(Vermont) Yankee Go Home!

Photo from Greenpeace
Nuclear Protest (Photo credit: Greenpeace)

You may recall the Supreme Court’s decision in the Vermont Yankee case.  It was a major administrartive law decision.  Prior to Vermont Yankee, the D.C. Circuit and some other courts had been experimenting with an approach to judicial review which focused on helping to improve agency procedures, rather than reviewing the substance of the agency’s decision.  The Supreme Court ended that experiment in no uncertain terms.  The Court also held that the agency did not have to discuss the alternative of energy conservation (rather than building the plant) in its environmental impact statement.  As an interesting postscript to the case, the Vermont legislature seems poised to close the plant.  E&E News reports:

The Vermont Senate voted 26-4 today against recommending a 20-year extension of the Vermont Yankee nuclear power plant’s operating license, drawing cheers from nuclear power opponents who packed the statehouse in Montpelier for the debate.

Vermont is the only state with a law allowing lawmakers to weigh in on the relicensing of a nuclear plant. Today’s vote is the first time the Legislature has taken up the issue.

New Orleans-based Entergy Corp., the plant’s owner, had requested the extension for the plant in Vernon, which has come under fire recently because of leaks of radioactive tritium.

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Reader Comments

8 Replies to “(Vermont) Yankee Go Home!”

  1. Dan, by coincidence, I’m teaching the NEPA/energy conservation part of the Vermont Yankee decision in class (from your casebook) in just a few minutes!

    Do you know whether the legislature actually is the decisionmaker, or just has the opportunity to voice its opinion to another decisionmaker, or (in between) gets to make a “recommendation” that is entitled to some weight when the decisionmaker considers it? The E&E News except you provide doesn’t say, but seems to me to imply one of the latter two.

  2. Sean,
    The Nuclear Regulatory Commission grants (or denies) the operating license extension. The Vermont legislature’s views are just comments from the state.

  3. “The Nuclear Regulatory Commission grants (or denies) the operating license extension. The Vermont legislature’s views are just comments from the state.”

    I just looked briefly, but that wasn’t the impression I got. I have no idea about how preemption or anything else might be relevant, but it seems like VT law requires both legislative houses to approve any new permits. The NYT wrote:

    “Under Vermont law, any extension of the plant’s license beyond 2012 would have to be approved by both houses. Unless the Senate reverses itself and the House also approves an extension, the plant must close by March of that year.”

    And Act 160(e)(1), passed in 2006 to allow expanded waste storage, provides:

    “(e)(1) Before a certificate of public good is issued for the construction of a
    nuclear fission energy generating plant within the state, the public service
    board shall obtain the approval of the general assembly and the assembly’s
    determination that the construction of the proposed facility will promote the
    general welfare. . .”

    And 160(e)(2) states:

    “(2) No nuclear energy generating plant within this state may be operated
    beyond the date permitted in any certificate of public good granted pursuant to
    this title, including any certificate in force as of January 1, 2006, unless the
    general assembly approves and determines that the operation will promote the
    general welfare, and until the public service board issues a certificate of public
    good under this section. If the general assembly has not acted under this
    subsection by July 1, 2008, the board may commence proceedings under this
    section and under 10 V.S.A. chapter 157, relating to the storage of radioactive
    material, but may not issue a final order or certificate of public good until the
    general assembly determines that operation will promote the general welfare
    and grants approval for that operation.”

  4. Wow, just totally misread that post. Saw “Nuclear Regulatory Commission” and read “[Vermont] public services board.” Whoops.

  5. Looking at the comments about Vermont Yankee and the state legislature’s authority to end its use, it is probably worth noting that the Nuclear Regulatory Commission’s jurisdiction does not preempt the states on all issues related to nuclear plants. The NRC is primarily responsible for safety issues and, in furtherance of that objective, gets to decide whether or not it will allow a plant to operate. The state still gets to decide whether or not to build nuclear plants or use them. Remember California’s moratorium on new nuclear plants in the absence of a long-term storage program for high-level nuclear waste. That statutory provision survived the contention that it was a safety measure (and therefore preempted) because a court was persuaded that California had other interests at stake, including economic interested, when it established the moratorium. Similarly, Vermont’s provision considers the general welfare, which arguably goes well beyond safety concerns. Also, you may want to remember the shutdown of the Rancho Seco plant near Sacramento in response to a voter initiative calling for its closure. The NRC did not have the power to override that local decision.

  6. Steven is referring to Pacific Gas and Elec. Co. v. State Energy Resources, 461 U.S. 190 (1983), which held that California could deny a permit for a nuclear generating facility because of the failure to provide for adequate storage and disposal of the nuclear waste to be generated by the facility. While the Atomic Energy Act preempts state regulation of nuclear safety with regard to nuclear power plants, it leaves traditional state regulation of utilities in place. As the Court said, “Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States.” The Court found that the failure to provide adequate storage and disposal of nuclear waste had economic consequences as well as safety consequences, and the former could be the basis for state regulation. I have not studied the Vermont law to see what it purports to be the basis for the law allowing the legislature to deny an extension of an operating license, nor have I seen what the legislators have articulated as the basis for their votes to deny the extension. If they were well counseled, they would have been quoting from PG&E. However, a lot of water has gone through the dam, so to speak, since 1983 regarding state regulation of electricity generation. While I don’t think there has been the equivalent of the Energy Policy Act of 2005, preempting state and local law with respect to siting of LNG terminals, with respect to nuclear facilities, I’m not sure if “traditional” notions of state regulation of electricity generators is applicable today with interstate generators. Certainly, the “need” for electricity in the particular state can no longer be a basis for denying an extension of an operating license. And to the extent that the facility generates electricity for the interstate market, I don’t see how the state has any economic regulatory authority either. So, bottom line, this is an interesting question.

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Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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