Over the next several years, China is likely to influence “third generation” nuclear power more than any other country. That is partly because China already is and will likely continue to be the largest market. It is also because China has the most active efforts at nuclear design, manufacturing and construction.
China’s nuclear fleet: Before 1994, no nuclear power operated in China. China never built “first generation” nuclear-power plants or any power plants with “boiling water” reactors. During 2016, 34 “second generation” nuclear-power units are or will be in full, normal operations at 11 power plants in China. Organizations primarily responsible for construction have been China National Nuclear Corporation (CNNC) of Beijing–5 plants and 15 units–and China General Nuclear Power Group (CGN) of Shenzhen–6 plants and 19 units.
Nuclear-power units operating in China during 2016
Click Here for a table of China’s nuclear power-plant units in full operation during 2016: plant and province, unit number, rated net MW, equipment type and source, year and month in full operation, builder organization.
Source: International Atomic Energy Agency, 2016
CNNC worked with several types and sources of equipment designs. CGN concentrated on a single type, first sourced from France. After building four units, CGN localized the type to China, with increased output, as the CPR-1000 design. That became the major nuclear-power design in China, built by CNNC as well as by CGN and representing 19 of the 34 units operating in 2016. The first CPR-1000 unit at Ling Ao in Guangdong province took 6-1/2 years to build. More recent CPR-1000 units have been completed in a little over 4 years, with about 90 percent of the value sourced from China.
Responses to disaster: After the Japanese nuclear catastrophe at the Fukushima Dai-ichi plant in March, 2011, the government of China briefly halted nuclear plant and unit authorizations and began a review of China’s nuclear-power programs. A so-called “white paper” from October, 2012–officially a statement of “energy policy”–provided the following:
“Since the Fukushima Dai-ichi nuclear disaster in 2011, China has launched comprehensive safety inspections at all nuclear-power plants. The inspection results show that nuclear security is guaranteed in China…China’s installed capacity of nuclear power is expected to reach 40 GW by 2015.” [Information Office of the State Council, China’s Energy Policy 2012, as released in English October 24, 2012, pp. 12-13 of 25]
The capacity goal was silently ignored. China’s net rated nuclear generation capacity at the start of 2015 totaled only 20 GW–half the claimed goal. No clear public statement came from China’s government reflecting the nuclear safety review. There was little chance of a candid assessment amid a command economy and regimes long arrogant toward the people of China. Because disclosing information outside official channels is harshly punished, China’s regulation of its nuclear industry is far less effective than even United States regulation in 1974, before dissolving the former Atomic Energy Commission and starting the Nuclear Regulatory Commission.
Some changes began with retirement of Hu Jintao as general secretary in the fall of 2012 and succession of Xi Jinping. During the Hu regime, China promoted pell-mell industrial growth at the expense of infrastructure and environment. Energy production gorged on China’s coal and led to large coal imports. Motor vehicle traffic grew apace, combining exhaust fumes with coal smoke to produce intense storms of air pollution–sometimes worse than Pittsburgh in the 1940s but enormously larger.
Regime change: Near the start of the Xi regime, the Chinese government lifted the moratorium on nuclear authorizations and quickly moved to consolidate and spur activities of nuclear organizations. Owing to needs for large sources of capital, these are all effectively arms of government–regardless of charters. A modest growth in nuclear-power capacity became a surge. More than half the nuclear generation capacity at the end of 2016 will have begun normal operations within the latest three years.
Nuclear generation capacity in China by years
Source: International Atomic Energy Agency, 2016
A practical effect in China of the nuclear catastrophe in Japan was to accelerate “third generation” nuclear-power technology, in hopes it would deliver on claims of safety yet to be proven through operating experience. Plans for “second generation” units were cut back and new plans for “third generation” units pushed forward. China had already contracted to build four AP-1000 units at Sanmen and Haiyang, mostly designed at Westinghouse in the United States, and two EPR units at Taishan, mostly designed at Areva in France. China had licensed Rev. 15 of AP-1000 designs from Toshiba of Japan–omitting aircraft impact resistance and rejected for U.S. plants, which use Rev. 19 of AP-1000 designs. Chinese organizations apparently saw EPR technology as less promising and had not licensed it from Areva of France.
In a reversal of usual behaviors, typically more proactive CGN had taken responsibility for EPR technology, while CNNC took responsibility for AP-1000 technology. Nevertheless, CGN moved rapidly toward a Chinese localization of “third generation” nuclear-power technology using AP-1000 rather than EPR as a model. The overall approach appears to wrap protective AP-1000 “third generation” elements around CPR-1000 “second generation” designs–the latter adapted and promoted by CGN but also utilized by CNNC.
For a time, CNNC and CGN elaborated separate, competitive approaches to integrating AP-1000 “third generation” nuclear technologies into Chinese “second generation” designs. Both organizations had built locally sourced “second generation” nuclear units at multiple power plants. In early 2014, China’s government directed the two organizations to produce a single design. They soon began to refer to the object of the joint effort as the 华龙 Hualong (grand China dragon) design.
Disputes over still separate elements of plans were resolved by reviewers assembled by Hualong International Nuclear Power Technology Company, a 50-50 joint venture of CNNC and CGN begun in March, 2016. Bloomberg News reported in early August, 2016, that CNNC elements were chosen over those from CGN. The organization will seek overseas business. Its 1.09 GW nuclear-power design has been designated HPR-1000. Geographic regions were separated for CNNC versus CGN activity. CGN, now focused on Guangxi, Guangdong and parts of Fujian provinces, will pursue opportunities in Europe. CNNC will seek overseas business in South America.
Developing technology: The HPR-1000 design is not a knockoff of the AP-1000 design, although it uses similar approaches and has nearly the same external ratings. Obvious differences include these five. (1) AP-1000 has a water reservoir for passive cooling on the roof of its containment building; HPR-1000 has a water reservoir inside its building. (2) AP-1000 has two “loops”–steam generators; HPR-1000 has three. (3) AP-1000 has four coolant pumps moving reactor water through its steam generators; HPR-1000 has three. (4) AP-1000 has a core with 157 fuel assemblies, each 264 rods that are 15.0 ft long; HPR-1000 has a core with 177 fuel assemblies, each 264 rods that are 12.7 ft long. (5) AP-1000 has a vessel with 13.3 ft diameter around the core; HPR-1000 has a vessel with 14.4 ft diameter around the core.
Nuclear “third generation” designs in China
rated net MWe
rods per assembly
fuel rod length
seamless vessel on core
Source: China National Nuclear Corporation, 2016
The HPR-1000 design leverages China’s infrastructure built around the CPR-1000 design, by far its most widely applied nuclear-power technologies. Chinese type AFA3G fuel assemblies have become its high-volume nuclear fuel, required by the CPR-1000 units. Type CF3 fuel rods for HPR-1000 assemblies are slightly (15.9 mm) shorter than type AFA3G rods for CPR-1000 assemblies and use a double-welding process. Dimensions of reactor vessels and steam generators nearly match, assuring that current manufacturers will be able to build them.
China’s nuclear industries remain plagued by lack of consistent standards for dimensioning, measuring, testing, inspection and qualification. Instead of adopting or developing a comprehensive set of standards, China continues to apply multiple standards copied from the countries that have been sources for equipment. Those include France, Russia, Canada, the United States, Japan and Spain. A document from China’s National Nuclear Safety Administration suggests that the French RCC-M code (Règles de Conception et de Construction des Matériels Mécaniques) may be the most common standard, because it was used for the CPR-1000 design. When foreign standards are revised–a frequent occurence–it is unlikely that the forest of Chinese copies can be kept synchronized. Over time, that can become a potential source of equipment failures.
