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Not In OUR Backyard: Class-action in the Anti-Nuclear Age

Douglas smith

For the anti-nuclear movement, the nature of nuclear risks over the past thirty years led to a shift in emphasis from a “ban-the-bomb” movement to an anti-reactor movement, and toward a “soft energy path,” pro-conservation movement that emphasized regional energy self-sufficiency. As risks from nuclear technology became more local and immediate in their consequences, citizen protests against nuclear reactors, waste disposal sites, and research laboratories replaced a more diffuse concern about global thermonuclear warfare. (Mehta 2005: 5-6)

Despite Three Mile Island and Chernobyl, and despite its fundamental economic irrationality, the nuclear power & weapons industry has succceeded in transforming itself into a globally integrated monolith that wields enormous, coordinated power. Worldwide, the nuclear industry is extremely well-funded through corporate investments and government subsidies, and it continues to profit from the fact that it was deliberately created and promoted the state. Unlike the renewable energy sector, which still must plead its legitimacy, the nuclear industry can everywhere count on easy access to technocrats, policy-makers and high-level politicians.

The antinuclear movement, on the other hand, lacks a clearly defined social or communal basis. In contrast to traditional citizenship movements based on fixed statuses such as class, race or gender, the antinuclear movement advocates on behalf of universal, rather than particular, interests. Antinuclear activists tend to relate the most intimate levels of existence, such as the integrity of body and soul, to those, such as the ecosphere and geopolitics, which elude precise formulation (see for example, Bertell 1985 and Caldicott 2006). Regarding themselves more as participants than members, more as agents than adherents, antinuclear activists usually reject conventional forms of collective action typified by guilds, unions, or political parties.

Because it is alert to a wide spectrum of interwoven concerns, the antinuclear movement is subject to volatile “issue-attention cycles,” as these arise and subside in the public realm (Joppke 1993: 129). For example, on May 6, 1979, a few weeks after Three Mile Island, 70,000 protestors gathered in Washington demanding a total nuclear moratorium. Yet during the subsequent Reagan presidency most of this massive “constituency” turned to the apparently more pressing issue of nuclear re-armament, leaving nuclear reactors to simmer away on the back burner. More recently, the threats of global warming and species extinction have also drawn attention away from the high-risk nuclear industry.

While an “antinuclear” stance can imply opposition to the entire fuel cycle in both its civilian and military aspects, in activist terms it implies a commitment to oppose the nuclear industry employing nonviolent direct action at particular sites of struggle. That site may be a mining/milling operation. It may involve refining or preprocessing. It may be slated for weapons manufacture or electricity production. Or it may be intended for the disposal of radioactive waste

In both Germany and the United States, the oppostiion to the front and back ends of the nuclear fuel cycle - to mining/milling and to waste disposal - proved much more effective than opposition to the core of the nuclear programs, which is the operating reactor itself. In opposing the latter, the nuclear opposition faced a dense coalition of electric utilities, nuclear manufacturers, and state agencies that proved unassailable. But with regard to reprocessing, fast-breeder reactors, and waste disposal, industry involvement proved weak. This left the state itself as the major proponent, which exposed it directly to citizen dissent (Joppke 1993: 207).

In Canada the antinuclear movement has also had to confront a subgovernment comprised of administrative agencies, parliamentary committees and vested interest groups (Bothwell 1988; Swift and Stewart ). Here too the movement has achieved signal victories in blocking a reprocessing facility in Saskatchewan and a waste repository in Manitoba. Yet except for championing moratoria in Nova Scotia and Labrador, the movement has not yet succeeded in halting uranium mining at most prospects across the nation. With a uranium boom in the offing, that is surely the challenge of the hour.

Lacking a stable membership core, the antinuclear movement generally has difficulty organiziing over the long term. In a world of shifting coalitions, there is always the possibility that the current array of forces will vaporize in the press of future events. However, there are certain countervailing factors that promise a good long fight. Here I want to discuss class-action litigation as a long-term resistance strategy in my home bioregion, a vast water-rich highlands territory that extends from Halibuton eastward through Bancroft all the way to the valley of the Ottawa.

