Memoirs of a Movement

By Mark Evanoff

CHAPTER 6

MANIPULATING THE SYSTEM: CREATING LAWS TO STOP NUCLEAR POWER

“The Supreme Court decision was unfortunate
or misguided. The nuclear industry is dead
until these laws are repea1ed.”

-Lou Bernath
San Diego Gas and Electric

While opposition to particular nuclear plants continued, some individuals wondered how to make nuclear power a statewide issue and stop its future development. The initiative process had possibilities. It was created in 1911 in response to corruption in California government and allowed citizens to write their own laws and constitutional amendments. With the petition of a prescribed percentage of registered voters, a proposed law could be placed on the ballot for voter ratification.

Few groups used the process until Ed and Joyce Koupal recognized that the initiative provided a means to influence public policy. Ed Koupal left his job selling used cars in a small Central Valley town and abandoned his hobby playing the clarinet in swing bands, to found the People’s Lobby. When trying to recall Governor Ronald Reagan in 1968, the Koupals perfected an efficient method to persuade people to sign petitions.

Kouple liked the initiative because it could be used to prompt public discussion on policy issues. After failing to gather the necessary signatures to recall Reagan, Kouple decided to make the environment a focus of public discussion. Koupal drafted a comprehensive environmental initiative that banned offshore oil drilling, phased out leaded gasoline, banned DDT, and prohibited industrialists from getting exemptions from environmental standards. At the insistence of Davenport activist Eli Gilardi, Koupal included a five year moratorium on the construction of new nuclear power plants in California. Joyce Koupal remembered, “At the time we knew nothing about nuclear power.”

With little extra help, the Koupals qualified the initiative with the signatures of more than 350,000 registered voters, and placed it on the June 1972 ballot. The California Attorney General named it the Clean Environment Act, or Proposition 9. Corporations spent more than $1 million on advertising opposing the initiative. Labor unions, and major corporations warned the public about the initiative’s “devastating impact.” Old antagonists once again confronted one another. One evening former Public Utilities Commission President and Bodega Bay Atomic Park opponent William Bennett, debated former PG&E Atomic Information specialists Hal Strube.

The Koupals incorporated cleaver educational events as part of their fundraising drive. Thousands of young people participated in 15 simultaneous 40 mile bike rides that raised $250,000 for the campaign. People wanting to participate in the ride gathered pledges from their neighbors who promised to contribute a certain amount of money to the campaign, based on the miles peddled by the rider. People learned about the initiative after talking to the bicyclists. Although voters soundly defeated the Clean Environment Act, the public started to think about what had to happen to clean up the, environment.

In November 1972, voters overwhelmingly passed the Coastal Initiative, which prohibited power plant construction along the California coast until the new Coastal Commission approved a master development plan. The Commission was charged with designating appropriate places for power plant development. The Sierra Club played a p major role in gathering the signatures needed to qualify the initiative for the ballot. After its passage, PG6cE dropped plans to build nuclear power plants at Point Arena and Davenport. Although the earthquake faults proved embarrassing, the Coastal Initiative provided a legal excuse to not build the plants, and PG&E could abandon the project without looking bad.

Before placing a second anti—nuclear initiative on the ballot, Koupal organized the Political Reform Initiative, with the help of the then Secretary of State Jerry Brown. The measure limited campaign spending and required disclosure of all I contributions larger than $100. The signature gathering period confidently coincided with the disclosures of President Nixon’s involvement with the Watergate cover-up. Voters wanted revenge and eagerly signed the petitions. After the initiative qualified for the ballot, several organizations contributed money to the campaign to ensure its passage. No one dared oppose it and voters overwhelmingly adopted the measure in June 1974. Koupal hoped the campaign spending limitation provision might strengthen grassroots initiatives by preventing corporations from buying elections.

