För mina svenskspråkiga läsare har jag sedan senast publicerat en text i GP om begreppen kris och nöd.
For my English speaking readers, I have a review of Agamben’s infamous pandemic book up on the Exceptions blog. It is translated and slightly adapted from a Swedish version published in the fall.
The recent decision on Swedish storage of spent nuclear fuel made me think once again about this engrossing topic – and led me to consider a broader and more speculative question: what reach in time can legal orders have?
On 27 January 2022, the Swedish government took a decision to approve a final repository system for spent nuclear fuel. Even though the decision will still be subject to scrutiny in at least one court instance, this is a historical decision. Only Finland has previously decided on a solution for the final disposal of spent nuclear fuel, based on the same technology as Sweden.
There are many aspects to this decision, which ties into everything from issues like the current minority government in Sweden to the huge challenges of climate change and the need to move away from fossil fuels. The decision on a solution for nuclear fuel disposal gives a great boost to proponents for the development of nuclear energy. The upbeat music in this short clip from the Swedish Nuclear Fuel and Waste Management Company (SKB) gives away the optimism:
Others are more sceptical. But let us now sidestep the whole issue of nuclear energy as a solution or problem for the moment, and instead focus on the storage of used fuel and the problems it entails. While the Wikipedia page for nuclear waste tells about many fascinating alternatives (including sending it to space or burying it in a tectonic subduction zone) the primary solution today is deep geological repositories.
The primary feature of discussions on nuclear waste is the enormous time scales involved. The least radioactive material will need to be stored for hundreds of years, while the most radioactive will not reach levels deemed safe for tens of thousands of years.
This time travel aspect is frightening while it at the same time lends itself to epic and even poetic reflection. In an era when a 30-year horizon of fossil fuel reduction seems out of reach, the imagination needed to grasp 100 000 years of safe storage requires science-fiction sensibilities.
Or perhaps other forms of art than sf-literature are the tools we need to grasp these horizons?
This idea seems to have caught on among for example Posiva Solutions, the Finnish company responsible for the final disposal of spent nuclear fuel. In an equally upbeat but more corporate-artsy-pedagogical style they explain their positive solution in this 3-minute video:
A more serious consideration of long time scales can be found in works by professional artists. The American land artist Agnes Denes has in several of her works engaged with time scales beyond our life spans.
In her 1992-1996 work Tree Mountain (incidentally also placed in Finland and with the cooperation of the Ministry of Environment) a “time capsule pillar” was constructed. 11 000 people planted as many trees in an intricate pattern on a 38-meter high artificial mountain. Each participant received a certificate as custodian of the trees, to be inherited for at least twenty generations.
This ambitious work has an interesting feature in that it is supposed to be protected for at least 400 years, symbolically attested in 1996 with the planting of the final tree by then President of Finland Martti Ahtisaari. The ultimate goal is that this slow-motion rewilding effort will recreate a natural forest, the lack of which Finland suffers from, among other countries with intensive forestry.
But even this attempt at reaching towards the future is ultimately quite short! It is not even on the time scale of historical entities with continuous legal existence for over a thousand years, like the Roman Empire or the Catholic Church.
One organisation suggesting we take a longer view is the Long Now Foundation. Established the same year that the final tree of Tree Mountain was planted, they engage in several projects aimed at long term thinking. Among these is a clock that will keep time for at least 10 000 years which (in another form of geological depository) is currently being built inside a mountain in Texas. The organisation also argue that we should use five digits instead of four to specify years: year 01996 or 02022. This they suggest will put us in the frame of mind of the long now.
The state-owned companies dealing with dangerous nuclear waste are engaged in even longer-term thinking than the idealistic Long Now Foundation. They work with projects with are tens or even hundreds of millennia. And since they are legal entities, engaged in highly critical work, they are also legally regulated in several different ways.
Besides basic safety precautions today, these regulations concern what our perspective is euphemistically called “a very long time”. How can we construct a legal framework that manages responsibility into what is in all practical terms an eternity? Like climate change policies are now being treated legally as responsibilities towards future generations, nuclear fuel repositories multiply this issue several times over.
As described in an interview from 2009:
The Swedes and Finns have a lot of experience building repositories underground, and their situation is interesting. The Swedes are building a repository under the Baltic Sea, but in granites that they can get to from dry land. When there is a future climate change, however, there’s going to be a period when the repository area will be farmable; it will be former ocean-bottom that is now on the surface. Their scenario is that, at the end of the next ice age, you might actually get a farmer who drills a water-well right above the repository. (2009 BLDGBLOG interview with Abraham Van Luik)
So – is this legal responsibility toward future generations only a hypothetical responsibility – a symbolic statement of pseudo-solidarity with future generations? Apparently not.
The Finns actually have a very pragmatic attitude to this. They have regulations that basically cover the entire future span, out to a very long time period—but they also say that, once the ice has built up again and covered Finland, it won’t be Finland. No one will live there. But it doesn’t matter whether anyone lives there or not: you still have to provide a system that’s safe for whoever’s going to be there when the ice retreats. (ibid.)1
On the other hand – what is legal responsibility beyond not only the social existence of the state and its legal order but even beyond its physical and geographical existence? What would a legal order made for 100 millennia be? A legal order without any practical end in sight.
It seems that the breathtaking idea here is to take responsibility for something beyond our ability to be responsible. I would argue that the legal aspect of a 100 000 year project is not really possible to understand inside our current paradigm of legal thought. And that is of course even before considering the practical aspects.
It would be another thing if we inhabited a more cosmological legal world setting, an order that reigns for periods like 100 000 years or even eternity. If you live in a world where law is divine or part of the cosmic order, even massive time periods and their ordering might become manageable. But in an era like ours, where all law is man-made it becomes absurd, megalomaniacal, parodic.
We can do damage on unimaginable time scales, but we seem not to have fully realised our utter inability to contain this damage. We are not even able to pray to gods to save us from our mistakes. Even though nuclear weapons have their own patron saint, what we would really need now is a god of nuclear power or perhaps even better, a god of waste.
But this is one of the deep ironies: all legal systems consider themselves eternal, or without any relation to their own demise. Only in their exceptions, as in amnesties or emergency legislation, are there calls for time limits and sunset clauses. Otherwise, law reigns both supreme and eternal. But this is a false eternity.
Law is not eternal, it cannot last forever. So what can we hope for?
Many suggestions for warning signs of different sorts have been put forward. These range from commonsensical things like signs in many languages to frightening landscapes, glowing cats and nuclear priesthoods relaying the dangerous knowledge into the future.2 Ironically one of the most realistic solutions for containing the danger of nuclear waste that has been suggested seems to be to forget, be silent, to let no one know. This uncomfortable alternative – that the responsible thing to do is to what seems most irresponsible – might be what we need to consider.
We can speculatively understand this as creating a sort of invisible law, a law that makes itself disappear, living on only in its ghostly effects. Perhaps this is apt for the invisible threat of radioactivity, however unsatisfying.
Thank you for reading this second post of The stricter notebook! If you liked it, please share:
In the same interview, Van Luik points out that Germany is the only country that has permanent storage of hazardous and chemical waste, which will never decay and always be dangerous. But these are only required to be safely stored for a few hundred years or maximum 10 000 years, even if they will be just as hazardous at that point. An eternal physical sin of hazard.
For a brief intro to the fascinating topic of nuclear warnings, see this video: