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Stiffed USEC Sues Feds in Nuclear Slugfest

Energy

Neighbors for an Ohio Valley Alternative

By Geoffrey Sea

[Read Part I, Part II and Part III of this series]

The United States Enrichment Corporation, the contracting subsidiary of USEC Inc.—the company that now produces nothing—has filed a lawsuit in the Court of Federal Claims seeking $38 million in back-bill payment from the U.S. Department of Energy (DOE). The complaint was filed on May 30 with no publicity, as it reveals that the entities running uranium enrichment projects at the Paducah, KY, and Piketon, OH, federal sites are more antagonists than partners.

The filing came exactly one week after DOE rejected USEC’s $13 million demand for extended payments at Paducah, and one day before USEC ceased enriching uranium at Paducah, making good on a long-time extortion threat. The legal action heralds the end of the “American Centrifuge” project at Piketon and of the uranium enrichment privatization experiment.

For this litigation, USEC has retained McKenna, Long & Aldridge, the leading firm specializing in government contracts that counts all of the top five U.S. defense contractors as clients.

A congressional staffer who has followed USEC dealings closely commented on the news: “It is outrageous.” USEC is displaying more chutzpah than its old mouthpiece, former Congresswoman from Ohio Jean Schmidt, when she called for making flag desecration a felony while draped in a Captain America suit.

Lawyer Enrichment

This official transition from the Atomic Age to the Attorney Age makes obvious what has long been known to industry observers: The USEC Privatization Act of 1996 created a very stormy marriage between USEC and DOE. That marriage led the parties to commit unnatural acts at Paducah and Piketon, but without clear markers of mattress territory, and with irreconcilable differences between governmental and proprietary predilections. Virtual screaming matches between USEC and DOE at closed-door sessions have become something of a scandal unto themselves.

The Privatization Act created USEC as a non-governmental company with unprecedented (and unconstitutional) control over federal assets at two prime industrial production sites. The condition was that USEC shut down the existing antiquated power-hungry facilities and replace them with technology of its own development, free of political interference (insert laugh-track here). But the Privatization Act gave USEC no financial incentive to do the R&D, so the company didn’t, becoming a nagging ward of the bureaucracy from which it was supposed to be liberated. Before he won the Nobel Prize in Economics, Joseph Stiglitz opposed the privatization as chairman of the Council of Economic Advisors, and in an op-ed piece in The Wall Street Journal, he quoted a Republican Senator calling privatized USEC “a threat to national security.”

Now fifteen years into the marriage of inconvenience, the divorce will not be easy or amicable. As I wrote on May 28, the “negotiations” between DOE and USEC, advertized as concerning extended Paducah operations, were in fact about “timing, bill payment and where the political blame for job loss could be cast.”

To keep up public appearances, the squabbling spouses intentionally failed to make preparations or secure the congressional funding for clean plant power-down, because as every divorce lawyer knows, the chief strategic objective is to get the other side to blink. Each party had to show that it was ready to split the child of nuclear safety down the middle, attempting to win spiteful custody of whatever treasure remained. And in the real world of the nuclear complex, there was no King Solomon. They don’t call it a complex for nothing.

Legal considerations did come into play, however. Attempts by USEC to ditch the competitive uranium enrichment business in favor of lucrative no-bid nuclear cleanup contracts were partially thwarted by decisions of the DOE General Counsel that such contracts at either Piketon or Paducah are barred by federal conflict-of-interest rules. The absence of preparations for power-down at Paducah was in part an attempt by USEC to force DOE to waive those rules, since no other company besides USEC would be ready on the spot when power-down occurred. According to reporting in the Lexington Herald-Leader, DOE has now reasserted that conflict-of-interest rules will bar USEC from cleanup at Paducah.

The Government Accountability Office (GAO) determined in September of 2011 that DOE “discretionary” payments and uranium “barters” with USEC, to the tune of some $194 million, were in violation of federal fiscal laws. The $13 million additional gift of uranium from the national stockpile that USEC demanded as payment for a non-performing Paducah extension would have violated these same laws after the illegality had been identified by federal investigators, and would have been the most explicit nullification of the USEC Privatization Act yet on record. That act aimed at closure of the gaseous diffusion plants, and relegated the necessary shutdowns to USEC “business decisions” removed from political influence. Government payment to USEC for alteration of that decision would have defeated the main aim of the statute.

