Entergy Nuclear Vermont Yankee, LLC v. Shumlin

Coen, capacity in his official as David that the Clerk hereby ORDERED It is member of the Vermont Public Ser- of the to the Clerk transmit of Court Defendants-Appellants- Board, vice a certificate Appeals of New York Court Cross-Appellees. attached, copy of together with the form briefs, set of complete and a opinion (L) Docket Nos. 12-707-cv filed and the record appendices, (XAP). 12-791-cv will re- panel in this This parties Court. appeal for jurisdiction present of the tain Appeals, United States Court the certified disposition after resolution Second Circuit. Ap- the New York Court question by Argued: Jan.

peals. Aug.

Decided: CERTIFICATE hereby certified to the foregoing New York of the State of Appeals

Court of L.R. 27.2 and N.Y.

pursuant to 2d Cir. Regs. tit.

Comp.Codes R. & 500.27(a), by the United as ordered for the Second Appeals Court of

States jurisdiction retain panel This will

Circuit. after present appeal for resolution by the question of the certified

disposition Appeals.

New York Court of NUCLEAR VERMONT

ENTERGY

YANKEE, LLC, Entergy Op Nuclear Inc., Plaintiffs-Appellees-

erations,

Cross-Appellants, SHUMLIN, capacity

Peter in his official Vermont, of the

as Governor State Sorrell, capaci in his official

William

ty Attorney of the State General

Vermont, Volz, in his official James

capacity as member Board, Burke, John

Public Service capacity official as a member

his Board,

the Vermont Public Service Sullivan,

Kathleen M. Faith Gay, E. Juman, Robert C. Weisburst, Sanford I. Adams, William Ellyde Roko, B. Quinn Sullivan, LLP, Emanuel & Urquhart New York, NY; Brown, Marcus V. Wendy Robinson, Entergy Services, Hickok Inc., Orleans, LA; New Timothy A. Ngau, En- Inc., tergy Services, Jackson, MS; Robert B. Hemley, Byrne, Matthew B. Gravel and PC, VT, Shea Burlington, for Plaintiffs- Appellees-Cross-Appellants Entergy Nu- Yankee, LLC, clear Vermont and Entergy Operations, Nuclear Inc. Frederick,

David C. Scott H. Angstr- eich, Rinner, William Kellogg, Huber, J. Hansen, Todd, Figel, P.L.L.C., Evans & D.C.; Washington, Sorrell, William H. At- torney Vermont, General for the State of Kline, Bridget Scot L. Asay, Kyle C. H. support of Plaintiffs- Landis-Marinello, Attorneys Legal Foundation Assistant Vermont, Montpe- Appellees-Cross-Appellants. the State of General lier, VT, Defendants-Appellants- Levine, Law Foun- Conservation Sandra Shnmlin, Peter William Cross-Appellees VT; dation, Margolis, Montpelier, Jared Burke, Sorrell, Volz, John H. James Coalition, Brattleboro, VT; England New David Coen. Brierre, Fidel, Jamey Paul Natu- Kaufman, Legal Atlantic Martin S. Council, VT; Montpelier, ral Resources NY, Foundation, Larchmont, for amici cu- Dumont, Vermont Public Interest James Friedman, Anders, I. riae William Jerome VT, Montpelier, for amici Group, Research Glauber, Glashow, Dud- Roy J. Sheldon L. Foundation, Law New curiae Conservation Herschbach, Kazimi, Bah- Mujid R. S. ley Coalition, Vermont Natural Re- England Nassersharif, Todreas, E. Neil rain Council, Vermont Public In- sources of Plaintiffs- support Richard Wilson Group in support Research De- terest Appellees-Cross-Appellants. fendants-Appellants-Cross-Appellees. Millett, M. Ruthanne Patricia A. Huefner, F. The State Ohio Uni- Steven Gump Tysse, E. Akin Deutsch James Law, College of for versity, Moritz amicus LLP, Washington, Hauer & Feld Strauss Legis- of State National Conference curiae DC; Gump Capehart, B. Akin John Defendants-Appel- of support latures in TX; LLP, Dallas, & Feld Strauss Hauer lants-Cross-Appellees. Brand, Conrad, National Robin S. Rachel Schneiderman, Attorney T. General Eric Inc., Center, Washing- Litigation Chamber York, Barbara D. of the State of New DC, ton, of amicus curiae Chamber for Underwood, General, Monica Solicitor of America of the United States Commerce Chief, Deputy Bureau Environ- Wagner, Plaintiffs-Appellees-Cross- support of Bureau, A. Denise Hart- mental Protection Appellants. Ayers, B. Assistant Solic- man and Andrew Earle, Blake, Ellis Boxer & Caroline S. Counsel, NY, Albany, of itors General VT, curiae Interna- Montpelier, for amicus York, curiae of New Connecti- amici States Workers, of Electrical tional Brotherhood Massachusetts, Iowa, cut, Maryland, Mis- of support Plaintiffs- Local Union 300 Missouri, Hampshire, New and sissippi, Appellees-Cross-Appellants. Defendants-Appel- support Utah Sorenson, Keisler, Quin M. Peter D. lants-Cross-Appellees. LLP, Sidley Austin Fougere, Joshua J. DC; Nu- Washington, Ginsberg, C. DRONEY, Ellen and Before: CARNEY Inc., Institute, for amicus Energy GARDEPHE, clear District Judges, and Circuit Institute, Inc. in Energy curiae Nuclear Judge.* Plaintiffs-Appellees-Cross-Ap-

support of DRONEY, Judge: Circuit

pellants. Yankee, Andrews, Vermont Entergy Nuclear Samp, Cory L. Richard A. Foundation, LLC, Operations, Entergy and Nuclear Washing- Washington Legal Inc., op- own and (collectively, “Entergy”)1 ton, DC, Washington for amicus curiae * Regulatory Commis Gardephe, of the Nuclear United holders Paul G. Honorable Judge Facility the Southern District No. DPR-28 Operating States License District sion York, sitting designation. Operating of New Facility License No. and Renewed Yankee, LLC, indirect subsidiaries They are also DPR28. Entergy and Nuclear Vermont Inc., Corporation, a Delaware cor Operations, parent Entergy are co- Nuclear Yankee Nuclear Power

erate the BACKGROUND Vermont (“Vermont Yankee”), a nuclear Station findings We summarize here those Vernon, power plant Entergy- Vermont. appeal fact made relevant were brought suit in United States District by the district following court the bench against Court for District of Vermont trial. Attorney the Governor and of the General State of Vermont and the members History I. The Yankee Vermont

Vermont Public Service Board in their offi- “Vermont”), cial capacities (collectively, opened Vermont Yankee and asserted three claims. One Count began operating ownership under alleged recently three enacted Ver- management of the Vermont Nu- governing mont statutes Vermont Yan- (VYNPC), Corporation joint Power clear kee—Acts and 189—concerned is- England of eight venture New retail elec- of radiological safety sues and thus were eight tric utilities. Among members preempted by federal Atomic joint two elec- venture were Act. alleged Count Two that Vermont had (Central companies tric Vermont Public attempted to grant permis- condition its Power), Service Green Mountain operate sion to Vermont Yankee on the fifty-five which owned a percent collective purchase agreement execution of a power share Vermont Yankee. Yan- consumers, favored Vermont retail had granted forty-year Facility kee been attempt that this preempted was Operating License the Atomic the Federal Act. Three Power Count as- Commission, agency pre- the federal that serted that these same actions with re- Commission Regulatory ceded Nuclear spect purchase agreement to the power (NRC). forty-year The license ex- was to also violated the dormant Commerce pire on March 2012. Clause of the States United Constitution. Following trial, a bench sought district court In VYNPC to sell Vermont J.) (Murtha, Entergy found in favor of as Yankee. After an initial bid firm one to Count respect rejected One with to Acts and was Vermont Public Ser- (the 160 and challenge “Board”),3 found the to 189 to vice Board Entergy sub- be moot.2 The district court found in a mitted bid for Vermont Yankee in the favor of Entergy as to sought Count Three. summer of 2001 and a “certificate Lastly, the (CPG), district court public good” found Count Two of a license from the to be premature. We affirm the district to operate Board to continue Vermont Two, court as to One Counts and and Yankee under Vermont state As it law.4 reverse Board, the district court negotiating as to Count was Entergy with Three. entered into a memorandum of under- Orleans,

poration headquartered quality, in New management. Lou and overall financial isiana, operates that owns twelve nuclear §§ Vt. See Stat. Ann. tit. reactors in ten in the locations United States. 4.The criteria the must in Board consider Entergy appeal does not the district court’s deciding a whether to issue CPG relate determination as to Act 189. power generation stability, such issues as eco- State, impact nomic on the aesthetic en- 3. The quasi-judicial Board ais three-member issues, agency regulates compli- state vironmental variety public and likelihood of a Vermont, including power regulations. utilities in ance with facili- federal See Stat. Vt. rates, supervises 248(b). ties. It the utilities’ tit. service Ann. MOU”) (the (MOU) the interstate market under a market- “2002 standing tariff, in based which remains effect. The Department of Public Service the Vermont (the permits Entergy pow- in- authorization to sell The MOU “Department”).5 through England agreement er wholesale ISO-New power purchase a corporated (the (“ISO-NE”), (PPA) nonprofit independent sys- in 2001 “2001 Entergy executed PPA”) operator regulation retail tem under FERC promised elec- Vermont England’s energy mar- terms for the administers New pricing utilities favorable tric responsibilities kets. stated are from Vermont Yankee ISO-NE’s purchase power system opera- maintains it to maintain “reliable Entergy agreed 2012.6 until tions,” competitive “efficient and PPA it feared that the ensure the 2001 because markets,” regional to “administer [the] not otherwise recom- Department would tariff, including comprehen- for Vermont Yankee. Enter- transmission mend CPG regional planning.” agreed system the 2002 MOU “waive sive gy also preempts ... law claim that federal any Legislation The II. Recent Vermont jurisdiction the Board.” Concerning approved the Board On June Legislation A. Act Entergy Yankee to 74: sale of Vermont Concerning In its Decision and Increased Nuclear and issued a new CPG. Storage by Order, Waste Vermont Yan- Final the Board stated the sale kee Entergy Yankee to would of Vermont part general good” be- “promote petitioned Entergy the Board cause, reasonably “under most foreseeable twenty-percent “uprate,” to obtain which scenarios, highly like- transactions Yan would an increase Vermont allow an economic benefit ly produce Ver- in a power output kee’s also result Yankee Nu- ratepayers.” mont In re Vt. increase nuclear waste. concomitant Corp., Power Docket No. clear Yankee, LLC v. See Nuclear Vt. (Vt.Pub.Serv.Bd. 1997942, at *1 June

WL (2010), States, 160, 95 Fed.Cl. United 2002). 13, specifically The Order endorsed nom., part rev’d in sub Vt. part, aff'd PPA because it allowed Vermont the Entergy Corp. Power Yankee Nuclear purchase power from retail utilities Ver- LLC, Yankee, Nuclear 683 F.3d 1330 Vt. prices mont Yankee that “are substan- (Fed.Cir.2012). a statute enacted Under ‘currently op- the tially below committed’ after Yankee years in 1977—five Vermont costs of Yankee erating Vermont over began operating first construction —the term of license.” Id. The remaining its storage new nuclear waste facilities Ver noted that 2001 PPA im- Order unless prohibited mont was the Vermont “cap charges on the posed joint Legislature a bill or resolution passed power.” Yankee finding promoted the facilities Ann. 2002, good of the state.” Vt. Stat. “general In obtained from the Entergy 6501(a). 10, However, years § two Energy Regulatory tit. Federal Commission later, 1979, (FERC) Legislature the Vermont power into authorization to sell Although utilities relating VYNPC included retail Department laws 6. 5. The oversees Vermont, corporations represents public service Central Ver- from outside procurement of Vermont in the of ener- State Mountain mont Service Green Public gy hearings in an before the Board advoca- a combined stake Power had accumulated 1, 2, cy capacity. §§ See Ann. tit. Vt. Stat. of VYNPC. 92.5% 203. 2004). provision stating at *1-2 “exemption” (Apr. enacted an Since Vermont requirements imposed by changed that the ownership had from any apply temporary storage Entergy, do “not provided VYNPC to the letter Power Corpora- Entergy Vermont Yankee Nuclear would need the approval tion of fuel spent Legislature nuclear elements or oth- to add spent fuel er present storage radioactive waste site.” Id. at *4. capacity.

