the Nissen-law, a podcast in which we seek to do a deep dive into the pressing issues confronting businesses, both large and small, that seek to protect themselves from legal pitfalls.

Please keep in mind that this podcast is not a substitute for legal advice. Consult an attorney for any specific situations that require representation.

And now…on to the Nissen-law…

The Role That Lawyers Can Play in Mitigating Climate Change

What role can lawyers play in mitigating climate change? It’s a legitimate question and I will tell you that I don’t have the complete answer. I’m not sure anyone does. But I think I have the beginning of an answer. And that is, there are certain climate change mitigation modalities that are already available to us.

They have been tested, they appear to be workable. It’s just that prototypes need to be created. Then, if they work, it needs to be produced on a larger scale. This involves lawyers. It involves the legal and regulatory process. I’d like to provide you with an example of such a situation that is presenting itself to us now and some of the issues that it raises of a legal nature.

The Traveling Wave Nuclear Reactor

There is something called the traveling wave nuclear reactor. It’s also been called the molten salt nuclear reactor. And the basic idea is that the reactors that we’re familiar with, the ones that are actually in operation in the United States, are generally known as first or second generation nuclear reactors, meaning that they were created with designs that originated in the 1950s, 1960s, possibly the 1970s. And then, for a variety of reasons—Three-mile Island, Chernobyl being good examples of those reasons—everything seemed to stop in terms of new designs, new innovations, and new siting of nuclear reactors in the United States.

A Way of Mitigating Climate Change on a Massive Scale

The country turned away from nuclear as a viable way of providing for its energy needs. And while an unusual amount of electricity is generated from nuclear reactors, unusual in the sense that most people don’t realize how much is still being generated by the nuclear reactors in the United States, almost none have been built since the 1980s. There are people who are actively trying to determine whether the nuclear reactor might be a way of mitigating climate change on a massive scale.

In order to do this, there are generally thought to be three particular items that need to be addressed. The first is generation of nuclear waste, which is obviously something that’s counter to mitigating environmental damage since it creates waste that is toxic to people and can infiltrate the natural environment. Number two, is the possibility of nuclear reactors generating materials, such as Uranium 235, that can be converted into a usable way of creating a nuclear bomb. And the final, which is the safety factor: what if you have another tsunami or another hurricane or some other disaster that occurs, or just human error? To what extent are people going to be in danger if they are living next to one of these nuclear reactors that will be built?

Nuclear Waste Could Be Used As Fuel for the Traveling Wave Nuclear Reactor

The traveling wave nuclear reactor does not solve all of these problems completely. But it goes a long way toward doing so. As to the issue of generating nuclear waste, the traveling wave nuclear reactor actually utilizes for its fuel the waste that’s generated by these first and second generation nuclear reactors. So given the fact that the United States has something on the order of 90,000 metric tons of nuclear waste being stored, that could theoretically be used as fuel for these new traveling wave nuclear reactors, it might actually help the environment to have these reactors go online.

As a matter of fact, it’s one of the reasons why the traveling wave nuclear reactor is known as a “fourth-generation reactor” in the sense that it is four iterations away from where these designs started. It is actually using the waste—the toxic, radioactive waste created by the first and second wave reactors—and they’re being used in this fourth generation reactor. It’s actually a situation in which the waste generated by the first and second generation nuclear reactors is being used as fuel for the fourth generation nuclear reactor.

“The good news is that the nuclear material that is utilized in these reactors… is thought not to be of a quality and a type that would be practical to create a nuclear bomb.”

Second, as to using this nuclear reactor as a means to build a nuclear weapon, the good news is that the nuclear material that is utilized in these reactors, and certainly the nuclear material that results after this level of reactions that are necessary to heat up the core and allow it to generate electricity, generally is thought not to be of a quality and a type that would be practical to create a nuclear bomb.

The Alternative That We Have Been Looking For

And the final part is that it is far safer than the typical light-water reactors of the first and second generation because what this reactor is using is molten salt. And without getting into all the technical aspects of this, because the molten salt heats at a much higher temperature than water would turn to steam, there is a safety factor here. The idea of a radioactivity being released is much more far-fetched than it would be if there were some sort of breach and some of that steam was released from the reactor. So the bottom line is that by utilizing molten salt, by not generating waste that can be utilized to create a nuclear weapon, and by mitigating the environmental damage from the waste that’s already been generated by other nuclear reactors by virtue of using that waste in order to fuel this reactor, this is a safer means of generating energy and could conceivably be the alternative that we have been looking for to begin a larger-scale mitigation of climate change.

