Fallout from the California Nuclear Initiative

In a mixed portent for the future, California voters recently closed the first act in what is likely to be a long-running power play. On June 8th, California voted, by a two-to-one margin, against a ballot proposal, known as Proposition 15 or the California Nuclear Initiative, that was the first of a series of state plebiscites challenging the continue expansion — or even further use — of nuclear power as an energy source. Similar referenda are now on the ballot in Oregon and Colorado for the November election and are being put forward in about 20 other states. The fights there promise to be no less vehement, and the partisans no less dedicated, than those surrouncing Proposition 15. As is often the case in American policy decisions, however, lawyers may have the last word: the nuclear initiative battle may ultimately turn on the legality of such proposals in light of the existing federal regulatory scheme set up by the Atomic Energy Act.

Proposition 15: Nuclear Safeguards or Shutdown?

In over-simplified terms, the most fiercely contested issue in the Proposition 15 fight was whether — as proponents claimed — the Initiative merely required appropriate safety restrictions over nuclear powered electric generating pants, or — as opponents asserted — the Initiative was a thinly-disguised moratorium on further construction, or even use, of nuclear power plants to generate electricity. Briefly, the Initiative had two basic thrusts: (1) guaranteeing that full compensation would be paid to victims of nuclear accident or sabotage, and (2) requiring a public affirmation by the California legislature that all aspects of nuclear power — operation, emergency safety systems, waste storage and disposal — were safe.

The Initiative¹ spoke in terms of land use, doubtless to take advantage of the full ambit of the state's police power to protect the health, safety, and welfare of its citizens. It would have granted to a "nuclear fission power plant and related facilities" the status of a "permitted land use" only if two conditions were met. First, the $560 million nuclear accident liability limit established by the federal Price-Anderson Act² would have to be repealed, and "full compensation" assured to victims of "escape or diversion of radioactivity or radioactive materials," i.e., leakage, explosion, or terrorist sabotage, from a fission plant or in the preparation, transportation, or disposal of fissionable materials. Second, the California legislature by a two-thirds vote, would within five years have to find affirmatively that

(1) the effectiveness of all safety systems, including but not limited to the emergency core cooling system, of any nuclear fission power plant operating or to be operated in the State of California is demonstrated, by comprehensively testing in actual operation substantially similar systems …; and (2) the radioactive wastes from such a plant can be stored or disposed of, with no reasonable change … of intentional or unintentional escape of such wastes or radioactivity into the natural environment which will eventually adversely affect the land or the people of the State of California, whether due to imperfect storage technologies, earthquakes or other acts of God, theft, sabotage, acts of war, governmental or social instabilities, or whatever other sources the Legislature may deem to be reasonably possible.³

If, following enactment, the Price-Anderson Act were not repealed within one year, or if a legislative determination as to the possibility of meeting the safety standards were not made within three years, all existing plants would have been derated to 60 percent capacity. If Price-Anderson repeal and full legislative consideration were not completed after five years, existing plants would be further derated at a rate of 10 percent a year. If the legislature did not affirmatively declare after three years that the safety standards could reasonably be met, "neither the siting nor the construction of nuclear fission power plants or related facilities shall be a permitted land use in California." If the Initiative were fully implemented, no construction of new nuclear power plants could have been commenced after June 1979, and nuclear power in California would have been phased out completely by June 1987.

The Nuclear Power Debate

The avowed purpose behind this rather complicated mechanism was to make the proven safety of nuclear power generating facilities commensurate with the admitted risk. It is not open to serious question that nuclear power entails awesome risks. The debate centers around who should decide the level risk that citizens must bear.⁴ Proposition 15 proponents argued that that decision should be be responsibility of California's elected officials, rather than and federal government's Nuclear Regulatory Commission (NRC) and Energy Research and Development Administration (ERDA), nuclear plant contractors and suppliers, and individual utilities. Proponents' principal contention was that the polar disagreements that sometimes [6 ELR 10175] occur among nuclear power experts lift the ultimate decision out of the technicians hands and into the public's. Forthermore, they claimed, the possibility, however remote, of a catastrophic accident requires a full public decision. Another argument was that the storage of unimaginably lethal wastes must survive generations of fallible political systems, and that the danger of fuel diversion by saboteurs may require the kind of surveillance that inevitably leads to police state curtailment of civil liberties. Proponents, after noting that nuclear power is becoming more — not less — expensive, frosted theeake with the telling inquiry: if the risk of accidents is infintesimal, then why do nuclear power supporters insist on retaining the Price Anderson limit on the liability for a nuclear power plant mishap?