According to CNNC in 2015, longstanding Chinese official policy of a “closed nuclear fuel cycle” remains unchanged. A presentation at a meeting in Sao Paulo, Brazil stated, “China has been adopting the closed nuclear fuel cycle, i.e., the spent fuel shall be reprocessed to recycled uranium, plutonium and other elements to enhance the fuel utilization.” [text in English, figure legends in Chinese] However, locations in the general area of a reprocessing facility proposed near Jiayuguan in Gansu, near a military outpost since the 1950s, currently provide only storage, despite a claim by CNNC about plans for “big commercial reprocessing.”
Energy context: During 2015, China’s nuclear-power fleet produced about three percent of China’s net electricity. So far, growth in nuclear electricity is far outpaced by growth in coal-fired electricity. Between 2014 and 2015, a rated 6 GW of nuclear capacity was added, while a rated 72 GW in coal-fired capacity was added. At recent rates of change, China might never achieve the current world average of about 11 percent nuclear electricity.
Quoting from China’s National Bureau of Statistics, Energy Post–produced in the Netherlands–finds that renewable electricity has been growing faster. Between 2014 and 2015, China reported adding about 33 GW, peak in wind capacity and adding about 18 GW, peak in solar capacity. Discounted by typical capacity factors of 90 percent for nuclear, 25 percent for wind and 12 percent for solar, China reported adding about 5.4 GW in average nuclear capacity and about 10.3 GW in average renewable capacity. There has been no information on China’s internal energy development costs that is generally regarded as reliable.
The AP-1000 nuclear power-plant design from the U.S. Westinghouse division of Toshiba in Japan may become the major and perhaps sole survivor of competition in “third generation” nuclear. Eight units are currently under construction in the United States and China. The European Pressurized Reactor (EPR) from Areva of France has four units under construction in Finland, France and China. However, it is currently on life-support, owing to design and testing scandals and to major manufacturing defects.
“Third generation” nuclear from Rosatom in Russia, Kepco in South Korea and Hitachi in Japan gained little traction outside countries of origin. No plants are under construction, and no financing has been announced for deals reported with governments in Egypt, Abu Dhabi, Poland and India. A former barrier to manufacturing–as of 2009 only one plant, located in Japan, able to produce critical components–has been overcome by large, new steel forging facilities in several countries, including China, Korea, India and the United States.
There are other claimants to “third generation” technology–not credited by international business. In Japan, Hitachi completed four ABWR units in the 1990s. All remain idle in the aftermath of the March, 2011, nuclear catastrophe at the Fukushima Dai-ichi plant. Using French technology, China General Nuclear Power Group (CGN) in Guangdong province developed the CPR-1000 design. Like the Hitachi ABWR, it produces a slightly improved “second generation” nuclear power-plant. More recently, possibly using technology from the AP-1000, CGN announced another cheapened design called ACC1000 at first and more recently 华龙一 Hualong One, couched in Chlingish, or HPR-1000. A prototype has been announced for the Fuqing plant in Fujian province, which currently has two CPR-1000 units.
An AP-1000 unit in Sanmen, China looks likely to become the first “third generation” nuclear unit to operate. Chinese industry got a head start by adopting the Rev. 15 design, rejected for U.S. plants. However, all AP-1000 projects world-wide are around three years behind schedule. The worst delays were caused by test failures of coolant pumps built by Curtis-Wright of Cheswick, PA. Those were controversial elements, based on technology developed for U.S. nuclear-powered submarines. Each AP-1000 unit has four of the pumps, using an innovative, sealed design unproven in industrial applications. After delivery delays of up to about two years, revised pumps have been installed at four of the eight AP-1000 units currently under construction. The revised pump designs are apparently not part of the Rev. 15 technology licensed to Chinese industry.
Fully burdened costs of AP-1000 units in the U.S. were recently reported more than $7 a watt, nearly a factor of two cost overrun. Full cost of the EPR unit at Flamanville, France is also reported at over $7 a watt–and still growing. Both European EPR projects are around ten years behind schedule, with cost overruns at least a factor of three. Schedules for the two EPR units in Taishan, China leaped ahead of the two in Europe, under a less demanding regime of regulation. However, schedules for all EPR projects are now in question from recent threats of catastrophic failure, owing to major manufacturing defects that remain under review in Europe.
Safety concerns: Safety concerns are always relative. Fatalities in automobile crashes per miles of vehicle travel probably peaked in the United States during 1900 through 1920, years before the U.S. government compiled records. Since 24.1 deaths per 100 million vehicle-miles for 1921, official tallies fell almost continuously to a low of 1.08 for 2014. For decades, however, the lures of automobile travel distracted U.S. attention from the dangers, while enthusiasm surged.
Lures of nuclear power in China and several other countries will more likely be weighed against hazards of alternatives rather than against hazards of nuclear power-plants. Hazards in those countries are dominated by large-scale burning of coal. Chinese steel, smelting and cement plants have been expanding rapidly, most of them burning coal. Over the past ten years, China added more than 800 coal-fired power units averaging 600 MW capacity. Academic research published in the summer of 2015 attributed more than a million and a half deaths per year in China to air pollution.
Many New England people became enthusiasts for nuclear power after World War II. Nuclear research reactors, nuclear equipment and service firms and one small nuclear power-plant emerged. Yankee Rowe, located in the Berkshire foothills of Massachusetts–the second commercial plant in the U.S.–closed in 1992. As of 2007 it had been disassembled and taken away, its buildings had been razed and the grounds had been cleared.
Yankee Rowe site in 1986 and 2006
Source: Vermont Public Service Board
All that is left now at the former Yankee Rowe site are 16 steel and concrete casks, weighing more than 100 tons each and guarded at all times, holding spent but highly radioactive nuclear fuel. One small research reactor remains–at M.I.T. in Cambridge, just southwest of Massachusetts Ave. between Vassar and Albany Sts. beside historic tracks of the former Grand Junction Railroad, now operated by the MBTA. Little known to the public, the M.I.T. reactor long ran on weapons-grade enriched uranium. Students and staff called the former Warner Calvary’s, next to the service entrance, the “nuclear diner”–zapped while you ate, no extra charge.
M.I.T. nuclear reactor, Cambridge, MA
Looking southeast toward Metropolitan Storage
Source: Cambridge City Council, 2012
Nuclear eclipse: With closure of Vermont Yankee in Vernon, at the end of 2014, New England was left with four operating nuclear-power units. One of those four, the unit at the Pilgrim plant in Plymouth, MA, is now scheduled to close on May 31, 2019.
New England nuclear-power units
opened 1963 closed 1992
opened 1970 closed 1985
opened 1972 closed 1996
opened 1972 closed 2014
opened 1972 to close 2019
begun 1976 abandoned 1988
Source: U.S. Nuclear Regulatory Commission
From peak nuclear generating capacity of 5.6 GW in mid-1991, New England will be left with 3.2 GW in mid-2019, a decrease of 42 percent over 28 years–with six of nine commercial nuclear-power units out-of-service. (Unit 2 at Seabrook was abandoned during construction and never operated.) Little of those losses can be made up from wind or solar sources, since they will stop when the wind stops blowing or the sun stops shining. Instead, the deficits are mostly being filled from newer combined-cycle power-plants fired by natural gas. The latest one, being built by Footprint Power at the site of the former coal-fired Salem Station, has about the capacity of the Pilgrim nuclear plant, soon to close.
