Atlantic Legal Files Friend of Court Brief In Support of Nuclear Power Plant Owners Right to Continue Operating Despite Vermonts Attempt to Shut Vermont Yankee Plant


Atlantic Legal has filed an amicus brief in the U.S. Court of Appeals for the Second Circuit on behalf of several prominent scientists with substantial experience in nuclear safety issues, including four Nobel Laureates in Physics or Chemistry, and the first Chairman of the Nuclear Regulatory Commission, in support of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc., the owner and operator of the Vermont Yankee nuclear generating plant. Entergy is suing officials of the State of Vermont, seeking to block enforcement of a Vermont state law that effectively would have shut the plant down. The plant had operated safely and reliably for more than 20 years, had for more than 20 years a valid state-issued certificate of public good and the United States Nuclear Regulatory Commission had renewed the plants operating license for another 20 years. A reliability assessment by a consultant selected by the Vermont Department of Public Service concluded that Vermont Yankee is operated reliably and [o]verall, many station managerial and technical areas meet or exceed industry standards for performance.

The issue is whether two Vermont state laws, which would have effectively negated the federal license extension, were preempted by the Atomic Energy Act, which gives the Nuclear Regulatory Commission sole jurisdiction to determine whether nuclear plants can operate, based on health and safety considerations.

Entergy claims that although the Vermont laws purported to regulate economic matters, which are within the jurisdiction of the states, the state was in fact concerned with health and safety. The first law in question provides that if the Vermont legislature declines to adopt legislation approving a certificate of public good (CPG) for continued operation of a nuclear plant, the plant’s current certificate would expire. Vermont Yankee’s CPG expired on March 21, 2012 and the state legislature failed to adopt legislation approving an extension of the CPG. This state law recites that its is motivated by broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits… A second Vermont state law, entitled An Act Relating to an Independent Safety Assessment of the Vermont Nuclear Facility, required a comprehensive reliability assessment to determine the long-term economic and environmental benefits, risks, and costs related to the operation of a nuclear facility in the state. The preamble of this act referred to the need for an independent safety assessment of Vermont Yankee. A third Vermont law required that Entergy obtain approval of the Vermont legislature before constructing new or expanded spent fuel storage facilities at the plant.

Vermont claims that these state laws, and others that also bear upon the continued operation of Vermont Yankee, address economic issues, energy diversification, and clean energy interests, matters that are not preempted by federal law.

Entergy claims that the legislative history of the Vermont enactments, particularly the debates on floor of the Vermont legislature and statements in various committees of the state legislature, show that the economic and clean energy reasons for adopting the challenged laws were merely a pretext, and that the underlying concerns of the state legislators and officials were health and safety matters that are clearly within the sole purview of the federal government.

After a bench trial in the federal district court in Vermont, the district court judge issued a lengthy decision, holding that requiring approval of the state legislature for storage of spent nuclear fuel effectively prevented continued operation of Vermont Yankee and is preempted because the legislature had radiological safety purposes in mind in enacting it. The district court also held that the state law requiring an analysis of long-term environmental, economic, and public health issues, including issues relating to dry cask storage of nuclear waste and decommissioning options triggers preemption because it calls for an analysis of radiological public health issues relating to storage of nuclear waste that are the exclusive province of the Nuclear Regulatory Commission.

In our brief, we argued that the Vermont laws were preempted because they encoach on an area that Congress has specifically reserved to the federal government and because the effect of the Vermont laws conflicts with the purpose of federal regulation. Both the text and legislative history of the Atomic Energy Act lead to the the conclusion that Congress sought to prevent the states from regulating in the area of nuclear safety because of the complexity involved.

We argued further that the rule proposed by Vermont, which would foreclose further judicial inquiry if the state legislature merely expresses a purported non-safety purpose in the statutes preamble no matter how much other evidence there is of a safety purpose, or how implausible the purported non-safety purpose may be — should be rejected, because it would enable a state legislature to avoid preemption merely by reciting a non-safety related purpose. There is ample evidence in this case to conclude that the purported bases of the Vermont laws economics, environment and sustainability were merely pretextual. We pointed out, using Vermonts own public documents, that Vermont and its neighboring New England states are so reliant on nuclear-generated electric power that it is unrealistic to close Vermont Yankee now, in the hope that alternative sources can be found in the near future. We also point out that the Vermont laws are egregious examples of the Not in My Back Yard syndrome, evidenced by the fact that local Vermont electric utilities have recently contracted to purchase electricity from a nuclear power plant in neighboring New Hampshire, and thus the closure of Vermont Yankee is not genuinely responsive to the non-safety purposes stated in the preambles to the Vermont laws.

We also argue that Congress’ decision to prohibit the states from regulating the safety aspects of nuclear power development was premised on its belief that a federal regulatory commission was more qualified to determine what type of safety standards should be enacted in this complex area and that the technical safety considerations are of such complexity that it is not likely that any State would be prepared to deal with them. Ironically, Vermont is one of only 13 states that have not sought to have the Nuclear Regulatory Commission transfer to the state jurisdiction over certain less hazardous nuclear materials which cannot form a critical mass if the NRC finds that a state’s regulatory program is adequate to protect the public health and safety and compatible with NRCs program for regulation of such materials.

To view a copy of the Foundation’s brief, please click here.