The Farm

Summertown, Tennessee, USA

Albert K. Bates*

The Karma of Kerma:
Nuclear Wastes and Natural Rights

Journal of Environmental Law and Litigation
Univ. of Oregon School of Law
Vol 9, Page 3
February, 1988

© 1980, 1988, 1995 Albert Bates. All Rights Reserved.


The disposal of radioactive substances in a manner that anticipates their eventual partial release into the human environment imposes a health burden upon future generations that cannot be justified by any moral or legal rationale. Like an irresistible force meeting an immovable object, the concept of the greater good for the many in the present generation runs against the concept of the inalienable rights of each individual in future eras. At present, in matters involving nuclear power, our governmental agencies have taken the side of the irresistible force. But when federal agencies venture to tread beyond of the scope of the foundation principles with which the federal government was fashioned, they endanger more than human lives. At risk in the nuclear waste debate are long-held concepts of ordered liberty.

Nuclear energy is not alone among the rapidly advancing technologies which challenge the ways we think about ourselves and our relationships with the Earth, with our culture, and with future generations, but it has seemed to cross more previously sacrosanct boundaries more quickly and more openly than many other technologies.

There are at least three distributional injustices in the public health impacts of nuclear energy: medical, spatial and temporal. The medical inequality relates to the varying abilities of different persons to withstand exposure to radiation. We can never know the specific circumstances of every human exposure: the amount and rate of radiation; the type (gamma, beta, alpha, neutron, low-LET, high-LET) of radiation received; the physical and biological pathways; the duration and frequency of the exposures; the age, sex, and health of the individual; the influence of other environmental carcinogens; the genetic predisposition; and the synergistic and multiplicative effects of other risk factors. Because of these and other uncertainties, we will not be able to say for certain in most individual cases whether the effects suffered by particular persons are traceable to any discrete source, or even to ionizing radiation generally.

The unfair spatial distribution is related to the NIMBY ("Not In My Back Yard") reaction, something governmental regulators almost invariably encounter when trying to site a potentially polluting facility. With few exceptions, the NIMBY syndrome brings about a selection of sites with the lowest human population, resulting in an inequitable burden of risk that falls most heavily on those who live farthest from population centers and have the least political visibility.1

Temporal inequalities are those arising from the transfer of health effects, economic costs, and various other risks to future generations. This article is primarily concerned with the temporal inequalities of radiation on human health, which I've termed the karma of kerma. "Karma" is meant primarily to denote the cause and effect aspect of the physical universe, although it carries a spiritual connotation which is equally apt in the present context. "Kerma," an acronym for Kinetic Energy Released in Material, refers to a known quantum of radiation exposure based upon release rates, shielding and other factors, or more simply, dose. That all kerma carries karma is a truism. This article will explore some of the karma that our generation is creating for the generations which come after us.


In nature, energy is regularly cast off from unstable atomic structures in the form of gamma waves, free electrons (beta rays), or proton-neutron pairs (alpha particles). When these particles or energies leave their previous residences and radiate outward, they are capable of imparting an electrical charge to other matter they encounter, and so are called "ionizing radiation." Such radiation can be, and is, quite damaging to biological structures. As physicist John Gofman describes it:

[W]ith ionizing radiation, electrons are removed from their atoms, and endowed with energies huge compared to those in ordinary chemical reactions. Such electrons maraud for great distances (compared with atomic dimensions in angstroms) and have the chemical capability to break any kind of bond one might care to visualize. In biochemical systems, reactions are carefully controlled, often by special geometric juxtaposition of the reactants. A marauding high-speed electron simply does not notice this all this elegant juxtaposition?it can break anything, anywhere. And once it has ripped an electron out of an atom in a molecule, that molecule is itself at such a high-energy level that it can produce all kinds of chemical reactions that would never have been possible without the ionizing radiation.2

The karma of kerma is therefore a slightly accelerated entropy of biological systems.

In the human cell, certain chemical bonds are crucial to the integrity of the genetic code and breaking just a few of these bonds may endow the code with a permanent alteration.3 When a mutated gene is responsible for regulating normal cell growth, an uncontrolled proliferation of damaged cells, or cancer, can develop. When mutation occurs in the procreative cells or in the developing embryo, birth defects can result. When mutation occurs in the blood-forming tissue, impairment of the immune response system can result, and this can increase susceptibility to an entire spectrum of human disease. Radiation is therefore said to be mutagenic (cell-mutating), carcinogenic (cancer-causing), teratogenic (birth-defect inducing), and immuno-suppressing (resistance-impairing). All of these effects, which begin at a submicroscopic level, remain invisible for extended periods of time until they reach observable proportions. The latent period may be decades in the case of an incipient cancer, or it may be centuries in the case of a genetic effect. Another aspect of the karma of kerma, then, is human (and other sentient beings') suffering, ill health and death, over very long periods of time.

