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Vermont Can't Shut Down Nuclear Power Plant, says 2nd Circuit

By Gabriella Khorasanee, JD | Last updated on

The Vermont Yankee Nuclear Power Station ("Vermont Yankee") has been a source of controversy -- and litigation -- since 1978. In the latest court battle, Vermont Yankee brought suit against Vermont's Governor, Attorney General and members of the Vermont Public Services board making preemption and dormant commerce clause claims.

Last week, in a case that is sure to have nationwide ripples, the Second Circuit Court of Appeals held that "[s]tates cannot shut down nuclear power plants over safety worries, reports The New York Times.

Vermont Law Preempted by the Atomic Energy Act

The Vermont laws in question would have effectively shut down the Vermont Yankee nuclear power plant. In applying preemption doctrine, the court noted that in passing the Atomic Energy Act, and subsequent governing bodies, Congress intended to make the regulation of "the safety aspects of nuclear development" a purely federal responsibility. The court also noted the Supreme Court's decision in Pacific Gas & Elec. v. Energy Resources Comm'n which stated, "state laws within 'the entire field of nuclear safety concerns' are preempted, even if they do not entirely conflict with federal law."

Here, the Second Circuit found that the Vermont laws were enacted for the impermissible purpose of regulating nuclear safety. Because of that, the court found that the Vermont laws were preempted by the Atomic Energy Act.

Other Claims Not Ripe For Review

Vermont Yankee brought two other claims: first that Vermont law was preempted by the Federal Power Act; and second that Vermont's laws were in contravention of the dormant commerce clause. The Second Circuit agreed with the District Court of Vermont that the Federal Power Act claim was not ripe. However, it vacated the district court's finding that the dormant commerce clause was violated because it held the issue was also not ripe for review.


The Second Circuit affirmed the district court's grant of a permanent injunction enjoining Vermont from enforcing its laws. According to The New York Times, Vermont has not decided whether it will appeal. This case is significant because with the growing debate about alternative energy sources, nuclear power is definitely a key player. Vermont Yankee may also have ramifications in other states in the Second Circuit because as the Times reports, New York is also seeking to close down some nuclear power plants.

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