Stakes in my Heart

The struggle over nuclear waste is a struggle over equity and the distribution of externalities. Now that the dismal economy of nuclear power has destroyed any illusion of a public benefit to be drawn from this technology, why should a remote community carry the full costs of this questionable elite enterprise and face the dire prospect of being turned into a nuclear waste dump? This is the rationale of the much-decried but little understood not-in-my-backyard (NIMBY) phenomenon. (Joppke1993: 155)

The ancient granitic plug situated near Bancroft, Ontario, was well known among rockhounds as a heritage site for uranium production that dated back thirty years and more. Local boosters touted Bancroft nostalgically as the Mineral Capital of Canada, even though the accessible surface exposures had long been exhausted. Then, in mid-August 2007, as the price of uranium climbed to $140/pound, rumours began circulating that the area was once more being staked for drilling purposes. Nothing in the Ontario Mining Act obliged the provincial government to inform the citizenry about such a momentous development. Nor were the local political representatives helpful in this regard. So information on this vital matter was obtained by concerned citizens piecemeal via the internet. When it eventually became clear that the threat was real, the local residents in nearby Haliburton responded by forming a committee under the inspired acronym of FUME: Fight Uranium Mining and Exploration.

FUME asked the local authorities to confirm the rumours, but they, being unfamiliar with the internet, knew even less. The next step was to make contact with CCAMU, the Community Coalition Against Mining Uranium, based to the east in Frontenac and Lanark Counties, where uranium staking had already taken place. With a provincial election scheduled for early October, the local Green Party candidate – myself – had an opportunity to bring the matter to public attention. Other advocacy groups such as EH! (Environment Haliburton) and SAGE (Sane Alternatives for Green Energy) became involved; and within a few months, in the best postindustrial fashion, a loose coalition of local networks emerged, representing the entire highlands watershed. This far-flung mobilization offered a remarkable testament to the power of the internet. Very swiftly it brought to light the fact that there was an extensive stratum of settlers who shared an identity of purpose and vision in seeking at a minimum to have a moratorium placed on uranium mining thoughout their bioregion. Impressive as this was, the nuclear industry could nevertheless take comfort in the fact that financial concerns and time binds would inevitably exert attrition on the unpaid workers who opposed them. Enboldened by the Ontario Mining Act, the miners could continue their drilling unimpeded; and relying upon the iron laws of capital, they could simply wait until their opponents lost heart.

Counterbalancing this tendency, a network of settlers in the Mississippi and Ottawa watersheds began to forumlate a class-action claim that would have the Ontario Mining Act declared unconstitutional. Their claim contends “the Government of Ontario is failing in its duty to protect its citizens against the clear and present dangers of uranium exploration, mining and processing.” It furthermore seeks unspecified damages for the loss of property value; for the deleterious impacts on health and the environment; and for the loss of potential income stemming from customary land uses, including eco-tourism, hunting, fishing, agriculture and recreation. Class action lawsuits, such as that initiated by the Mississippi and Ottawa watershed settlers, encourage victims of negligence, recipients of products or services that are defective or any form of injustice and unfair treatment, to get the disputes settled and acquire justice on a collective basis. The action usually starts after a common grievance is discussed with friends, neighbors or people who matter. Recognizing how widely their concern is shared, a feeling of oneness develops and a "class" gets constituted, comprising persons who are injured in the same manner, although not necessarily to the same extent, and who are determined to confront their opponent, no matter how strong and influential they may be.

There are countless instances in which people are made the unwitting victims of unfair business practice on the part of corporations. There are homeowners in the thousands who have been threatened by toxic spills or other types of environmental injury. There are global cohorts of patients who have suffered damage from medicines that have undisclosed and dangerous side-effects. In another example, corporate employees may find themselves the victims of racial, age or gender discrimination. Again, there are investors who may have pooled their savings to trade in stocks or other securities, only to have these prove faudulent. Finally, there are merchants and consumers who together have been bilked by the collusive, anti-competitive practices of large corporations. In each case the aggrieved parties may seek recompense through a class action lawsuit. These examples also indicate why such lawsuits vary so widely and why they arrrive at such different ends.

After some preliminary investigation, an attorney files a petition in the name of one of the members of the plaintiff class. Such a person is called the "lead representative." This person should have incurred sustained loss or damage in the case in question, but the court must also satisfy itself that the lead representative is steadfast and can exercise control over the course and direction of the litigation. The head representative is expected to be present during court proceedings.. In all other respects the members are treated equally in the sense that any compensation awarded by the court would get shared equally. During the course of the proceeding the "class" size can change, with various members opting in and out. But as class members they are bound by the legal framework and have to abide by the court's decision. They are not permitted to take any other action on the matter and they surrender their individual right of appeal.

