A federal District Court judge in Vermont has struck down legislation that denied Entergy Corporation to right to renew its operating license for the Vermont Yankee nuclear power plant unless it received specific legislative approval that license renewal was in the public interest. The Vermont legislature declined to grant this approval in 2010, leading many to anticipate closure of the plant this year. The Nuclear Regulatory Commission nonetheless renewed the Vermont Yankee permit.
Now the Vermont District Court has struck down Vermont’s refusal to allow relicensing, finding that the legislation is preempted by the Atomic Energy Act. The Supreme Court held in 1983 that the Atomic Energy Act preempted safety regulation of nuclear power by States, leaving only economic regulation permissible to the states.
The Vermont court found that, even though the Vermont legislation made no reference to safety and security aspects of nuclear power regulation on its face, extensive references to safety and environmental contamination issues by individual state senators and witnesses indicated that the intent the legislation impermissible sought to regulate the safety aspects of Vermont Yankee’s operation.
Several conservative members of the Supreme Court have specifically repudiated reliance on legislative record statments when searhing for impermissible intent in the context of constitutional civil rights — Justice Scalia’s concurring opinion in the Church of Lukumi Babalu Aye v City of Hialeah case, for example. It would be interesting to see how the Court addresses the Vermont legislative history in this case — though there is no guaranty the case will make it there. An appeal to the Second Circuit is all but certain, though.