Open Access Research Article
NUCLEAR ENERGY LAW AND ITS ENVIRONMENTAL ASPECTS IN INDIA
Published Paper
Article Details
NUCLEAR ENERGY LAW AND ITS ENVIRONMENTAL
ASPECTS IN INDIA
AUTHORED BY
- KAUSTUBH MURKUTE
Roll no: 36
LL.M II
CO-AUTHOR -
Asst. Prof. Prajakta Pimpalshende
P.E.
Society’s Modern Law College Ganeshkhind, University Circle, Pune
Abstract
Nuclear
energy law and its environmental aspects in India form a complex and critical
area of study, reflecting the country’s dual objectives of meeting growing
energy demands and ensuring environmental protection. India has made
significant investments in nuclear energy as part of its strategy to diversify
its energy mix and reduce reliance on fossil fuels, which are associated with
high greenhouse gas emissions. The legal framework governing nuclear energy in
India includes both national regulations and international agreements, aiming
to balance the benefits of nuclear power with rigorous safety and environmental
standards. The primary legal instruments in this domain are the Atomic Energy
Act, 1962, and various rules and regulations under this Act, including those
pertaining to safety, security, and environmental protection. Additionally,
India is a signatory to international treaties such as the Convention on
Nuclear Safety and the Convention on Environmental Impact Assessment in a
Transboundary Context, which influence domestic regulatory practices.
Environmental aspects of nuclear energy in India involve considerations of
waste management, radiation protection, and ecological impacts. The Indian
regulatory framework addresses these issues through stringent safety protocols
and environmental impact assessments. However, challenges remain, particularly
regarding the management of radioactive waste and the potential for environmental
contamination in the event of accidents.
Keywords
Nuclear
energy, Environment, Protection, Safety, Regulation.
Introduction:
The years following World
War I were characterized by quick advances in technology and low-cost energy.
As the 20th century went on, campaigns for sustainable development and the
utilization of renewable energy sources gained traction. The public’s fear of
nuclear energy stemmed from the nuclear accidents at Three Mile Island in March
1974 and Chernobyl in April 1986, which claimed 65,000 lives and caused damages
of up to US $250 billion. These events made people aware of the potential
disaster that lurks beneath nuclear reactors. These mishaps demonstrated the
detrimental effects they have on people’s health, property, the economy, and
the environment. The people, who already feared for their safety and the safety
of their families in the event of a nuclear accident, found little solace in
the environmental movements. However, as the 1990s came to an end and the
twenty-first century began, the public’s attention was shifting from
radioactivity to global warming as the more pressing and deadly environmental
problem. Since the carbon emissions from a nuclear power station are
negligible, growing concerns over global warming have suddenly shrouded nuclear
energy in respectability.
Since they were first
built more than 30 years ago, nuclear reactors and power plants have not caused
any major problems or worries to the public. They make a big difference in the
world’s energy[1], and after
strong resistance to nuclear power, some countries have given up on building
nuclear weapons and expanding their nuclear power programs. Climate change,
lowering greenhouse gas emissions, and worries about running out of fossil
fuels, using renewable energy sources, and energy security all led to the
growth of nuclear power in both developed and emerging countries around the
world.
Energy security has been
a fundamental aspect of the foreign and security policy goals of all
governments since the First World War. During this time, the British navy
switched its ships from coal to oil propulsion in order to gain an advantage
over German ships that were still using coal as their power source. Several
significant engagements of the Second World War, such as the 1941 German
invasion of Russia and Japan's decision to strike the US naval base in Pearl
Harbor later that year, were directly or indirectly connected to the issue of
energy security.[2]
Growth of
Nuclear Power in India
India
uses a very small amount of nuclear power compared to the total amount of
industrial primary energy it uses. Nuclear power is used to make energy, but it
only makes up a very small part of the electricity made in India. Even though
it doesn’t make a big difference right now, nuclear power could give India
“energy independence” after 2050, so its growth is seen as very important[3].
India, on the other hand, has a lot of thorium ores but not many lowquality
uranium ores. So, India’s nuclear power program is built around a three-step
plan: (i) Pressurized Heavy Water Reactors, (ii) Fast Breeder Reactors, and
(iii) Reactors based on the Uranium 233-Thorium 232 cycles. The end goal is to
use the country's huge thorium stocks. India, on the other hand, has been
banned from getting to its nuclear materials and technology from other
countries because it has not signed the Nuclear Non-Proliferation Treaty (NPT)
and has performed nuclear tests in 1974 and 1998. India’s plans to use nuclear
power in the future rely on the country being able to trade nuclear materials
with other countries[4]. The
International Atomic Energy Agency (IAEA) was created in 1956 to promote and
make it easier for nuclear power[5] to
be used by more people. People thought that atomic energy would help bring
about “peace, health, and prosperity” around the world. The goals of the IAEA
say that different legal systems should be able to handle health and
environmental risks by making their own rules and laws while following the
IAEA’s safety standards.