Duking It Out at Paducah

Other federal agencies aren’t done with their scrutiny of the strange transactions between DOE and USEC. Last week, GAO investigators quizzed both DOE and USEC about the apparent absence of plans for clean power-down at Paducah, despite intense negotiations between the parties that have reportedly been underway for more than a year. The results are some of the first public indications of how the Paducah shutdown will transpire, though correct interpretation of the responses relies on our ability to invert the given answers to get at the real truth, the way readers in the former Soviet Union learned to read the party newspaper Pravda.

According to informed sources who wish to remain anonymous, both USEC and DOE told GAO that USEC will return the Paducah plant site to DOE control in parcels gradually, with only the initial phase of “de-leasing” accomplished by the spring or summer of 2014. Similar gradual transfer of the Piketon site delayed cleanup substantially, provided endless opportunities for USEC to extort new payments from DOE, and generated hoax “redevelopment” projects with no more than PR value, such as the phony-baloney media event in 2009 at which USEC claimed it would build a nuclear reactor on a site with no body of cooling water. For these prerogatives, USEC paid no fees of any kind for retention of “leased” facilities, and was subject to no financial penalties for contractual violations. Kind of a sweet “leasing” deal you might want to ask John Boehner and Mitch McConnell to write into legislation on your behalf.

USEC’s exercise of its lease option to retain control of parts of the Piketon or Paducah sites indefinitely and without explanation or payment warrant against the wishful-nonsense proposal now being hawked by Paducah local media.

That proposal, spearheaded by former Paducah manager Jim Thomas, mischaracterizes USEC’s occupancy as DOE contract work for which there should be a successor, when in reality USEC was given control of the site by statute, and it may use that control to knock enrichment competitors out of the box, as it did when USEC slammed the door on competitor AREVA’s interest in building a centrifuge plant at Piketon. (AREVA subsequently went to a private site in Idaho). Briefly put, the Thomas proposal to continue government enrichment at Paducah, even if technically possible, would require repeal of the USEC Privatization Act, which will happen when pigs fly over a national monument honoring Julian Assange.

Whistle-blower Joe Carson addresses a meeting of sick Paducah workers and whistle-blowers. Meeting and
video arranged by Commonwealth Environmental Services of Paducah.

DOE and USEC reportedly also told GAO that the reason there is no federal budget line for purging of the diffusion cells at Paducah is that USEC will perform that work itself, before it cedes control of the site. That is utter lunacy. First, that is work barred to USEC under the conflict-of-interest rule. Second, USEC did not perform that service at Piketon, though it had nine years to do it, even though USEC was being paid hundreds of millions of dollars by DOE to do precisely that. 

In fact, that constitutes much of the contract work for which USEC now claims it is owed back over-budget reimbursement in its new lawsuit. And though DOE has not yet commented on the lawsuit, the reason that DOE did not pay those over-charges when billed is that USEC failed to accomplish the assignment. Only now are the cells at Piketon being purged, with many problems encountered, under a $2.2 billion contract to Fluor-B&W.

Moreover, USEC is now in such financial distress, with $500 million each owed to bondholders and to pension obligations, with stock exchange delisting warnings in effect, that the company need not worry about being around long enough to make good on cleanup commitments at Paducah. The company’s total market valuation is down to $43 million. USEC might just as well represent to federal investigators that it will pay the billion-dollar cleanup costs at Paducah, since it’s never paid a penalty for making false promises, and covering for DOE corruption might help settle the current lawsuit and collect on fraudulent bills.

The date at which USEC and DOE represent they will finish the first stage of de-leasing at Paducah—between April and July of 2014—is quite coincidental, as is everything in this business. June of 2014 is the contractual date at which USEC must decide go or no go on the commercial scale version of its “American Centrifuge Project” at Piketon. That would be the project currently estimated as costing a minimum of $5 billion, more than a hundred times USEC’s current market valuation, and for which there is no financing plan that doesn’t read exactly like the investment-fraud plot device of The Producers.