§Id. In response, Entergy presented pro- Entergy

At sought the same time posed legislation clarifying that section uprate, it also entered into new MOU 6505 was site-specific, rather than owner- (the MOU”) Department “2003 with the specific. proposal This failed to obtain Entergy pay under which would million support $6 Legislature, from the Vermont Funds,” namely into new Benefits “State Legislature however. The Vermont then Fund,” the “Environmental Benefit began hearings on the bill that would even- Fund,” “Low Income Benefit the “En- tually Act 74. become tergy Fund for Economic Benefit.” See which was enacted on June Nuclear, Entergy 173-74; 95 Fed.Cl. at principal First, had two effects. En- Yankee, Entergy LLC, re Vt. Nuclear tergy only would need to seek a CPG from (Vt.Pub.Serv.Bd. P.U.R.4th Mar. constructing Board storage before fa- 15, 2004). The Board then issued a CPG fuel, cilities spent for new nuclear rather approving uprate on March Legislature than the Vermont as had been Nuclear, Entergy 95 Fed.Cl. at 188. How- 6501(a). required However, by section ever, Entergy also needed to obtain ap- this CPG would remain in effect only until proval to construct the dry spent new cask March 2012. The second effect of Act storage facility, fuel though even it 21, 2012, 74 was that after March recently had approval received for it from any spent new nuclear fuel in the NRC.7 then petitioned the require Vermont would an affirmative vote Board, requesting permission to expand its Legislature. the Vermont If no such facility. fuel storage Entergy main- occurred, storage affirmative vote of nucle- tained that exemption provision of sec- ar generated operations waste after tion applied to the Vermont Yankee March permitted. not be would general, site in opposed to a particular Thus, Vermont Yankee would have to shut plant. owner of the The Board sought down. guidance Senate, which, from the Vermont turn, 21, 2012, obtained a letter from the post-March Office of The shift of re- Attorney the Vermont General opining sponsibility approving for storage the of that section owner-specific. spent generated 6505 was See nuclear fuel Vermont McShane, Letter from Att’y Michael Asst. Yankee from the Board to the Vermont Gen., Welch, to Sen. Peter Pres. Legislature important Pro Tem- had ramifications. pore Senate, of the Vt. 2004 WL Decisions of the Board appealed be to Spent 7. typically fuel deep public rods are stored in NRC safety. health and See 10 pools of treated water at the reactor site for a E(B)(3); App. § C.F.R. at U.S. 961.11. Nucle- period years. spent of least five Once the Comm'n, Regulatory Backgrounder ar Dry on temperature fuel rods’ and radiation emis- (Feb. Storage Spent Cask of Nuclear Fuel diminished, sufficiently they sions have can be 2013), http://www.nrc.gov/ available dry consisting moved into of sealed casks— reading-rm/doc-collections/fact-sheets/dry- cylinders pad metal concrete long- on a —for cask-storage.html. storage. Dry term casks are monitored 21, 2012, only until March which is Stat. Yankee Court. Vt. the Vermont operating mecha- of the current license.” § No review the “end tit. such Ann. 6522(c)(2). Legisla- provision § Vermont This states exist for the Id. nism would “expectation have entitle- approve to additional the owners no or ture’s decision not space. storage fuel to spent nuclear ment continued expiration its cur- following sections to title 74 added three new on March 2012.” operating rent license sections of the Vermont Statutes: 6522(c)(5). 6522(c)(4) pro- § Id. Section 6521 outlines and 6523. Section that Vermont Yankee cannot store vides findings, including Legislature’s generated after March spent fuel renewa- develop need to recognition site, Leg- on unless the Vermont ener- environmentally sustainable ble and granting such legislation islature enacts tit. Vt. Stat. Ann. gy Vermont. sources permission. any other the absence objective, sec- 10, § To this support options, effectively would shut storage the state’s creation tion 6521 references Yankee. down Vermont support ... “energy efficiency fund to ener- investments end-use cost-effective En- Section established “Clean resources,” (the efficiency “Fund”), and a statewide gy Development ergy Fund” pool with a “related energy purchasing when Entergy agreed to it received which new to investments in program accelerate permission uprate. for its See Vt. Stat. 6523(a).9 and combined-heat renewable § Ann. tit. Under section Id. projects.” 6523(a), money Entergy promised had pay into the Benefits Funds under to State requirement Section restates into paid the 2003 MOU would instead be cannot that the owners of Vermont Yankee purpose “pro- to the Fund. Fund’s facilities new fuel spent construct development deployment mote the up March unless period for the environmentally sustain- cost-effective the Board. Id. they obtain CPG from energy and thermal or able electric 6522(a). § also mandates Section 6522 long-term geothermal resources the Board find owners consumers.” Id. benefit of Vermont adequate have resources Vermont Yankee 6523(d) 6523(c). § outlines various Section spent and decommission manage fuel energy investments types of renewable “to necessary, plan if and a plant, undertake, Fund such as en- that the can from Vermont to all fuel remove farms, ergy projects production, biofuel facili- federally long-term storage certified facility development. energy and thermal manner,” and the own- ty timely in a 6523(d). § estimated that Id. any existing with comply ers MOUs 6522(b). obligation under section 6523 total Lastly, section the state. or per year, million Fund would be any $2.5 states that CPG issued period million over apply Act 74 will about pursuant $15

Board 2005 to 2012.10 generated by nuclear Vermont spent fuel Order, con- subsequent the Board subsequently 10.In 6523 was recodified

8. Section Entergy's obligation under that total firmed relating the the Statutes title 30 of Vermont payments into the 2005 MOU to make the powers the See Vt. Stat. Ann. tit. Board. $15,625,000 2005 to would be Fund 30, § 8015. payments of quarterly made Yankee, $625,000. Entergy In Nuclear Vt. re challenging Entergy is section 6523 9. LLC, at 2006 WL 249 P.U.R.4th appeal. instant the 26, 2006). (Vt.Pub.Serv.Bd. Apr. *21 incorporates any explicitly preemption concerning 74 also the federal claim MOUs, MOUs, including the 2002 and 2003 the 2005 MOU. MOU at 3. well as a new executed on June as MOU day On June the Act 74 after (the MOU”). 21, 2005 “2005 Vt. Stat. Ann. effect, petition went Entergy into filed a 6522(b)(4).11 10, § The tit. 2005 MOU dry with the seeking Board to construct mandated, alia, Entergy inter locate facility Yankee, storage fuel at Vermont spent storage pad the nuclear fuel at least which, mentioned, already as the NRC had a floodplain, space one hundred feet from pre-licensed. re Entergy In Nuclear Vt. storage the permit casks to access to indi- Yankee, LLC, *6. In WL at greatest possi- casks “to the extent vidual months, the subsequent eight the Board ble,” configure spent-fuel pool the so that public held a con- meetings series of high-decay heat assemblies surrounded ducted hearings technical to evaluate the assemblies, low-decay perform heat petition. *6-7. Id. at The Board also monitoring temperature and monthly man- comments, public received of which the storage ual radiation surveillance of the ... majority highlighted “vast con- public report casks and the results to the Depart- public cerns uprate about that [the ment, generated not store waste outside previously approved, Board has] and the site, “high spent remove level” independent safety desire for an assess- nuclear fuel from quickly Vermont “as ment, concerns, general nuclear possible,” study addressing and conduct as a target.” terrorist stability proposed spent new addition, Id. at *9. In most of those who storage facility nuclear fuel upon based meetings public “op- attended the Board’s adjacent concern stated that an river bank posed proposed dry fuel facili- storage might collapse. erode and See 2005 MOU ty” relating facility’s for reasons 1-2; Entergy at see also Nuclear Vt. Yan- “vulnerability to natural or manmade di- kee, 179; In Entergy Fed.Cl. re sasters,” adequacy dry storage fuel LLC, Yankee,

Nuclear Vt. 249 P.U.R.4th technology, potential for environ- (Vt.Pub.Serv.Bd. WL at *48 mental April harm. Id. at *9-10. On 26, 2006).12 Apr. analysis” This “flood was 2006, the Board issued an Order granting required by more extensive than that petition until a new issuing licensing process NRC’s for the same CPG for the storage construction of the and, facility fuel al- facility. Id. at *1. The Board stated though Entergy believed the Board’s significant “most factor” in its decision regarding concerns probability of a was the collapse credible,” facility.” “economic benefit of the were “not Entergy Noting Id. at agreed to *5. study. undertake Vermont Yankee re Yankee, LLC, Entergy provides “now approximately Nuclear Vt. one-third of *28, *51. the power WL As with consumed the state Ver- MOUs, agreed mont,” earlier Entergy early plant waive shutdown of the The timely 2005 MOU was not included in the in a Yankee] fashion.” Nuclear Yankee, appeal, record on but was introduced Vt. below 95 Fed.Cl. at 179-80. (Document as Plaintiffs’ Trial Exhibit 465 46- 19). turn, 13.This, represents fifty-five percent power output. of Vermont Yankee’s total The imposed analysis Board the flood re- remainder on the sold wholesale market to quirement part response to the U.S. retail other utilities in states. See In re Pro- Department Energy’s posed of "failure to remove Sale Vt. Yankee Nuclear Power Sta- of tion, spent [generated (2003); the nuclear fuel Vermont 175 Vt. A.2d preamble The fuel fives.” Id. states Act of nuclear to the absence due purpose provide general 160’s is to the “impose would substantial storage facilities authority Legislature “With- Vermont with the to ratepayers.” Id. costs on Vermont power from whether to issue a new CPG for favorably-priced the Ver- determine out Yankee, need Yankee after March 2012. utilities would Vermont mont Vermont 1(c). help § Act 160 power Id. would foster purchase replacement of expected “larger to be societal discussion broader presently sources that are period. Approv- economic and environmental issues relat- over this expensive more facility operation of a nuclear storage facility provides ing of fuel dry al the state, including an assessment of the to the state the direct economic benefit potential operation need for of The Board the preserving power.” Id. benefits, risks, likely facility to Vermont and its economic savings estimated PPA, costs,” un- and of alternative methods of ratepayers arising from the 2001 1(d). § power generation “has Id. Act power Yankee well. der which Vermont purpose includes a of prices utilities at 160 also stated en- been sold to Vermont of that the of new CPGs spot-market price suring evaluation be consistently below England,” “approximate- assump- conducted under new cost-benefit energy in New analyses, than those period from 2008 to tions and rather ly million over $61 1(e). § previous Id. supported *21. CPG. 2012.” Id. at Act 160 adds three new sections title Legislation The B. 160: Vermont Act 30 of the Vermont Statutes: sections Ap- Legislative Requiring State 248(m), 248(e)(2), and 254. Section Operate Yan- proval To Vermont 248(e)(2) Legis- requires that the Vermont kee After 2012 of the approve lature extension Ver- Entergy applied January On before operating mont Yankee lease operate for a renewal license NRC a new See Vt. Stat. Board issues CPG. through 2032. March Vermont 248(e)(2). § Legislative ap- Ann. tit. later, 1, 2006, the February on One week proval continued of Vermont operation considering Legislature began Vermont longer no limited to issues con- Yankee is Act eventually become the bill that would as under cerning spent storage, fuel sec- passed May Act 160 was 6522(c)(4) rather, 74; Act of tion Act energy gener- “a provides nuclear Legislature ap- that the Vermont requires plant may operated in ating be opera- continued prove aspects all only approval of the Gen- explicit with the 248(m) Yankee. Section tion Vermont 1(a).14 160, § Assembly.” eral Act the ap- that the Board “evaluate requires that, under plication a new current deciding [for CPG] wheth- provides analyses” apply assumptions of a approve operation er to assump- benefit con- extension the cost plant, Legislature should “an the Vermont analyses forming the basis need for the eco- tions and power, sider “the state’s good for long- public impacts previous nomics certificate and environmental 248(m). waste, facility.” and choice term of nuclear that the own- among Lastly, requires alterna- section various sources published Yankee, LLC, preamble to was not Act 160 In re Vt. Nuclear Statutes, is contained in but in the WL at *12. Chapter 157 of title West's historical notes to (West 2011). 10, Vermont Statutes Annotated apply ers of Vermont Yankee for a new the findings Department of the in assess- years prior expi- CPG at least four to the ing application for a new CPG. Id. CPG, 254(c). ration of the current and § Legislature

Board inform the Vermont any receipt application. new CPG Legislation C. Act 189: The Vermont 254(a)(l)-(2). § any Id. When new CPG Requiring Inspections State submitted, application is the Department is Vermont Yankee directed to engage fact-finding with On June then-Vermont Gover- objectives three stated in mind: Douglas nor Jim signed into law Act (A) public to facilitate discussion of entitled “An Act Relating to a Comprehen- long-term economic and environ- sive Vertical Audit Reliability and Assess- relating mental issues opera- to the ment of the Vermont Yankee Nuclear Fa- any tion of nuclear facility in the cility.” purpose The of Act 189 was to state; assist Legislature the Vermont in making (B) identify to potential and assess the its determination as to whether Vermont need for the facility Yankee permitted should be operate to long-term and its economic and en- past and to reconfirm the “obligation benefits, risks, vironmental and authority general assembly to costs; and reliability examine the pow- the nuclear (C) practical to assess all alternatives to er Entergy station of Nuclear Vermont those set forth in the applicant’s 1(a).15 189, § Yankee.” Act Act 189 fur- petition may be more cost-ef- that, provides ther Entergy because was fective or that otherwise better applying to extend the life of Vermont promote general welfare. beyond original forty-year its de- 254(b)(1). §Id. sign, the Legislature needed to requires Section 254 also that the De- any assess “reliability issues associated partment collect information relating to operating [Entergy] for an additional Entergy’s “funding plans for guardianship years after its scheduled closure of nuclear waste after licensure but before 1(b). § 2012.” Id. Act 189’s text also removal site,” of nuclear waste from the addresses relating concerns operat- plant procedures, closure and funding for ing reliability of Vermont Yankee and is- emergency management systems. One sues relating performance to its that might subsection of section 254 requires the De- arise from expanding the plant. § Id. partment “identify, collect information on, provide 189 calls for analysis Department of long-term inspections envi- ronmental, economic, of Vermont public operations, health Yankee’s such is- sues, electrical, including its relating emergency, issues dry cask and mechanical systems. 5(a). 3(a), §§ of nuclear waste and Id. decommis- The Act also 254(b)(2)(B). sioning options.” § Id. sets out The documentation requirements and Department inquiries further directed report that must be undertaken findings to the Board Department and to the relating installation, Ver- Legislature. 254(a)(2)-(3). mont § maintenance, Id. inspection sys- Board, turn, is directed to consider tems Yankee. 4. To Though original bill called for Act 189 version of Act 189 was not codified. Yankee, to be codified Shumlin, as an addition to section 254 of Nuclear Vt. LLC v. Statutes, title 30 of the Vermont F.Supp.2d (D.Vt.2012). the final Legislature by operate in- the public visibility of these Vermont the maximize past 2012. Yankee, March Act 189 cre- spections of Vermont of ex- oversight panel consisting ates by the perts appointed in nuclear Collectively, under and and Acts 74 governor Legislature. the Vermont and S.289, pass opera- failure to the due to the and evalua- panel’s findings §