Nuclear
Power: The Emergence of Environmental Concerns
The surge in popularity of nuclear power as a
solution to the energy crisis of the 1970s finally made long-term health and environmental
implications a major global worry. The Stockholm Conference in 1972 had
advocated for the establishment of a register to track emissions of
radioactivity, as well as promoting international collaboration in the
management of radioactive waste disposal and reprocessing[6]. The issue
was acknowledged as a burgeoning concern, resulting from the escalating
utilization of nuclear energy, although no explicit policy directives were
provided. The practice of disposing nuclear waste in the ocean was partially
prohibited in 1972, completely halted in 1983, and ultimately banned by the
1996 Protocol amending the London Dumping Convention. As a result, the only
remaining options for disposal are on land or through reprocessing. However,
the nuclear accidents at Three Mile Island in the USA and Chernobyl in the
Soviet Union[7]
demonstrated the grave hazards to human health, agriculture, and the
environment associated with nuclear power. The incident at Chernobyl in 1986
resulted in the widespread pollution of Eastern and Western Europe,
highlighting the shortcomings of international policies in managing
catastrophic risks and exposing some of the actual expenses associated with
nuclear power.
The
Chernobyl disaster raised concerns about the effectiveness of both domestic and
global oversight of nuclear installations. The situation revealed the inherent
limitations of the IAEA’s[8]
authority and the lack of consensus about issues of culpability and state
responsibility. It heightened the significance of neighbouring states interest
in the establishment of nuclear power facilities, the possibilities for
discussing safety concerns, and the entitlement to immediate reporting of
detrimental accidents. The necessity for stronger worldwide control of safety
problems in relation to nuclear power became apparent, highlighting the
insufficiency of the first compassionate perspective established in 1950.[9]
Importance
of Nuclear Power and Challenges in India
In
the past 10 to 15 years, a new book has been written about nuclear power. Many
law systems have switched to nuclear energy because of rising prices for fossil
fuels and worries about climate change around the world. In fact, the World
Nuclear Industry Status Report 2010–2011 says that more nuclear plants were being
built around the world in 2010 than in any other year since 1988[10].
The world’s number of working reactors dropped from 427 in July 2013 to 388 in
July 2014. This is a drop of 39 percent, or 50 less than the peak number of
reactors in 2002[11]. It
is especially strong in China, India, and South Korea, whose economies are
growing quickly but don’t have a lot of energy. To reach a nuclear power output
of 63,000 MW by 2032, India has made a very ambitious plan. The Indian
Government has said many times that nuclear energy will be an important part of
the country’s efforts to find a clean and environmentally friendly energy mix.
But while the Asian countries and the global nuclear energy industry have been
getting ready for this renaissance, the recent accident at Fukushima in 2011[12] has
served as a stark warning of how dangerous nuclear power can be and why strict
safety rules are needed. It’s not a surprise that scholars and experts have
given the task of making safety rules for civil nuclear sites a lot of thought[13].
The Indian economy is growing at a good rate of 8% per year[14]. To keep
up this rate of growth, the country needs to put more effort into building
facilities and getting more inputs, like energy. India’s total industrial
energy needs are expected to grow by 7.5 times in the next thirty years, but
the rate of growth is only 3.29 percent right now15. Because climate
change and pollution are both very dangerous, it is also important that the
energy that is made doesn’t hurt the earth. This can be done with both nuclear
fuels and energy sources that don’t waste energy. At the moment, India gets its
energy from the following sources.
All India Energy Sector at a Glance (as on 31.03.2018)[15]
|
Fuel
|
MW
|
Percentage
|
|
Total
Thermal
•
Coal
•
Gas
•
Oil
|
188,898
164,636
23,062
1200
|
70.6
61.5
8.6
0.4
|
|
Hydro
(Renewable)
|
41,267
|
15.4
|
|
Nuclear
|
5,780
|
2.2
|
|
Renewable Energy Sources
|
31,692
|
11.8
|
|
Total
|
2,67,637
|
|
When combined with
thermal power stations, hydropower plants have been responsible for the
generation of the majority of India’s energy over the course of its history.
