Entergy Nuclear Vermont Yankee, LLC v. Shumlin
733 F.3d 393
2d Cir.2013Background
- Entergy bought and operated the Vermont Yankee nuclear plant and sought NRC renewal to operate past its 2012 state CPG expiration; Vermont enacted Acts 74 and 160 (and Act 189) changing state approval and spent-fuel rules affecting continued operation.
- Act 74 required legislative approval after March 21, 2012 for on-site storage of spent fuel and incorporated MOUs imposing additional (safety-related) conditions; Act 160 required the Vermont Legislature to approve continued plant operation and directed fact-finding by state agencies.
- Entergy sued Vermont state officials in federal court asserting (1) AEA preemption of Acts 74 and 160 (and Act 189), (2) preemption under the Federal Power Act of conditioning operation on a power purchase agreement (PPA), and (3) a dormant Commerce Clause violation from conditioning operation on a favorable in‑state PPA.
- The district court found Acts 74 and 160 preempted under the Atomic Energy Act (AEA), found the Act 189 claim moot, enjoined Vermont from enforcing the challenged statutory provisions, and enjoined Vermont from conditioning continued operation on a below-market PPA; it held the Federal Power Act claim premature.
- The Second Circuit affirmed that Acts 74 and 160 are facially preempted by the AEA and affirmed injunctions against enforcing the challenged statutory provisions, reversed the injunction on the dormant Commerce Clause claim (holding it unripe), and affirmed that the Federal Power Act claim is unripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| AEA preemption of Acts 74/160 (radiological safety) | Acts 74/160 intrude on federally occupied field of radiological safety and are preempted | Vermont: statutes address economic/energy planning, not safety; States retain authority over generation and CPG decisions | Acts 74 and 160 are facially preempted by the AEA; injunctions against enforcement affirmed |
| AEA claim as to Act 189 | (Plaintiff advanced safety preemption) | Vermont defended inspections/assessments | Act 189 challenge was moot at trial and not appealed further |
| Federal Power Act / filed-rate doctrine re: conditioning on PPA | Vermont’s conditioning on a favorable PPA would conflict with FERC market-based tariff and is preempted | Vermont: conditioning reflects state energy planning and is not yet a concrete interference with FERC rates | Count Two (Federal Power Act) is unripe; affirmed as premature (plaintiff should seek FERC review first) |
| Dormant Commerce Clause re: conditioning on preferential PPA | Conditioning operation on below-market in-state PPA discriminates against interstate commerce | Vermont: no completed PPA; measures are energy-policy, not protectionist | Dormant Commerce Clause claim was unripe; district court injunction vacated (reversed) because no concrete, completed PPA to evaluate |
Key Cases Cited
- Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983) (defines AEA preemption boundary; state moratoria grounded in safety concerns are preempted)
- Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) (federal occupation of nuclear safety field described; limits on state regulation of radiological safety)
- English v. Gen. Elec. Co., 496 U.S. 72 (1990) (clarifies interplay between state claims and AEA preemption)
- New England Power Co. v. New Hampshire, 455 U.S. 331 (1982) (states may not grant residents preferential access to in‑state resources in a way that burdens interstate commerce)
- Healy v. Beer Inst., 491 U.S. 324 (1989) (state regulation that controls commerce wholly outside state borders violates dormant Commerce Clause)
- Morgan Stanley Capital Grp., Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty., 554 U.S. 527 (2008) (discusses FERC market-based tariffs and voluntary market contracts)
- Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953 (1986) (FERC has exclusive jurisdiction over wholesale rates)