The next important stage is to have the court certify the class-action lawsuit. For this there are a number of legal tests that the plaintiff must satisfy in order to establish that the suit is logically coherent. Following certification, the usual hearing process takes place. To the court are submitted depositions, statements, witness testimony, sworn declarations, undertakings executed under oath, and other types of evidence. Examination and cross-examination of witnesses are followed by pleas and arguments. Based on all this evidence, the court issues a ruling and determines an award. If the judgment is not challenged, it becomes binding on the parties concerned. If the plaintiff wins, the defendant is bound to make good the loss, damage, or harm caused. This is assessed by the court and is delivered in the verdict. Notice is issued to the lead representative and the other members of the "class" regarding the compensation awarded. The split of the award takes place either equally or in the proportion to the claim made by the individual members. Finally, the defendant is asked to desist from repeating the same mistakes twice.

If, on the other hand, the defendant were to win, the matter would stand closed and the class members would be precluded form taking further action. At this point the only consolation would be that justice was sought in a formal and orderly fashion. However, both the plaintiff and the defendant can appeal the verdict, which will then be referred to a higher court. Known as an appellate authority, this higher court can either uphold or quash the original judgment.

Cons and Pros

This has been a story about harm done to the public, but it is not a chronicle of dark deeds by scoundrels. It is a thoroughly modern account of institutions that are charged with looking after the public interest failing to do so, failing not through venality or corruption, but because nuclear arms issues are so complex and potent that individuals operating within the various nuclear bureaucracies lose perspective. It is difficult, year in and year out, to remain acutely aware of the awesome danger that nuclear weapons pose, and it is easy to allow complacency slowly to overtake concern. (Bergeron 2002: 165)

Though comprehensive in scope and faithful to the issues at hand, the Ottawa/Mississippi settlers’ claim has not won favour from all concerned. For one thing, truth to tell, grassroots activists dislike giving up their power to attorneys, however genuine and well-meaning the latter may be. When their heartfelt concerns finally reach the courtroom, those who grimly manned the front lines know that their days are numbered, that they will recede from view like geriatric spectres, while high-profile experts descend in droves, rigged out in fancy parachutes, drawing admiring gasps from the crowd. More to the point, there are basic questions about the value of class-action proceedings in the context of a committed grassroots movement that may be prone to absolutist judgments. Often the attorneys are resented for benefiting personally from the litigation, no matter what side they represent. Because of their professional affinity and background, lawyers on both sides usually appear collegial if not altogether chummy. Often they attempt to work out a private settlement between the parties and they may try to influence the members of a class action lawsuit not to persist with their case. Or they may urge the defendants to accept compensation in accordance with a private settlement that they concocted behind the scenes. During the final bargaining stage, the original high purpose of the suite may be obscured or lost from view. There is also the unpleasant issue of fees. The class action petition has a fee petition appended to it, which is reviewed by the judge responsible for the lawsuit. Ordinarily, class action attorneys are paid when the case succeeds and by an amount determined by the court. The work done by the attorney is noted, together with other factors such as the complexity of the case, the risks involved, and the commitment of legal staff. As a general rule an attorney’s remuneration should not exceed thirty percent of the amount settled.

To dissuade its victims from taking collective action, the culpable corporation may insinuate that the courts view class actions as irksome and that they will therefore treat the plaintiffs prejudicially. But in fact the opposite is the case. The Courts tend to look favourably upon class litigation, because collective proceedings generally help in clearing off backlog and speeding up the process of dispensing justice. The courts also recognize that there tends to be a relation between the size of the class and the quality of justice rendered. In other words, a large class has a better chance of engaging a competent attorney, whose priceyness guarantees that their interests will be well argued. Finally, the courts are not unaware that a large-scale litigation may have an indirect yet crucial role in advancing policy goals. Being under the public gaze helps sharpen the mind and tighten procedure.