Id. March tion of Vermont Yankee after report- Yankee to be tion of were Vermont 2012, depends upon Legisla- the Vermont which Legislature, ed to the Vermont approving ture the continued plant’s to determine use this information would the operation. Legislature As Vermont for operating the license whether to extend act, has failed to Vermont Yankee’s CPG 21, 2012. beyond March plant the 21, 2012, plant March the expired on and 6(d). been shut down ab- would have forced to district decision below.

sent the court’s Bill D. The Vermont Senate S.289: making its whether to In determination the Have Permitted That Would permit operation, further the Vermont Operation of Vermont required Continued and 160 Legislature by Acts 74 Required Beyond 2012, as impact storage Yankee the local to consider of the economy fuel spent Act 160 nuclear on the local environment, diversity the on a January Entergy disclosed On power sources available to retail Vermont tritium, decay of nuclear product leak of Acts, utilities. Under two Ver- from Yankee. emanating energy, Vermont Legislature must also consider the mont remediated Entergy stopped leak and to allow following determining whether soil, and surrounding on the impact operating: Yankee to continue the NRC subsequent investigation, after a (1) “public implications health” related “public’s health and concluded dry cask of nuclear waste and safety and the off-site environment were (2) decommissioning of Enter- plant; by an adversely report affected.” A not emergency management for gy’s resources consulting group retained independent nuclear fuel systems, management spent concluded, April on the State of Vermont decommissioning plant; of the storage, and the leak not affect the did (3) planning the removal Entergy’s reliability of Vermont Yankee. (4) waste; Entergy’s long- nuclear Yan- plan for closure of Vermont term leak, At the time of the the Vermont kee. S.289, considering was was which Senate addition, titled, require that Ap- “An Acts 74 and 160 Relating Act originally 2002, 2003, and comply with the proval Operation of the Ver- for Continued inter impose, Those Yankee Nuclear Power Station.” 2005 MOUs. MOUs mont alia, S.289, following requirements additional if would authorized the passed, have payments Entergy, apart making addi- Yankee for an on operation Vermont promote alternative twenty years past March into a fund used tional (1) opera- Although analysis sources: required energy in the twenty-year renewal for tional of Vermont granted NRC li- federal flooding excess of of Vermont Yankee event of (2) compliance censing requirements; in the pass March S.289 failed to result, the construction requirements As specific Vermont Senate. casks; fuel monitoring granted permission not been Yankee has (3) monitoring temperature and ra- mont opera- condition continued diation of regular the casks and tion of Vermont Yankee on the existence (4) reporting power purchase of a Department; agreement, to the no stor- because any generated doing places age of nuclear outside so substantial waste burdens on (5) Vermont; commerce, removal interstate violation of the generated by waste Vermont Yankee from dormant Commerce Clause. Id. (6) quickly possible; the state as and 19, 2012, January On the district court any preemption challenge waiver of federal issued its opinion following a bench trial. authority regulate to the Board’s to The court first concluded that the Atomic plant. Lastly, En- require the MOUs Energy facially Act preempts Act tergy comply 2001 PPA under which, through operation of section which Vermont retail utilities must receive 248(e)(2), effectively allows the Vermont pricing favorable terms for power pro- Legislature “deny pending a renewal by duced Vermont Yankee relative to re- petition by taking no petition, action on the tail utilities other states. reason, any substantive, procedural or unstated, or permissible stated or imper- Proceedings III. Before the District missible under federal law.” Entergy Nu- Court clear, F.Supp.2d at 227. The court April Entergy On brought suit 254(b)(2)(B), pointed to section which in the United States District Court for the upon calls Department to support the District of against Vermont the Governor Legislature’s fact-finding by con- Attorney General the State of Ver- on, alia, ducting studies “long-term inter mont and the members of the Vermont environmental, economic, public health Public complaint Service Board. The sets issues, including relating dry issues cask forth three claims: storage of nuclear waste and decommis- (cid:127) Count One: Entergy sought perma- sioning options.” Id. at 227-28. In light injunction nent and declaration that Act required of the statute’s consideration of and Act 189 are invalid issues,” “public health which are not de- under Supremacy Clause the Unit- statute, fined elsewhere in the the court they ed States Constitution because then examined the actual legislative pur- preempted by Energy the Atomic Act. pose leading passage of Act 160. Yankee, Entergy Nuclear Vt. LLC Finding legislative policy stated Shumlin, F.Supp.2d 188-89 purposes by offered Vermont for Act (D.Vt.2012). unpersuasive, 160 to be the court conduct- (cid:127) Count Entergy sought perma- Two: ed an extensive review of the legisla- act’s injunction nent and declaration that the history, tive including statements made Federal Power Act preempts the State legislators and regulators state during conditioning Vermont from both hearings committee and on the floor. Yankee’s continued on the ex- See id. at 229-31. On the basis of this istence power purchase agreement of a review, the court held that there was between Vermont Yankee and Vermont’s “overwhelming evidence in the legislative utilities, retail because FERC has exclu- grounded record that Act 160 was in radio- jurisdiction sive regulation over the logical safety concerns and the concomi- power transmission sale. Id. at 189. tant to empower legislature desire (cid:127) Count Three: Entergy sought perma- act on those in deciding ques- concerns injunction

nent and declaration that Ver- tion of Vermont Yankee’s continued opera- Stanley Capital Grp., (quoting Morgan concluded The court Id. at 230. tion.” Pub. Dist. No. Snohomish Inc. v. Util. on its preempted thus Act 160 was 527, 537, 128 S.Ct. Cnty., 554 U.S. Act under the Atomic face (2008) (emphasis in En- 171 L.Ed.2d 607 articulated standards Nuclear) (internal marks tergy quotation Co. v. & Electric Gas Court omitted)). The court then held even & Conservation Energy Resources State forced to enter into if were be Commission, Development market- a new PPA in violation of the (1983) (“Pa- 75 L.Ed.2d tariff, its recourse would be to have based ”). Gas cific by Id. at agreement reviewed FERC. the same performed district court However, that the court concluded The court reasoned of Act 74. analysis preemptive effect the “it is not clear what to store permitting Entergy not prevent [Ver- Power has to Act] [Federal March generated fuel after spent nuclear refusing to consider continued from mont] 2012, Vermont, “absent affirmative in agreement,” an as operation without such Assembly,” section by the General action agreement there be no such to re- would 6522(c)(4) the General effectively “permits The court thus declined to en- view. Id. pending peti- Assembly to fail to act on a of Enter- join the defendants the basis radiological fuel for tion to store Federal Power Act claim. gy’s reasons, in a manner that evades safety in Lastly, court found merit the district Nuclear, F.Supp.2d review.” had condi- Entergy’s claim Vermont another ex- The court conducted at 231. of a for continued “approval tioned CPG legislative history analysis of the tensive power pur- of a operation on the existence that Act 74 and determined behind mar- agreement at below-wholesale chase safety pur- radiological with was “enacted in violation of the dormant ket rates” mind,” by “giving and that poses 235. The court Clause. Id. at Commerce power the unreviewable Assembly General an injunction appro- that an was concluded fuel, and therefore to storage of prohibit case, though no remedy in this priate even operation preempt- prohibit continued 21, 2012, yet had past PPA March new reasons,” Act 74 was radiological ed issued, “evidence there was been because under the Atomic Ener- facially preempted continued of intent to condition at 232-33. gy Act. Id. ‘eco- of some marked on the demonstration preemption challenge Entergy’s As to benefit,’ form of below- ... nomic Act, Power the PPA under the Federal pur- long-term power wholesale-market scope considered the district court utilities.” for Vermont agreements chase Act and the authority under the FERC finding The court made Id. doctrine,” which holds “filed-rate materials submitted examining the regulatory agencies are courts and “state of the representatives testimony of requiring law from preempted federal proceedings before Department Board, rates other than the feder- of state payment as the statements as well The district intent on impermissible al filed rate.” Id. at 233-34. find legislators, to has been at 236-39. the defendants. Id. part court noted Vermont basis, injunc- market-based tariff filed the court issued operating under a On this condi- FERC, from only requires “enjoin[ing] that the tion Defendants which oper- continued Yankee’s freely negotiat- tioning “enter into Vermont seller of a below-market the existence of opposed as ation on purchasers,” contracts with ed Id. at 239. utilities.” at 234 PPA with Vermont setting prescribed rate. Id. (2d Comm’n, sum, permanently court courses 209 n. 3 the district Cir.2011). taking any action enjoined Vermont Yankee after March to shut down Vermont A grant perma district court’s of a 21, 2012, pursuant pursuant to Act 160 or injunction nent is reviewed for abuse of 6522(c)(4) of title as enacted to section States, ACORN v. United discretion. permanently in Act 74. Id. at 243. It also (2d Cir.2010). “A F.3d district enjoined conditioning Vermont from (1) court abuses its discretion ‘when its of a of a issuance CPG on the execution (such decision rests on an error of law purchase agreement. favorable application wrong legal principle) or the district court deci- After rendered its (2) clearly finding, erroneous factual or sion, suggested a statement though necessarily decision— February dated that it still had product legal clearly of a error or a erro authority over Yankee’s finding neous factual be located —cannot pursuant of nuclear fuel to section range within permissible of deci 6522(c)(2) of title 10 of the Vermont Stat- ” (quoting Hanley sions.’ Id. Kickham P.C. 19, 2012, utes. ECF No. 192. On March Plan, 204, v. Kodak Ret. Income 558 F.3d injunction

the district court entered an (2d Cir.2009)). 209 enjoining Vermont from to shut seeking down Vermont on the basis of this Analysis II. as well. statute ECF No. 209. Energy Preemption A. Atomic Act appeals the district court’s de- Claim with respect Entergy’s

terminations A(l). Preemption Principles challenges to Acts 74 and 160 under the Entergy’s Atomic Act and claim Supremacy Clause of the United under the dormant Commerce Clause. provides States Constitution that federal Entergy cross-appeals the district court’s supreme law “shall be the Law of the preemption determination that chal- Const, VI, Land.” U.S. art. cl. 2. In deter- lenge under the pre- Federal Power Act is exists, mining preemption whether we party appeals mature. Neither the district must assumption “start with the that the challenge court’s determination that the police powers historic of the States were Act 189 is moot because the assess- superseded by to be the Federal Act ments mandated Act 189 had com- been unless that was the clear and manifest pleted by the time of trial. Levine, purpose Congress.” Wyeth v. 555, 565, 1187,

