ENERGY LAW FROM A BIOETHICS PERSPECTIVE: WHAT IT IS, HOW IT WORKS, AND WHY IT MATTERS

CATHERINE M. HAMMACK

ABSTRACT.

This paper presents a unique look at energy law from the perspective of bioethics: the study of ethics as it relates to living things—specifically, humans, animals, and the environment. It provides a panoramic view of the field of bioethics, with glimpses of ancient Greek philosophy, classical normative ethics, and modern applications thereof. It then proposes a unique perspective of energy law through Principlism, an established analytical model of applied ethics based on the universal principles of autonomy, beneficence, non-maleficence, and justice. Specifically, it uses Principlism to assess whether or not nuclear energy production should be utilized, exploring issues of environmental welfare, public health hazards, and fairness to future generations. The goal of this paper is to illustrate not only why, but how, legal analysis can, and should, include bioethical analysis. It proposes that bioethical analysis is not only applicable but also necessary throughout all areas of energy technology and law, and serves as an example and model for future bioethical assessments.

WHAT IS IT?

Bioethics—from the Greek words “bios,” meaning “life,” and “ethos,” meaning “behavior”—is the study of the relative moral standings of humans, non-human animals, and the environment. Its primary focus is “human conduct concerning the animate . . . and inanimate . . . natural world against the background of life sciences” such as “medicine, biology, biochemistry, and biophysics.” James Fieser & Bradley Dowden, Bioethics, Internet Encyclopedia of Philosophy. While this paper presents a panoramic view of energy law through a bioethics lens, a closer look at bioethics is important and beneficial to all areas of the law. But bioethics is particularly important in energy law, as our bios itself—the health, well-being, and survival of humans, animals, and our environment—is directly affected by our energy ethos—production and consumption.

With respect to energy, science and technology tell us what we can do: for example, we are capable of using nuclear fission, but we are not capable of using nuclear fusion (yet). Chapter 6: Nuclear Power. Law tells us what we may do: for example, pursuant to the rule of capture, a landowner may extract natural gas or oil from beneath adjoining landowners’ properties when drilling on his or her own property, but negligent waste or destruction gives rise to liability. Chapter 3: Domestic Petroleum. Bioethics tells us what we should do. It is vital to energy law, as the goal of scientific research and technology is progress and the goal of law is justice; indeed, as lawmakers, attorneys, scientists, and researchers, our concern is not merely what is, but what ought to be.

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While “ethics” is often generally understood to mean a collection of rules or guidelines for what is required and prohibited—such as the American Bar Association’s Code of Professional Conduct for lawyers—bioethics is better understood as an analytical process for both asking and answering questions about problems and solutions. In other words, instead of producing a black-and-white declaratory answer, bioethical analysis produces a grey-scale exploration of potential options. However, that is not to say that bioethics is amorphous; rather, the process of bioethics is structured and disciplined, while the product is often unpredictable.

HOW DOES IT WORK?

While there is no “correct” analytical process for bioethics, there are multiple established and accepted approaches. Each approach has its own unique process, priorities, and pros and cons. Many bioethicists proclaim to subscribe to a specific theory—for example, Immanuel Kant was a deontologist, while Tom L. Beauchamp and James F. Childress are Principlists. Additionally, many circumstances may seem to implicate a specific theory—for example, legislation regarding the distribution of limited resources might be analyzed pursuant to utilitarianism, while a similar law regarding whistleblowing for environmental violations might be analyzed pursuant to virtue ethics. However, sound, effective bioethics often requires a more adaptive approach of mixing and matching various elements of different theories, tailoring the process to the context of each question and to the practicability of each possible answer. The following theories are merely a few common approaches out of a multitude of possibilities, and their respective descriptions do not begin to capture their complexity.

Deontology. Deontology is often referred to as “rule-based” or “duty-based” ethics. An act is ethical—or “right”—only if it conforms with the moral norm; that is, ethical rules and duties exist and must be adhered to, and to obey the norms, follow the rules, and fulfill one’s duties is to do the “right” thing. “Right is said to have priority over the Good. If an act is not in accord with the Right, it may not be undertaken, no matter the Good that it might produce.” Larry Alexander & Michael Moore, Deontological Ethics, The Stanford Encyclopedia of Philosophy (Winter 2012). In other words, the rightness or wrongness of an action is inherent in the action itself, rather than in the result thereof. Indeed, virtue ethics embodies the Latin maxim fiat iustitia, pereat mundus: do what is right though the world should perish. Notable proponents of deontology include Immanuel Kant, Sir W. D. Ross, and the Catholic Church. Fieser & Dowden, supra.

