Vermont Yankee 2: Can the State of Vermont Win its Federalism Showdown Against the Nuclear Regulatory Commission?

Abstract:     
In the wake of the tragic collapse of the Fukushima Nuclear Power Plant in 2011 and more than twenty five years after the nuclear meltdown in Chernobyl (1986), nuclear safety is again a top policy priority in the US. The United States is the world’s largest supplier of commercial nuclear power, with more than sixty nuclear power plants governed by a complex framework of federal and state administrative, health and safety and environmental laws and regulations. Adding to the complexity of the regulatory maze, a large number of American nuclear power plants are privately owned and operated, often by large utility companies headquartered out-of-state from the sites of the power plants. This raises the issue: to what extent can state governments intervene in, or otherwise restrict, the licensure of nuclear power plant operations – a sphere traditionally thought of as preempted by the federal Nuclear Regulatory Commission?

Over the past year, this question has assumed more than academic interest. Developments in the State of Vermont over the renewal of the operating license for the Vermont Yankee Nuclear Power Plant (“VY”) have come to a dramatic head in February 2011, with the Vermont Senate and the Governor of Vermont vowing to block further extensions of the operating permit by all means necessary, including legal challenges. In March 2011, however, the NRC renewed the operating license for VY for an additional twenty year term (until 2032).

This Article analyzes a likely federalism showdown in the US courts between the State of Vermont and the NRC, considering the possible outcomes were the case to reach the US Supreme Court. Part one examines the merits of Vermont’s opposition to the extension of the operating permit, including an overview of the legislative and regulatory framework governing nuclear power generation in the US. Part two considers likely legal arguments the State of Vermont would raise to challenge the NRC. The Article concludes with an examination of the likely outcome of a legal challenge in light of the present composition of the Court, including judicial and non-judicial remedies available to the State of Vermont to address the safety concerns it has identified in the continued operation of the VY plant. In light of growing public opposition to the expansion of the nuclear industry in the US, the analysis here may illustrate the viability of legal challenges not merely in the context of VY, but in broader applications, such as the continued debate over the Yucca Mountain nuclear waste repository and subsequent initial licensure applications.

working papers series