Survivors: Although not well known to most of the public, after mid-2019 New England will no longer have any operating nuclear units with relatively hazardous Mark 1 “boiling water” containment designs–like those that exploded in March, 2011, at the Fukushima Dai-ichi plant in Japan. Vermont Yankee and Pilgrim plants used those designs. The three nuclear units to remain in New England used “pressurized water” designs, with more stable characteristics. Unit 2 at Millstone, with two secondary loops, will then become the region’s least stable. It was developed by Combustion Engineering–a high flyer of the 1960s that built 15 of the 119 completed U.S. utility-scale nuclear-power units, wound down operations during the 1980s and was sold in 1990.
Millstone Unit 3 and Seabrook Unit 1 both use Westinghouse 4-loop “pressurized water” designs. They were both completed after the major upgrades to safety requirements that followed the Three Mile island nuclear meltdown in 1979, under supervision of the Nuclear Regulatory Commission. Three Mile island has “pressurized water” units designed by Babcock & Wilcox, with only two secondary loops. Nevertheless, margins of stability were enough that the meltdown of Unit 2 was almost entirely contained. In contrast, Mark 1 “boiling water” containment designs had been strongly criticized during the 1960s for inadequate margins, but an industry-dominated Atomic Energy Commission, which was disbanded in 1975, had failed to intervene.
Survival of current nuclear power-plants is hardly guaranteed. Heat exchangers, which industry calls “steam generator loops,” are major sources of added stability for “pressurized water” designs. They are also among the worst sources of failures. The reason that Maine Yankee was shut down after only 24 years service was impending failures of those devices. More recently, operators of the San Onofre plant in California squandered nearly a billion dollars on steam-generator replacements–botching the jobs, getting only about another year of service and starting disputes and chicanery after the San Onofre shutdown that could take a decade to resolve.
New thinking: In the late 1990s, manufacturers of nuclear-power equipment, encouraged by academics at M.I.T. and other schools of engineering, began to work up plans for a so-called “third generation” of nuclear power-plants. It was, perhaps timely, an era of “millennial thinking.” The initial goals, in the aftermath of the Three Mile Island meltdown and the Chernobyl disaster, were to make nuclear power far safer. Rather soon, however, came notions that nuclear power-plants might also be much cheaper than they had been for some 20 years. The two concerns reflected widely perceived problems of the industry.
In 1954, Lewis Strauss, then chairman of the Atomic Energy Commission, spoke at the National Association of Science Writers annual meeting, saying nuclear power would become “too cheap to meter.” He was soon countered by industry spokespersons, but the phrase stuck in memory, and notions that nuclear power should be low in cost became widespread expectations. If such notions ever had merit, they were demolished by long delays and steep cost increases to meet U.S. safety requirements added after the Three Mile Island meltdown. During the 1980s, the Vogtle plant in Georgia became a poster child for schedule and budget overruns. Its two units came on line in 1987 and 1989, more than 10 years late and at over 25 times the cost budgeted in 1971.
Alvin Weinberg, a former director of Oak Ridge National Laboratory–who had enthusiastically endorsed the “too cheap to meter” claim of the 1950s–re-emerged years later to make a claim for everlasting equipment. “If nuclear reactors receive normal maintenance,” he wrote, “they will never wear out, and this will profoundly affect the economic performance of the reactors.” Dr. Weinberg was not an engineer; he had never worked in industry. Still, trained as a physicist, he should have known better. He dismissed out-of-hand embrittlement and build-up of radioactivity, and he likely did not even think about structures and control systems. Such a cavalier approach reflected “millennial thinking” that remained common in public views for about a decade.
Rubber meets road, gives way: The U.S. economic recovery from 2002 through 2007 began to stimulate utility interest. During the Walker Bush administration, the Nuclear Regulatory Commission proposed a one-step process for utilities, to expedite approval of nuclear plants using standard designs. Four contenders vied for design approval: Westinghouse Nuclear, by then a division of Toshiba in Japan, General Electric Nuclear, by then a division of Hitachi in Japan, Mitsubishi Heavy Industries of Japan and Areva, the French nuclear conglomerate. No application came from Rosatom in Russia or Kepco in Korea, despite both announcing plans. Toward the end of 2007, Nuclear Street, a trade publication, reported 34 letters of intent to build new U.S. nuclear-power units. Of the 28 naming a design, 14 proposed to use the AP-1000 from Westinghouse.
By the late 1990s, academics and consultants were enjoying great sport as market speculators, projecting ever lower costs based on supposed economies of scale. In order to exhibit the lowest possible amounts, they touted so-called “overnight” costs–omitting interest, infrastructure, land and site preparation. “Overnight” estimates ranged as low as about $1 a watt, although some plants from the 1980s had cost around $4 a watt, before factoring inflation. After glory days of a so-called “nuclear renaissance”–around 1997 through 2007–both everyday and episodic factors intervened. The rubber was to meet the road when the equipment builders proposed prices and their potential utility customers had to figure out whether they could afford the tabs.
Starting in 2008, along with a sharp recession, the tabs came in high: at least $4 a watt, maybe more. The outgoing Walker Bush administration assembled $18.5 billion in a loan-guarantee program, likely supporting less than 5 GW of capacity and perhaps four nuclear-power units. Soon the incoming Obama administration faced huge economic stress to reverse the Walker Bush recession, the worst downturn since the Great Depression of the 1930s. It was eager to identify fast-growth opportunities, and it offered nothing more toward slow-growth nuclear power. Then came the Fukushima nuclear catastrophe in March, 2011, and financial losses threatened by the January, 2012, shutdowns of both San Onofre units near San Diego. Those episodes capped off a would-be “nuclear renaissance.” U.S. support for investments in nuclear power collapsed.
Active applications to build third-generation nuclear-power units in the U.S. dropped rapidly. In states with deregulated electricity markets, none survive. Utilities operating as unregulated merchant power generators proved unwilling to accept financial risks at prices being proposed–with or without loan guarantees. Only utilities continuing to function as government-backed monopolies maintained interest. Of 34 proposed new nuclear-power units, as named in 2007, only four units are now active–all using the Westinghouse AP-1000 design. Two are under construction at the Summer plant in South Carolina, and two are at the Vogtle plant in Georgia–the 1980s poster child for cost overruns. These projects took the federal loan guarantees, emptying the pot.
Propping up survivors: Odd as it might sound, Andrew Cuomo (D, New Castle), the New York governor opposed to the Indian Point nuclear power-plant in Buchanan, NY, has arranged subsidies funded by electricity customers to prop up four other nuclear-power units in the state. Estimated only a few months ago at perhaps $200 million over about ten years, the subsidies are now widely reported as likely to cost $8 billion or more. Within days Exelon, which already owned three of the units, announced a plan to buy the fourth from Entergy. Exelon is able to economize by sharing personnel, now the main expense of running nuclear plants fully depreciated years ago.
Operating New York nuclear-power units
9-Mile Point 1
9-Mile Point 2
Indian Point 2
Indian Point 3
Source: U.S. Nuclear Regulatory Commission
FitzPatrick and 9-Mile Point 1 used the Mark 1 “boiling water” containment design, the same as Vermont Yankee, Pilgrim and the wrecked Fukushima Dai-ichi units in Japan. If the two plants in New England deserved to be shuttered, then so do FitzPatrick and 9-Mile Point 1. However, unlike the many, longstanding critics of nuclear power in southern Vermont and eastern Massachusetts, in upstate New York very few people are demanding action on hazards their region faces. There are no signs that the Cuomo administration has genuine concerns about such hazards either, aside from personally and politically motivated attention to the Indian Point plant, located less than 15 miles from the governor’s home.
