As a then young lawyer, I started work on the proposed Seabrook project on June 28, 1972: the date of the Watergate break-in. I stuck with it right through the abandonment of the second reactor and the final licensing of reactor one in 1996. Indeed, I haven’t quit yet.
Originally, I represented two of New Hampshire’s oldest and most established conservation organizations, Audubon and the Society for the Protection of New Hampshire Forests.
I thought it was flattering for such a young lawyer to be selected by two such established organizations – until I learned that pretty much all the larger law firms in New Hampshire had turned down the case either because they did not want to contest the utility establishment in New Hampshire, or had actual conflicts such as senior partners serving as directors of one of the utility owners.
It was always a struggle to keep either of these organizations in the fight, and neither would ever flatly oppose the use of atomic power to boil water. Both eventually withdrew after securing some important environmental improvements.
Since by this time I was convinced that the project was going to be a disaster, I was pleased to be asked to represent the Seacoast Anti-Pollution League, a local group established in 1969. SAPL eventually took a clear opposition position, not only to the Seabrook site, but to nuclear power.
Prior to my representation of SAPL, their prior lawyer had found a marine invertebrate expert who postulated that one of the landmark species in the Hampton/Seabrook estuary, the soft shell or “steamer” clams, could be devastated by the plant’s cooling system. It turns out that the larvae of the clams float just offshore in a “neuritic band”, and are carried into Hampton Harbor on the tides before settling on the clam flats. This expert’s testimony postulated that the intake for the proposed dual reactors would entrain and then destroy billions of clam larvae. This is what gave rise to the name “Clamshell Alliance.”
As time went on, I learned by bitter experience that litigating a nuclear reactor license before the NRC was akin to protesting gambling before the Las Vegas City Council. The NRC had never, and has never, rejected a construction permit or an operating license for a nuclear plant. So, why did SAPL, and the New England Coalition on Nuclear Power (NECNP) do it?
The answer was provided by my fellow opposition lawyer, the far more experienced and very capable Tony Roisman. This was at a time when, as now, the federal government was talking about energy independence. In 1973, President Nixon had unveiled his so called “Project Independence” and it called for, among other things, a thousand giant light water reactors to be fissioning away by the year 2000.
Tony figured if that many reactors were going to be built that the NRC would, in order to have any vestige of credibility, have to turn down at least one. That one, we believed, would surely be Seabrook, since almost everybody agreed it was the worst site every proposed for a huge reactor; right behind Hampton Beach.
Of course, the thousand nuclear reactors vanished in vast cost overruns, and then the accident at Three Mile Island. As a result, each of the 104 reactors that were finally built became as precious to the NRC as a child is to a parent. (The NRC is mostly funded by fees it charges to the industry, especially for licenses.)
At some point, SAPL, on my advice, decided to try something other than slogging through the NRC’s licensing hearing. I learned that under the Clean Water Act, the plant’s owners would have to get a permit for the cooling system from the Environmental Protection Agency. I figured an agency with “environmental” in its name would have to give us a better shot at success than the NRC.
So, in 1975, SAPL requested an adjudicatory hearing from the Region I EPA administrator, a Nixon appointee named John McGlennon. We presented our evidence, principally about the predatory effect of the mammoth intake structures to be built more than a mile offshore. The system was to use billions of gallons of water a day, and then reject this water to a offshore series of seabed ports at 39 degrees F. higher than the ambient water. It was a total mortality system
To the shock of all, including me, we won the case, and in November 1976, McGlennon announced that although the plant could be built, it could not, as proposed, be operated. This led, the next year, to the only shut down of construction ever during the entire nearly quarter century of litigation, demonstrations and civil disobedience. It caused the utility owners to then suggest giant, 600 foot cooling towers, and a new, largely unreal, search for alternative sites.
By then, a new administration had come to power, and President Carter named a new EPA chief, Douglas Costle. Costle reversed McGlennon’s decision and required SAPL to relitigate the matter before a new administrative judge.
During this time, the Clams provided unbelievable support for our efforts. I remember one memorable hearing, held in the Superior Court building in Manchester. It involved a hearing before the NRC Commissioners over whether the McGlennon decision in fact required the NRC construction permit to be stayed, and another, in an adjoining courtroom, before the new EPA administrative judge as a result of the Costle decision.
When I and my colleagues came out of the building, we found the clams had surrounded it with a human chain. We got a most heartwarming ovation, which was followed by a large parade through the streets of my home town.
SAPL and NECNP eventually had a huge ally in the person of the Attorney General James Shannon of Massachusetts. With the resources available from this, we made our final effort around the issue of whether any evacuation plan could in fact provide significant protection to the beach population and the surrounding communities in the event of a meltdown and breach of containment. Eventually, we even had the support of Massachusetts Governor Mike Dukakis on this point.
In the final result, of course, the NRC found a way to license the plant, despite the evidence that evacuating the beach and environs would be of no real help in protecting human health. The NRC did so be eviscerating its own regulatory requirement, adopted after the spontaneous and chaotic evacuation at TMI. The regulation had said that the plan must be capable of being implemented and then achieving “adequate protection.” The NRC finally decided that if a plan existed; i.e, that all the boxes had been checked off, it would assume that sufficient dose savings would be achieved, and that evidence to the contrary was irrelevant.
I have often mentioned that Seabrook was my only (multi) billion dollar case, although the billions were on the other side. It was, despite all the frustrations of litigating before a biased tribunal, very rewarding. I have no doubt that, in addition to Three Mile Island and Chernobyl, the struggle over Seabrook has led to the end of nuclear power expansion in this country, at least to this point. I also met and worked with many of the very best people it has ever been my pleasure to know. I do not regret any of it.
Bob Backus is a long-time opponent of nuclear power. He is a member of the international anti-nuclear weapons and power organization Beyond Nuclear.