555 U.S. 129 S.Ct. 173 (internal (2009) L.Ed.2d 51 quotation DISCUSSION omitted). marks “This assumption pro- I. Standard Review vides assurance that the federal-state bal- review “We de novo a district ance unintentionally will not be disturbed application court’s of preemption princi by Congress unnecessarily or by the N.Y. ples.” P’ship Co., SMSA v. Ltd. Town courts.” Jones v. Rath Packing 430 Clarkstown, (2d Cir.2010) 97, 519, 525, 1305, 103 U.S. 97 S.Ct. 51 L.Ed.2d curiam). (internal (1977) (per “Findings of fact a bench quotation citation and omitted). error; trial are reviewed for clear applica marks “[0]ur task is to ascer- tion of law to those Congress’ facts is reviewed de tain intent in enacting the feder- Goodspeed Airport novo.” LLC v. E. al statute at issue.” Shaw v. Delta Air Lines, Inc., Haddam Inland Wetlands & Water- 463 U.S. 103 S.Ct. 2011-2281, §§ (1983). 42 U.S.C. which purpose of “The L.Ed.2d 490 Congress’ belief that the “stemmed Al- ultimate touchstone.” is the Congress served if the national interest would be Lueck, 471 U.S. Corp. v. lis-Chalmers encouraged private sector (1985) Government 85 L.Ed.2d energy peaceful pur- develop atomic omitted). (internal marks quotation regula- program under a federal poses preemp forms of There are several licensing.” English v. Gen. Elec- tion and is where Con most obvious tion. “The Co., 72, 80-81, 110 S.Ct. tric 496 U.S. preempt that it is states gress expressly (1990). imple- “The 110 L.Ed.2d Cnty. authority.” ing state of Suffolk policy by providing decision mented Co., F.2d Long Lighting Island construction, own- licensing private Jones, Cir.1984) (2d (citing 430 U.S. nucle- ership, of commercial 1305). oc Preemption reactors.” 461 U.S. ar with both federal compliance “where cur Ener- 103 S.Ct. 1713. The Atomic physical impossi is a regulations and state Commission, gy predecessor Growers, Avocado bility,” Fla. Lime & NRC, ju- given “was exclusive present-day Paul, 132, 142-43, 83 S.Ct. Inc. v. transfer, delivery, to license the risdiction (1963), 1210, 10 or where state L.Ed.2d 248 receipt, acquisition, possession and use pur the full the “execution of impedes law subjects, Upon nuclear materials. these Congress.” Hines objectives of poses and (inter- left for the states.” Id. no role was. 52, 67, Davidowitz, 61 S.Ct. 312 U.S. v. omitted). “Congress’ decision nal citations (1941). In 399, the absence 85 L.Ed. 581 prohibit regulating the states from to functionally pre overt explicit or of such development was safety aspects of nuclear supersede intent to “Congress’ emption, its belief that premised [Atomic from ‘a scheme of law be found state qualified was more to Energy] Commission to pervasive ... so regulation federal type safety what standards determine inference that Con make reasonable the complex area.” enacted should be supple for the States to gress left no room 464 Corp., v. Kerr-McGee U.S. Silkwood ” at 57 Cnty. Suffolk, it.’ ment 250, 615, 238, L.Ed.2d 443 104 S.Ct. 78 Corp., Elevator Rice v. Santa Fe (quoting (1984). Indeed, findings congressional 1146, 218, 230, 67 91 L.Ed. 331 S.Ct. U.S. affirm Energy the Atomic supporting (1947)). context, latter “fed 1447 In this “processing and utilization that regula field of occupies eral law an entire source, ma- special nuclear byproduct, Bank, Burke, N.A. v. 414 tion.” Wachovia national regulated be terial must (2d Cir.2005). F.3d 313 interest,” regulation that the of such ... “by materials the United States A(2). Energy The Atomic to assure necessary in the national interest Act and Pacifíc Gas to security the common defense indus The domestic nuclear safety pub- of the the health and protect 2012(c)-(e). Energy in the Atomic try genesis Radiological had its lic.” 42 U.S.C. Congress “contem represents Act of which an arena safety therefore acting development “Congress, of nuclear plated preemption field monopoly.” authority, proper be a Government has determined power would within its gover- Study regulated by Envtl. its exclusive Duke Power Co. v. Carolina must be Inc., 59, 63, nance,” any regulation precluding 98 thus Grp., S.Ct. — States, (1978). Arizona v. United changed This view the states. 57 L.Ed.2d 595 -, 183 132 Energy Act S.Ct. passage of the Atomic U.S. with the (2012); Act, Valley Warren-Alquist utility seeking see also Skull L.Ed.2d Nielson, Band Indians power plant Goshute build' new nuclear Califor- Cir.2004) (“[S]tate (10th 1223, 1242 F.3d required permission nia was first to obtain entire field of nuclear laws within ‘the Energy from the California State Re- preempted, even if safety (the concerns’ sources and Conservation Commission directly conflict with federal they do not Commission”). Energy “State Id. Section (quoting 461 U.S. at law.” Warren-Alquist 25524.2 of the Act im- 1713)). posed a moratorium on the construction of power plants Energy new until the State Nonetheless, is little doubt “[t]here long- that a Commission determined viable Energy the' Atomic Act of under disposal term nuclear fuel method public utility state commissions or similar 197-98, had developed. been Id. at make initial empowered bodies are Energy The State Commis- regarding power.” decision the need for required report sion was also this deter- Corp. Yankee Nuclear Power v. Natu Vt. Legislature, mination to the California Council, Inc., ral Res. U.S. Def. which could override it. Id. at (1978). 55 L.Ed.2d 460 S.Ct. 1713. The Court noted The Atomic Act also Energy contains two Warren-Alquist laws similar to the savings reserving regulato certain clauses Act had been in response enacted to two ry powers not related to nuclear emerging societal concerns about nuclear the states. The first clause states that the management: waste Atomic Act does not limit state authority regulation “gen regarding [FJirst, stored, properly if not eration, sale, or transmission of electric might endanger wastes leak and both power produced through the use of nuclear health; the environment and human sec- facilities licensed Commission.” ond, lack a long-term disposal § pro U.S.C. 2018. The second clause option increases the risk the insuffi- Energy vides that the Atomic Act shall not ciency storage of interim space spent for authority “be construed to affect reactor-shutdowns, fuel will lead to ren- any agency regulate State or local activ dering energy nuclear unpredictable ities purposes protection other than and uneconomical adventure. 2021(k). against § radiation Id. hazards.” 196-97,103 Id. at S.Ct. 1713.16 It against background was that the The Court then considered whether the Court Supreme issued 1983 decision Gas, Warren-Alquist Act preempted was be- which concerned whether the Pacific regulates cause “it Energy preempted Atomic Act construction of nuclear California statute, Warren-Alquist plants allegedly predicat- state and because it is State Energy safety ed on Resources Conservation and De concerns.” Id. at (the Act”). velopment Act “Warren-Alquist S.Ct. 1713. The legis- Court reviewed the 197, 103 461 U.S. at 1713. Under thef history Energy lative of the Atomic challenge The Court also considered a challenge The Court determined that the 25524.1(b), 25524.1(b) required ripe section which the State section was not for review because, Energy Commission to determine on a case-by-case methodology case- under the statute, by-case required by basis whether there would be "ade- the Court could not quate capacity” storage Energy for the short-term "know whether Commis- [State] spent granting plant’s nuclear fuel before certifica- sion will ever find a nuclear plant. capacity inadequate.” tion for the construction of a new Pa- to be Id. at (internal omitted). quotation 461 U.S. at 103 S.Ct. 1713. S.Ct. 1713 marks cific

4H 213-14, at gov- and concluded that while the “federal Id. 103 S.Ct. 1713. Because complete control of the ernment maintains section 25524.2 was “concerned not with safety aspects energy gen- and ‘nuclear’ adequacy of the method [of nu eration,” “the states exercise their tradi- storage], clear fuel but rather its exis authority over tional the need addi- tence,” the Court concluded that it was not generating capacity, type tional of preempted by the Atomic Energy Act. Id. licensed, generating facilities to be land (quoting 103 S.Ct. 1713 Legal Pac. use, ratemaking, and the like.” Id. at Found. v. State Res. Conservation 211-12, Examples 103 S.Ct. 1713. of sole Comm’n, (9th & Dev. 659 F.2d authority federal include the “construction Cir.1981)). utiliza-, operation any production or facility,” disposal “byprod- tion and the A(3). The Evolution of the Wholesale uct, special source or ... material Energy Market After Pacific Gas potential because of the hazards or haz- ards thereof.” Id. at 103 S.Ct. 1713 Critical to appreciating 2021(c)). However, (quoting U.S.C. Court’s concern in Gas about the authority states retain “the over economic prospect of responsibility state for rising question particular plant whether a [of] nuclear energy costs is an understanding built”; indeed, “utility should be financial energy structure of the retail mar- qualifications only of concern to the era, ket in the 1970s and-1980s. In that if public NRC related to health and safe- electric utilities typically vertically were ty.” Id. at 103 S.Ct. 1713. Exam- integrated entities that sold ples authority of exclusive state therefore they generated directly to in-state retail “ratemaking plant-need ques- include regulatory agencies consumers. State tions.” 103 S.Ct. 1713. would focus charged on the “retail rates purposes The Court then examined the directly public.” Pub. Dist. Util. 25524.2, underlying emphasizing section FERC, Cnty. No. Snohomish Wash. that a “regulate state statute that seeks to (9th Cir.2006) (“PUD construction or of a nuclear ”), grounds, No. 1 vacated on other powerplant ... even if enacted out of non- (9th Cir.2008). F.3d 1081 These state concerns, would nevertheless direct- agencies would determine at the rates ly conflict with the exclusive au- NRC’s power which could be sold the electric thority plant opera- over construction and utility to ensure such rates were rea- 212, tion.” Id. at 103 1713. The S.Ct. See, e.g., sonable. Consol. Edison Co. of legislative Court focused on the state com- (2d N.Y., Pataki, 338, Inc. v. 292 F.3d 343 report accompanied mittee section Cir.2002). agencies, Federal on the other 25524.2, which a purely articulated eco- hand, regulate would the “wholesale rates nomic rationale for the bill. The’ commit- charged among pro- businesses involved report tee noted that in the absence of “a 1, 471 viding” power. PUD No. F.3d at federally approved method waste dis- “ (internal omitted). quotation 1Ó62 marks posal,” ‘clog’ cycle” a in the nuclear fuel 1980s, Nonetheless, prior to the the domi- emerge “[s]torage space would because nance retail utilities ensured “arms- was limited while more nuclear wastes length transactions on wholesale markets 213, continuously at produced.” were Id. relatively Spence were few.” David B: & 103 S.Ct. 1713. This scenario could lead to Prentice, Robert “unpredietably high costs to contain the Transformation or, worse, problem Energy shutdowns in reactors.” American Markets and the Prob- 412 lew, 131, electricity ‘qualifying Power, to purchase L.Rev. ties 53 B.C. Market power production (2012). cogeneration and small 146 ” v. Missis (quoting FERC facilities.’ structure, this market a result of As 742, 751, 102 72 sippi, 456 U.S. S.Ct. transmission, and “electricity generation, (1982)). signifi Even more L.Ed.2d 532 geographic particular distribution for cant, Policy Congress enacted by and under provided generally area were “authorized FERC to Act of which utility.” single regulated the control of a provide utilities to trans order individual Owners Transmission Midwest ISO to unaffiliated wholesale mission services (D.C.Cir.2004) FERC, 1361, 1363 373 F.3d (ie., power) ‘wheel’ on a generators J.). (Roberts, some “Although there were 16 case-by-case (citing basis.” Id. U.S.C. utilities, op most among interconnections this au 824j-824k). §§ FERC exercised monopolies local sub separate, erated as thority by promulgating in 1996 Orders regulation.” New

ject state or local public “all utili require which FERC, 1, 5, 122 U.S. S.Ct. York v. controlling transmission owning ties and/or (2002). This concen 152 L.Ed.2d non-discriminatory open facilities to offer that if a power meant tration of market service.” Transmis access transmission costs rose—due to utility’s operating local FERC, Study Grp. v. Policy sion Access long-term associated with expense curiam), (D.C.Cir.2000) (per fuel, for exam spent York, nom., New 535 U.S. sub likely experi aff ple consumers would 'd —then 1, 122 1012.18 prices as well. As ence direct increases result, accepted Court Gas 1990s, the structure of the By the late that the nucle argument California’s changed dramatically. power industry had largely was disposal problem ar “waste Many integrated utilities had divested poor planning, economic or the result assets, partici- generating their and new 461 U.S. related.” Pacific market “in the form of pants entered the (internal quotation independent and affiliated both omitted).17 marks generators as well as inde- marketers power exchanges.” Regional marketplace pendent be-

The national First, No. Organizations, Transmission Order in the late 1970s. gan evolve ¶ (Dec. 61,285, at *7 Utility Regula- 89 F.E.R.C. Congress passed the Public 1999). (PURPA), Many formerly retail utilities be- tory Act of 1978 Policies generators,” independent “to came “merchant seq., sought §§ et which U.S.C. selling power they generated wholesale development generat- of new promote emergence lines. The of mer- and to conserve the use across state ing facilities York, generators placed significant 122 chant strain fossil fuels.” New so, existing power grids. response, on 1012. PURPA “directed To do sought organize utili- owners of trans- requiring rules FERC promulgate FERC 888, Utilities, Indeed, Order 61 Fed. power in vices Public market California 17. 21,541-43 10, 21,540, (FERC 1996) opened competition Reg. May was not until the late Spence, 37); Can Law Man- (codified 1990s. See David B. Open pt. at C.F.R. at 18 and Markets?, age Competitive Energy 93 Cornell (For- System Access Same-Time Information (2008). 779-81 L.Rev. Networks) merly Real-Time Information and Conduct, Fed. Standards Order may read in at Promot- 18. The orders be full 21,737, 21,740-41 (FERC 1996) Reg. Apr. Through Competition Open Ac- ing Wholesale (codified 37). pt. at 18 C.F.R. Non-Discriminatory Transmission Ser- cess omitted). Indeed, “independent system op- quotation lines into marks mission Ver- (ISOs) “regional and transmission erators” mont Yankee presently supplies only one- (RTOs) organizations” help manage “to power third of the consumed system reliability, guard ensure grid, residents; purchased by the rest is Ver- and the exercise of against discrimination companies mont electrical from other power provision market of transmis- sources. See In re Nuclear Vt. Prentice, Spence supra, sion services.” & Yankee, LLC, 2006 WL at *12. gave at These ISOs and RTOs rise to 148. Second, because states obtain large regional electricity trading several energy plants states, from located other hubs, ISO, including the California public support there is less for continued Pennsylvania-New Jersey-Maryland operation of in-state power plants nuclear (PJM) ISO, ISO, the New York the Elec- greater opposition plants to such local (ERCOT) Reliability tric Council of Texas on as well as non-safety grounds.20 ISO, England.19 and ISO New With the advent of merchant generators, development genera- The of merchant challenge identifying a long-term on marketplace tors had two effects for spent nuclear storage fuel solution has First, power that are relevant here. con- grown even more pressing. After a useful gained sumers access to new sources of years, life of four-to-six spent nuclear fuel power, they which meant were no thermally rods hot when removed from longer single provider. to a captive in-state reactors and emit substantial amounts of Access, See Transmission 225 F.3d NRC, radiation. New York v. 681 F.3d utilities, Correspondingly, energy “[l]ocal (D.C.Cir.2012) (citing Blue Ribbon could, producing rather than their own Future, Commission America’s Nuclear public, to sell to the choose between Report Secretary Energy to the 10-11 competing producers various then (2012)). The deep, rods are transferred to expected savings transfer pools cooling; they may water-filled competition public.” to the PUD No. large then be transferred to concrete and development 471 F.3d at 1065. The storage, though they steel “casks” even large regional power grids gave consumers dangerous will continue to emit radiation power generated by access to out-of-state time spans seemingly beyond “for human generators. merchant As the comprehension.” noted, (quoting Nuclear “possible Court has it is now for a Inst., EPA, Energy Inc. v. purchase customer elec- [to] (D.C.Cir.2004) curiam)). (per tricity environmentally friendly from an None- theless, despite the power producer cogener- production in California or a continued York, waste, facility “years of nuclear despite ation Oklahoma.” New (internal commissions, congressional 535 U.S. at S.Ct. 1012 ‘blue ribbon’ Admin., Watkins, (9th Chang- 19. See U.S. Info. F.2d 1550-51 Cir. ing Industry 1990) Structure of the Electric Power (noting opposition of the Nevada (2000), Update, 2000: An at 74-77 available Legislature http://www.eia.gov/cneaf/electricity/chg_ Gerrard, state); fuel Michael in the see also B. stru_update/update2000.pdf. Loathing Siting Fear and in the Hazardous Compre and Radioactive Waste A Facilities: See, States, e.g., New York v. United Crisis, Approach Misperceived hensive to a 68 197, 2408, 144, U.S. 112 S.Ct. L.Ed.2d 120 1047, (1994) (discussing Tul. L.Rev. 1137-46 (1992) (noting "public opposition” 120 that opposition public of to nu the sources identify undermined a state’s efforts to sites sites). storages clear fuel disposal); for nuclear waste State Nev. v. of 414 30, tit. Ann. new Vt. Stat. and site investi CPG. agency reports,