During the same time period, the production of energy from nuclear power
stations experienced a decline, despite the fact that the National Electricity
Policy, 2005 depicts a requirement for a considerable rise in the proportion of
nuclear power by increasing investments from the public sector. In 2013–2014,
the overall growth rate of energy in the thermal, hydro, and nuclear sectors
was 6.04%, while the development rate for 2014–2015 is 8.4% (provisional).
According to the category, the performance of the generation is as follows:
Overview of Power Generation in India (2018-19)[16]
|
Energy
|
Inclined/Declined
|
Percentage
|
|
Thermal
|
Improved by
|
4.18
|
|
Hydro
|
Improved by
|
18.58
|
|
Nuclear
|
Improved by
|
4.14
|
|
Overall growth rate
|
Improved by
|
6.04
|
About
sixteen percent of the world’s energy comes from nuclear power[17].
More than 15% of the world’s energy came from nuclear power just in 200919.
Besides this, nuclear power has been used to build more than 150 military ships
around the world. India currently has 19 nuclear power plants running, which
are producing 4,560 MW of electricity. Another 4 are being built, which will
add another 2,720 MW20 of electricity. India also wants to raise the
share of nuclear power in its total electricity generation potential from 4.2%
to 9% in 25 years. Official reports say that India wants to build a nuclear
power plant with a capacity of 63,000 MW by 2032[18]. Recent
protests against building new nuclear power plants, on the other hand, have put
this goal at risk. Public protests against a 9900 MW nuclear power project in
Jaitapur, Maharashtra, and a 2000 MW nuclear power plant in Koodankulam, Tamil
Nadu, have never been seen before. Similarly, the West Bengal state government
has turned down a plan for a 6000 MW plant in Haripur, saying that safety
worries were too high.
The
Indian Parliament passed the Civil Liability for Nuclear Damage Act, 2010 to
set up a clear way to handle compensation claims after a nuclear accident. This
was done because global sanctions had been lifted and the country’s energy
needs were growing. There was also more nuclear commerce. The bill was passed
by the Lok Sabha, and Prime Minister Manmohan Singh said it was the “end of a
journey to end the apartheid against India in the field of atomic power”22.
However, the question is not just how much compensation should be paid in case
of an accident, but also who would pay, the owners or the suppliers, and how
much.
International
Atomic Energy Agency as an International
Inspectorate
and Review Body
The
International Atomic Energy Agency (IAEA) was formed as a result of a
compromise reached after the US failed to agree on suggestions for
international single-head control of all nuclear power facilities by an
international agency. Its primary responsibilities were to encourage and
facilitate the development and inspection of nuclear power[19], as well
as to ensure that it was only used for peaceful purposes24 through
non-proliferation safeguards. It has the critical role of setting human health
and safety standards in partnership with other international institutions25.
The IAEA has only little authority to function as an important nuclear safety
inspectorate under its legislation.[20] However,
if requested, the Agency can provide safety advice and conduct a review of
safety practices for any nuclear installation or waste disposal facility.
The IAEA has laid down
certain principles to be followed by its member states for nuclear safety and
precautions.[21] They
principles are as follows:
a)
The Safety Principle: These principal lays emphasis that
the legal regimes in a country should adopt certain minimum standards of safety
for the purposes of protecting health and minimize the danger to life and
property from exposure to radiation. This principle is further divided into two
subsidiary principles. They are as follows:
i.
Prevention and Protection Principle: This principle lays down that every
legal regime should adopt standards of safety for radiation protection,
transport and handling of radioactive materials, radioactive waste disposal and
safety of nuclear installations.
ii.
Precautionary Principle: This principle lays emphasis on
establishing basic international minimum safety standards and guiding
principles regulating the design, construction, siting and operation of nuclear
power plants. The utmost priority should be given to protecting public health,
security, safety and the environment.
b)
Security Principle: The Security Principle suggests the
legal system should include the provisions against, both accidental and
intentional radiation which can pose threat to the life and property of the people.