To counter these arguments, Proposition 15 opponents wheeled out their tried and true artillery. First, they pointed to the congressional declaration of national policy concerning nuclear power:

The development, use, and control of atomic energy shall be directed so as to make the maximum contribution to the general welfare, subject at all times to the paramount objective of making the maximum contribution to the common defense and security; …⁵

Their thesis was that California has no right to subvert national policy. Second, opponents asserted that nuclear power and safety issues are beyond the understanding of the public or their elected representatives. They claimed that jobs created by future nuclear power plant construction would buoy a faltering economy. As to the safety issue, opponents pointed to an overprotective regulatory system already surrounding nuclear power that, they claimed, has to date not allowed a single death from nuclear power operations. Finally, they maintained that accident liability limits are necessary to foster the growth of the nuclear industry in full observance of the congressional mandate.

These arguments — and other, more emotional ones, such as "What to do in case of a nuclear accident: kiss your children goodbye" — were batted back and forth with somewhat unequal strength during the extensive campaign to pass Proposition 15. Initiative opponents were aided when the California Supreme Court declared⁶ the spending limits imposed by an earlier initiative program, the California Political Reform Act of 1974, to be an unconstitutional infringement on free speech. The utilities and nuclear manufacturers then dipped into their $7 million war chest to counter the $1 million available to Initiative supporters. Federal nuclear power advocates allegedly also got into the act on the side of opponents. Congressional suspicions were raised when ERDA shipped nearly 80,000 simplistic pro-nuclear energy pamphlets to California in April.⁷

The issues were complicated by the California legislature's enactment of three bills⁸ on June 2d that allow legislative prohibition of further nuclear power construction if federal requirements for fuel recycling and waste storage are thought to be inadequate. These bills may have convinced the large bloc of undecided voters that the Initiative's harsher restrictions would have been premature.

The Legal Question: Preemption

All of the aforementioned arguments will be asserted again in forthcoming state initiative and legislative challenges to federal control of nuclear power. The most serious legal question in the nuclear power fight concerns state authority under the federal Constitution even to address the problem of nuclear power plant safety and regulation. Specifically, state regulation may be preempted by the federal Atomic Energy Act of 1954.⁹ The preemption doctrine is derived from the Constitution's Supremacy Clause, which provides that the Constitution and valid laws of the United States shall be the supreme law of the land.¹⁰ Balanced against this requirement is the Tenth Amendment's reservation to the state of all powers not specifically delegated to the federal government, especially their powers to protect the health, safety, and welfare of their citizens.

Of course, it is often difficult to draw precise borders around congressional enactments in order to determine the extent to which, if at all, they void state regulation. For this reason, a prediction as to how courts — and especially the Supreme Court — will rule on any premption question is a hazardous undertaking. And it is made even more uncertain by a recent tendency by the Supreme Court to give the states noticeably greater latitude to fashion regulatory schemes without running afoul of federal law.

The judicial preemption doctrine was formulated primarily during the latter years of the great depression, an era of significantly expanding federal power.¹¹ The courts then took a broad view of the circumstances under which state enactments conflicted impermissibly with federal law. In addition to situations in which the Congress explicitly stated an intent to preempt state law¹² or so thoroughly occupied a regulatory field that compliance with different state regulations would be a "physical impossibility,"¹³ courts began to find implied preemption in a number of cases. Soon a number of indices of implied preemption evolved. Thus, absent any explicit congressional declaration of intent to preempt, a court might find preemption based on an implied congressional intent in the statutory language or legislative history;¹⁴ on the apparent pervasiveness of the federal regulatory scheme and "implied conflict;"¹⁵ on the nature of the subject matter, such as the asserted need [6 ELR 10176] for national uniformity;¹⁶ or on a finding that some aspect of the state law posed an obstacle to fulfillment of a congressional purpose.¹⁷

These necessarily imprecise criteria were used for years to strike down state legislation in an unprincipled and unpredictable fashion,¹⁸ culminating in Burbank v. Lockheed Air Terminal,¹⁹ where a closely divided Court found that the Noise Control Act of 1972 preempted local control of aircraft noise.

