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- Title
Can Vermont Put the Nuclear Genie Back in the Bottle?: A Test of Congressional Preemptive Power.
- Authors
Babcock, Hope
- Abstract
Before the nuclear core meltdowns at the Fukushima Daiichi nuclear reactors in Japan restoked public anxiety about nuclear energy, Vermont's Senate used Vermont Act No. 160 to vote to block continued operation of the Vermont Yankee Nuclear Power Plant after the expiration of its forty-year operating license. This Article examines whether a state can legislatively override a permit issued by the Nuclear Regulatory Commission extending the license of a power plant. The author places this question within a broader federalism context--one where states assert their sovereign rights to regulate the environment in the shadow of federal mandates. She finds the absence of language mandating the use of nuclear power and of an express preemption provision in the Atomic Energy Act persuasive of a lack of preemption for a state's legislative override of this type of permit. Equally convincing is the Atomic Energy Act's reservation of state authority over the generation, sale, and transmission of energy produced by nuclear power plants, and the passage of environmental laws giving states regulatory authority over some aspects of nuclear power plant operation. Additionally, the author argues that policy arguments favoring preemption, such as the need for uniformity and coordination of shared resources, superior federal resources and technical knowledge, and prevention of spillover effects do not apply to this situation; while arguments against preemption, such as preserving states as robust centers of governance and regulatory experimentation and as checks on federal government excesses and errors, and avoiding regulatory gaps and regulatory capture, do apply here. Even collective action problems, which often favor preemption, are weak. The argument that Vermont's initiative may derail recent national efforts to "restart" the nuclear power industry as a way to reduce the nation's dependence on foreign oil and its global carbon footprint also fails as applied to Vermont's legislation. Thus, the author concludes that Vermont Act No. 160 should withstand a preemption challenge.
- Subjects
UNITED States; POWER plant laws; NUCLEAR facility laws; NUCLEAR hazards insurance; FEDERAL legislation; ENVIRONMENTAL protection; NUCLEAR energy policy
- Publication
Ecology Law Quarterly, 2012, Vol 39, Issue 3, p691
- ISSN
0046-1121
- Publication type
Article