News from New York government sources has been the usual, opaque OCA blarney–officials covering arses–but obviously money spoke. A tiny fraction of $8 billion could fund a huge legacy of political campaigns. However, despite long entrenched corruption, Illinois governments rebuffed Exelon solicitations this year. Mr. Cuomo invoked environmental saviors to buttress his cause–notably James Hansen, a Columbia professor. Joined by three less well known partners, Dr. Hansen occupied a New York Times pulpit in November, 2013, to present a prayer for nuclear power. It was, the four then claimed, “the only viable path forward on climate change.”
Others disagreed. As the late Michael Mariotte of Nuclear Information and Research Service wrote, “No environmental organization took the bait. Instead, NRDC, Greenpeace, Friends of the Earth and Sierra Club decry nuclear power….” According to Morningstar, in an investment newsletter issued a week after the Hansen prayer, “Enormous costs, political and popular opposition, and regulatory uncertainty” render new reactors infeasible [as recounted in Forbes]. Low costs for nuclear power occurred only before nuclear disasters of the 1970s and 1980s, leading to stringent and costly safety regulations, and under repressive oligarchies, ignoring lessons from the disasters. Outside command economies of Russia, China and South Korea, only two of several “third generation” nuclear designs are being implemented: the AP-1000 in the U.S. and the EPR in Europe.
Practical developments: The European [or "evolutionary"] pressurized reactor (EPR), designed by Areva in France, took a partly conventional approach to reliability: increasing steam generator “loops” for a “pressurized water” reactor to four instead of two or three. That was adapted from a proven design: the Westinghouse 4-loop “pressurized water” units built in the U.S. during the 1980s. The EPR specifications have been disrupted by several surges of changes, leaving the first unit in Olkiluoto, Finland, more than ten years late, with at least a factor of three in cost overrun. Last year, the government of Finland cancelled another EPR unit, but the former Cameron and Osborne regime in Britain signed up for two EPR units at Hinkley Point in Somerset, on the Bristol Channel. Recently the successor British regime, headed by Theresa May, put those plans on hold, questioning Chinese involvement in the project.
The AP-1000, designed by Westinghouse in the U.S. and by Toshiba in Japan, mainly took a structural approach to reliability: providing a very large volume of passive cooling to manage a thermal spike. While the EPR design tends to increase complexity, working against reliability, the AP-1000 design tends to reduce complexity, at least in some respects. Four units are under construction in the U.S. as noted before, and four are being built in China at Sanmen and Haiyang. China has also licensed the technology, and it has developed a much-cheapened system, the CPR-1000, omitting most of the major improvements in safety and reliability. AP-1000 units in China use a cheapened design of that type, omitting protection against aircraft impacts required in the U.S.
All AP-1000 projects are running years behind schedules. Those in the U.S. suffer from major cost overruns, but there is no reliable information from China, since anyone providing it would probably be jailed or killed. Last year Chicago Bridge & Iron, one major contractor for the U.S. projects, sold out to Westinghouse, the other major contractor, creating an effective U.S. monopoly in nuclear power-plant construction. U.S. utility sponsors are protected by CWIP regulations–construction work in progress–enacted by politically captive state governments in Georgia and South Carolina and allowing the utilities to charge customers increased rates before the plants are operating.
New England opportunities: So far, there are few signs that New England will respond to what parts of the nuclear-power industry might cast as opportunities. New England nuclear generation capacity has been falling for about a quarter century. Once Pilgrim in Plymouth, MA, closes in 2019, only New Hampshire and Connecticut will have nuclear power-plants operating. No utility is likely to propose any new nuclear facility for the region until the “third generation” units under construction in Georgia and South Carolina have been operating for quite a few years and unless their safety and economic performance has lived up to claims.
Dominion Power, the operator of Millstone in Waterford, CT, since 2000, tried to put a squeeze on Connecticut government, similar to what Exelon has pulled off in New York. They frightened the state senate into passing a subsidy bill in April, 2016, but after that their momentum stalled. Dannel Malloy (D, Stamford), the state’s governor, could prove as susceptible as Andrew Cuomo became in New York. Last March, Malloy reportedly met privately with Dominion lobbyists and executives. Typical shell-game tactics are showing up. One news report quotes a state senator, Paul Doyle (D, Wethersfield), saying, “It’s not a subsidy.” Maybe, but it looks like a duck, quacks like a duck….
Opioid overdose deaths, caused by both prescription painkillers and illegal narcotics, have grown rapidly in the past few years. According to recent articles in the Boston Globe, the problem is particularly severe in New England, including Massachusetts. However, community burdens are grossly unequal.
A recent Globe article indicated that some small towns, including Aquinnah on Martha’s Vineyard, have major problems. However, the Globe lacks math skills. Its reporters and editors failed to consider whether data they presented had statistical significance. For Aquinnah, numbers of events were so small that there was little significance. Lack of significance occurred with 254 of the 351 Massachusetts cities and towns.
Rates of opioid overdose deaths varied greatly among the 97 communities for which data had strong statistical significance. For the four years of data now available, calendar 2012 through 2015, the statewide average was 162 deaths per year per million residents. Communities can be compared by the differences between their opioid overdose death rates and the state average. Expressing those differences in units of confidence intervals gives a statistically weighted picture when comparing communities.
Considered that way, the three least hazardous communities were Brookline, Needham and Wellesley:
difference, in intervals
From 2012 through 2015, Brookline experienced a rate of 17 opioid overdose deaths per year per million residents–from a total of 4 events. Statistics gave 17.0 as a 95%-confidence interval for its rate. The Brookline rate was 8.5 confidence intervals lower than the state average: a very significant difference.
At the other end of the scale, the three most hazardous communities were Lynn, Quincy and New Bedford:
difference, in intervals
From 2012 through 2015, Lynn experienced a rate of 357 opioid overdose deaths per year per million residents–from a total of 125 events. Statistics gave 62.9 as a 95%-confidence interval for its rate. The Lynn rate was 3.1 confidence intervals higher than the state average: a very significant difference.
Massachusetts opioid overdose deaths concentrated in 17 high-hazard communities: Lynn, Quincy, New Bedford, Fall River, Worcester, Lowell, Haverhill, Brockton, Everett, Revere, Weymouth, Pittsfield, Taunton, Malden, Wareham, Stoughton and Carver. With 18 percent of the state population, they experienced 33 percent of the events.
In October, 2013, New York Times reporters Robert Pear, Sharon LaFraniere and Ian Austen first reported gross conflicts and disorganization among contractors developing the major U.S. health-care Web site, healthcare.gov, and their supervisors who were federal government employees. While the Times described problems soon after a crisis became public, its reporters did not explain how the problems developed.
Three weeks later, Washington Post reporters Amy Goldstein and Juliet Eilperin traced them to blunders committed by lawyers who were serving as government officials but had no significant operations backgrounds, technical competence or business experience–their authority underwritten directly by Pres. Obama.
Within the industry, a disease had been recognized by the late 1960s, with crashes of early airline reservation systems as the major, public danger signs. After a few years, remedies were known, and software professionals were addressing issues when clients and employers allowed them the time and responsibility to do that. The Software Engineering Institute at Carnegie-Mellon University gradually created a new profession: “software architect.”