Non-accidental Emissions

Transgenerational ecological torts pose a serious challenge to American jurisprudence. At the core of our legal system is the ancient maxim of res inter alias acta alteri nocere non debet ‹no one ought to suffer because of what others have done. Yet, if our predictive powers are correct, the man-made radionuclides released into the environment from the waste products of the 20th Century nuclear fuel cycle, even barring large or catastrophic releases, will produce very sizeable numbers of diseases and deaths in the human population over the course of the next several hundred millennia. The toxic materials produced by the fission of uranium emanate radiation that is invisible to the human senses. These materials will persist in radioactive forms for millions of years. Many are nearly impossible to contain. Releases to the human environment are certain. These releases are inexorably under way even as you read this and will continue, even if all nuclear power generation were stopped this afternoon.

Some of those who have examined this problem, such as the Committee on Science and Public Policy of the National Academy of Sciences, have resigned themselves to the inevitability that releases will occur, but are convinced that the effects should not be of great concern because the rate of release?and corresponding injuries?can be kept within some acceptable range.

In none of the cases so far studied in the literature have alarmingly high values been estimated for the time-integrated population dose that people in the future might receive if buried wastes were to be leached by groundwater into the surface environment. Thus, while many authorities have called attention to gaps in our knowledge about some of the factors that bear on the probability and time scale of such eventual leaching, it is not necessary to strive for absolute assurance against escape. One can pursue the much more attainable goal of finding disposal sites for which the product of probability of escape by the consequences if escape occurs can be reasonably small ....4
The fact that non-accidental (planned) emissions of radioactive wastes are expected to injure persons in the general population over extended time frames has been reported by standard-setting and advisory bodies in the United States atomic energy community for more than three decades. In 1981, the Nuclear Regulatory Commission published a notice in the Federal Register confirming that:

... the Commission's own estimates of nuclear power health impacts include a number of radiologically induced cancer deaths among present and future populations.5

In the estimates accompanying that statement, NRC calculated that a design performance fuel cycle6 required to support the production of 800 megawatts per year (one reference reactor-year) will result in an upperbound dose in the general population of 710 person-rem over the first 100-year period following the releases.7 When the NRC dose estimate was multiplied by the NRC cancer coefficient, NRC arrived at a figure of 0.1 lethal cancers and 0.2 genetic effects per reactor year.8 The Commission then estimated that 652 lethal cancers and 1,155 genetic effects per century would result from the wastes produced by normal operations of reactors now operating.9 Owing to uncertainties in the mathematical model used by NRC‹due to the gaps in our knowledge‹some authorities10 have suggested this figure could understate the full impact by 3 or more orders of magnitude (1,000 times).11

The Gaps in Our Knowledge

Some 240 radionuclides are considered to be significant by-products of the use of uranium fuel in fission reactors. Some of these isotopes, like radium-226 and uranium-238, have been studied for almost a century. Others have been studied very little. Much of what we would like to know for a reliable risk analysis is not merely unknown but, at least for the present, unknowable.

The biological response to some forms of radiation is not assessable down to the level at which damage is assumed to occur. Our knowledge of radionuclide environmental pathways is weak and our knowledge of biological migrations incomplete, giving us only a small picture of the much larger effect once radionuclides are released. The transport mechanisms between waste site and water or waste site and atmosphere, atmosphere and soil, soil and plant, plant and animal, and animal and human depend greatly on the characteristics of different isotopes, carrier molecules, geological constraints, hydrology, climates, seasons, soil varieties, plant and animal species, population demographies and diet, very few combinations of which have ever been examined. Deposition rates depend on air concentrations, but air concentration measurements are not accurate to the required degree of sensitivity, so filter efficiency or decontamination factors are usually calculated and air concentrations are extrapolated using a computer model. Even filter efficiency is not taken from actual experience, but rather from the efficiency of a comparable filter in trapping comparable materials for relatively short time spans, and filter efficiency varies to a large extent as a function of wear and burden. In the case of engineered geological barriers and synthetic waste mediums, laboratory tests are inconclusive and the vast time spans involved make in-situ testing impractical.