In Burbank, Justice Rehnquist, joined in dissent by three colleagues, sharply criticized the majority's reliance on broad preemption doctrine. Within the year the dissenters' views became the majority position. In a series of cases in a number of unrelated fields, the Court reversed its position and began to favor the states. For example, in a challenge to a state welfare rule requiring acceptance of work as a condition to welfare, the Court rejected the claim that the federal Aid to Families with Dependent Children (AFDC) program automatically occupied the welfare field.²⁰ And in an opinion stressing the need to find "absolute repugnancy" and observing that exclusive federal power can only extend to things necessarily national in import, the Court upheld²¹ a California statute making record piracy a crime against a preemption-type challenge based on the copyright clause of the federal Constitution.²² Then in 1974, the Court, rejecting the notion that preemption could be based on potential conflict, held that a state trade secret law was not preempted by the federal patent law.²³

In these and other cases, the Court has encouraged federal-state cooperation whenever possible, and has given strong indication that it will side with the state in cases of potential conflict, except where Congress explicitly states an intent to occupy a field completely and exclusively.²⁴

The California Initiative falls in the gray area between clear conflict and easy reconciliation with federal legislation. By focusing on permitted land uses, the Initiative does not pretend to establish a state regulatory scheme for nuclear power plants. It aims to subject the decision to go ahead with such plants to legislative approval. Of course, land use is not the only aspect of the matter; the legislative findings of the Initiative are couched primarily in terms of safety from radiation hazards of nuclear power plant operations and explosions and storage of nuclear wastes.²⁵ Under the terms of the Atomic Energy Act, such state regulation may be suspect. Although the Act allows states to exercise concurrent jurisdiction over certain aspects of radiation hazards, it forbids the Atomic Energy Commission (AEC, now the NRC) from relinquishing its regulatory authority over "the construction and operation of any production or utilization facility,"²⁶ which is defined as a facility that produces or uses plutonium or the radioactive isotopes of uranium,²⁷ i.e., a nuclear reactor. On the other hand, the Atomic Energy Act expressly provides for exclusive state regulatory control over public utility rates and services of electric power produced by nuclear power plants.²⁸ Furthermore, the Act reserves other rights to the states:

Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.²⁹

The operative phrase in the above-quoted subsection is "radiation hazards." Unfortunately, nowhere does the Act define this term. Thus, while the NRC must retain exclusive control over the construction and operation of nuclear reactors, with the appurtenant authority to regulate on-going "radiation hazards," it does not necessarily follow that states are preempted from controlling — or prohibiting — nuclear power plants in terms of non-operational radiation hazards: siting to equalize ambient radiation levels, construction measures that may impinge on electricity rates, or safety features that will prevent, or mitigate, the effects of a catastrophic nuclear power plant mishap.

Court Examination of Nuclear Preemption

Nuclear power preemption issues have not gone entirely unexamined by the courts. In Northern States Power Company v. Minnesota,³⁰ the most thorough opinion on the question thus far, the Court of Appeals for the Eighth Circuit held that "the federal government has exclusive authority under the doctrine of pre-emption to regulate the construction and operation of nuclear power plants, which necessarily includes regulation of the levels of radioactive effluents discharged [6 ELR 10177] from the plant." At issue in Northern States were Minnesota regulations that set stricter standards than these of the AEC for radioactive effluent discharges from the plaintiff's Monticello plant. The court specifically noted that the Atomic Energy Act nowhere expressly grants the federal government sole authority to regulate radioactive emissions from nuclear power plants. Nevertheless, the court concluded that Minnesota's regulations were impliedly preempted under four then-current indices of preemption: the "tone of the statute," the pervasiveness of the federal scheme, whether the nature of the subject matter demands exclusive federal regulation, and whether the state law stands as an obstacle to fulfillment of congressional purposes. As noted above, these four judicially-manufactured tests may not pass muster if now taken to the Supreme Court.