Financially, USEC must ditch the centrifuge project by end of summer in 2014, because on Oct. 1 of that year, assuming it’s still around, half a billion dollars of bond debt becomes due.

In other words, “truther” gibberish aside, the twin towers of USEC operations at Piketon and Paducah are programmed for self-demolition in the summer of 2014, after maximum extraction of illegal payments from the government, but before USEC is required to pay off its investors. USEC will say “no go” on its long-suffering centrifuge runaround, and simultaneously surrender its site control at Paducah, leaving nothing of the company but chemtrails in the sky and in the water and on the ground. That is how the USEC Privatization Act will be repealed, without Congress needing to lift or point a finger. Only all the little people will get screwed.

Today, June 4, the Secretary and Deputy Secretary of Energy traveled to Capitol Hill to meet with members of Kentucky’s congressional delegation about the future of the Paducah site. USEC was conspicuously uninvited to those meetings.

The Leaser of Evils

One might wonder who the nutcases were who negotiated the USEC privatization agreement, who authored the screwy single USEC “lease” for Piketon and Paducah that requires no leasing fee and that levies no penalties for any order of malfeasance, who “negotiated” with USEC on behalf of the government when hundreds of millions of dollars were transferred to the private company in exchange for nothing at all (and that was called “barter”).

Well, some of the mid-level people who sat around the negotiating table and witnessed these atrocities also wondered, and some of them did some research, which they shared with me. Turns out it was pretty much all one guy. William A. Murphie, manager of the “Porstmouth/Paducah Project Office” of DOE, was the principal author of the USEC no-fee, no-penalties “lease.” Then he was also the guy who complained that his hands were tied by lease provisions when DOE could not get USEC to relinquish control of the Piketon site for cleanup, and now Murphie is the guy who intentionally failed to secure a budget line to pay for clean power-down at Paducah, on the empty assertion that USEC itself will pay for it.

The Department of Energy should open an interest office in Khabarovsk, as a place to which Murphie can be transferred; on the off chance he is not incarcerated.

Some will claim that the new litigation is routine and nothing but another bump on the road of USEC triumphalism. But consider that USEC has claimed that its fortunes depend entirely on winning a $2 billion federal loan guarantee, an award which has already twice been denied, the application for which has not yet been submitted. Consider that USEC has less than 1 percent of the equity required for the project for which it seeks the loan guarantee.

Now if you were approaching a mortgage lender with less than 1 percent of equity in your portfolio and a record of defaults and explicit threats against the lender, would you, just before you submit your application, try to swing the deal by filing a federal lawsuit against the lender on old claims that have already been denied?

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Brazilians living in The Netherlands organized a demonstration in solidarity with rainforest protectors and against the president of Brazil, Jair Bolsonaro on Sept. 1 in The Hague, Netherlands. Romy Arroyo Fernandez / NurPhoto / Getty Images

By Tara Smith

Fires in the Brazilian Amazon have jumped 84 percent during President Jair Bolsonaro's first year in office and in July 2019 alone, an area of rainforest the size of Manhattan was lost every day. The Amazon fires may seem beyond human control, but they're not beyond human culpability.

Bolsonaro ran for president promising to "integrate the Amazon into the Brazilian economy". Once elected, he slashed the Brazilian environmental protection agency budget by 95 percent and relaxed safeguards for mining projects on indigenous lands. Farmers cited their support for Bolsonaro's approach as they set fires to clear rainforest for cattle grazing.

Bolsonaro's vandalism will be most painful for the indigenous people who call the Amazon home. But destruction of the world's largest rainforest may accelerate climate change and so cause further suffering worldwide. For that reason, Brazil's former environment minister, Marina Silva, called the Amazon fires a crime against humanity.

From a legal perspective, this might be a helpful way of prosecuting environmental destruction. Crimes against humanity are international crimes, like genocide and war crimes, which are considered to harm both the immediate victims and humanity as a whole. As such, all of humankind has an interest in their punishment and deterrence.

