Public opinion and nuclear power: the democratic disconnect

For students of politics, public opinion, and democracy, regulatory hearings on nuclear energy are a rich mother lode of data. Take the CNSC hearing on Bruce Power’s plan to ship 16 used nuclear steam generators across the Atlantic to Sweden for recycling. This was covered in exhaustive detail over three days. If you followed the hearing, what did you take away from it? Is it safe to ship the steam generators?

CNSC staff certainly appear to think it is safe. They have recommended that the Commission approve Bruce Power’s plan. Who are the staff? Well, they are subject matter experts. Their job according to the CNSC’s website is to “review applications for licences according to regulatory requirements, make recommendations to the Commission, and enforce compliance with the Nuclear Safety and Control Act, regulations, and any licence conditions imposed by the Commission.”

And what is the Commission itself? In its own words, it is a statutory administrative tribunal exercising quasi-judicial powers. Powers to do what? To regulate the nuclear sector in Canada.

The organization itself is designed and intended to not just ensure that nuclear activities in Canada are carried out safely, but also to reassure the public that this is indeed the case. So it is set up as a tribunal: the Commission is represented by up to seven permanent Commissioners, of whom one is designated as President and CEO. This group of Commissioners has the statutory power to make decisions regarding nuclear activities in Canada.

When you go to a public hearing, the “Commission” is the group of people sitting in the north end of the hearing room, facing south, east, and west. Staff, applicant(s), and intervenors face the Commission (i.e., they face north). Intervenors, applicants, licensees, and staff make statements on the record. Much of the hearing is a formal dialog between individual Commissioners and staff, applicant(s), and intervenors, with the President presiding over the dialog and often actively participating. So, for example, a Commissioner asks an intervenor a question, then asks staff and/or the applicant a question, and on it goes.

Like every human organization, the CNSC is as much “who” as “what.” So who are the Commissioners? To get some idea, you can read their biographies on the CNSC website. According to these bios, three of the Commissioners are or were senior-level bureaucrats. There is one academic, a consultant, a former senior politician, a medical doctor, a businessman. Some are permanent members, others are temporary.

How did they become commissioners? By Order in Council. Technically that means they were appointed by Canada’s Governor General, who, again technically, is the British sovereign’s legal representative and the head of Canada’s government. Does that mean the Governor General one day told the Prime Minister “I want Moyra McDill to be a Commissioner at the CNSC; make it so”? Of course not. Appointments via Orders in Council are political appointments. In practice, OiC appointments are recommended by the permanent bureaucracy and approved by the federal cabinet, the “Governor in Council,” which acts on behalf of the Governor General. OiCs are almost always rubber-stamped by the Governor General; like Great Britain, Canada is a constitutional monarchy.

The President/CEO receives his or her designation similarly, but in a separate and distinct clause in the OiC. First the Governor in Council makes a person a Commissioner; then the GiC makes that Commissioner the President and CEO. The President retains his/her designation at the pleasure of the government.

And for those who don’t know, the federal cabinet is made up, almost without exception, of elected politicians who have been invited by the Prime Minister to head federal government departments. Effectively, the cabinet is the government of the day. Not to be confused with the permanent bureaucracy.

Therefore, CNSC Commissioners are political appointees.

Now politics, no matter where on this planet you live, is all about who gets what. Remember this. It will help explain the power behind many of the criticisms of CNSC decisions.

As I mentioned, it was very obvious during last week’s CNSC hearing on the Bruce Power steam generator shipment that CNSC staff believe the proposed shipment represents no danger to the public. Though by far most intervenors did not agree, it appears the Commissioners are satisfied with the staff’s assessment. I will be very surprised if they deny Bruce Power’s application. Their formal decision will be published in around six weeks, along with the Record of Proceedings. I’ll put it up here when it becomes available.

As anybody who reads this blog knows, I am a nuclear advocate. So nobody will be surprised to hear me say I agree that the Bruce Power shipment poses no danger and should be allowed to proceed.

But I also watched and listened to most of what was said at the hearing. I doubt many reasonable and intelligent people would disagree that the CNSC staff are right. Most reasonable and intelligent people would agree that most of the intervenors who oppose the shipment presented weak or incoherent arguments and exaggerations.

The most powerful arguments in opposition to the shipment were the ones that combined the precautionary principle with insinuations that the CNSC is in bed with the industry. The precautionary principle is a pseudo philosophy that recommends extreme caution if there is any probability of an accident that could endanger the public or environment. Not some probability, any probability. And not some danger, any danger.

The Precautionary Principle therefore lends a veneer of legitimacy to anybody’s reason for opposing anything. If I were against sidewalks and wanted them banned, I would invoke the precautionary principle. I would say they are not safe, and point to the probability that you will be harmed if you walk down one. And by “harm” I could include bruising should you bump into a fire hydrant or telephone pole. It doesn’t matter that that probability is extremely low, or that the harm is slight. As long as the probability of any harm is not zero, that means there is a risk—therefore sidewalks should be banned.

In the case of the Bruce Power steam generator shipment, CNSC staff said that the level of radioactivity in the machines is so low that it doesn’t pose a risk to the public or environment. So the smart anti-nuclear intervenors invoke the precautionary principle, which says any level of radioactivity is unacceptable. And then they accuse the CNSC of siding with the industry.

This filters into media stories. Here’s an example of the precautionary principle getting legitimacy in a Toronto Star story:

Environmentalists also view [the recycling company]’s recycling process as suspect. A [recycling company] representative confirmed Tuesday the recycled metal still contains radioactivity.

And Nathan Cullen, a federal opposition member of Parliament, told the Regina Leader Post the CNSC is a “lapdog.” If you attend a regulatory hearing at which anti-nuclear intervenors give presentations, you’ll become familiar with this ploy. Most anti-nuclear activists use regulatory hearings as a soap-box to weigh in against the technology. Often the content of their presentations is off-topic. Almost always it is weak. When the weakness and/or irrelevance of their assertions becomes apparent during dialog with the Commissioners, they fall back on the lapdog charge. How can the Commission possibly be impartial, they say. The Commission is in bed with the industry.

That is the intent behind Cullen’s comment to the Leader Post. Cullen has been hammering away on the lapdog theme ever since the infamous NRU medical isotope episode which led to the demotion of Linda Keen, a former CNSC president. Cullen has repeatedly referred to Keen’s demotion as a “firing.” This is absolutely not correct. Keen was demoted from her position as president; she kept her position as a Commissioner. She is not a Commissioner today because she resigned. She then sued the government for constructive dismissal, and lost. When she resigned, I said at the time that her demotion was purely a matter of employee relations. As I have some familiarity with OiC appointments, I predicted she would lose her suit. I was right.

Cullen and others point up the Keen demotion as evidence of government interference with the bureaucracy. The CNSC is supposed to be independent of the government of the day. “Firing” the president allegedly shows just how politicized the atmosphere is under the current government.

In the case of nuclear regulation it most definitely is politicized, but not because of the current government. It’s politicized because of anti-nuclear politicians like Cullen, who misrepresent the public record.

On an intellectual level, then, the assertions of the CNSC’s critics are clearly devoid of substance. But that’s not the point. The point is the assertions made it into print. They are therefore public opinion.

There is little nuclear proponents can do about this, other than to point out that this is nonsense. Hopefully they can do this effectively.

Meanwhile, though, the CNSC hearings should be promoted as an example of the best that democracy has to offer. The system works. That’s not news, but it can be dressed up as news.