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Nuclear Faceoff

Indian Point and the battle for the nation’s energy future.

April 2012

statute—Vermont Act 160. 13 Passed in 2006 by the Vermont legislature after the NRC granted Entergy’s Vermont Yankee power station a 20-year operating license renewal, Act 160 gives authority to the state’s General Assembly to withhold from Entergy’s Vermont Yankee power station a certificate of public good—a unique certificate designed by state officials to ensure that the long-term interests of Vermont’s citizens are consistent with the continued use of nuclear power within the state. The act does enable Entergy to petition Vermont’s Public Service Board to receive a certificate of operation, but only after a comprehensive study is performed that analyzes whether the plant’s capacity is actually needed, along with its economic and social benefits, risks, costs, and feasible alternatives.

To date, Vermont remains the only state to pass legislation that explicitly enables usurpation of NRC authority. Like all federal agencies, the Nuclear Regulatory Commission sees its authority protected by the doctrine of federal preemption, which prevents a state law from obstructing the function and purpose of any federal law. 14 As it relates to the NRC, the preemption doctrine has withstood judicial scrutiny only once, albeit briefly. In 1983, the Supreme Court upheld California’s moratorium on nuclear plant construction in Pacific Gas and Elec. Co. v. State Energy Resources Conservation , the long-term affect of which was limited by the duration of the moratorium. 15 Much like Vermont’s Act 160, California’s position at the time was steeped in concern over the safety of nuclear operations and its eventual waste production within the state.

Earlier this year, Entergy prevailed over Act 160 in federal court in Entergy Nuclear Vermont Yankee, LLC et. al. v. Shumlin et. al. , but the final conclusion of the dispute is far from settled. 16 Vermont has promised to appeal the decision, adding to the likelihood that the case will eventually make its way to the Supreme Court. For New York State lawmakers, any eventual outcome favorable to Vermont ultimately might enable the New York General Assembly to enact a law similar to Act 160. The question would then become whether lawmakers would base the law on environmental concerns, thereby directly addressing IPEC’s WQC issue, or if broader economic and safety concerns would dominate. Either way, the possibility that New York would have an ironclad option against the preemption doctrine is unlikely to occur before IPEC unit 2’s NRC operating license expires in 2013.

In the meantime, unless the NRC decides against relicensing IPEC for another 20 years, the NYSDEC’s withholding of a WQC permit beyond IPEC’s licensing dates won’t automatically shut the plant down. IPEC can continue operating without a WQC if it appeals the NYSDEC’s permit denial, which it almost certainly will do. In anticipation of this, the NRC is scheduling a hearing on IPEC’s license renewal later this year. Importantly, there’s no statutory limit on how long the NRC might take in deciding an appeal, although absent a final decision regarding Act 160, it’s unlikely any NRC decision could be delayed beyond 2015, when IPEC unit 3’s operating license expires.

The Oyster Creek Gambit