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Can Vermont Put the Nuclear Genie Back in the Bottle: A Test of Congressional Preemptive Power?

Ecology Law Quarterly, Vol. 39, pp. 691-772, 2012

Georgetown Public Law Research Paper No. 11-132

83 Pages Posted: 29 Oct 2011 Last revised: 8 Apr 2013

Hope M. Babcock

Georgetown University Law Center

Date Written: 2011


Even before the nuclear core meltdowns at the Fukushima Daiichi nuclear reactors in Japan re-stoked public anxiety about nuclear energy, Vermont’s Senate, under the auspices of Vermont Act No. 160, voted to block continued operation of 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, in which states assert their sovereign rights to regulate the environment in the shadow of federal mandates. She finds persuasive the absence of an express preemption provision in the Atomic Energy Act (AEA) or language mandating the use of nuclear power, the AEA’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 in 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 avoidance of regulatory gaps and regulatory capture, do. Even collective action problems, which arise when a state thinks solely of its own interests to the detriment of other states or the nation as a whole and often favor preemption, are weak. An 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 gains little traction. For these and other reasons, the author concludes that Vermont Act No. 160 should withstand a preemption challenge.

Keywords: environmental law, Vermont, nuclear, state legislature, power plant, atomic energy act

JEL Classification: K32, K39

Suggested Citation

Babcock, Hope M., Can Vermont Put the Nuclear Genie Back in the Bottle: A Test of Congressional Preemptive Power? (2011). Ecology Law Quarterly, Vol. 39, pp. 691-772, 2012; Georgetown Public Law Research Paper No. 11-132. Available at SSRN:

Hope M. Babcock (Contact Author)

Georgetown University Law Center ( email )

McDonough Hall Rm. 310
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9481 (Phone)

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