This principle also cautions against illegal acquisition of nuclear materials
by criminal or terrorist groups.
c)
Responsibility Principle: When there are Trans boundary
nuclear accidents, it becomes difficult to find most preferred method for
ensuring safety and reallocating the costs for accident. Generally, the
principle of equal access and non-discrimination to nuclear risks and a number
of national legal systems facilitate trans-boundary proceedings.
d)
Permission Principle: Prior permission is required to do
those things, which may pose serious threat or injury to persons or
environment. Use of nuclear technology inherently involves some risk; prior
permission is always required. The law also clearly needs to identify those
activities that require prior permission.
e)
Continuous Control Principle: A continuous monitoring of the
activities to provide safety advice and a review of safety practices for any
nuclear installation or waste disposal site. IAEA safety inspections are
valuable to governments because of their independence and the reassurance they
provide.
f)
Compensation Principle: The states should create a common
scheme for loss distribution among the victims, focusing liability on the
operator of a nuclear installation, based on the principle of absolute or
strict liability and re-enforced by state-funded compensation schemes.
g)
Sustainable Development Principle: The principle of sustainable
development has special relevance in nuclear energy production. It is “because
some fissile material and sources of ionizing radiation can pose health, safety
and environmental risks for very long periods of time.”
h)
Compliance Principle: Nuclear energy production involves
particular risks of radiological contamination transcending national
boundaries. There are many bilateral and multilateral instruments that aim at
determining an international law of nuclear energy. The fundamental question is
to what extent a particular state has adhered to these international legal
regimes. It is also important that the national legal regime incorporates the
provisions of customary international law also.
i)
Independence Principle: It is very important that the
powers, functions and decisions of the Regulatory Authority that is constituted
under the nuclear law are not interfered by the executive or other branches of
the State and also from entities involved in the development or promotion of
nuclear energy.
j)
Transparency Principle: Erstwhile, information of nuclear
materials was guarded, categorizing it as ‘sensitive’ and ‘confidential’. In
the recent past, however, the emphasis is “with the development of the peaceful
uses of nuclear energy, however, public understanding of and confidence in the
technology have required that the public, the media, legislatures and other
interested bodies be provided with the fullest possible information concerning
the risks and benefits of using various nuclear related techniques.
The
Civil Liability for Nuclear Damage Act, 2010
The
law says that people who run nuclear facilities are responsible for any damage
they cause. The workers are responsible for everything, even if they made a
mistake. This is called “strict liability”, and it doesn't matter who made the
mistake. This damage won't just happen in the country where it happened; it
will also spread to countries nearby. Most of the time, the people who run
nuclear plants are responsible for some of the damage, which they may pay for
with insurance. After that, international law and practice say that states are
responsible as the last option insurers[22].
Currently
there are three major international agreements, which form the international
framework of nuclear liability. They are:
• The Paris Convention
of 1960[23]
• The Vienna
Convention of 1963[24]
along with the Protocol to amend the Vienna Convention, 1997.
• The
Convention on Supplementary Compensation for Nuclear Damage of 1997.
India
has only signed the Convention on Supplementary Compensation for Nuclear
Damage. However, it has made a number of bilateral deals with other countries,
such as the USA, UK, Russia, France, and Canada, to work together on using
nuclear energy for peaceful purposes[25]. The
agreement between India and France makes it clear that India needs to set up a
civil nuclear liability system to pay for damage caused by accidents involving
nuclear materials and facilities.
There are more than 400 nuclear reactors in use around the
world, but only three big accidents[26] have killed
people[27].
But a big nuclear accident like Chernobyl[28] did a
terrible amount of harm. It is the goal of the Civil Liability for Nuclear
Damage Act, 2010 to make sure that people get paid quickly after a nuclear
disaster. There are some things that all international deals on this subject
have in common:
• Fixing
no-fault liability on operators and requiring them to take insurance or provide
financial security.
• Limiting
no-fault liability in time and amount.
• There is a
process for expeditious distribution to victims by fixing which court/
authority has jurisdiction.
The president signed the Civil Liability for Nuclear Damage
Act, 2010 into law on September 21, 2010. This bill’s main goal is to make sure
that people who are hurt by nuclear accidents can get quick and fair
compensation. It does this by establishing a “no-fault liability regime” that
puts responsibility on both the operator and the state. The other goals of this
Act are to create a Nuclear Damage Claims Commission and name a Claims Commissioner.
It also says that it is being passed to cover liability in case of a nuclear
accident and because of the “need to join an international liability regime”.
According to the Act, nuclear damage can happen in or over the oceans outside
of India's territorial waters, in or over the exclusive economic zone, on a
ship registered in India, or on or by an artificial island, installation, or
building that is controlled by India. Also, it only covers nuclear
installations that are owned or managed by the Central Government, either
directly or through a government company, authority, or business.
