With the pace of new build about to quicken, our nuclear law expertise is urgently in need of renewal.
This week’s announcement of the electricity Strike Price agreement between the government and EDF Energy and the construction of the new Hinkley Point C nuclear power station was long awaited but still received as dramatic ‘breaking news’ by lawyers with an interest in the nuclear industry.
The fundamental of the deal seems to be that the government will guarantee £92.50 (with some complex adjusting factors) for each mega-watt hour of electricity generated for 35 years from the start of operation of the to-be-built Hinkley Point nuclear power station. EDF will repay the difference if, over time, wholesale market prices go above that figure. The Strike Price could be lower – at £89.50 – if EDF and its partners decide to invest in a further new power station, Sizewell C.
Twenty-five years ago when Sizewell B, the last nuclear power station built in the UK, was on the drawing board, the nuclear industry, almost everywhere, was part of a national state-industrial complex where governments set energy policy, owned much of the infrastructure, operated the nuclear power plants and regulated those operations.
Today there are new interests and actors – multinational energy companies entering the nuclear space, taking advantage of new trans-border infrastructure connections and electricity market liberalisations. There has been a shift from the state-only model to a sort of ‘international PPP’ model. This new nuclear market with a keen edge of competition would have been unthinkable 25 years ago.
For those who practise in the nuclear law field there are real challenges if the pace of nuclear new build is about to quicken.
First, in the 1990s and into the 2000s nuclear law expertise across the wider profession declined, really only thriving in the ‘retreats’ of the legal departments of suppliers and owners/operators, national regulators, the international agencies and academia. The result is that we almost have a ‘lost generation’ of nuclear lawyers, particularly in private practice. The challenge is to rebuild this capacity and educational support is needed. More intensive programmes, such as the International School of Nuclear Law and its diploma programme, which the OECD Nuclear Energy Agency and the University of Montpelier have run each summer for the past dozen years and is now hugely over-subscribed, are critically needed. Universities, professional education providers, nuclear sector companies and the legal profession have opportunity and cause to help with this task.
Second, the identity of the nuclear lawyer has to change as the industry has changed. A thorough knowledge of the complex of international nuclear treaties, ‘soft law’ instruments issued by the International Atomic Energy Agency and national nuclear permitting laws is no longer quite enough.
In the age of newbuild, the nuclear lawyer will seldom advise a commercial client on nuclear non-proliferation safeguards without also advising on international trade and intellectual property questions. That lawyer is not much help if, in advising on Euratom Basic Safety Standards in the context of power plant licensing, they do not also understand modern procurement and contracting practices and how ‘regulatory risks’ are best allocated between the commercial parties. Insights into the 1997 ‘Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management’ are not enough to work on a funded nuclear decommissioning programme without knowledge of trust law and financing experience.
Nuclear law and practice are being redefined. The task for lawyers working in this field is to meld a wider – and perhaps unfamiliar – range of legal disciplines with the established canon of nuclear law, the primary objective of which is to ensure that the uses of nuclear are safe and secure.
Paul Bowden is co-head of Freshfields Bruckhaus Deringer’s low carbon team and a board member of the World Nuclear Association