Consequentialism. According to consequentialism, the ethicality of an act “depends only on consequences (as opposed to the circumstances or the intrinsic nature of the act or anything that happens before the act).” Walter Sinnott-Armstrong, Consequentialism, The Stanford Encyclopedia of Philosophy (Winter 2012). One notable sub-sect of consequentialism is utilitarianism, whereby an act is ethical if its consequence is “the greatest possible utility for the greatest possible number of all sentient beings.” Fieser & Dowden, supra. The ethicality of an act is measured according to its increasing pleasure, decreasing pain, or promoting some other well-being such as health or safety. Consequentialism embodies the proverb “the end justifies the means.” Notable proponents of utilitarianism include Peter Singer and Julian Savulescu. Fieser & Dowden, supra.

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Virtue ethics. The focus of virtue ethics is, of course, virtue: a character trait or “disposition which is well entrenched in its possessor.” Rosalind Hursthouse, Virtue Ethics, The Stanford Encyclopedia of Philosophy (Fall 2013). According to virtue ethics, an action is ethical “if it is done by adhering to the ethical virtues in order to promote human flourishing and well-being.” In other words, an action is ethical if it is based on the actor’s ethical motive and good character. Fieser & Dowden, supra. Put another way, the focus is the actor rather than the action, and an action is ethical if an ethical person would do it. The father of virtue ethics is Aristotle, and notable proponents include Elizabeth Anscombe and Alasdair MacIntyre.

Casuistry. Casuistry is a form of applied, rather than normative, ethics. The process of casuistry is remarkably similar to the process of legal analysis and reasoning. Generally, casuistry involves a case’s depiction (factual analyses of who?, what?, when?, where?, why?, and how?) and classification (comparing and contrasting this case to paradigm cases, much like case law), followed by a moral judgment (a conclusion based on the analogical reasoning). Fieser & Dowden, supra. Casuistry is based on the idea that “the greatest confidence in our moral judgments resides not at the level of theory, where we endlessly disagree, but rather at the level of the case, where our intuitions often converge without the benefit of theory.” John Arras, Theory and Bioethics, The Stanford Encyclopedia of Philosophy (Summer 2013).

Principlism. Principlism, pioneered by Tom Beauchamp and James Childress in Principles of Biomedical Ethics (1978, latest ed. 2009), is one of “the most prevalent, authoritative, and widely used bioethical approaches.” Fieser & Dowden, supra. Principlism’s four universal principles of ethics—autonomy, beneficence, non-maleficence, and justice—function as a “framework of ethical reasoning and decision making.” Id.

Autonomy is the ability and freedom to govern oneself. Nancy M. P. King, Glossary of Basic Ethical Concepts in Health Care and Research, 1 The Social Medicine Reader 161-8 (2005). An autonomous act is one done with intent and understanding and without external coercion or control. Id. While autonomy is generally understood to be personal to an individual, groups, communities, nations, and even entire populations can, and do, act autonomously. Id.

Non-maleficence is the foundation of the Hippocratic maxim primum non nocere—“above all, do no harm.” Id. The quintessential issue, however, is in defining “harm.” Id. Beneficence, the flip-side of non-maleficence, means doing or striving for good, or acting in someone’s or something’s best interest. Id. Similar to non-maleficence, the quintessential issue is in defining “good” and “best.” Generally, beneficence involves “relieving, lessening, or preventing harm and providing benefits.” Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics, 13 (6th ed. 2009).

An explanation of “justice” is as elusive as its implementation; it sometimes—but not always—means fairness, while in another context it may mean equality. King, supra. Generally, it refers to “fairly distributing benefits, risks, and costs.” Beauchamp & Childress, supra. Like autonomy, justice is relevant to both individuals and communities. King, supra.

