Here lies the burden of proof
And it rests with potential polluters like Holtec, not the public
Whenever we consider what should or shouldn’t happen in our community -- for example whether a million gallons of water containing low-level radioactivity should be dumped into the bay -- there is a mantra we should chant:
Burden of proof,
Burden of proof,
Where do we place
The burden of proof?
In our courts, the answer is a bedrock element of what we call justice. When it comes to criminal charges, possibly taking away someone’s freedom, the burden of proof rests entirely with prosecutors and the government.
We are presumed innocent, and they have to prove beyond any reasonable doubt, without a glint of uncertainty, that we are guilty. Only then can they punish us, and just to be sure that is true, juries must be unanimous in saying that word, “Guilty.”
One juror, one doubt, and the burden of proof has not been supported.
Let’s apply that standard to environmental justice, issues like whether a private corporation should use a public resource as a disposal site. This time, we place the burden in a very different spot:
The burden of proof should lie completely with a corporation, in this case Holtec, to show that there is no possible damage to public health, habitat, economic initiatives or social structure, that could ever result from what they want to do.
It should not be the case that concerned citizens, local officials, or anybody else has to prove, beyond reasonable doubt, that dumping radioactive water will most definitely harm us. No. It is up to the corporation to prove it most definitely won’t. We do not need to prove there is risk; the private entity that stands to gain needs to prove that there is no risk. Zero.
And if there is a glint of uncertainty, the answer is no.
There also is the matter of defining damage. It’s not just scientific analysis related to physical health, though that’s most important. It’s also economic damage if consumers, freaked out about the whole idea, turn away from eating fish and shellfish that come out of waters used to dilute radioactivity. It’s about social and psychological damage that translates into the marketplace and the collective consciousness.
In this case, that damage extends to betrayal.
Holtec has received more than one billion dollars – one thousand million dollars – collected from ratepayers (also known as the public) to fund decommission and cleanup of the Pilgrim nuclear power plant. Holtec prefers dumping into the bay because it would save them money doing what they’ve already been paid to do, therefore moving more profit to their owners.
But that is not why they were entrusted with those funds. And so their position is a betrayal of public trust, another kind of damage.
All this seems obvious, so much so that every town on the Cape, every member of the state and federal elected delegations, our county officials, our environmental watchdogs, agree – which almost never happens. They become a jury of peers, and their verdict is unanimous.
Yet the uncertain prospect of this dumping remains.
Why that is so is rooted in federal laws and regulations that date back to the beginning of the nuclear industry, when advocates convinced Congress to make the Nuclear Regulatory Commission the one and only body that could establish rules and standards for how the industry operates. “Pre-emption” they call it. The nuclear industry understood there would be controversies, and they wanted certainty that if they could convince and control one commission, they would remain in business.
“Pre-emption” does not stop state officials from engaging in anything and everything other than nuclear regulation. They maintain the right to protect against other pollution, to try to curtail economic impacts. They can place the burden of proof where it belongs, on Holtec. Our Attorney General and candidate for governor Maura Healey agrees, and said as much when she visited the Cape earlier this month. That’s encouraging.
But this can obscure the key point, and drag debate and dialogue down rabbit holes, which is why keeping the mantra in mind helps.
In the corporate world, burden of proof is established in a different way, by quarterly returns and profits. That’s how capitalism works.
But that’s not how justice works, or good public policy.
Holtec now has contracts to clean up six nuclear power plants across the country, worth billions more dollars. The standards they are held to here become national; as with many things, this little peninsula takes a vanguard position. Specifics will vary from nuclear site to site, but there will be one constant:
The burden of proof must lie not with the public, but with the potential polluter.
Once that is understood, and all possible damage taken into account, there is no way this company should be allowed to dump water with even a whiff of radioactivity into the Commonwealth’s bay.
Come to think of it, they shouldn’t be allowed to throw a gum wrapper into our water.
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The billion dollars that HOLTEC has collected in user fees should be subject to scrutiny as if they were taxpayer funds. Expenditure of fees collected in MA should be subject to approval, in advance, of the State legislature and the Governor.
Using these funds to pollute Cape Cod Bay is intolerable.
Excellent point, Seth - Year ago when Vermonters enacted Act 250, there was a base assumption that if a party claimed that they had been (or would be) negatively impacted, while the impact needed to be identified, the filing of claim or complaint was proof of perceived damage. The degree or ability to prevent or mitigate the damage/loss became the issue (not denying or negating the claim).