Historical Precedent

Crimes against humanity were first classified as an international crime during the Nuremberg trials that followed World War II. Two German Generals, Alfred Jodl and Lothar Rendulic, were charged with war crimes for implementing scorched earth policies in Finland and Norway. No one was charged with crimes against humanity for causing the unprecedented environmental damage that scarred the post-war landscapes though.

Our understanding of the Earth's ecology has matured since then, yet so has our capacity to pollute and destroy. It's now clear that the consequences of environmental destruction don't stop at national borders. All humanity is placed in jeopardy when burning rainforests flood the atmosphere with CO₂ and exacerbate climate change.

Holding someone like Bolsonaro to account for this by charging him with crimes against humanity would be a world first. If successful, it could set a precedent which might stimulate more aggressive legal action against environmental crimes. But do the Amazon fires fit the criteria?

Prosecuting crimes against humanity requires proof of widespread and systematic attacks against a civilian population. If a specific part of the global population is persecuted, this is an affront to the global conscience. In the same way, domestic crimes are an affront to the population of the state in which they occur.

When prosecuting prominent Nazis in Nuremberg, the US chief prosecutor, Robert Jackson, argued that crimes against humanity are committed by individuals, not abstract entities. Only by holding individuals accountable for their actions can widespread atrocities be deterred in future.

The International Criminal Court's Chief Prosecutor, Fatou Bensouda, has promised to apply the approach first developed in Nuremberg to prosecute individuals for international crimes that result in significant environmental damage. Her recommendations don't create new environmental crimes, such as "ecocide", which would punish severe environmental damage as a crime in itself. They do signal, however, a growing appreciation of the role that environmental damage plays in causing harm and suffering to people.

The International Criminal Court was asked in 2014 to open an investigation into allegations of land-grabbing by the Cambodian government. In Cambodia, large corporations and investment firms were being given prime agricultural land by the government, displacing up to 770,000 Cambodians from 4m hectares of land. Prosecuting these actions as crimes against humanity would be a positive first step towards holding individuals like Bolsonaro accountable.

But given the global consequences of the Amazon fires, could environmental destruction of this nature be legally considered a crime against all humanity? Defining it as such would be unprecedented. The same charge could apply to many politicians and business people. It's been argued that oil and gas executives who've funded disinformation about climate change for decades should be chief among them.

Charging individuals for environmental crimes against humanity could be an effective deterrent. But whether the law will develop in time to prosecute people like Bolsonaro is, as yet, uncertain. Until the International Criminal Court prosecutes individuals for crimes against humanity based on their environmental damage, holding individuals criminally accountable for climate change remains unlikely.

This story originally appeared in The Conversation. It is republished here as part of EcoWatch's partnership with Covering Climate Now, a global collaboration of more than 250 news outlets to strengthen coverage of the climate story.

Author, social activist and filmmaker Naomi Klein speaking on the one year anniversary of Hurricane Maria on Sept. 20, 2018. Erik McGregor / Pacific Press / LightRocket / Getty Images

By Natalie Hanman

Why are you publishing this book now?

I still feel that the way that we talk about climate change is too compartmentalised, too siloed from the other crises we face. A really strong theme running through the book is the links between it and the crisis of rising white supremacy, the various forms of nationalism and the fact that so many people are being forced from their homelands, and the war that is waged on our attention spans. These are intersecting and interconnecting crises and so the solutions have to be as well.

The book collects essays from the last decade, have you changed your mind about anything?

When I look back, I don't think I placed enough emphasis on the challenge climate change poses to the left. It's more obvious the way the climate crisis challenges a rightwing dominant worldview, and the cult of serious centrism that never wants to do anything big, that's always looking to split the difference. But this is also a challenge to a left worldview that is essentially only interested in redistributing the spoils of extractivism [the process of extracting natural resources from the earth] and not reckoning with the limits of endless consumption.

What's stopping the left doing this?