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Principlism can—and should—be used to assess the ethical issues of any issue in energy technology or law. For example, a brief assessment of domestic oil production and consumption reveals issues of autonomy in the tragedy of the commons and unitization. The tragedy of the commons occurs when a shared resource is depleted by individuals who, acting with regard to their own short-term interests, exhaust a resource to the detriment of their long-term interests. Chapter 3: Domestic Petroleum. To overcome this wasteful depletion, those owners sharing the resource may consolidate or merge the entire source as a single entity. Id. Such a unitization agreement binds all owners of a common resource to develop that resource cooperatively and for the benefit of all owners, as each owner receives his or her “share” of production of the entire resource, which is thus not depleted by merely a few owners. Id. Yet, some states have enacted unitization statutes that force a minority of owners into whatever formula to which the majority of owners agrees. Id. Thus, both the problem (the tragedy of the commons) and the solution (compulsory unitization) pose problems of autonomy.

Another example is a brief assessment of water power, which reveals issues of beneficence, as hydro electricity generation causes no air emissions, has both low operation costs and stable generation output, and assists in flood control and irrigation—all generally “good” effects. Chapter 7: Water Power. Yet, it also reveals issues of non-maleficence, as it detrimentally impacts river systems, fish and wildlife populations, and even the economic and social welfare of surrounding communities. Russ Rymer, Reuniting a River, National Geographic (Dec. 2008).

No energy source produces more fission of priorities and parties than nuclear energy.

Frank Newport, Americans Still Favor Nuclear Power a Year After Fukushima,

Gallup (March 26, 2012).

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Yale Project on Climate Change Communication, Nuclear Power in the American Mind

Yet, it is not enough to oppose, support, or even remain neutral about nuclear energy production—much less engage in any legal analysis relating to nuclear energy production—without analyzing the ethics of nuclear energy: the principles of autonomy, beneficence, non-maleficence, and justice.

Autonomy. While nuclear energy is produced and consumed with intent and understanding, neither is done without external coercion or control. The entire life-cycle of nuclear energy from source to use is subject to oversight of the United States Nuclear Regulatory Commission as well as various laws and regulations including, but not limited to, Atomic Energy Act of 1954, Energy Reorganization Act of 1974, Nuclear Non-Proliferation Act of 1978, Uranium Mill Tailings Radiation Control Act of 1978, Nuclear Waste Policy Act of 1982, and Low-Level Radioactive Waste Policy Amendments Act of 1985. While autonomy is certainly an issue worthy of analysis in any context, it must be conceded that production and consumption of nuclear energy are not autonomous. An issue worthy of further analysis, however, is the ethics of such limited autonomy: should we have more or less regulation? Whose autonomy would be affected by regulatory changes and whose autonomy has priority?

Beneficence. While defining “good” is often problematic, the benefits of decreasing the various harms and dangers of fossil-fuel-based energy production—such as the acid rain and global warming caused by toxic air emissions in burning coal, and depletion and contamination of water resources in fracking—cannot be denied. Chapter 8: Coal. Chapter 3: Domestic Petroleum. “Nuclear energy has perhaps the lowest impact on the environment—including air, land, water, and wildlife—of any energy source. It produces no harmful greenhouse gases, isolates its waste from the environment, and requires less area to produce the same amount of electricity as other sources.” The Clean and Safe Energy Coalition, Why Nuclear? To increase nuclear energy production would be to decrease fossil-fuel-based production, thereby decreasing the harmful health and environmental effects thereof.

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Further, because the United States is home to about four percent of the world’s total uranium—the fifth largest resource, just behind Australia, Canada, Kazakhstan and Niger in 2009—nuclear energy production is a potential source of energy security. World Nuclear Association, Reasonably Assured Resources of Uranium in 2009. In other words, increased nuclear energy production could decrease the United States’ dependence on imported oil. Thus, nuclear power production produces benefits that are in the best interest of not only our public health and safety, but also the well-being of the environment and the generations that will inherit it. Indeed, producing nuclear energy would be “relieving, lessening, or preventing harm and providing benefits.” Beauchamp & Childress, supra.