However, the lure of “coding” as a source of instant magic remained amazingly seductive and has continued to undermine efforts. Project failures remain common, although few become as dramatic as the one that almost capsized the federal Affordable Health Care program. The root causes are usually the same: muddlers in charge of projects–lacking strong skills and strong character. Muddlers can be pleasant to work with and are often successful in some roles. Developing new software is not one of those, nor is designing a new bridge.
Assigning blame: As Daniel Levinson, inspector general for Health and Human Services, wrote, core elements in the recent disaster were:
• Poor leadership: “HealthCare.gov lacked clear project leadership to give direction and unity of purpose, responsiveness in execution and a comprehensive view of progress.”
• Poor management: “[The office] mismanaged the key…development contract, with frequent changes, problematic technological decisions and limited oversight of contractor performance.”
The software, coordinating transactions between millions of users and hundreds of back-office systems, would have been a nightmare on a sunny day. As usual, the foul-ups began at the beginning: writing requirements. The approach in nearly all durable efforts has been to start modestly and build out in steps. Disregarding readily found advice, spun from a long history of painful failures, government nitwits bought into the aptly named “big bang” approach: launch everything–all at once–and make it slick and shiny, and thus very complicated.
Chief Muddler at Health and Human Services was Marilyn Tavenner, the former administrator of the Centers for Medicare and Medicaid Services–not a “dear, sweet woman” but by training a nurse and street-wise organizer. Trying to direct technology, she was out of her depth. She lacked the sense to find and hire someone who could do the job.
While manufacturing a disaster, she had plenty of help from White House nitwits. They had only dreams of sharing limelight in a splendid performance. They had no industry backgrounds and no role in making anything actually work. Up against those would-be luminaries, Ms. Tavenner lacked the character to say “No,” and she lacked the skills to see she was merely rearranging deck chairs on the Titanic.
Remedies and wreckers: Mr. Levinson, the inspector general, seems to think remedies are obvious. He calls for “clear leadership.” However, his approach of “project leaders” would not help when designated leaders were also nitwits or muddlers. He is on sounder ground seeking “factors of organizational culture” that might help. However, as a career bureaucrat and a lawyer, Mr. Levinson does not seem to understand just what those factors might be or how to get them.
No major news source has yet described how a senior Administration official behind the blunders, Nancy-Ann Min DeParle–former director of the Office of Health Reform at the White House and from 2011 to 2013 Pres. Obama’s deputy chief of staff for policy–was allowed to quit the government before the health-care reform program began operating.
An ambitious person, regarded as a health-care policy expert, Ms. DeParle had served in prominent positions in the federal government and the state government of Tennessee, where she spent much of her youth and graduated from college. Her most obvious blunder, failing to set and then freeze program requirements, allowed a stream of changes ordered when efforts were already gravely behind schedule.
By failing to name key perpetrators in the healthcare.gov collapse and failing to state plainly what they did wrong, Mr. Levinson, the inspector general, emulates ancient Tibetan lamas. He is spinning prayer-wheels. His report will be shelved and forgotten, as federal government lurches toward its next appointment with disaster.
Contractors on sites for a ninth elementary school reported at a joint meeting of the School Committee and the Board of Selectmen, starting at 7:30 pm October 22 in the fifth-floor meeting room at Town Hall. Fees for an outfit called Civic Moxie, addressed in Brookline, are approaching $100,000. So far, the town got little for such lavish spending. The new concepts aren’t that useful, and the useful concepts aren’t that new.
Shlock tactics: Contractors say they found 3-acre school sites. Brookline has not accepted postage-stamp sites for elementary schools since early years of the Great Depression. Old Lincoln School–less than two acres on Route 9, built in 1932–was the last of the postage-stamp sites. Social injustice in cramming old Lincoln School onto a squat of land on a busy highway sparked the 20 years of protests, between the 1970s and 1990s, that brought new Lincoln School on Kennard Rd.
Brookline school sites, counting adjacent parks
Source: School outdoors comparison, 2013
Site models illustrated by the contractors reuse old factories and warehouses found in depressed parts of Newark, NJ, and Baltimore, MD. Few of today’s Brookline parents probably look forward to housing their children in old factories and warehouses. Brookline never had much of either, anyway. Most of the ones remaining can be found in Brookline Village, between Station St. and Andem Pl. Contractors did not propose to reuse them.
Elementary school sites, from Newark and Baltimore
Source: School site presentation, 2015
Search and research: In 2013, a committee organized by the Board of Selectmen produced a school site plan of sorts. Caught up in strong controversy, after proposing to use parks and playgrounds as sites, that committee backed away, recommending an approach it called “expand in place”–meaning enlarging current schools. As some members knew, such an approach could prove extremely costly. The Devotion School project now underway will cost around $120 million, yet it adds only about nine classrooms.
Neither the 2013 nor the recent 2015 study provides a geographical analysis, showing densities of increased school populations. Lack of this basic tool indicates that neither group sought professional guidance, and neither made constructive use of data and expertise already available in Brookline agencies. Instead, both engaged in speculation about specifics, without creating a knowledge base to guide the choices. The Moxie report describes six potential new school sites with some detail, five of them in urban Brookline.
New school sites in urban Brookline
Source: Ninth elementary school study, 2015
The sixth location, in suburban Brookline at the southeast corner of Larz Anderson Park, can probably be neglected as an elementary school site, since very few students would be within reasonable walking distance. Of the five urban sites, the one shown as no. 5 is old Lincoln School–firmly rejected as a suitable for a permanent elementary school. Instead, that site has become a land bank, Brookline’s relocation center during major town projects.
The three shown as nos. 2-4 are postage-stamp sites strung along Harvard St. All three are too close to either Pierce School or Devotion School to create a credible locus for a new school district. Only the site on Amory St., shown as no. 1, has some potential. However, this site would need to draw students from the low-density Cottage Farm and Longwood neighborhoods to make sense. Lack of geographical analysis for growth trends in Brookline’s student population makes it impossible to know whether the Amory St. site would solve more problems than it might create.
Moxie study files in their original form are probably outside most people’s price range: all but unreadable on much less than giant UHD 2160p displays costing around $2,000 and up. The study’s failure to explore the northeast side of Addington Hill–off Washington St. at Gardner Rd. and about equally spaced from Driscoll, Pierce, Lincoln and Runkle Schools–leaves a major gap in knowledge. The appendix files from the study show no attention at all to a critical part of Brookline.
The first Advisory Committee warrant review for the fall, 2015, town meeting got underway at 7:30 pm on Thursday, October 1, in the first-floor south meeting room at Town Hall. The committee tackled Article 6, likely to be one of the most contentious. It recommended against adding more restrictions on use of town land–specifically, Larz Anderson Park–until community needs for school expansion are better understood.
Lakeside view at Larz Anderson Park
Source: Brookline Recreation Department
Larz Anderson Park: The land now known as Larz Anderson Park was conveyed to the Town of Brookline through the will of Isabel Weld Perkins Anderson, wife of Larz Anderson, III (1866-1937), after she died in 1948. The Weld family, from whom she was descended, had owned the former Windy Top estate since the 1840s. It also owned the site of today’s Hancock Village, using it for a private golf course until 1945.
Although it might seem odd now, Brookline’s 1949 annual town meeting struggled over whether to accept the gift of land. Some said Brookline could not afford to maintain it. The large parcel was then occupied by a mansion, by Italianate gardens at the hilltop and by several support buildings–including a handsome garage for classic automobiles that had interested Mr. Anderson.
Eventually doubts were overcome, and the town meeting voted to accept the bequest. That said the land must be used for park, educational or charitable purposes. A location at the edge of town–64 acres bordering Jamaica Plain, far from the town’s population centers–led to use for what has become Brookline’s best known public park. It includes a small lake, picnic and grill facilities, baseball fields and an outdoor skating rink.
