Article

Decisions, Disasters, and Deference: Rethinking Agency Expertise After Fukushima

Decisions, Disasters, and Deference: Rethinking Agency Expertise After Fukushima

Katherine A. Trisolini

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This Article examines regulatory failures at the U.S. Nuclear Regulatory Commission (NRC) that were identified after the Fukushima nuclear accident. Post-Fukushima analysis uncovered multiple areas of inadequate reactor oversight—earthquake and flooding hazards, emergency preparedness, and risks from potential power loss and spent fuel pool fires. Top level managers within the agency further found the NRC’s regulation of severe accidents to be a “patchwork” that employed inconsistent standards and failed to require operating reactors to address updated risk analysis.

Numerous parties—states, localities, nonprofits, individuals and licensing boards—had tried to raise these issues over many years. But the NRC’s rules and procedures impeded effective public participation that could have required much earlier recognition of these hazards. Contrary to administrative law scholarship urging less stringent judicial review to prevent ossification and to allow agency experts room for improving standards, this study shows extreme deference to have undermined expert judgment. Rather, the courts’ hands off approach allowed the NRC to create procedures and regulations that blocked information and constrained decision-makers.

This Article draws upon numerous sources: NRC policy statements and individual Commissioners’ voting comments; the Fukushima Task Force Report, staff responses, Commission decisions reviewing staff proposals for responding to the Task Force Report, regulatory updates from staff to the Commission; NRC requests for information and licensee responses; licensing boards, appeal boards, and Commission rulings; draft and final NEPA regulations, draft and final environmental impact statements; General Accountability Office Reports; NRC review of prior regulations and publications by the NRC’s history department.

My hope is that this paper can contribute to a process—proposed by Jerry Mashaw—of interrogating agencies internal workings with the aim of ultimately improving the “invisible” aspects of administrative law.

Katherine A. Trisolini is Associate Professor of Law at Loyola Law School in Los Angeles. 

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Katherine A. Trisolini

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Decisions, Disasters, and Deference: Rethinking Agency Expertise After Fukushima

, 33 Yale L. & Pol'y Rev. 323 (2015).