In class action suits the wheels of justice turn no faster than in other matters, and the plaintiffs can expect to be before the court for several years at least. For a movement prone to “issue-attention cycles,” this can pose a critical problem. How is it possible to maintain community-wide interest, to fund-raise on a regular basis, and to maintain reliable communications, when antinuclear activism fluctuates so much in numbers and commitment? Recalling that the antinuclear movement has scored its greatest successes at the far ends of the fuel cycle, in the mining/milling and waste disposal phases, the endurance issue can be managed by mobilizing the targeted community to oppose its own degradation. In most instances this should not be hard to achieve, providing the activists relinquish their aloof, vanguardist posture.

This doesn’t mean that everyone should suddenly take up curling or start going to church. If Haliburton is any example, a local community offers plenty of opportunities for the residents to gather together in conversational settings. By bending a little more in this direction, the antinuclear activist can help bring the vision of a thriving bioregion that much closer to reality. In normal times we tend to imagine such an entity in terms of gentle permaculture, local markets and regional grids. But community bonds are also forged through adversity and shared struggle. Admittedly this has not been a prominent strand in Ontario’s official history. But the anti-uranium initiative that sparked in Lanark and Frontenac, and which later spread to Hastings and Haliburton, is taking fire in ways that broach customary political boundaries. Unguardedly, people are learning to talk with one another about matters of vital concern. They know the well-being of future generations hangs in the balance.

When we remark that REVOLUTIONS BEGIN IN THE HIGHLANDS, it is not just people of Scottish background who get the implicaton. It is quite possible that we settlers may finally be learning something from the staunch resistance of the First Nations, whether in Serpent River ((Rekmans et al. 2003; Richardson et al. 1993) or in the Ardoch territory. In seeking for ways to oppose the nuclear juggernaut, this brutal uninvited guest, we have begun to make their story our own.

A simple example of community-wide resistance involves the substitution of one single letter to coin a catchy slogan. With no trouble at all, activists can transform uranium mining/milling from an individualist NIMBY issue (as the industry prefers to represent it) into a collective NIOBY concern that is shared by one and all. The resulting slogan, NOT IN OUR BACKYARD, means that uranium mining/milling is something no functioning community would ever accept within its precincts. Only by government fiat, as embodied in the Ontaro Mining Act, could this ever be allowed to happen. Uranium tailings pose a hazard to life for hundreds of centuries. Through seepage, radon emission and groundwater contamination they threaten future generations of living beings, including humans, for hundreds of miles around. Whatever community exists in future times will have to take measures to protect itself from the waste the miners generated. When an individual objects to such an undertaking, he or she is actually giving voice to a collective concern that will echo down through time. This is no selfish gripe confined to a few privileged landowners.

Should the wider community become mobilized around the issue, it can contribute precious organizational resources to the antinuclear effort. Church committees, township councils, legion halls, news services, and cultural groups – all can help sustain the stuggle and build morale.

This is an auspicious time for pursuing environmental class actions in Canada, as there seems to be “an emerging judicial trend to act more liberally in certifying class proceedings” (Environmentlal Law Update, February 2006). Recently there have been several precedent-setting court decisions that have positive implications for future litigation. In one of these, the Ontario Court of Appeal certified a class-action against Inco, a nickel miner and producer. In a decision made in December 2005, the Court approved of a revised version of the suit, which focused on property values rather than the contentious health problems, since the latter could not easily fit within a single compensation package that could meet the test of judicial economy. The suit alleges that Inco’s electrocobalt refinery at Port Colborne had contaminated the surrounding area with nickel oxide, depressing property values by as much as 40 to 50% compared with neighbouring communities. Between $350 and $500 million is sought as compensation for the 8,000 residents enlisted as class plaintiffs.

This is the first environmental class-action suit certified by an Ontario court, and it obviously has implications for other miners who have polluted their host communities (The Northern Miner, December 12, 2005).

More recent yet, in September 2007 the Alberta Court of Appeal upheld the certification of a class action against the Canadian Pacific Railway relating to TCE contamination. The action alleged that the class members had suffered a diminution in property values and the loss of rental income due to TCE contamination of the groundwater under their properties. The contaminant originated from a degreasing solvent used in a CPR shop in Ogden, in southeast Calgary. The case management judge found that the test for certification was met, among other things, by the fact that it limited the class to boundaries defined by certain Calgary streets (Municipal, Planning & Environmental Law Group Blog, October 17, 2007).

A decision issued by the 6th U.S. Circuit Court of Appeals on November 2, 2007, may also have some bearing upon future environmental class action suits in Canada. Reversing an earlier decision on appeal, the three-judge panel unanimously concluded that the plaintiffs had assembled enough evidence concerning the effect of a uranium enrichment plant on their property values to warrant a jury trial.