Non-Maleficence. While nuclear energy production avoids harms caused by fossil-fuel based energy production and is therefore beneficial, it nonetheless poses additional risks of unique harms which should be avoided pursuant to non-maleficence. During extraction, miners are exposed to toxins resulting in higher rates of lung cancer, tuberculosis, and other respiratory diseases. Physicians for Social Responsibility, Dirty, Dangerous and Expensive: The Truth about Nuclear Power (Jan., 2010). Further, sourcing 1,000 tons of uranium fuel produces and releases about 100,000 tons of radioactive tailings and about 1 million gallons of radioactive liquid waste containing arsenic and other metals, which pose a serious threat to our crop and water supplies and, ultimately, the public health. Id.

During production, nuclear power plants expose not only employees, but also nearby residents, to radioactive emissions. Indeed, “a small portion of radioactivity must be released from reactors. This radioactivity enters the human body through breathing and the food chain, as gases and tiny metal particles. They kill and injure healthy cells, leading to cancer, and are especially harmful to the fetus, infant, and child . . . .” Joseph J. Mangano, Coal for Nukes – Replacing One Hazard With Another?, Louisville Courier (Mar. 11, 2008). But, while radioactivity is certainly dangerous—and, therefore, considered to be a harm—the extent and effects of that harm must be considered. A nuclear power plant’s radioactive emissions are limited to 250μsv over one year. David McCandless and Matt Hancock, Radiation Dosage Chart (Aug. 2013). Yet, each year we each receive a dose of about 400μsv from food alone (for example, eating one banana causes exposure of 0.1μsv), and due to background exposures, we receive a dose of about 10μsv per day from merely living on planet Earth! Id. One mammogram is a dose of about 4,000μsv, while one CT scan is a dose of about 10,000μsv. Id. Smoking 1.5 packs of cigarettes per day for one year is a dose of 36,000μsv. Id.

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Thus, while fear of radiation exposure to nearby residents may be justified, it must be minimized. Indeed, living near a nuclear plant for 2,000 years would be the exposure equivalent of one X-Ray, while living next door to a nuclear plant for one year would be the exposure equivalent of one round-trip flight from New York, NY, to Los Angeles, CA. James Lovelock, Our Nuclear Lifeline, Readers Digest (March, 2005). Indeed, we are constantly surrounded by radiation that is emitted from our environment, and the vast majority of created radiation is emitted in medical diagnostics and treatment. World Nuclear Association, What is Radiation? While we may consider such radiation to be dangerous, we generally accept that its harm is greatly outweighed by its benefit. Id.

World Nuclear Association, What is Radiation?

Disposal poses a unique harm: nuclear energy production creates 2,000 metric tons of high-level radioactive waste and 12 million cubic feet of low-level radioactive waste. Physicians for Social Responsibility, supra. Indeed, “[m]ore than 58,000 metric tons of highly radioactive spent fuel already has accumulated at reactor sites around the U.S. for which there currently is no permanent repository.” Id. This waste consists of radioactive and cancer-causing chemicals including Cesium-137, Iodine-129, Strontium-90, and Plutonium-239, just to name a few. Mangano, supra. Yet, there is no method of safely and permanently disposing of this waste, and it remains dangerous for thousands of years! Id. Thus, even if we can safely store this waste and “do no harm” to ourselves, we may do harm to future generations by leaving a massive, radioactive problem for them to solve.

Opponents of nuclear energy production often justify their position by citing production failures, or meltdowns, as the ultimate danger. Id. This harm, according to these opponents, is so great that it outweighs any potential benefit. Indeed, the words “nuclear meltdown” do invoke a strong fear response, and a nuclear energy production failure would certainly do harm. But out of 14,500 nuclear energy production facilities, there has been a total of only three failures: Three Mile Island in Pennsylvania, U.S. (1979), Chernobyl in Pripyat, Ukraine (1986), and Fukushima Daiichi in Ōkuma, Japan (2011). Bernard L. Cohen, Risks of Nuclear Power. Thus, while the extent of possible harm is immense, the statistical risk of that harm is essentially miniscule—particularly in comparison to the harms caused by our current primary energy sources.

