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Court Overrules State Laws Affecting Vermont Yankee

Aug. 15, 2013—A federal appeals court has upheld a lower court’s ruling that federal law pre-empts Vermont statutes that would have required Entergy to obtain legislative approval for the continued operation of its Vermont Yankee nuclear energy facility.

The Aug. 14 decision of the U.S. Court of Appeals for the Second Circuit upheld the 2012 ruling of a district court that the U.S. Nuclear Regulatory Commission has sole jurisdiction under the Atomic Energy Act to regulate radiological safety at commercial nuclear facilities.

Entergy filed a suit against Vermont state officials in 2011 over several state laws that had the potential to threaten the continued operation of the reactor.

Vermont Act 160 provided that the plant’s NRC operating license would expire unless the state legislature approved a “certificate of public good” to operate the plant beyond expiration of its initial license in 2012. In essence, this statute transferred to the Vermont legislature the authority to approve a renewal license for Vermont Yankee. A separate law, Vermont Act 74, would have required legislative approval for the continued storage of used nuclear fuel at the plant after March 2012.

Entergy also challenged a 2006 law giving the state legislature authority over the renewal of Vermont Yankee’s state certification, which would have made Vermont the only state to claim a say in nuclear plant relicensing.

The NRC granted Vermont Yankee a 20-year license renewal in 2011.

In 2012, the lower court invalidated the state statutes on grounds they were pre-empted by the Atomic Energy Act, which assigns regulation of plant safety to the NRC.

Based on its review of the legislative history of the Vermont statutes, the appeals court agreed, 3-0, that the “primary purpose” of the legislation, although not explicitly stated, was to regulate nuclear safety.

The court noted that the record of the legislative history “contains innumerable expressions of concern for radiological safety from Vermont legislators and regulators” and observed that “providing an inadequate and misleading legislative record” and failing to provide plausible legislative rationales “do not and cannot shield Acts 74 and 160 from this court’s review.”

In affirming the lower court's permanent injunction against Vermont from enforcing the statutes, the appeals court also noted that the state laws would have granted the legislature “unreviewable” discretion to deny Vermont Yankee’s operating license.

In September 2012, after Vermont appealed the district court’s ruling, NEI filed a friend-of-the-court brief in support of Entergy. Other briefs supporting Entergy were submitted by the International Brotherhood of Electrical Workers, the U.S. Chamber of Commerce and the Washington Legal Foundation (see Nuclear Energy Overview, Sept. 10, 2012).

Ellen Ginsberg, NEI’s vice president, general counsel and secretary, said this significant court decision “confirms the pre-emptive effect of the Atomic Energy Act as well as the importance of having a single federal regulatory structure to oversee radiological safety at nuclear facilities.”