Although no other federal circuit has spoken on the nuclear power preemption issue, the decision in Northern States has been followed by one state supreme court and one state intermediate appellate court. In New Jersey, the supreme court recently overturned, in State v. Jersey Central Power and Light Company,³¹ a lower court decision awarding damages to the state when the defendant pumped cold water through its nuclear power plant during a shutdown, which killed fish that had been attracted to the normally warmer discharge of the plant. The cold water had been used to dilute radioactive wastes, pursuant to AEC specifications, discharged after the shutdown. The court relied on Northern States to find that any state interference with nuclear power generation, whether by statutory penalty, injunction, or monetary damages, was impermissible. In Michigan, the court of appeals recently has held, in Marshall v. Consumers Power Co.,³² that state courts lack jurisdiction to consider allegations relating to a reactor's emergency core cooling system or the possibility of a nuclear accident. While limiting Northern States very narrowly to the issue of federal preemption over radioactive waste releases, the court nevertheless employed the implied preemption indices used in that decision. It reserved state court jurisdiction over non-radiological nuisances, while implying that a state could not prohibit nuclear power plants by declaring them to be nuisances per se.

These decisions, as well as the famous NEPA decision, Calvert Cliffs' Coordinating Committee v. AEC,³³ illustrate the peripheral nature of the legal challenges that have been attempted so far on the virtually unassailable discretion of the NRC to implement its nuclear program objectives. These attacks have skirted the issue directly posed by the Initiative: shall we — or shall we not — use nuclearpower? Their language concerning implied preemption can be seriously questioned in light of the Supreme Court's current attitude that preemption is disfavored absent a direct federal-state conflict.³⁴ Finally, these decisions must be balanced against a 1964 California supreme court decision, Northern California Association to Preserve Bodega Head and Harbor v. Public Utilities Commission,³⁵ holding that the federal government had not preempted the question of safety in the siting of nuclear power plants. Specifically, the court held that the public utilities commission could consider the non-radiation safety hazards associated with a plant located in an earthquake fault zone.

Preemption and the Initiative

In view of these precedents, it is not easy to call the score on whether the California Initiative would have been preempted had it passed. One study, just published by the Stanford University Institute for Energy Studies, concluded that the Initiative would survive a preemption challenge by the barest of margins.³⁶ Another supported by the Atomic Industrial Forum, reached the "inescapable" conclusion that "state bills imposing a prohibition or moratorium on the construction of nuclear power plants are preempted under the doctrine of 'implied preemption'…."³⁷ In view of the Supreme Court's recent backpedaling away from the implied preemption doctrine, the latter conclusion appears suspect.

Assuming that a strict preemption approach is taken, wherein a court would have to find a clear conflict between the Atomic Energy Act and the Initiative, the Initiative's earthquake/sabotage provisions would probably not be preempted. This is consistent with the Act's declaration of intent not to preclude state regulation for purposes other than protection against radiation, and with the Supreme Court's recent suggestion in Train v. Colorado Public Interest Research Group³⁸ that the AEC's nuclear regulatory jurisdiction, while pervasive, does not extend to thermal pollution.

More generally, proponents might argue that the Atomic Energy Act does not require that nuclear power be used to generate electricity, but merely sets up an elaborate federal regulatory scheme to insure that when nuclear power is used, radioactive discharges are safe.³⁹ [6 ELR 10178] On this view, only if a state accepts the use of nuclear power plants would it have to conform to federal regulation; no actual conflict would occur unless, as in Northern States, the state attempted to supersede NRC regulation.

The Initiative would survive under this analysis, for it requires initial legislative approval of the total nuclear program, not individual regulations. And this approval focuses on land use. California's geography is such that appropriate nuclear plant siting locations are a rare commodity in the state. Nuclear plants already are effectively prohibited in the coastal zone,⁴⁰ where there is abundant water to meet their cooling needs. This water is lacking in the Central Valley. As noted, earthquake hazards pose another problem probably subject to state land controls. The remainder of the state, being either heavily populated or mountainous, is unsuitable for nuclear power plants, even under federal standards.

Furthermore, in view of the current diseconomies of nuclear power generation, a state could argue that a nuclear plant would present unjustifiable burdens on a utility's rate base, compared with other methods of electricity generation or conservation, and so deny the plant a certificate of convenience and necessity on purely economic grounds.