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Justice. While the principle of non-maleficence is to do no harm, it is often a matter of justice to do less harm. Indeed, though extraction, production, and disposal of nuclear energy may increase certain risks compared to fossil-fuel based energy, it also increases efficiency: “a single uranium fuel pellet contains as much energy as 480 cubic metres [sic] of natural gas, 807 kilos of coal or 149 gallons of oil.” In other words, nuclear energy’s potential dangers are counterbalanced by the avoided harms of fossil-fuel based energy. World Nuclear Association, Nuclear Basics.

Further, although nuclear energy is certainly not entirely safe, it may actually be safer than most of our existing energy sources. Indeed, nuclear energy is five times safer than oil and ten times safer than gas. World Nuclear Association, Safety of Nuclear Power Reactors. To rival the air pollution from coal burning which causes 10,000 deaths per year, there would have to be twenty-five nuclear reactor melt-downs every year! Lovelock, supra. Indeed, coal production actually releases more radioactivity than nuclear production: “the fly ash emitted by a power plant—a by-product from burning coal for electricity—carries into the surrounding environment 100 times more radiation than a nuclear power plant producing the same amount of energy.” Mara Hvistendahl, Coal Ash Is More Radioactive than Nuclear Waste, Scientific American (Dec. 13, 2007).

Opponents of nuclear energy generally concede that continued fossil-based energy production is detrimental to the environment and, thus, the public health. The solution, they opine, is not nuclear energy but, instead, safe, renewable forms of energy. Mangano, supra. Yet, nuclear energy is roughly one hundred times safer than hydro-electric dams, though it should be noted that “[h]ydro power generation has a record of few but very major events causing thousands of deaths.” World Nuclear Association, Safety, supra. Further, nuclear energy production is more efficient than even the safest forms of renewable energy production. Nuclear energy production is continuous, controllable, and contained: the requisite land area for wind turbines and solar cells far exceeds that of a nuclear power plants. In other words, increased nuclear power production would decrease the necessity for wind and solar technologies, thereby decreasing the detrimental effects of these renewable sources to the environment and wildlife.

Nuclear Energy Institute,Land Needed by Wind or Solar Energy to Match Annual Nuclear Energy Production.

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One critic of nuclear energy asked “[c]an we continue to despoil our environment with long-lived radioactive materials that are scattered to the wind and embedded in our precious soil, randomly exposing large populations, and foisting health impacts on unsuspecting future generations who have no choice in this matter?” Jeffrey Patterson, Radiation Exposure and the Power of Zero, Bulletin of the Atomic Scientists (Apr. 26, 2011). This question is one of justice; is it fair to cause such harm not only to our environment, but to the generations that will inherit it? Perhaps not—but is it just not to? Our current energy production and consumption is destroying our planet, and if we do not make a significant change, there may be no environment left to bestow. But where is the justice in jeopardizing the health and well-being of our current population for the sake of future generations? By increasing nuclear energy production, we would be exposing the public to an increased risk of cancer due to radioactive emissions. Mangano, supra. Yet, current coal-burning, fracking, and other fossil-fuel based productions jeopardize the public health and environment by releasing other toxins. Chapter 8: Coal. Chapter 3: Domestic Petroleum. Thus, justice for one generation may necessarily mean injustice for another.

WHY DOES IT MATTER?

Unlike science and statutes, Principlism produces no definitive answers. Instead, it provides a structured, disciplined method of assessing issues of autonomy, beneficence, non-maleficence, and justice—each a principle on which the legal system in the United States is based. While the preceding analysis may appear to favor nuclear energy, it is merely an illustration of one of many possible ways to assess each principle—the same principles could be assessed in a variety of ways (for example, “that rural communities will be disproportionately and detrimentally affected by radiation exposure is against the principle of justice,” “a solution cannot constitute ‘good’ if it creates a bigger problem, such as disposal,” “extraneous factors such as attacks on nuclear plants and thefts of uranium must be accounted for in non-maleficence.”) This analysis does not, however, assess the relative values of each principle; the principle of non-maleficence may nullify any potential beneficence, or perhaps the benefits of nuclear energy to our current population outweigh any injustice to future generation. Indeed, this analysis was of what the ethical question is, not what the answer ought to be. To be sure, bioethics is important to energy law not because of its answers; instead, it is vital because of its questions.

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