Eminent domain suggested as “end-run” to close Vermont Yankee

Vermont Yankee on the banks of the Connecticut River

Nuclear power is a rigged game that lets the federal government preempt state and local governments on most issues, according to Karl Grossman, professor at the State University of New York and author of a book on the subject, Power Crazy: Is LILCO Turning Shoreham Into America’s Chernobyl.

But he thinks that there is a way around the problem: using the power of eminent domain, a legal principle that allows states to condemn property if the owner refuses to sell. In the area of nuclear power, the approach was pioneered in New York during the 1980s to stop the completed Shoreham nuclear plant from opening. At the time advocates of nuclear power were hoping to create a “nuclear park” with seven to 11 plants.

The Long Island Power Act was passed by New York in 1985, creating a Long Island Power Authority (LIPA) with the power to seize the assets and stock of the utility behind the plan, the Long Island Lighting Company (LILCO), writes Grossman on Counterpunch, a website edited by Alexander Cockburn and Jeffrey St. Clair.

The federal government wanted Shoreham and the NRC had approved start-up operations. However, Grossman notes that by enacting the Long Island Power Act, which applied the power of eminent domain, New York was saying that if Long Island Lighting persisted the state would step in.

The NRC has never denied a construction or operating license for a nuclear plant in the United States. No new U.S. plants were ordered after the 1970s, but since then federal regulators have approved 20-year license “renewals” to more than half of the 104 US nuclear plants. It is currently considering the possibility of expanding that extension period to 80 years.

The Long Island Power Act “set forth a mechanism for getting rid of the utility by giving the public authority which it created the power to condemn the utility’s assets and stock,” explains Irving Like, a co-author of the law.

“With this we had the ability to tell LILCO: either you shut down the Shoreham plant or we will condemn you,” he said. Grossman believes a similar strategy could be used by Vermont.

Steve Liss, another co-author who served as counsel to the state legislature’s Environmental Conservation Committee, says eminent domain gives a state the power to act “in the public interest for a lawful purpose.” However, it must pay “fair market value” for what it condemns.

After enacting a legal foundation similar to the Long Island Power Act, Vermont could move against the assets of Entergy in Vermont, Liss argued last week. Another possible but extremely costly and complex strategy he mentioned would be for the state to acquire the utilities that distribute electricity from Vermont Yankee and own the transmission lines through which it runs, then refuse the energy and prohibit its transmission.

In 1989, LILCO abandoned Shoreham largely because of New York’s innovative legislative strategy and sold it for one dollar. It was subsequently decommissioned.

A combination of legal and grassroots strategies played a part in the victory; among them were anti-nuclear demonstrations, legal action by Suffolk County under the Racketeer Influenced and Corrupt Organizations (RICO) Act, and refusal of Suffolk and New York State to adopt a federally-required evacuation plan for the plant. Local governments meanwhile determined that evacuation of Long Island was impossible if a major nuclear accident occurred.

At the time, U.S. Energy Secretary John Herrington warned that if Shoreham didn’t open “the signals will be the low point in this [nuclear] industry’s history.” The closing of Vermont Yankee would have an equally significant impact.

In his ruling, US District Court Judge J. Garvan Murtha said that Vermont’s demand that Yankee be shut down was “grounded in radiological concerns,” an issue on which the federal government has “pre-empted” state and local governments.

Despite this setback, Grossman says an “end-run can be made around the would-be mandate of federal nuclear officials.”

Greg Guma

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