The Initiative's requirement that nuclear power can proceed only if federal liability limits are lifted is probably preempted under the strict test. As may be recalled, it would have obliged nuclear plants to operate at 60 percent capacity if the Price-Anderson Act were not repealed, or if utilities refused to waive its protection within one year of the Initiative's passage, and would have derated plants at 10 percent per year after five years. In view of the Price-Anderson Act Amendment's passage by overwhelming majority in Congress in December 1975,⁴¹ it is unlikely that significant amendment or repeal of the federal liability limits will occur soon. Waiver by utilities of the liability limits, in order to assure full compensation, is also legally difficult. An aggregate liability limit of $560 million is placed on any single nuclear accident,⁴² and this is also the maximum amount permissible under the indemnification contracts that cover public liability for nuclear mishaps.⁴³ A waiver of indemnity by a utility thus would not suffice to assure full compensation to victims of an accident that caused damage over the liability limit. It therefore appears that a clear conflict would exist between the Initiative liability waiver provision and the Price-Anderson Act.

State Nuclear Legislation

One week before the vote on the Initiative, the California legislature enacted three bills that place significant limitations on nuclear power development in that state. The bills stipulate that future nuclear power plants cannot be a permitted land use in the state unless the legislature reviews findings by the state Energy Resources Conservation and Development Commission that the authorized United States agency has identified an existing "technology for the construction and operation of nuclear fuel rod reprocessing plants;"⁴⁴ similar review is made of "a demonstrated technology or means for the disposal of high-level nuclear waste;"⁴⁵ and the Commission studies the "effectiveness and economic feasilibity of undergrounding and berm contamination of nuclear reactors."⁴⁶ Nuclear power plants in existence or substantially constructed by June 1976 are exempt from the legislation.

For those Californians who felt that the Initiative was too ambitious, but that some state-wide reassessment of nuclear energy should be made, this legislation offered a middle choice. It should be noted, however, that the technology necessary for reprocessing spent fuel is still in the planning stages, with the operational phase many years away.⁴⁷ Thus, one goal of certain supporters of the Initiative — halting future nuclear expansion in California — could conceivably be met by the legislation.

It is necessary, therefore, to review the preemption arguments as applied to these statutes. The first two, like the Initiative, merely require legislative approval of the new technology, so they would pass the clear conflict test under the analysis above, since they contemplate no displacement of federal regulation of existing nuclear plants. And the laws make no mention of reactor safety, which is the usual underpinning of this type of legislation. On the other hand, there is the concededly pervasive federal program for fuel reprocessing and nuclear waste storage and disposal. But, since the first two bills make approval of nuclear plants a remote but possible contingency, the state scheme purports only to defer the effect of, rather than to conflict with, the federal regulatory program. The third bill is only a study bill, so it poses no present preemption issues.

Several other states have recently enacted legislation that attempts to give the state some role in nuclear power plant decisions. In view of the increasingly strident tone of the nuclear debate, challenges to restrictions under these statutes may provide the next round in the fight. Oregon has enacted the most comprehensive legislation to date.⁴⁸ Under its statute, the state Energy Facility and Siting Council establishes safety standards for the construction and operation of all power plants and facilities used in the nuclear fuel cycle. For nuclear facilities, the Council must promulgate standards for emissions, safety devices and procedures, and transportation, storage, and disposal of wastes. The Director of the Department of Energy may order a reduction in operations if he determines that a facility has violated a safety standard. To the extent that [6 ELR 10179] Northern States is still good law, and the Supreme Court's reference to it in COPIRG, supra, suggests that it is, it would seem that Oregon regulations imposing stricter-than-federal standards on radioactive effluents may be vulnerable to preemption attack. The same can be said with respect to regulation of radiation safety hazards.

Florida's Electrical Power Plant Siting Law⁴⁹ requires state review of radiological hazards posed by nuclear power plants in the context of an overall environmental review. Radiological studies performed by the Department of Environmental Regulation must be used in the siting decision. The continued validity of Northern States is a so likely to be tested under this statute, since the governor and cabinet recently remanded a nuclear power plant siting decision to a hearing examiner for consideration of its radiological impact under Florida, as well as federal, law.⁵⁰

The final current state statute that attempts to restrict nuclear power plants was enacted by Vermont in 1975.⁵¹ Under it, a nuclear fission plant must obtain the approval of both legislative houses prior to obtaining a certificate of public good for construction. Since no objective standards are set for the legislature's decision, radiological considerations might easily be buried within a more complex decision. In this respect, the Vermont legislation, like the California Initiative's legislative approval measure, would probably survive a preemption challenge under the clear conflict standard.

