Summary

• Objects (1 modified, 1 added, 0 removed)
  • Caselist.CitesClass[10]
  • Caselist.CitesClass[11]

Details

Caselist.CitesClass[10]

EntryDate

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1		-2016-10-07 20:42:58.14
	1	+2016-10-07 20:42:58.0

Caselist.CitesClass[11]

Cites

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	1	+Text: The 50 United States and Washington D.C. should prohibit the production of nuclear power.
	2	+Nuclear power is traditionally part of states' authority
	3	+Garvey 11 Todd Garvey (legislative lawyer), "State Authority to Regulate Nuclear Power: Federal Preemption Under the Atomic Energy Act," Congressional Research Service, 9/6/2011
	4	+Under the Court’s existing jurisprudence, it is clear that a state may, based on a non-safety rationale, prohibit the construction of a new nuclear power plant pursuant to an “initial decision regarding the need for power.”133 Indeed, the Court has made clear that “Congress has left sufficient authority in the States to allow the development of nuclear power to be slowed or even stopped for economic reasons.”134 Additionally, the Court has cited a NRC Atomic Safety and Licensing Board holding that “even in the face of the issuance of a NRC construction permit” states “retain the right” to preclude construction.135 Thus, it seems likely that a decision by the NRC to approve the construction of a specific plant does not necessarily mean that the plant will be built if the state determines that it is not economically prudent to do so.136 It is an open question as to whether these established principles also apply in the “operation” context, in addition to the “construction” context. However, it could be argued that given the Court’s repeated union of “construction and operation,” if a state may preclude construction of a plant in the face of a NRC approved construction license, the state may also preclude the operation of the plant in the face of a NRC approved operating license. Additionally, the Court has established that the AEA reserves to the states the authority to regulate nuclear plants on the basis of a “need” for power. In practice, this principle has been applied with respect to a state threshold determination as to whether more nuclear electrical generation is needed. However, it seems logical to suggest that if a state has the authority to determine whether more power is needed, it would also have the authority to determine whether less electrical generation is needed. Such an interpretation would require that states have the authority to shut down existing power plants where the state determines that current power generation is excessive. Moreover, if courts were to adopt the Entergy position, once a state permitted the construction of a nuclear power plant, it would be unable to reassess that determination in the face of changing power needs. Thus, the state would be potentially bound by its initial decision to permit the construction and operation of a nuclear power plant. For example, if a state had a valid nonsafety rationale for seeking to terminate the operation of a plant, Entergy’s interpretation of the AEA’s preemptive effects may prevent that state from ceasing operation of the nuclear plant as long as the NRC renews the plant’s license. Vermont argues that the NRC has recognized that the states have the final word in determining whether a federally licensed plant continues to operate. For example, in discussing its newly adopted regulations governing license renewal, the NRC noted that “after the NRC makes its decision based on the safety and environmental considerations, the final decision on whether or not to continue operating the nuclear plant will be made by the utility, State, and Federal (nonNRC) decisionmakers.”137 While the identified sources may suggest this position, it does not seem that any statute, regulation, or other binding authority exists to confirm the NRC’s understanding that the states retain the ultimate decision as to whether a licensed nuclear power plant continues to operate. Additionally, it is congressional intent, rather than the position of the NRC, that is essential in determining the division of authority under the AEA. The outcome of the Vermont Yankee case will likely have a lasting impact on state authority to regulate and terminate the operation of existing nuclear power plants. Prior case law suggests that the question of whether the Vermont General Assembly enacted Acts 74, 160, and 189 for the purposes of regulating radiological safety will likely be critical to the court’s holding. If the court determines that the laws were not grounded in safety concerns and are not otherwise preempted, the case could stand as an expansion of state regulatory authority over nuclear power. To the contrary, if the court finds that the Vermont laws intrude on federal authority and are preempted, the case would highlight states’ limited authority over licensed and operating nuclear power plants.

EntryDate

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	1	+2016-10-07 20:42:58.400

Judge

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	1	+Misc

Opponent

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	1	+Misc

ParentRound

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	1	+4

Round

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	1	+9

Team

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	1	+Palos Verdes Le Barillec Neg

Title

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	1	+SEPTOCT - States CP

Tournament

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	1	+Greenhill RR Misc