In a North American context, it's the greatest taboo of all to actually admit that there are going to be limits. You see that in the way Fox News has gone after the Green New Deal – they are coming after your hamburgers! It cuts to the heart of the American dream – every generation gets more than the last, there is always a new frontier to expand to, the whole idea of settler colonial nations like ours. When somebody comes along and says, actually, there are limits, we've got some tough decisions, we need to figure out how to manage what's left, we've got to share equitably – it is a psychic attack. And so the response [on the left] has been to avoid, and say no, no, we're not coming to take away your stuff, there are going to be all kinds of benefits. And there aregoing to be benefits: we'll have more livable cities, we'll have less polluted air, we'll spend less time stuck in traffic, we can design happier, richer lives in so many ways. But we are going to have to contract on the endless, disposable consumption side.

Do you feel encouraged by talk of the Green New Deal?

I feel a tremendous excitement and a sense of relief, that we are finally talking about solutions on the scale of the crisis we face. That we're not talking about a little carbon tax or a cap and trade scheme as a silver bullet. We're talking about transforming our economy. This system is failing the majority of people anyway, which is why we're in this period of such profound political destabilisation – that is giving us the Trumps and the Brexits, and all of these strongman leaders – so why don't we figure out how to change everything from bottom to top, and do it in a way that addresses all of these other crises at the same time? There is every chance we will miss the mark, but every fraction of a degree warming that we are able to hold off is a victory and every policy that we are able to win that makes our societies more humane, the more we will weather the inevitable shocks and storms to come without slipping into barbarism. Because what really terrifies me is what we are seeing at our borders in Europe and North America and Australia – I don't think it's coincidental that the settler colonial states and the countries that are the engines of that colonialism are at the forefront of this. We are seeing the beginnings of the era of climate barbarism. We saw it in Christchurch, we saw it in El Paso, where you have this marrying of white supremacist violence with vicious anti-immigrant racism.

That is one of the most chilling sections of your book: I think that's a link a lot of people haven't made.

This pattern has been clear for a while. White supremacy emerged not just because people felt like thinking up ideas that were going to get a lot of people killed but because it was useful to protect barbaric but highly profitable actions. The age of scientific racism begins alongside the transatlantic slave trade, it is a rationale for that brutality. If we are going to respond to climate change by fortressing our borders, then of course the theories that would justify that, that create these hierarchies of humanity, will come surging back. There have been signs of that for years, but it is getting harder to deny because you have killers who are screaming it from the rooftops.

One criticism you hear about the environment movement is that it is dominated by white people. How do you address that?

When you have a movement that is overwhelmingly representative of the most privileged sector of society then the approach is going to be much more fearful of change, because people who have a lot to lose tend to be more fearful of change, whereas people who have a lot to gain will tend to fight harder for it. That's the big benefit of having an approach to climate change that links it to those so called bread and butter issues: how are we going to get better paid jobs, affordable housing, a way for people to take care of their families?

I have had many conversations with environmentalists over the years where they seem really to believe that by linking fighting climate change with fighting poverty, or fighting for racial justice, it's going to make the fight harder. We have to get out of this "my crisis is bigger than your crisis: first we save the planet and then we fight poverty and racism, and violence against women". That doesn't work. That alienates the people who would fight hardest for change.

This debate has shifted a huge amount in the U.S. because of the leadership of the climate justice movement and because it is congresswomen of colour who are championing the Green New Deal. Alexandria Ocasio-Cortez, Ilhan Omar, Ayanna Pressley and Rashida Tlaibcome from communities that have gotten such a raw deal under the years of neoliberalism and longer, and are determined to represent, truly represent, the interests of those communities. They're not afraid of deep change because their communities desperately need it.

In the book, you write: "The hard truth is that the answer to the question 'What can I, as an individual, do to stop climate change?' is: nothing." Do you still believe that?

In terms of the carbon, the individual decisions that we make are not going to add up to anything like the kind of scale of change that we need. And I do believe that the fact that for so many people it's so much more comfortable to talk about our own personal consumption, than to talk about systemic change, is a product of neoliberalism, that we have been trained to see ourselves as consumers first. To me that's the benefit of bringing up these historical analogies, like the New Deal or the Marshall Plan – it brings our minds back to a time when we were able to think of change on that scale. Because we've been trained to think very small. It is incredibly significant that Greta Thunberg has turned her life into a living emergency.