Conclusions

The California vote was only the first of at least three initiative measures on the ballot this year. During the November election, voters in Oregon and Colorado will pass on initiatives nearly identical to the California measure, except that existing plants in those states would be exempted. The outcomes in these initiatives, however, cannot necessarily be predicted from the California experience. Oregon, with a reputation as an environmentally-ambitious state, also has few nuclearrelated jobs at stake. Colorado, with long experience with uranium mining and a continuing plutonium contamination problem from ERDA's Rocky Flats facility,⁵² may be more familiar with the total scope of the nuclear program than was California.

Considering this nation's love affair with the technological fix, it is perhaps surprising that two million out of six million California voters agreed with the Initiative, rather than a much smaller fraction. Thus, while the Initiative's outcome was seen by most nuclear supporters as a vote of confidence,⁵³ an equally plausible analysis suggests that the Initiative and its ensuing debates mobilized public — and political — attention on the broader societal issues involved in what was once thought to be a purely technical problem. Even if these debates did not raise the intellectual plane of the nuclear discussion, they at least brought to the issues more than the perfunctory consideration traditionally accorded them in congressional committee rooms. And one ultimate result of the various state nuclear initiatives and legislation may be to force a more thorough congressional re-examination of all the questions surrounding widespread use of nuclear energy.

1. The Intitiative would have added §§ 67500-08 to the California Government Code.

2. 42 U.S.C. § 2210, as amended by P.L. 94-197 (1975).

3. Proposed Cal. Gov't Code § 67503(b).

4. For further discussion of the issues in the nuclear power debate, see California Assembly Comm. on Resources, Land Use, and Energy, Reassessment of Nuclear Energy in California (May 1976); Stanford University Institute for Energy Studies, The California Nuclear Initiative; Analysis and Discussion of the Issues (1976) (policy); Federal Energy Administration, Direct and Indirect Economic, Social, and Environmental Impacts of the Passage of the California Nuclear Power Plants Initiative (Apr. 1976); Federal Reserve Bank of San Francisco, California Energy: The Economic Factors (1976) (economics), Nuclear Regulatory Comm'n, Reactor Safety Study (WASH-1400, NUREG-75/014) (Oct. 1975) (safety) (critiques of this report include an EPA study objecting to the WASH-1400 analysis of the health effects of radioactivity released in a major accident, Wall Street J., June 28, 1976, at 16; Congressional hearings on WASH-1400 were held june 11, see 192 Science 978 (June 25, 1976)). See also Ebasco Services, Inc., A Survey of Public and Leadership Attitudes Toward Nuclear Power Development in the United States (Aug. 1975); V. Key & W. Crouch, The Initiative and the Referendum in California (1939); Lutrin & Settle, The Public nd Ecology: The Role of Initiatives in California's Environmental Politics, 28 W. Political O. 352 (1975)

5. 42 U.S.C. § 2011(a).

6. Citizens for Jobs & Energy v. Fair Political Practices Comm'n, 547 P.2d 1386 (Cal. Apr. 7, 1976), following Buckley v. Valeo, __ U.S. ___, 96 S. Ct. 612 (Jan. 30, 1976).

7. Washington Post, May 7, 1976, at A1, col. 4.

8. The bills are discussed in text accompanying notes 44-47 infra.

9. 42 U.S.C. §§ 2011 et seq. (1970).

10. U.S. Const. art. VI, § 2.

11. See generally Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 Colum. L. Rev. 623 (1975).

12. E.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 235-36 (1947).

13. E.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

14. E.g., Campbell v. Hussey, 368 U.S. 297, 301-02 (1961).

15. E.g., Pennsylvania v. Nelson, 350 U.S. 497, 502-04 (1956).

16. E.g., San Diego Building Trades Council v. Garmon, 359 U.S. 236, 241-44 (1959).

17. E.g., Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

18. Note, supra note 11, at 640.

19. 411 U.S. 624, 3 ELR 20393 (1973).

20. New York State Department of Social Services v. Dublino, 413 U.S. 405 (1973).

21. Goldstein v. California, 412 U.S. 546 (1973).

22. U.S. Const., art. 1, § 8, cl. 8.

23. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).