As Amory Lovins has observed, an error factor of 2 at each stage over a 20-step methodology results in a millionfold mistake.12 Once radioactive waste is placed into the environment and released from our control, we simply do not know what the level of human exposure will be over the long term.

Unknowable Effects

If the rate of exposure is unknown, so is the full potential for impact on human health. On the positive side,

... even if low level radiation can induce cancer and genetic effects, future discoveries in prevention and cure of cancer, and genetically related diseases and genetic engineering may negate many of these effects.13

Although predicting the course of scientific discoveries thousands of years into the future is indeed impossible, we mere mortals may nonetheless make educated guesses based upon known physics. There being no practical means in nature to prevent one electron from colliding with another, there will always be radiation-induced cellular and genetic damage in the human population. True, the means may be found to eradicate cancer cells from the body and to repair immune system damage caused by radiation of the blood-forming tissues. However, when molecular damage is sustained in the procreative cells or in the developing embryo, birth defects or latent genetic damage may still result. For a great many, if not most, of the 943 dominant and 783 recessive diseases now known to be caused by radiation,14 there is no prospective "cure" for this effect, apart from induced abortion before birth, which may not be a desirable alternative to every prospective parent. Indeed, most genetic "abnormalities" are very subtle differences between one individual and another. The same abnormality may turn out to be something abnormally good or abnormally bad, depending on infinitiely variable and completely unpredictable influences. Still, most effects will be so common as to be indistingishable from the normal human condition, as the National Academy of Sciences observed in its 1972 BEIR Report:

There is a danger that ... by concentrating only on fairly well-defined genetically associated diseases, we have dealt with only the tip of the iceberg. What about the rest of human illness? It, too, has some degree of genetic determination.

* * *

A genetic death may be the death of an embryo so early that no one ever knows about it, or it may simply be the failure to reproduce. On the other hand, it may be a lingering, painful death in early adult life that causes great distress to the person and his entire family.

* * *

We remind all those who use our estimates as a basis for policy decisions that these estimates are an attempt to take into account only known, tangible effects of radiation, and that there may well be intangible effects in addition, whose cumulative impact may be appreciable, although not novel.15

Most predictive models also make the assumption that the exposed population is homogeneous. In fact, there are subgroupings for susceptibility in the population, and equal radiation exposure can increase disease by five to ten times in the more susceptible groups over the less susceptible.16 All men are not created equal, and the burden of environmental radioactivity will fall more heavily on some than on others, depending on their genes. As the Nuclear Regulatory Commission has acknowledged,

Because our present state of knowledge precludes all possible meaningful quantifications of the relative radiosensitivity of a given individual, it is true that persons are not necessarily equally "protected" by current federal regulations designed to protect the general population as a whole.17

Various Justifications

This failure of our regulatory scheme to equally protect all citizens is not considered, at least by the NRC, to be a constitutionally suspect defect, owing to the randomness of the injury:

The protection of life in the Fifth and Fourteenth Amendments has been applied by the courts to proscribe government action taken with the overt purpose of depriving particular individuals of life. ... The Fifth Amendment does not proscribe all government activity which includes loss of life among its foreseeable effects.18

The Nuclear Regulatory Commission has been repeatedly placed in the unenviable position of having to justify the inequities of the federal nuclear program.19 In determining what level of harm to public health is acceptable, the NRC has, like the National Academy of Sciences, at times suggested that cancer deaths that fall within the normal range of variation would be acceptable because they would be unobservable.

The 1979 population within 50 miles of a plant ranges from 7,700 to 17.5 million. The average (mean) is 1.7 million. Ninety percent of the plant sites have populations less than 4.1 million within 50 miles; half the sites (median) have populations less than 950,000 within 50 miles.

From the mean population figure of 1.7 million, the average number of cancer fatalities per year from non-nuclear causes is predicted to be approximately 3,200. For the average plant, the numerical guidelines permitting a 0.1 percent increase in delayed fatalities would allow no more than an additional 3.2 estimated fatalities. Thus, this guideline value is small with respect to the average number of predicted cancer fatalities per year for a population of 1.7 million. It is also small with respect to the geographic variation in cancer death rates. When applied to the mean population within a 50-mile radius of a power plant site, the annual cancer rate for Rhode Island (2.5 per 1000) would correspond to 4,300 cancer deaths per year, and the annual cancer rate for Virginia (1.6 per 1000) would correspond to 2,700 cancer deaths. Thus, the average number of 3.2 additional estimated deaths is small in comparison to a regional variation of 1,600 (i.e., 4,300 - 2,700) cancer deaths.20

This rationale underscores the inability of radiation victims to be compensated directly for individual claims. In a background of 4,300 cancer deaths annually, the 3.2 victims of nuclear radiation vanish in a tide of human suffering.