Unfortunately, the Brookline DPW description of Larz Anderson Park on the municipal Web site omits nearly all the rich historical context of the site. The DPW map display offers text that will be unreadable with most browsers and monitors. The map information is not page-linkable, does not name, locate or describe the park features and does not outline the park boundaries–a disgrace.
Parkland protection: For many years, most involved in Brookline’s government had thought the major town parks were protected under Article 97 of the Massachusetts state constitution. However, several may not be, including most of Larz Anderson Park. Parkland protection under Article 97 requires a declaration by a town meeting.
At a public hearing held September 30 by the Advisory subcommittee on capital, Joslin Murphy, the town counsel, testified that the status of protection for several Brookline parks is uncertain. Recent cases from state appellate courts say protection is not active simply because of ways land has been acquired or used.
Restrictions in wills, deeds and trusts are not generally permanent, under Massachusetts law. Brookline was sharply reminded of that by the recent Court of Appeals decision affecting Hancock Village. In many circumstances, those restrictions expire after 30 years. Massachusetts General Laws, Chapter 184 (Real Property), Section 23, provides (in part):
“Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes.”
There are other exceptions to the 30-year rule. Conditions of wills and deeds involved with Brookline parks will need review. Brookline also needs to review which parks or parts of them are covered by town meeting declarations protecting land under Article 97. Such protection can be altered, but according to Ms. Murphy that takes a unanimous vote of the supervising board and two-thirds votes of both a town meeting and the General Court. Only votes in the General Court are required by Article 97. Ms. Murphy did not cite any sources for other requirements.
Proposal and background: In Article 6 for the November town meeting, the Park and Recreation Commission is proposing to declare about 55 of the 64 acres at Larz Anderson Park protected under Article 97. That would be needed to satisfy requirements for a state grant, reimbursing parts of planned improvements. The hilltop, now occupied by the town’s skating rink, was protected in 1998. According to Ms. Murphy, most of the remaining park area is probably not similarly protected.
In 2013, under item B.15 of Article 8, the annual town meeting appropriated $0.66 million for a program of improvements at Larz Anderson Park. However, the DPW Division of Parks and Open Space had developed a plan needing more than $1 million. For the balance, the division expected to seek state support. The division has prepared an application for a $0.4 million grant, not yet acted on.
Brookline’s continuing surge in school enrollment became a wild card in the deck. In December, 2014, the town hired a consultant to review needs and possibilities to build new schools. After a surge of school building during the middle and late nineteenth century, school sites have become a foreign topic. During the twentieth century, the only new school site was for Baker School on Beverly Rd., opened in 1939. The new Lincoln School opened in 1994 at the former, private Park School site on Kennard Rd.
It has been more than 75 years since Brookline had to search for a wholly new school site, one that was not in similar use before. Over that time, the town has become fully built-out, and land prices have escalated. If Brookline tried to buy land equivalent to Larz Anderson Park today, $50 million might not be enough. Most of that parkland area apparently remains eligible for use as a school site.
Advisory review: The Advisory subcommittee on capital brought in a recommendation against Article 6, by a vote of 1-4. Amy Hummel took more than ten minutes to present it, mentioning only at the end that all the other subcommittee members opposed Article 6. A prospect of locking up $50 million or more in permanent land value in return for $0.4 million or less in one-time state aid had not convinced them.
Erin Gallentine, the director of parks and open space, tried to sway the committee with arguments about a 1989 “master plan.” She said park improvements were “the next big vision for the community.” The 1989 document has not been available on the municipal Web site–a plan that few committee members had even heard about. The recently prepared grant application has not been available on the municipal Web site either.
Strangely, Ms. Gallentine did not distribute details of the grant application to Advisory Committee members, who were left to imagine what it proposed. Committee member David-Marc Goldstein asked how likely Brookline stood to get $0.4 million. Ms. Gallentine offered a rambling reply that sounded uncertain. An amendment was offered to restrict spending to any amount awarded. John Doggett asked about protecting a smaller part of the park. Ms. Gallentine complained she would have to change the grant application.
Exploring an activity that seemed contrary to restrictions of the Anderson bequest, Leonard Weiss asked how DPW equipment garages came to be built on Larz Anderson land. Ms. Gallentine claimed not to know, saying that had happened “before my time…done by the Park Department.” The former independent department was made into a DPW division through a 1981 town meeting article, after long-time director Daniel Warren retired.
Carla Benka, chair of the subcommittee on capital, described her work years ago to get Larz Anderson Park listed on the National Register of Historic Places. That insures a process of review for most proposed changes. She questioned the relevance of a 1989 plan, comparing school versus open-space priorities and saying, “It’s not right to play favorites…a whole lot has changed in 26 years.”
Several committee members defended Article 6 against detractors, including Mariah Nobrega, Michael Sandman and Stanley Spiegel. However, few votes were there for those views. Ms. Benka joined a majority of more than two to one, recommending that town meeting turn down Article 6.
Members of town boards, commissions, committees and councils may become “special municipal employees” when they are not performing paid duties as regular municipal employees. Such a classification is not automatic in most cases but must be established by a vote of a board of selectmen in a Massachusetts town. Such a vote will apply to all who hold a specified type of position and not to particular individuals.
The Brookline Board of Selectmen is known to have awarded the “special” designation to members of the Zoning Board of Appeals and the Housing Advisory Board. Participation in various matters that could be viewed as conflicts of interest suggest that Planning Board, Transportation Board and Building Commission members might also enjoy “special” status.
A list of organizations with “special” status is supposed to be “on file” in the town clerk’s office. During former years that some have come to regard as flirting with corruption, members of many town boards, commissions, committees and councils are said to have been designated as “special.” However, no list of Brookline’s “special” designations could be found on the municipal Web site.
Section 3.20.1 of Brookline’s general bylaws–enacted under Article 18 at the May 23, 2006, annual town meeting–applies to members of town boards, commissions, committees and councils. It requires attending training sessions about laws on conflicts of interest and open meeting requirements, organized by the Office of Town Counsel in Brookline.
Article 8 at this fall’s town meeting would allow watching an online lecture about laws on conflicts of interest and requires no training on open meeting requirements. Practical experience has shown that training sessions organized by the Office of Town Counsel proved more effective than lectures, because of questions and answers reflecting specific, local situations.
A list of members of town boards, commissions, committees and councils who have received required training is supposed to be “on file” in the town clerk’s office. However, no such list could be found on the municipal Web site.
Brookline has had multiple telecommunications services for over 30 years, but they are so different in structure and focus that there has been far less competition than an outsider might expect. Once established, companies tend to march in place.
Resident companies: Resident telecommunications companies in Brookline–newest to oldest–are RCN beginning 1993, Comcast beginning 2006 (originally Times Mirror 1981, then Cox 1995) and Verizon beginning 2000 (originally New England Telephone 1883, then NYNEX 1984, then Bell Atlantic 1997). These companies all have cables under or above streets serving nearly all Brookline businesses and residences.
Each of the companies has a different base of technology and a different service focus. Verizon and its predecessors offered only analog telephones to the general public for more than 70 years. Eventually, the telephone services could be used for digital data by connecting them through modems, starting in the 1950s.
Comcast and its predecessors focused on cable television. The frequencies and bandwidth were much too great to be carried over Verizon’s copper wire pairs, or so it was thought at first, giving this succession of companies another type of natural monopoly for a time.
