Jump to Navigation
Jump to Content

Entergy Nuclear Vermont Yankee LLC v. Shumlin

ELR Citation: 43 ELR 20201
Nos. 12-707-cv (L), 12-791-cv (XAP), (2d Cir., 08/14/2013)

The Second Circuit upheld a lower court's permanent injunction barring the state of Vermont from bringing an enforcement action, or taking other action, to compel the Vermont Yankee nuclear power plant to shut down after its license expires on March 21, 2012, if it fails to obtain legislative approval to continue operations pursuant to state law. In 2006, the state legislature enacted Act 160, which states that the owner of the plant may not operate the nuclear reactor after its license expires in 2012 without "the explicit approval of the General Assembly." Act 160, however, is preempted by the Atomic Energy Act. There is overwhelming evidence in the legislative record that Act 160 was grounded in radiological safety concerns and in the desire to empower the legislature to act on those concerns in deciding the plant's continued operation. Because consideration of radiological public health in re-licensing decisions is the exclusive province of the NRC, Act 160 is preempted by the Atomic Energy Act. Similarly, the Atomic Energy Act preempts a provision in Act 74, which requires affirmative legislative approval for storage of spent nuclear fuel after March 21, 2012. Again, the provision was enacted with radiological safety purposes in mind, and it has the effect of giving the state legislature the unreviewable power to prohibit storage of fuel. The court, therefore, affirmed the lower court's permanent injunction barring the state from enforcing these laws to compel the plant to shut down. But the court reversed the lower court's decision that Vermont's efforts to require a below-market power purchase agreement violates the dormant Commerce Clause.