Meanwhile, another group of people wanted a specifically anti-nuclear piece of legislation. Utilities still wanted to build nuclear power plants and a strong anti-nuclear constituency didn’t exist. Ronald Reagan was the governor and favored nuclear power, as did the Public Utilities Commission. Nuclear power opponents didn’t trust the state government to stop future development. The state needed a creative new law to stop utilities from building costly and unnecessary plants. But writing the new law was a tricky issue. The wording had to appeal to voters and it couldn’t supersede federal regulations. The United States Supreme Court had recently struck down a Minnesota law that set radiation emission standards one hundred times more stringent than federal standards. Organizers needed a law that could stop nuclear power without reference to radiation.

Clothing designer Alvin Duskin tried to write the legislation using appropriate language, but couldn’t come up with anything acceptable. Consumer advocate Ralph Nader also had an initiative that he hoped states would use to stop nuclear power. During a Nader speaking tour in California, Duskin met Nader’s assistant Richard Spohn, and the two men decided to work together. David Pesonen was already working with Duskin on the California initiative. Duskin, Pesonen and Spohn decided to pay a visit to Assemblymember Charles Warren, Chairman of the Energy, Environment and Natural

Resources Committee in December 1973 to solicit his support. Warren liked the concept of trying to write a law that stopped nuclear power without reference to radiation, but explained it had no chance of passage. He urged the men to write and qualify an initiative — and that action might motivate the legislature to pass a law controlling nuclear power plant development.

Duskin and Spohn wrote various draft laws trying to incorporate the concept of land use. Political strategists Bob Jeans and Larry Levine learned about Duskin’s efforts and suggested incorporating the concept of safeguards. Duskin and Spohn combined the ideas and wrote an initiative that would prohibit utilities the use of California land until the federal government had demonstrated that certain safeguards requirements had been met by the plants on the land.

Friends of the Earth founder David Brower and Ralph Nader spoke at the 1974 press conference announcing the beginning of the signature gathering drive. Organizers had to gather approximately 3,000 signatures a day for 150 days, to qualify the imitative. Unfortunately, none of the staff working on the campaign had experience qualifying an initiative and didn’t know how to mobilize the volunteers needed to gather the necessary signatures. “New Age” staff members thought maintaining volunteer files was “compulsive behavior.” During the signature gathering drive no one knew how many signatures had been gathered or who was doing the work.

Everything may have completely fallen apart had it not been for Dwight Cocke, a recent anti-nuclear convert, who walked in off the streets to volunteer his services. On his first day in the field, Cocke managed to gather 300 signatures and amazed everyone in the office. In a last ditch attempt to save the initiative, Cocke spent his evenings phoning volunteers and organizing a signature gathering drive. But recognizing the group didn’t have a chance to gather the necessary signatures by the deadline, Cocke called a meeting to decide what to do. Fifty people attended the meeting and decided to withdraw the initiative to maintain organizational credibility. However 3 people didn’t want to drop the idea of qualifying an initiative and decided to make a second attempt in the fall. Throughout the summer Spohn and Cocke traveled the state meeting with various environmental groups soliciting advice in revising the initiative. ‘ Although this took a lot of time, and amounted to little more than rearrangement of paragraphs, it made groups feel a part of the drafting process, and increased their commitment to help qualify and support the initiative.

In its final wording, the initiative required the state legislature to appoint a panel of experts composed of environmentalists and nuclear power experts to evaluate A the safety of each nuclear power plant in the state. Only if a two—thirds vote in the legislature found a plant safe, could it continue to operate. Otherwise, a utility had to cut power production 20 percent a year and close completely in five years.’ Each year the governor was required to publish an evacuation plan of the area surrounding a nuclear power plant. Utilities were required to provide total compensation for damages , caused by a nuclear power plant accident.

Although organizers intended to stop nuclear power development, the new organization, People for Proof: The California Committee for Nuclear Safeguards, didn’t profess to be anti-nuclear. Cocke explained why, “Nuclear power was seen as making America strong again and raising moral. Conservation seemed no more than a harebrained ideology. People had faith in technology and believed it would save the day.