This case stems from a suit filed by 16 homeowners who live near the Paducah Gaseous Diffusion Plant in western Kentucky. The homeowners sued in 1997, claiming about 10 billion gallons of polluted groundwater had damaged 82 pieces of property. They also claimed they lost use of their property and suffered losses of plants, crops, livestock and wildlife. Aside from land devaluation, the landowners allege the plant is a nuisance, for which they are seeking unspecified punitive damages. This case is the only one alleging land devaluation among several lawsuits filed in recent years claiming contamination.

The Paducah suit had languished in legal limbo for a decade until June, 2007, when the Kentucky Supreme Court ruled that the landowners didn’t have to prove they were harmed in order to sue past contractors for trespass. It was enough that the latter had allowed contaminants to spread beyond the boundaries of the enrichment plant (Associated Press, November 04, 2007).

Our Day in Court

As the uranium and nuclear corporations become more integrated, it will become more difficult for them to compartmentalize the costs and risks of the full nuclear fuel system and to keep people in one province or country from knowing what’s happening in the other. (Harding 207: 206)

. The settlers and cottagers who populate the Haliburton highlands have every reason to fear that uranium mining and milling will downgrade their property values for a considerable length of time. Of further concern is the nuisance which active mining poses, in the form of noise, light pollution and the dispersion of radioactive dust. Finally, there is informed concern that the radioactive tailings left from such activities will pose a hazard to life for untold generations to come. Health and safety issues aside, this last factor is likely to have a permanent downward effect on property valuations.

Property appraisers use the term stigma in refering to a loss of marketability due to public perceptions. In their professional literature (some of which is accessible at www.aicanada.ca) they recognize that stigma can extend to a property neighbouring one that is contaminated, and that the presence of dangerously radioactive soil is not something that can be withheld from a prospective buyer. Appraisers employ several methodologies for calculating devaluation, but the one that seems appropriate for uranium mines and tailings dumps scribes concentric zones around the site, such that those who live closest to the centre stand to receive the greatest financial compensation.

Very roughly, assuming that property devaluations range concentrically from 50% to 10% with an average loss of $100,000 per property; and assuming further that 5,000 families will be affected throughout the highlands bioregion, this yields a compensation package on the order of $500,000,000. To this amount there may be added signficant punitive damages, to encourage behaviour modification on the part of the defendants. News of such an award would doubtless spread through the industry like a billowing radioactive plume.

For those who live here, it is not very rewarding to extract blood money from the corporations that would degrade our beloved land. How much better for all concerned, were our elected government to impose an immediate moratorium on the entire loathsome enterprise. But until that time comes, we will have to seek satisfaction where we can.

References

Bergeron, Kenneth
2002. Tritium on Ice: The Dangerous New Alliance of Nuclear Weapns and Nuclear Power. Cambridge, Mass.: The MIT Press.

Bertell, Rosalie
1985. No Immediate Danger: Prognosis for a Radioactive Earth. Toronto: The Women’s Press.

Bothwell, Robert
1988. Nucleus: The History of Atomic Energy of Canada Limited. Toronto: University of Toronto Press.

Caldicott, Helen
2006. Nuclear Power Is Not the Answer. New York and London: The New Press.

Harding, Jim
2007. Canada’s Deadly Secret: Saskatchewan uranium and the global nuclear system. Halifax and Winnipeg: Fernwood Publishing.

Joppke, Christian
1993. Mobiizing against Nuclear Energy: a Comparison of Germany and he United States. Berkeley: Universityof California Pess.

Mehta, Michael
2005. Risky Business: Nuclear Power and Public Interest in Canada. Lanham: Lexington Books.

Rekmans, Loraine, Keith Lewis and Anabel Dwyer, eds.
2003. This is my Homeland: Stories of the effects of neclear industries by people of the Serpent River Frist Nation and the north shore of Lake Huron. Serpent River First Nation: Anishinabe Printing.

Richardson, Mary, Joan Sherman and Michael Gismondi
1993. Winning Back the Words: Confronting Experts in an Environmental Public Hearing. Toronto: Garamond Press.

Swift, Jamie and Keith Stewart
2004. Hydro: The Decline and Fall of Ontario’s Electric Empire. Toronto: Between the Lines.