hearings, 248(m) 248(e)(2). that requires yet § Section States has the United gations, conducted Id. of a new CPG be permanent solution.” the evaluation developed federally- develop assumptions, to recently, plans using current cost-benefit Most Yucca Mountain storage site at informed the issu- sponsored than those that rather 248(m). De when the § were abandoned previous in Nevada CPG. Id. ance of the its license Energy withdrew partment of application to requires 254 Section facility. See Nat'l for the application 21, past Yankee March operate Vermont Comm’rs v. U.S. Regulatory Util. Ass’n 2012, years four submitted at least be of 819, 822-23 Energy, 680 F.3d Dep’t advance, engage Department that the of (D.C.Cir.2012). time, “At this there is not support to the fact-finding in extensive let repository, site for a prospective even a the lease ad- legislative determination toward the actual construc progress alone 254(a). § general the welfare. vances NRC, F.3d New York v. 681 tion of one.” requires Department that the The statute at 474. on, “identify, pro- collect information environmental, analysis long-term vide A(4). Act 160 issues, economic, includ- public health background in general With relating dry to cask ing issues analysis mind, preemption begin we our decommissioning op- nuclear waste and 160, the most recent of Vermont’s Act 254(b)(2)(B) add- (emphasis § tions.” Id. enactments issue.21 legislative ed). the Board These are factors analysis the of a place begin to proper “acting petition” on a “shall consider” See, e.g., States is its text. United statute 254(b)-(c), statute, subject id. Ass’ns, Trucking Am. 310 U.S. reported conclusions are to the Board’s (1940) 1059, L.Ed. 84 1345 S.Ct. Legislature to inform its own de- Vermont (“There is, course, persuasive no more regarding the status of Ver- termination of a than purpose of the statute evidence 254(a)(2)-(3). Yankee, §id. mont under legislature which the the words matter, an initial we must con As wishes.”). expression to its As give took to appropriate it is to consider sider whether Act 160 adds three previously, described Act 160. In this challenge a facial sec to the Vermont Statutes: new sections that Act regard, important we find it 248(e)(2), 248(m), and 254 of title 30. tions 248(e)(2), through of section 248(e)(2) requires the Vermont Section determining process transfers an ex Legislature to determine whether li approve operating a new whether operating tension (that Yankee from the Board is, cense for Vermont to deter granted lease should be Legislature. Before “gen mine the lease advances whether welfare”) Board’s decision passage can issue a before the Board eral imported approach court asserting preemption, the district party theAs Silkwood, proof. Equal See and First carries the burden Protection Clause (stating that 464 U.S. at Kerr-McGee, 104 S.Ct. 615 Entergy Nu- jurisprudence. See Amendment party asserting pre- clear, (citing F.Supp.2d 230-31 claim, emption to show that bore “burden Arlington Heights v. Metro. Hous. Dev. Vill. of [preempt] [punitive Congress such intended Corp., 271 n. Act)”; damages] awards in the Atomic (1977), Healthy City and Mt. L.Ed.2d 450 85-86, English, U.S. at see also Doyle, 429 U.S. Bd. Educ. v. Sch. Dist. (following approach set out Silk- 285-86, (1977)). 50 L.Ed.2d wood). burden-shifting reject the We thus regarding whether to approve contin shifts the regarding decision whether to operation ued of Vermont Yankee would approve operation of Vermont Yankee subject have been review the Ver into province the unreviewable of the Ver- mont Court. Vt. Stat. Ann. tit. mont Legislature’s “failure to enact a spe- 30, § likely 12. Such a review would have law,” Grumet, cial 703, 512 U.S. at encompassed legal questions regarding 2481, we will not otherwise have any preempted by whether Act 160 was federal “occasion to construe the in the law con- See, e.g., law. Petition E. Cogener Ga. text of actual disputes.” Wash. State 799, ation Ltd. P’ship, 614 A.2d 804-05 450, Grange, 552 U.S. 128 S.Ct. 1184. (Vt.1992). passage After the of Act if Lastly, we believe that “the issues before act, Legislature chose not to the court are sharply pre- concrete and operating license for Vermont Yankee permit sented” so as to meaningful review. 21, 2012, lapse would on March and that Dickerson v. Napolitano, 604 F.3d subject decision judicial would not be (2d Cir.2010) (quoting Thibodeau v. Por- Kiryas review. See Bd. Educ. Joel tuondo, (2d Cir.2007)). It Grumet, Vill. Sch. Dist. v. 512 U.S. is “necessary therefore to determine (1994) 2481, 129 114 S.Ct. L.Ed.2d 546 whether there is a non-safety rationale” (“[Ujnlike an agency’s administrative deni for Act 160 considering whether the al of an exemption generally from a appli decision to effectively shut down Vermont law, cable which would be entitled to a policy Yankee serves the interests articu- audience, judicial legislature’s failure to in lated the statute. 461 U.S. Pacific enact a special law is itself unreviewable.” 213,103 S.Ct. 1713. (internal quotation citations and marks The legislative policy purpose sec- omitted)). tion of Act 160 sets forth several rationales Because a “state moratorium” on the 1(a) for the statute. Section states that “a operation of “grounded Vermont Yankee energy generating plant may be squarely concerns falls within the operated only explicit with the field,” prohibited Gas, 461 U.S. at approval of the General Assembly ex- 103 S.Ct. a law enacted for that law,” pressed in and that legislative ap- purpose facially would lack any “plainly proval requires “public deliberation” of legitimate sweep.” Grange Wash. State v. such factors as “the power, state’s need for Republican Wash. State Party, 552 U.S. the economics and impacts environmental 442, 449, 170 L.Ed.2d 151 waste, long-term storage of nuclear (2008) (internal omitted). quotation marks among choice of sources various We also why note several other reasons it 1(a). alternatives.” Act 160 The statute appropriate is Entergy’s to consider facial later long-term states the issue of challenge First, validity of Act 160. fuel should be framed as because of legislative the extensive record part larger societal accompanying Act discussion 160 and the detailed broader economic inquiry conducted and environmental is- by the district court be- low, relating it sues operation “is not the case ... that the of a nucle- Court state, today facility ar premature including an as- interpreting [Act factually potential 160] the basis of a sessment of the barebones need for the ” FEC, record.’ Citizens facility United and its economic benefits, risks, costs; 175 L.Ed.2d 753 and in order (internal (2010) quotation opportunity marks alter- to allow to assess alterna- omitted). Second, ations because Act 160 tives that be more cost-effective or

416 (2d Cir.1994) N.Y., 68, 73 may better the 34 F.3d promote

that otherwise of (“[T]he defined, is preemption general question welfare. law, of the state part, by purpose the 1(d). language on the Drawing and, in actual part, by the state law’s 1(a) 1(d), argues sections be in an- effect. Both must considered policy interests: advances two Act 160 swering whether (1) question regula- state array a use of diverse increased (2) sources; tion in field so given a interferes with pro- renewable to be energy regulation that are more federal deemed sources motion preempted by (citing cost-effective. the federal statute.” 2374) Gade, 103-06, at 112 505 U.S. S.Ct. in- policy asserted Although Vermont’s (internal omitted)).22 Although citations necessarily not interfere terests would explicitly did not Gas Court radiological concern of preempted Pacific scrutiny a court delineate the level must text safety, inquiry our does end at the perform whether a is to determine statute of the statute. Act, preempted by Atomic we blindly accept the articulated We do not a against believe the admonition Court’s purpose preemp- state [a statute] rule, “state that nuclear is not judgment If that were the purposes. tion further “nullify nearly enough developed,” all un- safe to be 461 legislatures could 1713, legislation by simply requires U.S. at us to wanted federal legislative report committee review publishing searching conduct a more to deter- state articulating poli- some interest or mine was enacted based whether statute cy than frustration of the federal upon radiological concerns. See —other (“[A] be objective tangentially would Cnty. Suffolk, 58 —that proposed furthered state law.” state, in evaluating the need a nuclear facility, not even generating consider [can] Council, Food Inc. v. Greater N.Y. Metro. Gas, (citing safety aspects.” (2d Cir.1999) Giuliani, F.3d 108 195 Pacific 1713)). 461 U.S. at We Mgmt. v. Nat’l Solid (quoting Gade Wastes therefore decline Vermont’s invitation to Ass’n, 505 U.S. S.Ct. apply analytic framework akin to “ra- (1992)) (internal L.Ed.2d 73 citation omit- review,” tional which would preclude basis ted), grounds by on other Loril- abrogated from identifying purpose us the true of a Reilly, lard Tobacco Co. v. 533 U.S. (2001). required statute as Gas and 150 L.Ed.2d 532 S.Ct. implement would result, allow states to a “mora- rely solely As “we have refused torium grounded on nuclear construction professed legislature’s purpose in safety squarely concerns falls [that] have looked as well effects of the Gade, prohibited law.” 112 S.Ct. within the field.” Pacific Media, 2374; 213,103 Vango City 461 U.S. at 1713.23 see also Inc. v. Ctr., Loyal determining permit Tire & Inc. v. whether to the continued See also Auto (2d Woodbury, 445 F.3d phrase Town of Vermont Yankee. As this J,) Cir.2006) (Sotomayor, (noting, statute, in the con we is not in the defined must look preemption, Commerce text of Interstate legislative determine intent to its mean- inquire that a must into whether court Geltzer, ing. See Church v. F.3d Universal regulation “genuinely respon or local is state (2d Cir.2006) (“[W]e may look to the rationale). proffered sive” to the legislative history legislative to determine plain statutory language intent where Moreover, provides "public the statute ambiguous____"). issues,” including those health related to stor- waste, age are to of nuclear be considered goal diversifying ty As to the the State’s from an environmentally friendly power (cid:127) producing power, means of Vermont ar- producer in cogeneration California or a gues presence that the of Vermont Yankee facility Oklahoma,” in if it so chooses. “hamper[s] efforts at diversification and York, New 535 U.S. at 122 S.Ct. 1012 dampening effect on develop- has (internal omitted). quotation marks Ver- Citing ment of alternatives.” the testimo- mont can also direct or encourage its utili- ny Regu- of the State’s former Director of purchase ties to power from power Utility Planning, lated argues Vermont plants Indeed, located out-of-state. Ver- closing that Vermont Yankee “would free mont recently pursued approach this exact in up space generation the electrical mar- by approving petition to allow its retail promote ket and make it easier to diversi- purchase utilities to power from the Sea- ty and sustainable resources.” Vermont brook Station Nuclear Power Plant in New quotes a former Maine power state Hampshire, a generator merchant like commissioner, regulator and NRC who Vermont Yankee. In re Green Mountain testified before the district court that the Corp., Power Docket No. 2011 WL a “legitimate energy State has interest (Vt.Pub.Serv.Bd. 5507224, at *1 Nov. planning promoting renewables” and 2011). Closing Vermont Yankee would argued “any energy planner sensible thus have little effect on the actual array anticipating would be a time when Ver- energy sources from which Vermont mont would be without Vermont Yankee.” purchase utilities can power.24 However, argument presupposes this As to the goal second of containing that Vermont retail utilities lack choices costs, argues Vermont that the economic with respect to the sources of the energy rationale relied on Gas they purchase. pow- “[S]tates have broad Pacific applies Court equal force here. Ver- ers under state law to direct planning mont suggests shutting down Ver- and resource decisions of utilities under might mont Yankee assist the State in jurisdiction. their may, States for exam- identifying that may “alternatives be more ple, order utilities to gen- build renewable However, themselves, cost-effective.” argument ... erators or order is utilities to also not purchase persuasive light generation.” renewable Vermont S. Cal. Co., Diego generator. Edison Yankee’s status as a merchant Co. San Gas & Elec. ¶ (June 61,269, 2, 1995). Increases in prices FERC at *8 Vermont Yankee Ver- charges mont provides only power Yankee one third of for its would not be borne State, power directly by consumed in the it a captive so audience of retail consumers, clear that Legislature the Vermont can as was the case California “purchase direct retail utilities to Instead, electrici- residents in Gas. Indeed, recognized energy the Board relatively alternative ble resources tend to be energy approving sources of in its Order generation, particularly small sources Thus, sale of Vermont Yankee to relation to Vermont Yankee. instead problems: sources, but noted some of the related of renewable Vermont utilities assume, rely generating urged by We cannot would need to on fuel several fossil public, replace power power members of the that the stations to much of the now from quickly replaced by provided by option Vermont Yankee can be Vermont Yankee. This already very renewable resources. disadvantage would have the serious gets higher percentage power significantly increasing of its the emission of air (mostly large hydro- greenhouse gases. renewable sources contaminants and dams) many Corp., than other states. With In re Vt. Yankee Nuclear Power dams, (footnote omitted). exception large hydro WL 1997942 renewa- Cir.2000) (8th (citing F.3d which 234 generator, merchant is “a Final open Regulatory Commission Nuclear it sells