RCN focused on Internet services at first but also provided cable television. The bandwidth needed for thousands of broadband Internet channels was a step beyond that needed for tens of television channels, giving this company a natural monopoly for a time.
Technologies: Founding eras of the original companies led to different bases of technology. Verizon has a network of copper wire pairs, some over 100 years old, installed for analog telephone service. Comcast has foil-over-foam coaxial cables, a technology advance of the 1960s for video signals. RCN has fiber-optic cables, a fully digital technology practical on a municipal scale by the late 1980s.
For more than a decade, all three resident companies have offered a mix of similar services. All promote so-called “bundles” of telephone, television and Internet services but also sell separate services. A key element for Verizon is so-called DSL (digital subscriber line) technology, transmitting broadband signals over copper wire pairs for up to about 3 miles–thought impossible or impractical before the middle 1990s.
Since the middle 1990s, Comcast and its predecessors have encountered an increasing frequency of signal quality problems, according to Stephen Bressler, who was for many years telecommunications coordinator for Brookline. Their cable technologies are usually regarded as reliable for around 20 years, and cables are now well beyond that nominal service life.
Except in small patches, Comcast, recently rebranded as Xfinity, does not seem willing to renew its main infrastructure. Customer service personnel are described often as unresponsive and sometimes as worse. Of about 180 Yelp reviews for the Boston area as of August, 2015, all but three rated the Comcast (Xfinity) service at “one star,” the lowest rating–an astonishingly negative set of reviews.
RCN fares better with online reviews but hardly well. Many complaints concern erratic Internet and poor response to outages. Remember that with cable Internet one is sharing bandwidth with neighbors, predictably causing slower response at popular times of day. RCN will not install premise wiring. One will need to provide coaxial cable between the service connection and the point of use.
If trying RCN for Internet, it’s probably best to buy one’s own cable modem rather than rent from RCN. Complaints suggest that RCN tends to shrug off problems with cable modems, including those the company supplies. The cost will typically be recovered in about a year. Check with RCN to see that a prospective unit has been approved for use with their cable service.
Verizon experiences increasing problems maintaining broadband Internet over its aging copper wires. Every August, temporary installation crews come in to help with changes when large numbers of tenants typically move. Most are not familiar with Brookline wiring and equipment. They predictably create large numbers of problems that can sometimes take weeks to resolve. Paper-ribbon, 19 AWG wire-pairs from the 1920s and paper-pulp, 22 AWG improvements from the 1930s are fragile and suffer from humidity.
DSL can be a tricky service to use and maintain. Technologically skilled people can get considerable help from DSL Reports online. Verizon may have sold more DSL service in Brookline than it can reliably provide. The company cannot readily expand capacity, owing to decades of shortsighted practices. Newer cable segments jammed alongside older ones, without reorganizing wire pairs, have clogged the space in underground ducts. Some technicians say long-term records of wire-pair assignments by cable segment have become haphazard.
Competition: Obviously knowing that it operates the most capable technology, RCN resists offering price competition, although it now sells unbundled services. As of summer, 2015, its lowest performance Internet service is priced on a par with Verizon’s highest priced DSL but delivers about three times the bandwidth that Verizon usually provides, when Verizon DSL services are working well.
However, after the first year, RCN hikes the price of its lowest performance Internet service in steps until it costs about twice as much as Verizon’s highest priced DSL service. Comcast (Xfinity) does not look as though it intends to compete. Reliability of its service has been reported as so dim for so long that only unwitting prospects, who have not learned about problems, and those who find themselves locked in because of apartment wiring seem particularly likely to become new customers.
During leadership by Brookline resident Ivan Seidenberg, from 2000 through the end of 2011, Verizon promoted a fiber optic Internet service called FIOS. Verizon accepted billions of dollars in federal subsidies when committing to install that service. FIOS remains unavailable to nearly all locations in Brookline, and it might never become available. Equipment was reportedly installed in Brookline, but it has reached few if any homes and businesses. Nationwide, FIOS availability is very spotty, as shown in a coverage map prepared by an independent organization.
U.S. availability, Verizon and Frontier FIOS, 2014
Source: adapted from Techdirt (Mike Masnick)
Unlike the original map, which tries to show “percentage” of coverage with shading, the above, reduced scale map has been altered to a uniform color where at least some coverage was reported. The “percentage” map was clearly missing actual conditions in areas of metropolitan Boston. The original, full scale map and information about how it was assembled are available from Fiber for All of Sarasota, FL.
AT&T claims to be developing a competitive fiber optic network to be called U-Verse, but no such Internet service has been reported as available anywhere in Massachusetts, only telephone and television services that may or may not be distributed by fiber optics.
Regulation: Brookline is now unable to monitor or investigate telecommunications services. After the retirement of Mr. Bressler last year, Brookline has effectively had no regulation. No one on town staff and no member of a standing board or committee has the needed combination of technical knowledge and business experience. Anyone able to perform such work competently would make an unlikely candidate to tolerate the political committee appointments and domineering practices of the current, technologically challenged Board of Selectmen.
– Craig Bolon, Brookline, MA, August 22, 2015
Raymond Bartnikas, Cables: a chronological perspective, in Bartnikas and Srivastava, eds., Power and Communication Cables: Theory and Applications, Wiley, 2003, pp. 1-75 (12 MB)
A chain of disputes over rights to the Happy Birthday song–a controversy now stretching over more than 80 years–recently enjoyed a revival with a federal lawsuit being heard in California. It was brought by Jenn Nelson, a video producer in New York who has been assembling a documentary about the saga. A key, unresolved issue throughout long controversy has been lack of a clearly established author of the song.
Disputes: Ms. Nelson reluctantly paid a subsidiary of Warner/Chappell Music of Los Angeles, who claim to own interest in a copyright, a royalty of $1,500–so that her video could use the song without wrangling over an infringement lawsuit. After a slow burn, she found a New York lawyer, Randall S. Newman, who was willing to challenge the copyright claim. Mr. Newman filed suit in New York on June 13, 2013, joined by Mark C. Rifkin of Wolf, Haldenstein, Adler, Freeman and Herz. The venue proved questionable, and a new complaint was filed in California later that month.
Circumstances of the Happy Birthday song have been contentious. Disputes began in 1934 with a charge against producer Sam Harris and composer Irving Berlin, who included the song in a Broadway musical without an agreement. Robert Brauneis, a professor at George Washington University Law School, explored origins of the song and legal issues about it in a 92-page journal article published in 2009, plus supplements available from the law school.
Origins: While working at the Louisville Experimental Kindergarten School in the early 1890s, Mildred Jane Hill and Patty Smith Hill composed a song with the same melody and different lyrics. Mildred Hill was a professional pianist and organist who taught at the school. Her sister Patty Hill had trained as a teacher at the school and then become principal. A pioneer in early childhood education, she later became a professor at Columbia University. The sisters collaborated on songs to appeal to and be easily learned by young children.
In 1893, the two sisters submitted a manuscript for publication to the Clayton F. Summy Co., then at 220 Wabash Ave. in Chicago. Mr. Summy published the work in 1893, 1894 and 1896 as editions of Song Stories for the Kindergarten. The first song on the first page of music was titled Good-Morning to All. It had the melody of the Happy Birthday song, but the lyrics said “good morning” instead of “happy birthday.”
Subsequently, the Clayton F. Summy Co. republished Good-Morning to All in 1899 as part of Song Stories for the Sunday School and in 1907 as a free-standing composition. In each case of publication, according the original complaint in the recent lawsuit, Mr. Summy or the Summy company applied for copyright registration and asserted that Mr. Summy or the company was “proprietor” of the work. No Summy publication included the “happy birthday” lyrics, only the “good morning” lyrics.