Yes, she set sail for the UN climate summit in New York on a zero carbon yacht ...

Exactly. But this isn't about what Greta is doing as an individual. It's about what Greta is broadcasting in the choices that she makes as an activist, and I absolutely respect that. I think it's magnificent. She is using the power that she has to broadcast that this is an emergency, and trying to inspire politicians to treat it as an emergency. I don't think anybody is exempt from scrutinising their own decisions and behaviours but I think it is possible to overemphasise the individual choices. I have made a choice – and this has been true since I wrote No Logo, and I started getting these "what should I buy, where should I shop, what are the ethical clothes?" questions. My answer continues to be that I am not a lifestyle adviser, I am not anyone's shopping guru, and I make these decisions in my own life but I'm under no illusion that these decisions are going to make the difference.

Some people are choosing to go on birth strikes. What do you think about that?

I'm happy these discussions are coming into the public domain as opposed to being furtive issues we're afraid to talk about. It's been very isolating for people. It certainly was for me. One of the reasons I waited as long as I did to try and get pregnant, and I would say this to my partner all the time – what, you want to have a Mad Max water warrior fighting with their friends for food and water? It wasn't until I was part of the climate justice movement and I could see a path forward that I could even imagine having a kid. But I would never tell anybody how to answer this most intimate of questions. As a feminist who knows the brutal history of forced sterilisation and the ways in which women's bodies become battle zones when policymakers decide that they are going to try and control population, I think that the idea that there are regulatory solutions when it comes to whether or not to have kids is catastrophically ahistorical. We need to be struggling with our climate grief together and our climate fears together, through whatever decision we decide to make, but the discussion we need to have is how do we build a world so that those kids can have thriving, zero-carbon lives?

Over the summer, you encouraged people to read Richard Powers's novel, The Overstory. Why?

It's been incredibly important to me and I'm happy that so many people have written to me since. What Powers is writing about trees: that trees live in communities and are in communication, and plan and react together, and we've been completely wrong in the way we conceptualise them. It's the same conversation we're having about whether we are going to solve this as individuals or whether we are going to save the collective organism. It's also rare, in good fiction, to valorise activism, to treat it with real respect, failures and all, to acknowledge the heroism of the people who put their bodies on the line. I thought Powers did that in a really extraordinary way.

What are you views on what Extinction Rebellion has achieved?

One thing they have done so well is break us out of this classic campaign model we have been in for a long time, where you tell someone something scary, you ask them to click on something to do something about it, you skip out the whole phase where we need to grieve together and feel together and process what it is that we just saw. Because what I hear a lot from people is, ok, maybe those people back in the 1930s or 40s could organise neighbourhood by neighbourhood or workplace by workplace but we can't. We believe we've been so downgraded as a species that we are incapable of that. The only thing that is going to change that belief is getting face to face, in community, having experiences, off our screens, with one another on the streets and in nature, and winning some things and feeling that power.

You talk about stamina in the book. How do you keep going? Do you feel hopeful?

I have complicated feelings about the hope question. Not a day goes by that I don't have a moment of sheer panic, raw terror, complete conviction that we are doomed, and then I do pull myself out of it. I'm renewed by this new generation that is so determined, so forceful. I'm inspired by the willingness to engage in electoral politics, because my generation, when we were in our 20s and 30s, there was so much suspicion around getting our hands dirty with electoral politics that we lost a lot of opportunities. What gives me the most hope right now is that we've finally got the vision for what we want instead, or at least the first rough draft of it. This is the first time this has happened in my lifetime. And also, I did decide to have kids. I have a seven year old who is so completely obsessed and in love with the natural world. When I think about him, after we've spent an entire summer talking about the role of salmon in feeding the forests where he was born in British Columbia, and how they are linked to the health of the trees and the soil and the bears and the orcas and this entire magnificent ecosystem, and I think about what it would be like to have to tell him that there are no more salmon, it kills me. So that motivates me. And slays me.

This story was originally published by The Guardian, and is republished here as part of the Covering Climate Now partnership to strengthen the media's focus on the climate crisis.

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