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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