“We asked for a legislative review of nuclear power in the state. Only if a plant wasn’t found safe, could it be shut down. Rather than being anti-nuclear, we were for safeguards.”

Cocke designed a tightly coordinated signature gathering plan with daily quotas D for each county. Volunteer teams traveled to various parts of the state to help with the signature gathering effort. In January 1975, after 250,000 signatures had been gathered, People for Proof held press conferences in Los Angeles and San Francisco announcing that they had gathered half the required signatures needed to place the measure on the ballot. Speakers stressed the importance of allowing voters to decide on the issue of plant safety.

Paul Valentine, working with the Palo Alto based organization Creative Initiative, attended the San Francisco press conference and expressed interest in joining the campaign. David Pesonen and Dwight Cocke spoke before the group and outlined the problems with nuclear power and what People for Proof intended to do with the initiative.

Impressed with the speeches, members of the audience donated $10,000 to keep the signature gathering drive going. The Creative Initiative Foundation formed Project Survival to help with the campaign.

After People for Proof gathered 500,000 signatures the group delivered the completed petitions to the county registrar of voters in 54 out of the states 58 counties. Before the delivery, the county initiative coordinators held 54 simultaneous press conferences that generated excellent newspaper coverage.

Ed and Joyce Koupal and Project Survival helped people in eight other states organize similar initiatives on nuclear power. The tactic forced the nuclear power issue into the presidential primary and boost the credibility of organizations sponsoring the initiative. Dwight Cocke and twenty volunteers traveled to Arizona to assist local organizers with the signature gathering drive and provided legal advice when nuclear power supporters attempted to keep the imitative off the ballot.

Before beginning the California campaign, People for Proof renamed itself Californians for Nuclear Safeguards. The name appalled some volunteers who didn’t want to profess nuclear power could be safe. But campaign managers believed public credibility and media respect could only be garnered by being safeguards.

Californians for Nuclear Safeguards kicked off its campaign with a town meeting on the University of California, Berkeley campus. Pro-nuclear advocate Hans Bethe, speaking with a heavy European accent, addressed the audience as if it were one of his classes. Turning to the chalk board, with his back to the audience, he explained in complex language why nuclear power was perfectly safe. People had a difficult time understanding what he said.

Suddenly one woman stood up in the middle of the audience shouting, “Oh woe— woe is me, God is speaking to me and he’s telling me that man is the devil,” and pointed to Hans Bethe. The audience shouted words of support and encouraged the woman to explain her vision. Supporters on each side of the issue bantered accusations back and forth. Even former AEC Commissioner Glenn Seaborg participated in the freewheeling discussion.

Dwight Cocke explained, “The campaign took off and acquired a dynamic life of its own with an infusion of energy and interest from the public and the media.”

Californians for Nuclear Safeguards developed one of the most extensive grassroots campaigns ever seen in an initiative, involving more than 10,000 volunteers. The campaign provided a way for different environmental organizations who’d been fighting with one another to work together. Although strong differences of opinions existed on strategic paths to take, and tensions existed between some individuals, the urgency of the campaign forced people to share the workload. One million dollars in donations flowed into the campaign. Reporters from throughout the country and different parts of the world covered the event.

In February 1976, three General Electric nuclear engineers announced their resignation. Dale Bridenbough, Greg Minor, and Richard Hubbard, explained at a press conference that they could not continue to work for the nuclear industry because of the inherent dangers of the technology. Utility executives started to worry when the experts started questioning nuclear power.

Criticism wasn’t only coming from the General Electric engineers. Assemblymember Charles Warren held hearings in Sacramento on nuclear power reliability and the feasibility of radioactive waste disposal. The experts validated many of Californians for Nuclear Safeguards claims during their testimony. Even the pronuclear members of the Energy and Environment Committee worried about nuclear waste disposal. The Assemblymen recognized nuclear power plant development could not continue until there was some place to put the waste created by nuclear power plants.