means Policy Law & Envtl. Rule, Requirements market.” for Decom- wholesale General (7th NRC, Cir. F.3d Facilities, Fed.Reg. Ctr. missioning Nuclear utili reason, energy 2006). local For 1988) (codified (June 27, at 10 24018-01 various “choose between simply ties could 50.82)). regulation, decom- “By § C.F.R. power purchase competing producers” used for non- may not be missioning funds provider. See the more cost-effective from expenses, such as decommissioning related Closing at 1065. 471 F.3d No. PUD storage.” Bos. Edison nuclear [spent fuel] affect the Yankee would Vermont States, 105, 136 93 Fed.Cl. v. United Co. power availability other sources (2010), 658 F.3d grounds, other rev’d on purchase utilities could retail which local (Fed.Cir.2011). Nuclear 1361 “cost-effective;” be more might that to the periodic reports provide must plants to do so now.25 indeed, are free they of such funds concerning the status NRC argument economic second Vermont’s “reasonable providing purpose for the lia future potential regarding the State’s that funds will be available assurance is also of decommissioning costs bility for 10 C.F.R. decommissioning process.” the that the contends weight. Vermont little 50.75(a).26 construct a plan the collapse of recent storage facili nuclear fuel long-term spent look to the statute’s must also We that “[i]f means in Yucca Mountain ty if it was history to determine legislative Entergy become such as plant operators motive. passed impermissible with an obligations, the their insolvent or abandon that fore argues Gas Pacific host fall on states.” financial burdens will history ana legislative closes the use of However, Regulato Nuclear “[i]n Energy Act a statute for Atomic lyze state requir a final rule adopted ry Commission dictum de noting the Court’s preemption, to file facilities of nuclear ing operators motive legislative into scribing “inquiry pre-fund and to decommissioning plans, unsatisfactory venture.” 461 often an [as] money aside by placing decommissioning analyzing 1713. In U.S. Pub. fund.” Neb. sinking in an external Act, Co., Warren-Alquist purpose of the Dist. v. MidAmerican Power every possible eco- generator precludes granting chant Order 25. We note that in its 2006 addi- offer as a argument Yankee to store Vermont could CPG to Vermont nomic new site, the Board plant. fuel on regulating tional See basis for Pacific regarding 1713; following argument 208-09, 215, Gas, made the S.Ct. 461 U.S. at shutting down: plaint NLO, Inc., effect of the see also Nieman storage pro- dry (6th Cir.1997) ("[W]hile recognizing fuel In the absence exists Ver- ject, a likelihood substantial preempted entire field Congress has down 2008 due would shut mont Yankee safety regulation, of nuclear spent nuclear inability store the applica- willing uphold the Court has been generates. utilities] retail [Vermont fuel it regu- it affects nuclear tion of state law where pur- replace power with other could i.e., only indirectly, where state law lation chases, power would replacement but such regulation....”). We to economic amounted significantly probably (perhaps cost more proffered here only the rationales note more) power. than the Vermont implausible light of the actual effect of LLC, Yankee, Vt. In re Nuclear non-safety-related ratio- that the Act WL at *20. legislative decision to shut down for a nales sup- adequately Yankee are not sug- analysis, do not conducting we ported the record. as a mer- gest Yankee's status that Vermont 2006) J.) however, report looked to a (Sotomayor, (holding, Court in the con legislative issued state committee text of Interstate Commerce preemp presented the bill. Id. at 103 tion, that a court any spe “must consider Moreover, in subsequent S.Ct. 1713. expressions cific of legislative intent in the decision, interpreted the Court Gas Pacific statute itself as well as the legislative his to hold that “state moratorium on nucle tory”); Metro., Greater N.Y. 195 F.3d at grounded ar construction con 108 & n. 1 (examining legislative history to within squarely cerns prohibited falls determine whether a City New York local English, field.” 496 U.S. at law was preempted by Ciga the Federal (quoting U.S. Act). Labeling rette and Advertising We 1713). words, “In other therefore believe that legislative history field, preempted part, Court defined the an important source for determining by reference to the motivation behind the particular whether a statute was motivated added); (emphasis state law.” Id. see also by an impermissible motive in the preemp Gade, 105-06, 505 U.S. at 112 S.Ct. 2374 tion context.27 (“We longer can no adhere aberra tional doctrine ... may state law frus Vermont argues that the task of deter- trate the of long federal law as mining legislative intent behind Act legislature as the state in passing its law particularly 160 is difficult in this case purpose had some in mind other than one because the Legislature, as of frustration the federal regulatory [of “part-time body, produce citizen does not (quoting Perez v. Campbell, scheme].” 402 formal committee reports like those Con- 637, 651-52, 1704, U.S. 29 L.Ed.2d gress prepares, and it has no requirement (1971)) added)). Indeed, (emphasis 233 preserve complete pro- records of its several other applying courts Gas Pacific addition, ceedings.” In “[e]ommittee hear- have legislative history endorsed the use of recorded, ings generally are but are not to determine whether Energy the Atomic transcribed, contemporaneously and often Act preempts particular state statute or identify do not speaker. Floor debates See, local ordinance. e.g., Valley, Skull Senate, usually are recorded in the but not 1251-53; 376 F.3d at Long Light Island in Representatives.” the House of For N.Y., ing Cnty. Co. v. Suffolk, 628 of reason, argues that much of F.Supp. (E.D.N.Y.1986); 665-66 see Ctr., legislative history Loyal Tire & Auto behind Act Inc. v. Town 160 is (2d Woodbury, 445 F.3d “missing Cir. or incomplete.” of acknowledge 1989) 27. We (interpreting Gas does not "teaching of Pacific Pacific ” explain precision legislative requiring role his & Electric analysis Gas as of a tory plays analysis Energy effect). in the of an Atomic state statute's text and But see Skull preemption English, ("[W]e Valley, See required claim. 376 F.3d at 1252 are ("Whether at 84 n. 110 S.Ct. 2270 preemption analysis follow set forth in Gas, Silk-wood, suggestion majority of the English, Gas that and which re Pacific Pacific legislative purpose quires is relevant to the purpose. definition consideration of the of the statute, pre-empted part of the holding allegedly preempted field is of the along with its effects.”). Moreover, of that case is not an issue before us to Gas Court ...”); day. Corp. see also Kerr-McGee analysis legis Chem. conducted a methodical of the Chi., (7th City v. W. undergirding 914 F.2d lative intent the federal Atomic of 1990) ("It effect, Cir. heavily legisla is not clear scope how Act to determine its 205-11, purpose weighed determining tive is to be 461 U.S. at and we preemption.”); why Norris v. Lumbermen's Mut. see no reason state statute at issue Co., (1st Cos. 1150-51 Cir. should not be so scrutinized well. Nuclear, operation.” not does these conditions

Acknowledging repeat at 229. need primary F.Supp.2d a “court’s We the fact that change examination, is to statutory interpretation entirety the district court’s purpose Morgan v. considering many intent.” hours of legislative included discern which Cir.2006).28 (3d Gay, 466 F.3d committee floor audiotapes of debates record- systemized lack of Although the transcriptions meetings for which written challeng- our task more make keeping maintained, except typically are not informality proceedings ing, the consistency with note the remarkable Legislature and the State’s the Vermont regulators legislators state which both his- legislative to not document decision safe- radiological about expressed concern judicial immunize Act 160 tory do not evade federal a desire to ty expressed motivation. legislative into inquiry Cf. in Action See Disabled preemption. F.2d Murfreesboro, 856 City Blanton Hammons, 202 F.3d N.Y. v. Metro. Cir.1988) (“While (6th recog- we Cir.2000) (2d “spon- that the (noting legislative histo- today nize that the use and floor and manager statement sor/floor recorded until much of which is not ry, “the colloquy” among most hearing action, try- congressional the final after leg- and reliable materials authoritative Congress, the intent ing to understand history”). islative was, it once we find meaningful as as is not Finance Commit- of deter- Senate with no other means ourselves enacting hearings on the bill Congress intent of its first mining the tee conducted only Act 160 legislation.”). ultimately become that would application filed its days after the district court’s care- agree with We oper- an of its the NRC for extension with intent moti- analysis legislative ful past ating license of Act 160 enactment vating Vermont’s hearings, During 2012. those first court identified radi- insofar as the district chairman of the committee chair and the safety legislature’s ological as the Vermont colloquy in an extended engaged Board enacting the statute.29 purpose primary legislative pur- permissible regarding legis- court concluded The district bill, particular emphasis poses for “references, almost record contained lative roadmap appro- and its on Gas count, legis- reveal [that] too numerous to of nucle- legislative regulation priate state safety motivations and radiological lators’ informed that being ar facilities. After legisla- empower their wish to reflect safety was regulation radiological based on constituents’ fear of ture to address their the commit- preempted impermissible, risk, be- radiological legislators’] and [the “Okay, let’s find an- responded, tee chair oper- too unsafe to plant liefs that the was safety,” approach also ate, other word for deciding petition for continued safety (identifying "both Army, S.Ct. 1713 Belanger v. Salvation See Cir.2009); Nike, (11th aspects Inc. v. waste to the nuclear F.3d and economic (9th McCarthy, issue,” Cir. 379 F.3d 581-82 finding preemption yet no where Haun, 2004); 227 F.3d Femedeer v. non-safety Warren-Alquist Act had "a ratio Cir.2000). (10th Media, added)); Vango (emphasis nale” cf. N.Y., (2d City Cir. Inc. v. radiologi- analysis whether Our focuses on 1994) (finding challenged that while the stat purpose safety primary under- cal was the impact economic ute had “an associated simply girding passage of Act society,” "primary interest” was only safety one of several con- whether was health”). preempted "public field of U.S. at siderations. See Pacific A adopted by the Board chairman. state would become Act a member of the legislator participating hearing in the re- Vermont State Nuclear Advisory Panel professor sponded testimony from law told the committee chair that the Board regarding permissible scope the bill “is not allowed to think safety, about only stating, “I understand know,” you but then proceeded opine issues, safety feds are allowed to think of on various risks. The committee carefully and we don’t use that word here.” chair then panel admonished the member Another member of the Finance Commit- speak purely risks,” about “economic “all expressed tee concern that of our work which led that suggest individual to get ... [will] overturned feds be- “a safety problem implica- has economic safety? cause it’s based on That’s all it’s tions, too.” The committee also heard going to be on.” A based third member of testimony from a professor at a local law the committee asserted that the federal Board, school and former chairman of the likely government would not be able to who warned the committee that because transport Vermont Yankee’s preempted “the State is in its concerns state, fuel out of the and then asked rhe- about radiological safety,” the “State has torically, years’ we want another 40 “[D]o to make its grounds, decision on other sitting worth of radioactive materials which would include anything from aesth- peo- somewhere this State? I think the etics to the obvious ones about financial ple ... getting a little concerned and implication things to such as reliability of obviously you the closer live to that radio- grid.” During the electric a subsequent activity, you the more concerned are.” exchange, the current chairman of the That same senator also referenced the in- Board instructed the committee on wheth- cidents at Three Mile Island Cherno- er and in what circumstances it could byl, potential and stated that for a “talk public about health.” A member of sufficiently similar disaster was serious Department then that recommended legislature that “the felt pre- [that the bill language placed “some alternative be into public policy they a decision that sented] the bill” so as to avoid the issues refer- needed to make.” The Committee also by enced the chairman of the Board. testimony considered from the Vermont merely These are not isolated comments Legislature’s Legislative Chief Counsel by legislators, a Department part and a concern- few but rather a of a representative ing ways of writing the bill so as to avoid consistent effort those responsible for radiological safety. overt references to drafting passing and Act 160 to obfuscate the record through misleading use during record also indicates that they thought statements that pass would hearings on the bill that would become muster under Gas. We conclude Act Department, members of the Pacific that carefully, fairly, the district court regulators, and legislators re- analyzed properly legislative intent peatedly awareness of the demonstrated undergirding Act 160 and found that it potential problem for a preemption impermissible primary demonstrated an disguised accordingly. their comments example, during hearing purpose part Leg- For on the of the Vermont of the Sen- ate Finance Committee on the bill that islature.30 needing twenty years

30. We reach this conclusion without March We after note legislative history although arguably to consider behind S.289 shares “a com- S.289, passed heritage” which —had it have Act it mon with is "not before —would Court, indeed, permitted operate passed.” Vermont Yankee to ... was not Edwards that does not exist.” something the Vermont concluding 578, 637, 107 Aguillard, motivated 482 U.S. improperly was Legislature (1987) (Scalia, J., radiological safety relating to L.Ed.2d 510 concerns many recognize that we enacting Act task is to determine dissenting). Our acting with some likely legislators, were Legislature’s deci the Vermont whether in mind as well. non-preempted concerns “grounded was pass sion to vote for legislator one motivates “What safety concerns.” [radiological] Pacific necessarily motivates what a statute is not Gas, A 103 S.Ct. 1713. to enact it.” of others scores Pacific with ref replete as consistent and record 103 S.Ct. 1713. We U.S. at safety that here radiological erences au mere transfer of acknowledge that the for the any conceivable standard meets board thority a state administrative from impermissible level of allowable threshold a find legislature require does such, As we under Gas. concerns Pacific recognize We further ing preemption. affirm the district court’s determination legisla to which a state the extent preempted on its face that Act 160 is outweigh its concerns permissible ture’s the Atomic Act. passing a statute impermissible motive Court an issue that the Gas is not affirm the district We likewise great clarity. Compare id. elucidated injunction grant permanent of a court’s (“A prohibition state 103 S.Ct. 1713 enforcing enjoining the defendants nuclear construction reasons plaintiff seeking permanent A Act 160. in the teeth of the Atomic would also be injunction must demonstrate: objective that nu Energy Act’s to insure (1) irreparable it has suffered enough safe for wide technology clear be (2) injury; that remedies available at would spread development use—and law, monetary damages, are in- such as (emphasis for that reason.” preempted be injury; for that adequate compensate (“[I]t added)), necessary to with id. is (3) that, balance of hard- considering the non-safety there is a determine whether and defen- ships plaintiff between the Warren-Alquist Act].” for [the rationale warranted; dant, remedy in added)). equity Nonetheless, our task (emphasis ” (4) would public the interest purpose for the sole of is not look “[t]o injunc- by permanent a not be disserved Legislature; that exercise the Vermont tion. require “probably us look would suggested pedigree at the Vermont Yankee site "provisions and do not [its] S.289’s S.289, commenting delaying parts the vote on taint other of” Act 160. Pacific 215-16, 1713; public determining “what of health and sort 461 U.S. at 103 S.Ct. see safety address is sort of Corp. Corp., issues ... we need to Guar. v. LTV 496

