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Thursday, September 15, 2011

State Authority to Regulate Nuclear Power: Federal Preemption Under the Atomic Energy Act

Todd Garvey
Legislative Attorney

A number of states have recently sought to take action to assure that nuclear power plants within their borders are operating safely. Most visibly, the State of Vermont has suggested that it will not approve the continued operation of the Vermont Yankee nuclear power plant, despite the Nuclear Regulatory Commission’s (NRC) approval of an extension to the plant’s operating license. The dispute may have profound effects on establishing the scope of state control over nuclear power—including whether states have the authority to shut down a federally licensed and long operating nuclear power plant. However, while safety concerns may prompt states to assert influence over nuclear power plants, federal law severely limits the extent to which states can regulate nuclear power. Indeed, the Supreme Court has expressly held that, while states retain authority over “questions of need, reliability, cost, and other related State concerns,” federal preemption prevents states from regulating radiological safety aspects of nuclear power production.

Whether Vermont, or any other state, can act to prevent a nuclear power plant from operating, despite the fact that the plant has been authorized by the NRC, will depend principally on whether the state law or regulation in question is preempted by the Atomic Energy Act (AEA). Although there is “no one crystal clear distinctly marked formula” for determining whether a state law is preempted by federal law, the Supreme Court has established three general classes of preemption: express preemption, conflict preemption, and field preemption. In each instance however, “the question of preemption is one of determining Congressional intent.”

Much of the debate surrounding federal preemption of state regulation of nuclear power has centered on field preemption. Under existing Supreme Court precedent, an analysis of whether a state law is preempted under the AEA requires a consideration of both the purpose and effect of the state law in question. Thus, any state law grounded in radiological safety concerns or that has a “direct and substantial” effect on the safety of nuclear plant “construction and operation,” falls within the field exclusively occupied by the NRC and is therefore preempted.

This report will look at general constitutional principles of preemption, analyze the Supreme Court’s interpretation of the scope of federal preemption under the AEA, and apply established preemption principles to the Vermont Yankee licensing dispute.

Date of Report:
September 6, 2011
Number of Pages:
Order Number: R
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