Changes and infringement: The trail diverged in 1912, after a large, Chicago-area piano manufacturer, The Cable Company, published and began to sell The Beginners’ Book of Songs. For a song titled Good-Morning to You, alternatives to “good morning” were shown in subtitles as “good bye” and “happy birthday.” Key, melody, main lyrics and piano arrangement were the same as Good-Morning to All in Song Stories for the Kindergarten from the Clayton F. Summy Co., still under copyright.
The Beginners’ Book of Songs, cover
Source: The Cable Company, Chicago, IL, 1912
As published in The Beginners’ Book of Songs, no authorship, permission or copyright was cited for Good-Morning to You. That looks like infringement. However, this 1912 publication also introduced into commercial circulation the “happy birthday” lyrics in combination with the “good morning” melody.
Any later attempt to claim original authorship of the “happy birthday” lyrics, alone or in combination with the “good morning” melody, could suggest plagiarism. So far as can be seen in records from the recent lawsuit, neither Mildred Hill nor Patty Hill claimed authorship or left unpublished manuscripts for the “happy birthday” lyrics or for their combination with the “good morning” melody.
According to Prof. Brauneis and as recited in the original complaint for the recent lawsuit, the Clayton F. Summy Co. did not seek copyright extension for the publication of the Good-Morning to All song occurring in 1893. Later publications notwithstanding, melody and lyrics of that song could have entered the public domain when their 1893 copyright term ended in 1921 without renewal action by the “proprietor,” Clayton F. Summy or the Summy company.
From 1922 to 1927, The Cable Company published the fourth to sixteenth editions of The Everyday Song Book. Song 16 in those editions was titled Good Morning and Birthday Song. It has the melody of Good-Morning to All, transcribed from G to A-flat, with no piano arrangement and with three sets of lyrics: two with “good morning” and one with “happy birthday.” No authorship or copyright was cited. However, a note below the title said, “Special permission through courtesy of the Clayton F. Summy Co.”
Lawsuits and arguments: That situation is now presented to a federal court in the Central District of California. Judge George H. King, the chief judge of the district, has something of a mess to clear, mainly because of lapse of time but also because of several actions during the previous 81 years to prosecute a claimed but vaguely justified copyright.
Supposed rights to the Happy Birthday song may never have been enforceable. No authorship for the “happy birthday” lyrics or for their combination with the “good morning” melody appears to have been claimed at or before publication in 1912. Without an author, there is no copyright interest. [See note, below.] However, arguments in the recent case became tangled–tending to obscure some elements of copyrights.
Judge King does not have a particularly strong record when dealing with intellectual property. In Alfred Mann Foundation v. Cochlear, a patent lawsuit beginning as Central California case no. 07-cv-8108, he was overruled by the Court of Appeals for the Federal Circuit in 2010 [case no. 2009-1447], which found faulty justification from Judge King for holding that plaintiffs in the district court case lacked standing to sue.
The Clayton F. Summy Co. was sold in 1930, into what became a succession of organizations. When lawsuits began in the mid-1930s, the Happy Birthday song had been published several times before, essentially in the form it is currently performed, without claims of authorship or copyright and without prior challenges for infringement. By at least 1922 it was a known work, published in full and combining the “happy birthday” lyrics with the “good morning” melody.
Aggressive copyright prosecutions look to have begun with efforts by Jessica Hill, youngest sister of Mildred and Patty Hill, after Mildred Hill died in 1916 and Jessica Hill, who played no role in creation of their songbook, inherited a potential interest in the songs. In a brief filed July 28, 2015, Warner/Chappell argued that Jessica Hill renewed the copyright to the songbook in 1921.
In an appendix to his journal article, Prof. Brauneis argued that, as a successor in interest, Jessica Hill was entitled to obtain and hold a renewal of copyright and would have held it in trust for other family members. As renewed in 1921, the 1893 copyright for Song Stories for the Kindergarten would have expired in 1949, and the enforceable copyright to the Happy Birthday melody would have expired with it.
After 1921, Mr. Summy and the original Clayton F. Summy Co. would no longer have been the “proprietors” of copyright for Good Morning to All. Instead, Jessica Hill would have become “proprietor.” According to that logic, the Happy Birthday melody, as published by The Cable Company in 1922 and later, would have been yet another pirate edition. Its “permission” was bogus. The “happy birthday” lyrics are a different story.
Neither the 1893 songbook nor later editions of it contained the “happy birthday” lyrics, alone or in combination with the “good morning” melody. So far, briefs for Warner/Chappell have apparently failed to acknowledge lack of documented authorship and copyright coverage for the “happy birthday” lyrics, alone or in combination with the “good morning” melody, between at least 1893 and 1933.
In the 1930s, successor management of the Clayton F. Summy Co. filed for copyrights involving the Happy Birthday song. However, they were for similar works with varying piano arrangements and additional lyrics. They did not address issues arising from combining the “happy birthday” lyrics with the “good morning” melody. At those times and since, there have been allegations of copyright infringement. So far, disputes over the Happy Birthday song have been settled privately, leaving legal issues of copyright unadjudicated.
Potential outcomes: It is possible Judge King will find there have been no enforceable rights to the “happy birthday” lyrics or their combination of with the “good morning” melody, because there has been no clear evidence of authorship for the lyrics or the combination. It is also possible the judge will find potential rights connected with the melody of the Happy Birthday song were abandoned or had expired by 1922 or by 1950, either through acts or through neglect.
If the judge somehow reaches the far side of those legal chasms, he will need to decide whether the 1930s copyright filings reflect rights of original authorship to the combination of the “happy birthday” lyrics with the “good morning” melody or whether instead they concern only rights to derivative works with different piano arrangements and additional lyrics. If inclined toward finding original authorship, the judge would also need to consider potential plagiarism in the filings.
The money involved makes at least a trip to the Court of Appeals and a try at the Supreme Court likely, no matter what Judge King finds. However, pitfalls ahead for Warner/Chappell Music suggest a fair chance that in a few years the Happy Birthday song may be recognized as public-domain. Warner/Chappell Music might have to disgorge years of unearned royalties, depending on findings of culpability.
Ms. Nelson’s lawsuit already has class action recognition. It seeks to restrict copyrights currently claimed for the Happy Birthday song from covering more than specific piano arrangements and additional lyrics, and in addition it seeks injunctive relief, royalty reimbursements with interest and costs. A victory by the plaintiffs would likely draw attention to other older copyright claims, including Sherlock Holmes stories, already public-domain in the UK.
– Craig Bolon, Brookline, MA, August 8, 2015
Note: “Without an author, there is no copyright interest.” Authorship and originality have been ingredients of copyrights since they were authorized by the U.S. Constitution in Article 1, Section 8. In Section 4, the Copyright Act of 1909 provided, “works for which copyright may be secured under this act shall include all the writings of an author.” Section 102 of the Copyright Act of 1976 narrowed the range somewhat, saying, “copyright protection subsists in original works of authorship.” A requirement of originality, expressed in case law, was made explicit under that statute.
The Cable Co. (Chicago, IL), Everyday Song Book, 101 Best Songs and 101 Famous Poems (advertisement), Normal Instructor and Primary Plans 31(4):4, F.A. Owen Publishing Co. (Dansville, NY), February, 1922
Clayton Frick Summy, in John W. Leonard, ed., The Book of Chicagoans, A.N. Marquis & Company, Chicago, 1905, p. 558