Liability
for Nuclear Damage
Chapter
II of the Act (parts 3–8) establishes the legislation and procedures governing
liability for nuclear damage. The Atomic Energy Regulatory Board (AERB) must
inform a nuclear incident within 15 days of its occurrence if it believes the
intensity of the hazard and risk is significant. Once alerted, the Board will
make the occurrence widely known so that individuals can be cautious and take
all required precautions. However, the use of the word ‘insignificant’ in this
section appears to be unclear. It allows the AERB to assess what is and is not
relevant because no criteria are specified.
If
there is a nuclear accident, the Operator is responsible for any “Nuclear
Damage” that happens to the “nuclear installation” or “nuclear materials” that
it is in charge of. If there are more than one operator and the damage can’t be
separated, each operator is responsible for the whole thing. This is called
“Joint and Several.[29]”
But even if a number of people are responsible, each user will still only be
responsible for what is stated in Section 6(2). Additionally, if more than one
nuclear installation owned by the same person is involved in a nuclear
accident, that person is responsible for each individual nuclear installation
to the amount set out in Section 6 (2).
Liability
of an Operator to be ‘Strict Liability’ based on the principle of ‘NoFault
Liability’
The
Indian version of strict liability is called “absolute liability”. It says that
if a business is doing a hazardous or naturally dangerous activity and someone
gets hurt because of an accident during the operation of that hazardous or
naturally dangerous activity, like toxic gas escaping, the business is strictly
and absolutely liable to compensate all those who were hurt. This liability is
not subject to any of the exceptions that apply to the tortious principle of
strict liability under the rule in Rylands v. Fletcher[30]. To put
it another way, absolute responsibility means strict liability in every case.
This level of responsibility was set by the Indian Supreme Court in the case of
M.C. Mehta v. Union of India[31]
(Oleum Gas Leak Case).
But
it is not clear what kind of responsibility India would have in the event of a
nuclear disaster. There are some rare situations in which an operator is not
responsible according to the Act. However, even in these cases, the victim will
still get money because the Central Government is now responsible. In these
situations, we have the following:
• A grave
natural disaster of an exceptional character[32]. However,
the phrase ‘exceptional character’ has not been defined under the Act. This
leaves a lot of discretion with the authorities.
•
An act of armed conflict, hostility, civil war,
insurrection or terrorism.39
If
these circumstances directly cause the nuclear damage, the Central Government
assumes liability instead of the operator[33]. Further
the list continues to include any nuclear damage that is caused to:
• The nuclear
installation itself and any other nuclear installation, fully or partially
constructed, on the site where such incident occurred.
• To any
property on the same site which is used or to be used in connection with such
installation.
• To the
means of transport upon which the nuclear materials involved was carried at the
time of nuclear incident[34].
These
provisions, though aimed at preventing the operator from getting compensation
for nuclear incident caused by him, may go against the interest of another
party whose property at the time of the nuclear incident was on the same site.
Conclusion
The nuclear energy industry has had a tremendous expansion
over the course of the last few decades, mostly as a consequence of the growing
concern that the international community has shown over the issue of global
warming. The transfer of the ultimate obligation to compensate the victims to
the government, as well as the channelling of duty to the operator and the
limitation of this liability, are characteristics that are shared by all
international liability regimes for nuclear harm. In addition, the authority to
compensate the victims is transferred to the government. In the event of a
nuclear accident, relieving the provider of all duty carries with it a high
amount of risk, which, in turn, has the effect of leaving the supplier with
less reason to design nuclear reactors that are safer. In accordance with the
Indian civil nuclear liability system, the operator has been granted the right
of recourse against the supplier in the event that the nuclear incident
happened as a consequence of the supplier supplying equipment or material with
patent defects, latent defects, or inadequate services. This right of recourse
is also applicable in the event that the nuclear incident occurred. In addition
to the transfer of obligation to the operator, the limitation of this
liability, and the transfer of the ultimate responsibility to recompense the
victims to the government, this is also included in the transfer of
liability.
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1. Rylands v. Fletcher
2. M.C. Mehta v. Union of India Statutes:
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[2]
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[12]
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[13]
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[15]
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[17]
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[19]
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seen on 23/08/2024
Article Information
NUCLEAR ENERGY LAW AND ITS ENVIRONMENTAL ASPECTS IN INDIA
Authors: KAUSTUBH MURKUTE, ASST. PROF. PRAJAKTA PIMPALSHENDE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/09/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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