Warren drafted legislation requiring a federally approved and demonstrated technology in radioactive waste disposal before another nuclear power plant could be built in the state, and required each plant site to have adequate storage for radioactive waste. The legislation created a bind for the nuclear industry, because it was so reasonable. Industry always claimed radioactive waste disposal technology existed, so a law requiring it to be demonstrated wasn’t unreasonable. When arguing against it, industry had to be careful not to validate the claims of nuclear power opponents.

The utilities chose to support the legislation and the nuclear power plant vendors opposed it. An internal PG6cE public relations memo expressed the reasoning behind this. “[The Warren Bills] may have helped us. How much, no one will ever know. But it does seem safe to say that, had the bills been killed, the impact would have been devastating. The Governor and Assemblyman Warren might have taken a strong ‘Yes’ position [on the Safeguards Initiative].” The newspapers endorsing the Warren legislation and opposing the initiative, might have changed their position to supporting the initiative, “Responsibility for killing would have been laid at the feet of the industry. Thus it follows that the effort to keep the bills alive, to develop acceptable language and to put together the support needed to accomplish amendment and passage was worthwhile.”

The legislature passed the three bills five days before election day. Charles Warren said that the bills passed because the legislature was genuinely concerned about nuclear waste disposal. Some organizers thought it was an attempt to undermine the initiative, because the Warren bills took no action against existing plants.

Meanwhile, the nuclear industry appropriated millions of dollars to defeat what they termed the “shutdown imitative,” and filled the airwaves with advertising the week before the election. The advertisements claimed passage of the imitative would cost every family- $385 a year in increased electricity bills, create more smog in Los Angeles and San Francisco, generate unemployment, and throw the state into economic chaos.

The PG&E memorandum explained the reasons behind the advertising strategy. “We did not allow ourselves to be sidetracked into debate over nuclear safety (which is an argument we would not have won.)

“In making our case against the initiative we emphasized ‘shutdown’. We discussed the consequences of closing down existing plants and closing off the nuclear option in California. We referred to higher costs, job loss and less desirable alternatives. . . From this persistent hammering on the shutdown argument, the ‘too drastic’ concept naturally emerged.”

The. No-on-15 Campaign enhanced its credibility with the use of Nobel Laureates, the prestigious newspapers, and state and federal officials willing to speak for nuclear power and against the safeguards initiative. PG&E created, and the voters believed, Proposition 15 was too drastic.

PG&E noted the importance of money in winning the campaign. The State Supreme Court decision declared spending limitations on campaigns unconstitutional which enabled the nuclear industry to raise the funds needed to defeat the Safeguards Initiative. The PG&E memo admitted “Repeal by the Supreme Court of the spending limit provision of Proposition 9 was basic …. The campaign just could not have operated effectively on the $1.2 million spending ceiling allowed under the law. Spending limits would have particularly affected industry activities since participation by employees would have been severely restricted.”

The utilities had to buy elections to win.

Although voters soundly defeated the Nuclear Safeguards Initiative, Californians for Nuclear Safeguards succeeded in its goals. Passage of the Warren Bills prevented new nuclear power plant development in California, at least temporarily. Nuclear power became a household word. The press knew more about nuclear power than ever before and didn’t rely on just the nuclear power industry as an information source. With the money left over from the campaign, Californians for Nuclear Safeguards hired a lobbyist to work in Sacramento. Campaign veterans organized their own local anti-nuclear groups to fight plants already under construction.

Officials in California government wondered about the constitutionality of the Warren legislation, and solicited legal opinions from various attorneys. The legislative analyst concluded the laws were unconstitutional, but the Energy Commission issued an opinion finding the laws constitutional. California Attorney General Evele Younger began his own investigation. Deputy Attorney General Michael Strumwasser prepared the first opinion and concluded the laws were constitutional. However the pronuclear _ Attorney General didn’t approve of the opinion and asked an assistant attorney general to draft a second opinion finding the laws unconstitutional. Graig Thompson drafted the opinion as requested, but refused to sign it because he didn’t believe the arguments. Younger found only one staff member, Williard Shank, who was also a personal friend, willing to sign the opinion finding the laws unconstitutional. The staff reviewed both Strumwasser’s and Shank’s briefs, and sided with Strumwasser. Yet Evele Younger issued a Shank’s opinion finding the laws unconstitutional as the official Attorney I Genera1’s opinion in April 1978.

