One of the bedrock principles of environmental federalism is that States may always choose to impose stricter, more protective standards than the federal agency might choose for the same activity.  One of the key means by which environmental federalism is implemented for water quality standards is the Clean Water Act § 401 certification requirement for any federally licensed activity that would result in any discharge into navigable waters.  Through their power to deny the certification that the proposed activity would comply with state water quality standards, designated uses, and other environmental requirements, States have a powerful tool to ensure environmental protection requirements greater than those required by a federal agency.

The Nuclear Regulatory Commission’s position in a case pending in the DC Circuit would stand this environmental federalism on its head, depriving States of their power to revisit section 401 certification for nuclear power plant operating license extensions.  The NRC issued Entergy’s Vermont Yankee nuclear power plant a 20 year extension to its operating license despite the fact that Entergy, the plant’s owner, did not obtain a CWA § 401 water quality certification for the renewal.  Both the New England Coalition, and the Vermont Department of Public Service have challenged the operating license extension in the District of Columbia Circuit.

NRC has moved for summary dismissal of the petitions, arguing that Vermont’s 1970 water quality certification for the nuclear plant remains in effect for the 2006 nuclear license renewal.  NRC also argues that Vermont DPS and NEC both failed to preserve the issue during relicensing proceedings.

Of course, all of this takes place in the context of the larger battle between Vermont and Entergy, as the Vermont Legislature invoked voted last year to deny Entergy a necessary State approval to continue operating the Vermont Yankee nuclear plant beyond the expiration of its current NRC license.