Pension Benefit 2668, 633, 650, also reiterat- priority one.” Various senators 110 S.Ct. 110 L.Ed.2d U.S. (1990) regarding potential legislative history ed the ("[Subsequent concerns 579 living inferring residents near the the risks to Vermont is a hazardous basis for intent (internal Echoing during hearings S.289. Congress.” quotation plant the on an earlier However, omitted)). by the chair of the Senate con- an earlier comment we note that marks during regard- legislative history Committee its debates would Finance sideration of S.289’s 160, argued analysis ing one senator on the Senate Act nonetheless confirm our should consider floor that the other senators contains numerous references as its record concerns, instance, supposed "safety although I’m radiological safety concerns. For go detail that so I won’t into on during meeting Com- to talk about of the Senate Finance that, bill, everybody’s certainly in mind in debating Department but it’s the com- mittee room, we know it.” leak all adverted to the recent tritium missioner Farms, ings Monsanto Co. v. Geertson Seed issuing before allowing CPG 2743, 2756, expansion 561 U.S. storage fuel (2010) (quoting eBay, L.Ed.2d 461 Inc. v. facility beyond capacity previously au- L.L.C., MercExchange, thorized, any and for such expansion after (2006)). 164 L.Ed.2d 641 expiration of the CPG on March clearly Each of these four factors is satis approval affirmative of the Ver- First, Entergy fied here. would suffer an Legislature mont required. Id. irreparable injury if the defendants (c)(4). were 6522(c)(2), § Section 6523 estab- able to enforce Act 160 and shut down lishes a “Clean Development Yankee. Doherty See Tom As which, Fund” pursuant into to the 2003 socs., Entm’t, Inc., Inc. v. Saban 60 F.3d MOU entered into Entergy between (2d Cir.1995) (finding irreparable Department, Entergy would make pay- harm in part right because “the to contin ments for the purpose promoting “cost- entirely ue a business ‘is not measurable effective and environmentally sustainable” ” monetary (quoting terms’ Semmes Mo power for “long-term benefit of Ver- tors, Co., Inc. v. Ford Motor 429 F.2d mont electric § consumers.” (2d Cir.1970))). Second, Enter (current version at Vt. Stat. Ann. tit.

gy monetary would be unable to recover 8015). damages from Vermont because of the MOU, Act 74 also incorporates the 2005 Eleventh Amendment. See United States which imposes Entergy a variety of (2d N.Y., v. State Cir. requirements related to radiological safety. 1983) curiam). Third, (per the balance of requirements These regard- include rules hardships favors because it would ing the placement and configuration of irreparable suffer losses from Vermont dry-fuel-storage facilities that exceed the being shut down while Act 160 licensing NRC; required by standards meaningfully would not advance the ratio casks; the spacing temperature and ra- Lastly, nales offered Vermont. diation monitoring with concomitant re- public interest would not be disserved a porting requirements to the Department; permanent injunction, because Vermont density and the spent-fuel pools. purchasing would be able to continue at 1-2. prohib- MOU The 2005 MOU also power generated by Vermont Yankee generated its the of waste outside diversifying energy while still base and site, requires Entergy Vermont on purchasing power from more cost-effective use its best efforts to move the spent sources if it so chooses. The district court generated by nuclear fuel Vermont Yankee thus did not grant abuse its discretion in permanent to a location outside the state ing permanent injunction enjoining possible. as soon as Id. at 2. enforcing defendants from Act 160. Lastly, much like Act section A(5). Act 74 6522 allows the Legislature analysis

As with Act our of Act 74 terminate the operation of Yan begins 21, 2012, with the text of the statute. Act by refusing 74 kee after March adds three sections to title affirmatively. the Ver- act effectively This codifies mont statutes: sections Attorney opinion and the Vermont General’s above, 6523. As discussed section 6521 that section previously which had legislative findings. exempted summarizes the stated provi Vermont Yankee from the 10, § Vt. Stat. Ann. tit. requiring legislative approval Section 6522 sion of new requires dry that the Board make certain find- storage cask facilities codified at sec- that the Ver- 2005 MOU demonstrate Entergy. As 6501(a), apply to

tion did motivation primary Legislature’s mont whether result, regarding the decision 74 relates to neither diversi- enacting Act spent build additional Entergy to permit nor reduc- power supply fying the State’s vested facilities was storage nuclear fuel legis- turn to the We therefore ing costs. a deci- Legislature. Unlike the Vermont Act 74 to determine history behind lative Board, subject would be which of the sion passage. motivating its the actual intent Court, by the Vermont to review not to decision Legislature’s the Vermont that the district Act we find As with storage of new legis- construction authorize the review of comprehensive court’s by already approved convincingly those history facilities—even lative demonstrates unre- by impermissi- be NRC, in this case—would 74 was motivated that Act radiological safety about the ble concerns viewable. storage. We note nuclear fuel spent articulated for the statute The reasons concerns frequency with which again the mir- findings section legislative in Act 74’s safety leg- in the radiological appear about in the preamble many of those offered ror committee meet- record Senate islative instance, section 6521 For to Act 160. legislators and ings and floor debates making its goal of the State’s expresses notwithstanding obvious and regulators, diverse, reliable, ... power supply “future specific to avoid men- frequent attempts sound, environmentally and economically and of deference safety tion of concerns Ann. tit. Stat. sustainable.” Vt. hearings of the House Gas. 6521(3). emphasizes § The statute considering Natural Resources Committee transi- make a smooth need “to the State’s 74, for Act the bill that would become future,” acceler- requires tion to the which asked numerous example, representatives electricity investment ating ‘Vermont’s relative about the questions economically and envi- resources that Entergy was nuclear fuel methods that can ac- be ronmentally sound testimony question- considering and heard increments.” Id. in modest quired NRC to evaluate ing competence “transition,” 6521(4). § To make this legisla- safety. One witness described states, value in great statute “there is dealing with here “problem tive that we’re sources, ef- energy investing in renewable that citizens that a lot of the concerns [is] facilities, ficient, combined heat you can’t address have are concerns 6521(5). efficiency.” energy them to be directly way they want purpose legislative These statements representatives Several addressed.” interests Vermont policy the two reflect dangers posed questions asked about (1) in- 160: argues are advanced of radioactive release accidental array renewa- a diverse creased use of member of the committee ad- waste. One (2) sources; promotion ble to radio- referring another for monished say that are more cost-effec- energy safety, stating, sources we can’t logical “but above, we that, only discussed It can be anything safety. tive. For the reasons about interests is A of these mem- believe that neither economics and aesthetics.” about conferring the same Department expressed Act 74’s plausibly served ber of op- representative continued and advised a power over the sentiment unreviewable the value of questions March his about past frame eration Vermont Yankee as an “aesth- maintaining In ad- Legislature. on the Vermont issue,” rather than one concerned radiologi- etic dition, relating to regulations committee meet- safety. concluding In a Act 74 from safety incorporated into cal bill, ing representative praised ological safety MOU, on the one to the 2005 which committee’s work to ensure that “the required Entergy to take several actions emasculated and sani- findings specifically have been addressing radiological safety. tized,” longer the bill no noting Yankee, makes LLC, In re Entergy Nuclear Vt. any high-level “mention of nuclear waste” 2006 WL During *48.31 a lasts, or “the fact that it’s [nuclear waste] meeting of the Senate Natural Resources 100,000years.” dangerous During the Committee, example, legis the State’s subsequent floor debate on Act one lative council remarked that an earlier candidly, senator stated “none us wants draft of Act 74 contained a “laundry list of to have nuclear waste stored on the soil of cask-related [nuclear-waste] issues ... reality is that [Vermont Vermont.... by [that] now covered the [2005] require temporary will some stor- Yankee] A Department MOU.” member .of the tes age ... in order to for our [e]nsure tified that “the federal government takes speeches environment.” Other adverted jurisdiction any over radiological safety storing to the problem of radioactive nucle- and health. anything And so that touched ar waste Vermont while the federal that, on it’s better to have in agreed an government a developing long- worked on upon MOU than to have the bill itself.” storage facility, term and to the need to legislators Other echoed this sentiment at ensure that the method waste junctures. several other On the Senate employed by Vermont Yankee was safe. floor, one senator stated explicitly that a analysis As with our of Act the defi- favorable aspect of Act 74 was that it left in the record-keeping ciencies of Vermont regulations relating to radiological safety legislative history, as well as the obvious to the 2005 MOU entered into Entergy coaching legislators of Vermont to avoid which, Department, and the the senator explicit safety, statements about nuclear believed, could save Act 74 preemp from a make in determining principal our task Indeed, tion challenge.32 the 2005 MOU purpose of Act 74 more difficult. None- endorsed Act 74 provision includes a theless, this not make our does task less Entergy any under which right “waived” volume, important, frequency, and the and to bring preemption challenge legislators’ content of the comments show authority regulate Board’s clearly that their actions were motivated Yankee, clearly which demonstrates the by preempted safety concerns. Legislature concern of the Vermont

The record also contains several state the Board as to whether their actions ments state legislators scrutiny about the value would withstand under the Atomic of assigning regarding their concerns radi Act and Gas.33 Pacific discussed, previously quired 31. As analysis.” sections flood Vt. Yankee Nuclear 6522(b)(4) 6523(a)(1)(A) sweep Yankee, Corp. all MOUs Power Nuclear Vt. LLC, July (Fed.Cir.2012). executed before into the ambit of 74, including the MOU executed on June The Federal Circuit noted that "because the requirement perform analysis an additional concerns, directly by safety was motivated it regarding 32. Our concerns the intent behind analysis requirement is clear that the flood opinion Act 74 are consistent with a recent likely preempted was under Gas." Id. Circuit, pro- the Federal which examined the requiring provision vision in the 2005 MOU that Enter- 33.We cite this of the 2005 MOU gy perform analysis stability purpose ruling not for the whether proposed spent party may validly right bring river bank near a waive the storage facility perceived preemption challenge, only "due to the inade- but to demon- quacies previously performed impermissible part of a NRC-re- strate the intent on the ... be or withheld at granted the Ver- demonstrate which These statements Frost v. pleasure Corp. motive in the the state.” impermissible Legislature’s mont Comm’n, 49 S.Ct. Ver- 278 U.S. namely, Act to shut down passing 74— (1929) J., (Brandéis, dissent- of radio- L.Ed. 483 Yankee based on concerns mont contends that it attempting ing). to avoid a Vermont further safety while logical bases, Acts 74 160 on several under Gas. enacted and challenge preemption Pacific power sup- at- the state’s regulators diversifying and such legislators Vermont costs, that, objective by controlling shift- and economic if ply achieve this tempted to true, safety surely radiological permissible would be reasons ing provisions regarding creating deny pow- a nuclear by an to construction of into the 2005 MOU and Gas, the con- 461 U.S. at plant. which er See unreviewable mechanism Pacific However, Supreme spent nuclear fuel of new struction regulation has that the safety concerns would Court instructed us facilities based from the legislative power a of nuclear is different “ar- authorized. This is not be historically permit. where states that does eas have exer- approach Gas Pacific N.Y. police powers.” the district their therefore affirm cised SMSA We 6522(c)(2) P’ship, 612 104. “The judgment that sections Ltd. F.3d at federal court’s 6522(c)(4) has the entire government occupied of title 10 of the Vermont field and concerns, Statutes, safety except Act the lim- as enacted of nuclear powers expressly on their face the Atomic ited ceded states.” preempted Silkwood, For Energy Act. the reasons discussed U.S. at (internal regarding quotation we also affirm marks and alteration above omitted). permanent court’s of a We grant the district have conducted review injunction enjoining specific the defendants from that reflects the Court’s 6522(c)(2) 6522(c)(4) enforcing judgment sections or directive that that nu- “state enough clear is not to be fur- of the Vermont Statutes. safe developed directly ther would conflict with countervailing of the judgment NRC conducting analysis of Acts 74 ... and would be for that preempted rea- adoption, and 160 and their we are mindful son.” against traditional “presumption S.Ct. 1713. We conclude respect to areas where preemption legislators regulators have undertaken po- their historically states have exercised a sustained effort down Vermont to shut N.Y. powers.” P’ship, lice Ltd. SMSA impermissible Yankee based on this rea- us con- F.3d at 104. Vermont would have son. merely that Acts 74 160 are clude “process simply legislative statutes” that reallocate We have considered histo- contin- responsibility approving ry behind Acts 74 160—undertaken in large part through ued of Vermont Yankee from an court’s the district ex- agency legisla- audiotape administrative to the state haustive examination of record- Indeed, ob- ings ture. Justice Brandéis once found that it contains innumera- —and operate expressions radiological the “franchise to a ble of concern for served ... utility special privilege public legislators regu- Legislature. Olympic right party party the Vermont see of a third But can Seattle, not, City therefore, Pipe Line Co. v. plaintiff] ‘waive.’ [The could (9th Cir.2006) (“Preemption is a right possess.”). waive a it did not government, the federal not an individual lators.34 We have taken note of the fact challenge in court. We have concluded Legislature began the Vermont con- Vermont shifted decision-making re- sidering the bill that would sponsibility become Act for approving the . continued requiring Entergy legislative to seek of Vermont Yankee from the 160— Board, approval operate past Vermont whose subject decisions were only one Court, week after review the Vermont ap- 2012— plied the Vermont Legislature, to the NRC for an judicial extension of its where no review of operating its action —or license. We have observed that inaction —would be available. Providing witnesses at meetings, legisla- inadequate committee tors, misleading record, officials, legislative failing executive and regulators provide plausible legislative rationales, obviously were coached to avoid making imposing impermissible safety-related to radiological safety references obli- to navi- gations through non-statutory gate the memoranda shoals Gas. We have Pacific of understanding, do not and cannot shield sought to reconcile the proffered rationales Acts 74 and 160 from this Court’s review. by the Legislature Vermont for Acts 74 and 160 with operative those Acts’ effects We do question legitimacy or and found them to be untethered sincerity of those Vermont residents and Vermont Yankee’s status as a merchant officials who safety-related have concerns generator oversight and from the already Yankee, about Vermont but Vermont has provided by the NRC. We have noted Ver- other avenues air available to its concerns. mont’s efforts to evade court review For example, the'Atomic Act man- shunting requirements that concern radio- dates that the NRC hold hearings re-—if MOUs, logical safety to which in turn con- quested by “any person whose interest tain provisions requiring Entergy to may be affected” —when taking certain ac- right “waive” its to bring a preemption tions relating to the licensing of a nuclear analysis 34. We have limited our testimony Department to Acts 74 commissioners and light and 160 in of the district court’s deter- legislators Vermont contains familiar exam- Entergy's mination challenge to Act 189 ples coaching explicit to avoid references to moot, ruling party that neither chal- Indeed, radiological safety. the committee Moreover, lenges. recognize we leg- that the chairperson drafting specifically Act 189 de- history islative of Act passed which was "reliability scribed the bill aas assessment imperfect after Act is an indicator of the purview.” because is not within our legislative intent behind Acte 74 and 160. See Moreover, during hearing of the House Nat- Pension Corp., Guar. 496 U.S. at Benefit Committee, ural Resources a member of the However, 110 S.Ct. 2668. we nonetheless entitled, Department distributed a handout directly regulates note that Act 189 on the '.'Everything You to Ask About Pre- Wanted radiological safety basis of by requiring as- Shouldn't,” emption provided But testi- electrical, sessments of Vermont Yankee's mony advising legislators on how to containment, emergency, primary and heat disguised discuss Act 189 in a manner that systems, removal periodic audits to be radiological safety. their concerns about Tes- public oversight panel. conducted timony presented explicitly to the Committee Furthermore, §§ legislative his- referenced Gas and recommended tory behind Act 189 demonstrates that the legislators closing discuss Ver- purpose of the Act was to allow Vermont mont non-radiologi- Yankee because it caused regulators "independent safety to conduct an cal problems environmental Yankee, or was "unrelia- inspection” large part of Vermont ble,” preemption challenge. so as to avoid a legislators because Vermont doubted the com- During petence hearings, legislators openly later legisla- of the NRC. ad- Several Vermont expressed using tors monished each other concern that a the word "safety” accident could tarnish expressed Vermont's "environ- and similar terms and con- addition, mentally friendly” image. prospect preemption. cerns over the 428 Nuclear, F.Supp.2d at Entergy 74. 838 Brodsky v. U.S. Nuclear See