Meanwhile, San Diego Gas and Electric, a utility in Southern California, applied for permission to build a nuclear power plant. The utility lobbied the legislature for an exemption from the Warren laws. The legislature refused the request and ordered the Energy Commission to decide if a federally approved and demonstrated waste disposal method existed, and to determine if economic alternatives to the proposed Sun Desert nuclear power plant existed. Only if alternatives didn’t exist, would the legislature grant San Diego Gas and Electric an exemption from the Warren laws. After a thorough study, the Energy Commission found several economical alternatives to Sun Desert and determined that the electricity demand wasn’t as great as the utility predicted. The K staff also pointed out San Diego Gas and Electric really couldn’t afford the plant.

Although PG&E wasn’t required to do so, it chose to apply for permission to build a new nuclear power plant in Stanislaus County through the state’s new one stop licensing procedure, which incorporated the Warren legislation. Under the new system, utilities applied for permission to build a power plant through the Energy Commission rather than the Public Utilities Commission and the County Board of Supervisors. Licensing took three years and a comprehensive review process began when a utility supplied the Energy Commission with its Notice of Intention.

PG6cE filed its Notice of Intention in August 1977. The Energy Commission returned it September 27, 1977 requesting more information. PG&E supplied the new information but the Energy Commission staff wasn’t satisfied and refused the application. PG&E sued the Energy Commission in state Superior Court for rejecting the application without beginning the review procedure.

The Superior Court ruled in PG&E’s favor and ordered the Energy Commission to accept the utility’s application. The Commission agreed to do so, but stipulated it would raise the same questions during the review process. The staff worked out a schedule with the NRC for simultaneous hearings to avoid duplicating procedures. PG&E agreed to the schedule.

Suddenly PGGLE changed its mind and challenged the Warren Bills constitutionality in joint complaint with Southern California Edison in October 1978. Former Governor Pat Brown’s law firm represented the two utilities at the Sacramento Federal District Court appearance. PG&E contended that the Energy Commission intended to require stricter radiation standards than the federal government. The Pacific Legal Foundation, a self-proclaimed public interest law firm, established by the Chamber of Commerce, urged the utilities top challenge the law. It filed a separate complaint against the law the same day as the utilities in the San Diego Federal District court.

The Energy Commission questioned the utilities’ motivation in challenging the 1aw’s constitutionality. After all, the utilities originally endorsed the laws. The complaint appeared to be a form of harassment because neither utility really intended to build a new nuclear power plant. The utilities simply pretended to want more nuclear power plants to have court standing to get the laws off the books.

In 1980, U.S. District Judge Manuel L. Reed, agreed with the utilities and the said the laws conflicted with the Atomic Energy Act. The Energy Commission appealed their case to the 9^th Circuit Court of Appeals. The utilities maintained the Warren laws were preempted by the federal radiation laws. The Energy Commission cited a 1959 amendment to the Atomic Energy Act that allowed state and local authorities the power to regulate nuclear power plants on criteria other than radiation. The _ attorneys further argued that the California legislature simply didn’t want the ratepayers stuck with the finance cost of nuclear power plants forced to close early because no place existed to put the waste generated at the reactor. No federal program existed to dispose of radioactive waste, and no nuclear power plant had sufficient on site storage capacity for thirty years worth of radioactive waste.

The 9^th Circuit Court of Appeals ruled in favor of the Energy Commission in 1981 finding, “uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy.”

