Hanna: States’ NIMBY argument unlikely to prevail

Editor’s note: This op-ed is by professor Cheryl Hanna, a constitutional law professor at Vermont Law School.

Earlier this week, the state of Massachusetts filed a friend of the court brief supporting Vermont’s argument that federal law should not preempt the states from being able to regulate nuclear power plants within their borders, including refusing to re-license a plant. Massachusetts, like other states, doesn’t want the federal government to force it to accept a power plant that it no longer wants.

The Massachusetts filing highlights the NIMBY (Not In My Back Yard) phenomenon, one which I think is central to the case. Like it or not, nuclear power is to remain part of America’s energy future. President Obama continues to support it, even in the aftermath of the Japanese earthquake. And Vermont is going to be dependent on it given that Green Mountain Power has just signed a 23-year-contract with the Seabrook nuclear plant in neighboring New Hampshire. Thus, the fundamental question the courts will address is whether a state should able to trump the decision of the U.S. Nuclear Regulatory Commission (NRC) to keep a plant operating. I think, in the end, that a court is likely to find that Congress never intended the states to be able to exercise such power.

That’s where NIMBY comes in. One reason I think Vermont has an uphill legal battle is that were the courts to allow Vermont to shut down the plant, other states will likely exercise similar control, especially in those states like New York and Massachusetts, where nuclear power is becoming politically unpopular. So, some states – likely liberal and wealthier Northeast ones – would become nuclear-free, while other states – likely conservative and poorer Southern ones – would disproportionately bear the risks and burdens of housing these plants. The fewer states that are willing to play host, the less stable the nuclear energy market.

The fact that Entergy agreed to be regulated by Vermont is irrelevant if the courts find that Congress never intended to vest in the states veto power over the NRC. Rather, the Vermont Yankee memorandum of understanding is void because it violates the U.S. Constitution. A private company can’t waive the federal government’s authority to exercise its power over an industry that is essential to interstate commerce. If the courts enforce the memorandum of understanding, then every state could require nuclear power companies to sign these agreements as a condition of receiving local permits, thereby undermining federal supremacy. In other words, the courts could find that the NIMBY phenomenon was exactly what Congress wanted to avoid by vesting authority in the NRC.

Don’t get me wrong – personally, I share the concerns of many about Vermont Yankee’s safety and reliability. But the legal and policy issues involved are complex and implicate not just our tiny state but the entire nation. At the crux of this whole mess is a legitimate distrust of the NRC’s oversight of nuclear power. There is a great deal of evidence that the NRC may be too deferential to industry and not concerned enough about citizen safety. But that problem likely requires a political solution, not a legal one, which is why I remain a pessimist about Vermont’s chances of ultimately prevailing.

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4 Comments on "Hanna: States’ NIMBY argument unlikely to prevail"


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John Greenberg
5 years 7 months ago
Cheryl Hanna presents what, charitably, could be called a “policy” argument, since it has no basis whatever in law or the Constitution. It sugars down to this: whatever energy source the feds want to foist off on the rest of us constitutes sound energy policy. It’s hard to know where to begin to refute this. Let’s start here. As the Attorneys General of both VT and MA have pointed out, we live under a carefully crafted Constitutional scheme of law, which provides for the sovereignty of BOTH the federal and the State governments. In rare instances, when this dual responsibility… Read more »
Mike Kerin
5 years 7 months ago

I object to the NRC being the sole regulator of safety in nuclear plants, they are more an advocate for the nuclear industry than they are a safety regulator.

Steve Michaelson
5 years 7 months ago
“There is a great deal of evidence that the NRC may be too deferential to industry and not concerned enough about citizen safety.” There is also a great deal of evidence that the NRC may be too deferential to politicians, as witnessed by the attempts of NRC Chairman Jaczko, under the direction of Senator Harry Reid of Nevada, to manipulate the premature termination of Yucca Mountain. The people of Vermont may not realize that, without Yucca Mountain, the spent fuel rods at Vermont Yankee will be stored onsite for up to 100 years even if the plant is not relicensed.… Read more »
5 years 7 months ago

Maybe the courts will rule that the state doesn’t have this authority, even though CONSTITUTIONALLY THEY DO!… There is still another Power That can Pre-empt The Nuclear Regulators…. Mother Nature! Dry up the rivers, then how will you cool your nuclear HOT potatoes?

They would probably ask for subsidies to helicopter in sea water, and find a way to do it that will save money and stop global warming.

Water Shortages Threatening France’s Nuclear Reactor Complex –


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