24. Note, supra note 11, at 651-52.

25. Section 67502 of the Initiative declares:

The people further find and declare that substantial questions have been raised concerning the effect of nuclear fission power plants on land use and land use planning, as well as on public health and safety. Such questions include, but are not limited to, (a) the reliability of the performance of such plants, with serious economic, security, health, and safety consequences; (b) the reliability of the emergency safety systems for such plants; (c) the security of such plants, and of systems of transportation, reprocessing, and disposal or storage of wastes from such plants from earth-quakes, other acts of God, theft, sabotage, and the like; (d) the state of knowledge regarding ways to store safely or adequately dispose of the radioactive waste products from nuclear fission power plants and related facilities; and (e) the creation by one generation of potentially catastrophic hazards for future generations.

26. 42 U.S.C. § 2021(c)(1).

27. 42 U.S.C. § 2014(v), (aa), (cc).

28. 42 U.S.C. § 2018.

29. 42 U.S.C. § 2021(k) (emphasis added).

30. 447 F.2d 1143, 1 ELR 20451, 20459 (8th.Cir. 1971), aff'd mem., 405 U.S. 1035 (1972).

31. 69 N.J. 103, 351 A.2d 337, 6 ELR 20352 (1976).

32. 65 Mich. App. 237, 237 N.W.2d 266 (1975).

33. 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

34. See text accompanying notes 11-24 supra.

35. 61 Cal.2d 126, 390 P.2d 200 (1964).

36. Barton & Meyers, The Legal and Political Effects of the California Nuclear Initiative, in The California Nuclear Initiative, supra note 4, at 26.

37. A. Murphy & B. LaPierre, Nuclear "Moratorium" Legislation in the States and the Supremacy Clause: A Case of Express Preemption 89 (1975).

38. __ U.S. __, 6 ELR 20549 (U.S. June 1, 1976). Plaintiffs had claimed that the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) gave the Environmental Protection Agency authority to regulate nuclear plant effluents containing radioactive materials previously regulated by the AEC under the Atomic Energy Act. In rejecting this contention the Court considered plaintiffs' reliance on a colloquy in which Sen. Buckley asked Sen. Muskie whether § 511(c)(2)(B) of the FWPCA, 33 U.S.C. § 1321(c)(2)(B), ELR 41127, which prohibited any agency other than EPA from imposing effluent limits other than those established pursuant to the FWPCA, would prevent the AEC from setting tougher thermal pollution limits than EPA. Muskie replied that the AEC would be required to abide by EPA effluent limitations "with respect to the subject matter which the Senator has raised," which as the Court pointed out, was thermal pollution. Id. at __ n. 14, 6 ELR at 20553 n. 14.

39. Of course, the other view is that state prohibition of nuclear power would conflict with the Atomic Energy Act's declared purposes "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes." 42 U.S.C. § 2013(d).

40. Barton & Meyers, supra note 36, at 15.

41. P.L. 94-197, 89 Stat. 1111-15, codified at 42 U.S.C. § 2210.

42. 42 U.S.C. § 2210(e).

43. 42 U.S.C. § 2210(c).

44. A.B. No. 2820, § 1, adding Pub. Res. Code § 25524.1.

45. A.B. No. 2822, § 1, adding Pub. Res. Code § 25524.2.

46. A.B. No. 2821, § 1, adding Pub. Res. Code § 25524.3.

47. Nuclear Initiative: Californians Vote "No;" but Legislature Acts, 192 Science 1317 (June 25, 1976).

48. 1975 Oregon Laws, ch. 606.

49. Fla. Stat. Ann. § 403.501 et seq.

50. In re Florida Power & Light Co., No. 75-006, Final Order by Governor and Cabinet at 10 (Fla. Dep't of Environmental Regulation, Dec. 17, 1975).

51. Vt. Stat. Ann., tit. 30, § 248(c).

52. Nuclear Initiative, supra note 47, 192 Science at 1319.

53. ERDA's Assistant Administrator for Nuclear Affairs recently said:

I don't think, however, that the positive vote for nuclear power in California will trigger the end of this national dialogue. Instead, I see it as more of a beginning to increased understanding and awareness that nuclear power is here to stay and will continue to increase our country's electricity supply. As more citizens realize how safe and important it is — more citizens will embrace and endorse its expanded usage.

2 ERDA Weekly Announcements No. 23, at 3 (June 18, 1976).