The good news is that there’s been something of a collaboration by people who have the financial means and have the access to some of the great digital and engineering minds in this country to put together ventures to start the ball rolling. There has been a unique partnership of people inside and outside of government who agree that this is likely an integral part of climate change mitigation long-term. Bill Gates has been involved in this. There has been a move to try to incorporate China into this effort and possibly site the prototype nuclear reactor in China, having China back it financially, having China then take on the scaling of creating these reactors and having them situated in other places, so long as the prototype works.

What Happens If Something Goes Wrong?

This unusual partnership that has been going on is very, very heartening, while at the same time, it still leaves a lot of unanswered questions. One of the key questions is where these reactors will be put—in other words, siting. That’s an open question. There have been a lot of studies undertaken to deal with that question. It is something that is at the forefront of discussions in this area and certainly something that needs to be resolved before any of these reactors are built anywhere in the world, but certainly in the United States, where these regulations apply. Another thing that is confronting the legal community in particular with regard to these traveling wave nuclear reactors, these fourth-generation reactors, is what happens if something goes wrong? And that may not mean that something goes wrong on the level of a Chernobyl or Three-Mile Island or something like that. It may simply mean that there is an accident involving the transportation of the fuel rods from one state to another. It might involve something in regard to construction issues, or how someone is going to deal with unions that are on strike and timetables are being shifted and so forth, or challenges are being made by local communities that are ending up in court that result in a stay of the implementation of a reactor that’s about to go online.

It’s not so much whether the engineering of these reactors has been done in such a way that they are relatively safe. It’s not so much whether the science is backing up the safety issues. It’s whether the word has gotten to the public in such a way that they understand these issues without a scientific background, without a technical background, that it’s being communicated in clear and unambiguous language and that this is something being accepted by the public, being accepted by the judiciary, that we don’t have this being litigated to death.

Quick and Decisive Action Needed to Mitigate Climate Change

And that is one of the critical, critical aspects of this because on the one hand, having people access the courts, having people file these lawsuits, file these regulatory proceedings, even deal with local land use laws… all of that is a legal right that these people have as those living in this country, those who may be affected by the siting of these nuclear reactors. But that is in juxtaposition to the fact that these reactors, if they are going to be mitigating climate change, have to be implemented quickly, because every year, the climate change damage is becoming worse and eventually, it reaches a tipping point where there’s a point of no return.

And so you have this juxtaposition of the fact that there has to be quick and decisive action to mitigate climate change, and yet there’s a highly technical, possibly viable alternative ready to go—in theory—but its implementation, so long as we’re using the normal legal process, will take a very, very long time. How do you put those two things together? Well, clearly one way is to have it sited in another country, which is probably why China was picked. It doesn’t have the same sorts of judicial and legal and regulatory impediments that you would have in a more free and open country such as the United States.

Lawyers Need to Step Up and Be Part of That Dialogue

But nevertheless, can the United States be on the sidelines just because this is something complicated which normally would take so long to implement that it will be virtually too long for it to have a meaningful impact on climate change before there’s real damage done. That question has not been answered and it is my belief that in order to reach an answer, there has to be a consensus. And in order for there to be a consensus, we need attorneys and others who are advocates on both sides to come together and have an understanding of what’s doable, of what the risks are, what is an acceptable risk, what is not an acceptable risk, and come to some sort of practical way of implementing this possible solution, at least in part, to the damage being caused by climate change. I believe that lawyers need to step up and be part of that dialogue.

This is Gary Nissenbaum and I want to thank you for listening.

Legal disclaimer: The information contained in this podcast does not constitute legal advice, nor a legal opinion. It should not be relied upon in any specific situation. The reader is urged to consult an attorney of their choosing with respect to any legal question they may have.

Publications & Presentations

Publications and Podcasts:

• “The Indie Legal Guide With Gary Nissenbaum”, 1/22/18 Interview of Mr. Nissenbaum, Game Dev Unchained
• “Licensing Your Intellectual Property”, 11/21/17 Interview of Mr. Nissenbaum, Gamesindustry.biz Podcasts
• “The Increasing Pace of Digital Change: Why Does Our Culture Always Seem so Blindsided?”, Huffingtonpost.com, August 4, 2016