The utilities appealed the ruling to the Supreme Court. Newly elected Governor George Deukmejian refused to allow Energy Commission General Counsel William Chamberlain to travel to Washington, D.C. to participate in the January 1983 oral arguments before the Supreme Court. The state had a freeze on out of state travel, and Deukmejian refused to allow Chamberlain an exemption. Chamberlain used vacation time and paid his own expenses to defend the California law. He was joined by the Energy Commissions other hired lawyers, Special Counsel Roger Beers and Kathryn Dickson, who wrote the argument, and Chief Appellate Counsel Laurence Tribe, who presented the oral arguments.

Representatives of both the nuclear industry and the anti-nuclear organizations filled the chambers to listen to the proceedings. All five NRC Commissioners sat in the audience. Representatives from most of the thirty states who filed briefs on behalf of California watched the proceedings. Several had enacted similar laws. The nuclear industry, represented by the Atomic Industrial Forum and the Edison Electric Institute filed briefs on behalf of the utilities. The Fusion Energy Foundation argued, “The founding fathers created the United States upon a foundation of universal natural law, in which the idea of Progress was a central, generative principle.” The brief said the constitution was created for realizing scientific and industrial progress. Not expanding and not developing nuclear power was termed “deindustrialization, planned devolution [and] orchestrated recession” that “strips our nation of its ability to defend itself. This is a question of national security.” The foundation based their arguments on the Pledge of Allegiance, the Bible and the Pope. Apparently nuclear power is either sacred or religious.

PG&E argued the Safeguards Laws would be the “death knell for the construction and operation of new nuclear power plants in California.” The Reagan Administration chimed in, if the moratorium is upheld, “the result would be the virtual elimination of nuclear power as a potential energy source.”

The Supreme Court upheld the laws in a dramatic 9-0 decision, April 20, 1983, recognizing states exercise authority over economic questions such as need for additional generating capacity, land use, and ratemaking. It noted the NRC’s regulations are aimed at insuring plants are safe, not necessarily economical. The California law “does not interfere with the objectives of these regulations.”

Justices Blackmun and Stevens said in a concurring opinion, “In my view, a ban on construction of nuclear power plants would be valid even if its authors were motivated by fear of core meltdown or other nuclear catastrophe.”

The nuclear industry told‘ reporters that the decision didn’t mean anything since they had no plans to build new nuclear power plants anyway. The utilities confidently forgot their executives’ sworn depositions that attested to their plans to build more nuclear power plants. PG6cE’s Gregg Pruitt responded, “Really it doesn’t affect us.”

Carl Goldstein of the Atomic Industrial Forum termed the decision “quit limited.” Dr. Lou Bernath, a spokesman for San Diego Gas and Electric, who wasn’t a party to the suit candidly admitted the decision was “unfortunate or misguided. The nuclear industry is dead until these laws are repealed.”

AFTERMATH

The decision will encourage states to enact additional legislation requiring strict economic criteria for existing nuclear power plants. Uneconomical plants may be forced to shutdown. States could require strict evacuation plans around nuclear power plants.

The success of the Nuclear Safeguards laws was creative use of the legislature and effective use of the grassroots. Nuclear power opponents cou1dn’t stop nuclear E power simply by writing a law that prohibited it. The planners needed a long range vision and the stamina to carry it through. Organizers first had to popularize the issue, and then have meaningful tasks for the recruited volunteers to do. Campaigns weren’t confined to just those communities with an impending nuclear power plant. People simply wanting nuclear safeguards who didn’t necessarily oppose nuclear power, were welcomed in the campaign. It took the work of thousands of people to create the groundswell that frightened the legislature into passing the Nuclear Safeguards Laws.

Nuclear power has yet to be stopped in California, or any place else in the world. The Supreme Court provided the tools to begin a shutdown campaign, but no one has chosen to act upon it. Once again it will require mass grassroots mobilization, close cooperation among environmental groups, and legislative lobbying. PG&E, Southern California Edison, and the Sacramento Public Utility District will never shut down nuclear power plants unless they are forced to do so.