Another approach frequently used by NRC is comparative risk analysis:

... other risks are apparently acceptable, perhaps fatalistically, in that lives lost in construction accidents, transportation accidents, mine accidents, etc., which result in much greater numbers of real and immediate deaths than the latent potential cancer deaths due to radiation are relatively unprotested.

This approach is gaining greater use in many areas of regulation. In its various forms, it suggests that if we can tolerate 50,000 highway deaths annually, we should be willing to tolerate catastrophes of comparable magnitude less frequently, or that if you drink two glasses of wine per year, smoke three cigarettes, own a canoe or cross the street against the light, you have no business protesting a toxic waste dump. The methodology often fails to distinguish between voluntary assumption of risk and involuntary risk, between governmental imposition of risk and private risk-taking, or between those things which people choose to protest and those which they merely quietly resent or never consider.

Our governmental agencies have on occasion placed much reliance on these philosophical shortcuts. However, future peoples may well not wish to be limited to the levels of risk which 20th Century Washingtonians endured, any more than one of us might wish to live with the levels of pollution endured in 19th Century Pittsburgh or 18th Century London.

An important threshold question that comparative risk assessment does not address is whether the health of individuals can or should be subordinated to the needs of the society as a whole. The Department of Justice and the Nuclear Regulatory Commission have argued that the issue is already settled as a matter of law:

[I]f a single person exposed to a slight risk along with the rest of the community could insist as a matter of right on being spared that risk, then "the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population." It seems fair to argue that [a right] asserted under the guise of constitutional due process [is] a right to subordinate to [an individual's] wishes the entire nuclear power program, otherwise duly established by Congress and intended to confer major benefits on the public at large. The Supreme Court in Jacobson refused to hold that such right existed. The Commission's similar conclusion seems every bit as soundly based.21

Challenged on the issue of the inalienability of the right to life, the Commission drew a distinction between the constitutional rights of particular individuals subjected to purposive deprivation and the environmental poisoning of people in general:

The Commission would readily accept the proposition that [the Fifth Amendment] forbids the federal government to authorize or carry out without due process of law an activity which has the purpose of taking the lives of persons under the protection of the laws of the United States. The nuclear power program, however, is not such an activity. The purposeful taking of life has no part in the licensing of nuclear fuel cycle facilities. Any resulting harm is an entirely unwanted side effect to be minimized or eliminated where practicable, and the risks are distributed more or less uniformly among the public at large rather than directed by State action at particular pre-selected individuals or groups.22

These distinctions are the kinds of gymnastic sophistry that make people hate bureaucrats. The trouble is, as the late Lon Fuller once said, "in human affairs, what men mistakenly accept as real, tends, by the very act of their acceptance, to become real."23

The Challenge to Our Thinking

Imagine for a moment that you are a tender child born a few centuries from now and you were born missing a piece of your anatomy. By means of amniocentesis, your mother's obstetrician knew well in advance that you would have this defect, but your mother insisted that your birth was warranted despite the difficulty you would have in life. To be sure, a bionic prosthesis will mitigate your suffering, but somehow, it's just not as good as the natural part. Then one day, through the wonders of science, you learn that your deformity can be traced to your mother's inhalation of a microscopic plutonium compound which is known to emanate from only one source: an ancient 20th Century nuclear waste repository.

How do we in this generation go about compensating those in future generations whom we know we shall, in the fullness of time, grievously wrong? To what expense of present peoples are we willing to go to protect those for whom actual existence is not yet established? Should we discount the value of their lives, which are not real, in relation to the value of our lives, which are real?24 Should we appreciate the value of future lives?

What are they then? They lack the individuality that we often associate with the sacredness of life, and may at first thought seem to have only a shadowy, mass existence. Where are they? Are they to be pictured lined up in a sort of fore-life, waiting to get into life? Or should we regard them as nothing more than a pinch of chemicals in our reproductive organs, toward which we need feel no special obligations? What standing should they have among us? How much should their needs count in competition with ours? How far should the living go in trying to secure their advantage, their happiness, their existence?25

When we contemplate the rights of future peoples, it may not be sufficient to confine our thinking to the limited framework of our present laws. Rather than struggling to project all possible future legal constructs, however, we can examine just a few of the common threads that bind all of our civil relations, in the hopes of finding those things which are sufficiently objective and absolute as to likely form a basis for future social constructs.