power plant. Comm’n, F.3d 177-78 affirm court’s 578 243. also the district Regulatory We Cir.2009) (2d 19, 2012, 42 U.S.C. of en- (quoting subsequent order March 2239(a)(1)(A)). has pro- The NRC enforcing § sec- joining the defendants from regulations requiring public 6522(c)(2) mulgated tion title the Vermont of 10 of amend- period before notice-and-comment Statutes. power plant’s any aspect of a nuclear

ing § 10 50.91. license. See C.F.R. operating B. Commerce Clause Claim Dormant appeals have Lastly, “the federal courts efforts Entergy argues Vermont’s adjudicate appeals jurisdiction to exclusive CPG approval to condition the of a new for final the made [NRC] from ‘all orders of of a Yankee on the execution new Vermont 42.’” by title reviewable section PPA) (to represents PPA the 2001 replace Collins, Inc. Riverkeeper, v. more Entergy “that fa- provide demand (2d Cir.2004) (quoting U.S.C. than out-of-state vorable rates in-state 2342(4)). final orders Such reviewable in of the dor- retail utilities” contravention licensing in pro- include “all final orders mant Clause. The district Commerce hearing or not a before ceedings whether examining court after materials agreed, or could have oc- the occurred [NRC] (quoting Light by Department Fla. Power & submitted curred.” Lorion, Board; by legislators 105 S.Ct. Co. 470 U.S. statements state and (1985)). 1598, 84 L.Ed.2d 643 regulators during meetings, committee pursue any its are free to residents Legislature floor in the debates express routes to their concerns re- these PPA. advocating for a new favorable En- safety potential public hazards garding Nuclear, tergy F.Supp.2d at 236-39. legisla- Vermont Yankee. The posed The district court found “evidence intent however, here, was not the passed tion operation [of to condition continued Ver- way to resolve those concerns. mont on the demonstration of Yankee] benefit,’ or some marked ‘economic ‘incre- held, has one

As the Court value,’ beyond reflected in mental pursue pass not is to avenue Vermont contracts, long-term in market rates energy moratorium” on nuclear a “state long- form of below-wholesale-market safety concerns.” “grounded term for Ver- power purchase agreements For 461 U.S. 1713. mont Id. at The district utilities.” reason, hold that we sections court that this violated 6522(c)(2) 6522(c)(4) held conduct title 10 of the ar- dormant Commerce Clause. Vermont and Act 160 in entire- Vermont Statutes however, gues, that the court district erred ty preempted on their face injunction issuing on the basis of its Energy Act.35 affirm the dis- Atomic We finding part mere intent on the grant injunc- permanent trict court’s of a PPA, to seek a enjoining from enforc- defendants favorable tion the defendants 6522(c)(4) ripe Act 160 or title 10 the issue was therefore ing section Statutes, judicial agree. Act We of the Vermont as enacted review. addition, hold agree We because we with the district court’s determi- islature. Entergy's challenge Act nation that initial preempted by the Atomic moot, already Entergy complet- Act, 189 is has longer Board will no be able to con- ed studies of Vermont Yankee’s by Act 189. See sider the studies mandated statute, systems required by the and the re- Nuclear, F.Supp.2d at 233. reported Leg- sults have been to the Vermont n

The “basic rationale” of the prohibition ties violated the discussed courts, “prevent doctrine is to ripeness England New Power Hamp- Co. v. New adjudica avoidance of through premature shire, 331, 335-36, tion, entangling themselves ab (1982), 71 L.Ed.2d 188 against providing disagreements stract over administrative “residents an ‘economic benefit’ not avail- policies, protect agencies and also to the able to customers in other states.” Enter- judicial until adminis from interference an Nuclear, gy 838 F.Supp.2d at How- decision trative has been formalized and ever, we believe the district court way by felt in a its effects concrete the erred in applying “generalized legal challenging parties.” Labs. v. Abbott of fully-formed rule” the absence PPA. Gardner, 136, 148-49, 387 U.S. 87 S.Ct. 1507, (1967), 18 L.Ed.2d 681 on overruled dormant Commerce Sanders, other 430 grounds v. Clause, Califano a doctrine inferred from the Com 99, 980, 97 S.Ct. U.S. 51 L.Ed.2d 192 merce of the Clause United States Consti (1977). Ripeness two over encompasses Const, tution, I, 3, see U.S. art. 8 cl. is a doctrines lapping concerning the exercise on permissible “restriction state regula jurisdiction. court federal See Reno v. Oklahoma, 322, Hughes tion.” v. 441 U.S. Servs., Inc., 43, Soc. Catholic 509 57 U.S. 326, 1727, (1979). 99 60 S.Ct. L.Ed.2d 250 18, 2485, n. 125 L.Ed.2d 38 The dormant Commerce Clause for stands (1993). The first of from these is drawn the “principle dealings one state in its III judicial power,” “Article limitations may not place another itself in a id., goes, and “hence in a fundamental position of economic isolation.” H.P. Hood way, jurisdiction.” to the existence of Sons, DuMond, 525, v. & Inc. 336 U.S. (2d INS, 351, v. Simmonds 326 F.3d 357 538, 657, (1949) 69 93 L.Ed. S.Ct. 865 Cir.2003). “The second is a more flexible (internal omitted). quotation marks A judicial prudence, doctrine and consti state law burden interstate commerce important exception tutes an to usual practical requir when it “has effect of jurisdiction rule that where a federal exists ing commerce to out-of-state be conducted case, court must exercise it.” either regulating state’s Am. direction.” question ripeness may “the be consid Dean, Booksellers Found. v. ered on court’s own Park motion.” Nat’l (2d Cir.2003) (internal 102 quotation marks Interior, Hospitality Ass’n v. 538 Dep’t of omitted). “directly a statute con When 803, 808, 123 U.S. S.Ct. 155 L.Ed.2d occurring wholly trols commerce outside (2003). 1017 State,” of a it boundaries is invalid under the dormant Commerce Clause be ripeness

“Constitutional is a doc cause it “exceeds the inherent limits of the that, standing, trine like is a limitation on enacting authority.” Beer Healy State’s v. power judiciary. prevents It Inst., 324, 336, 109 491 105 U.S. S.Ct. declaring meaning from courts (1989). 275 “The transmission in a vacuum L.Ed.2d constructing law and from electric current from one state to another generalized legal resolu rules unless the subject ... actual is interstate commerce” dispute requires tion of an it.” N.Y. Grandeau, Pub. Liberties Commerce Clause. Utils. Comm’n Civil Union 528 (2d Cir.2008) (internal Co., 131 R.I. v. Steam 273 quota F.3d Attleboro & Elec. omitted). tion marks The district court U.S. L.Ed. (1927), abrogated grounds held that Vermont’s efforts to fa on other secure pricing Quill utili- vorable its in-state retail North Dakota Heit- Corp. v. ex rel. they may possess.” Browm-Forman Dis 298, 112 S.Ct. kamp, 504 U.S. Auth., (1992). Liquor v. N.Y. Corp. tillers State L.Ed.2d 91 based its con- largely court The district (1986). Although record L.Ed.2d Court’s decision clusion on interested ob shows that Vermont was Power, considered an England which New pricing favorable taining Hampshire regulatory a New order of for Vermont produced Vermont Yankee an in-state prohibiting commission utilities, it does not show retail Ver its output plant exporting from some prevent mont retail seeking was retail utilities in effort out-of-state negotiating in other utilities states prices for in-state consumers. 455 reduce as well. rates with favorable Cf. 335-36, 1096. The Su- at 102 S.Ct. U.S. SPGGC, Blumenthal, 183, 505 F.3d LLC v. that preme Court stated Commerce (2d Cir.2007) that a (holding 194 statute mandating from a state “precludes Clause of the in-state sale certain prohibiting preferred a given residents be its types “gift certificates” did not violate of access, over out-of-state consum- right Commerce because it dormant Clause ers, located its to natural resources within effects, “not, by did its terms or its direct there- products borders or derived in ly cards regulate gift sales other 338, Id. at 102 S.Ct. On from.” prevent states.... other states from [or] basis, Hamp- the Court held that New differently regulating gift card within sales “exportation “pre- ban” constituted shire’s territories”). record their own cisely protectionist regulation the sort of sought does not demonstrate that Vermont the Commerce Clause declares off- “prohibition[ out-of-state impose ] states,” it limits to the because was “de- resources,” Camps to in-state New access an gain advantage economic signed Inc. found/Owatonna, v. Town Harri Hampshire expense citizens at the New son, Me., 578, 1590, 564, S.Ct. 520 U.S. 117 plant’s] neighbor- customers power [the (1997), limiting 137 L.Ed.2d 852 339, Id. at ing states.” could extent to which Vermont Yankee sell England in New The order issue states, power to other as was case did not violate the dormant Com- Power New Power. England it simply because conferred merce Clause present, New At in the absence of a Hampshire an economic benefit on Rather, residents, PPA evidence prevent- completed and without re however. plant exporting its effect on out-of-state ing garding its out- consumers, states, cannot other the effect of the order we determine whether put to sought will “overtly the flow of inter- PPA Vermont has have block[ ] was to in other impact a State’s direct on commerce states. state commerce at borders.” 617, record Jersey, v. We also do not have a factual con City Phila. New U.S. (1978). of such cerning L.Ed.2d 475 incidental effects agreement on commerce and laws have “the undeniable effect of interstate Such agree activity occurring controlling commercial commensurate benefits Entergy’s ment claim wholly boundary outside the of the State.” within Vermont. “purely legal” Healy, 491 U.S. at 109 S.Ct. 2491. cannot be characterized prices “may it be without further may a State seek lower decided “While consumers, D. Peake development.” Gary it insist Ex pro- not factual v. cavating or in other States sur- Inc. Town Bd. Town consumers ducers (2d Cir.1996). Hancock, advantages 93 F.3d competitive render whatever present This case therefore does not a prices being charged [other] states.” dispute affecting cognizable 335, 109 “concrete cur- Healy, 491 U.S. S.Ct. 2491. An parties rent concerns of the agreement within the requiring Vermont Yankee to III,” meaning of Article and is therefore allot a certain percentage of it output to “ripe within the satisfy constitutional sense.” local demand likely would also vio Mahfouz, 546 late the dormant Commerce Clause. See Ehrenfeld (2d Cir.2007) (internal quotation Power, Eng. marks New 338-39, 455 U.S. at omitted). Finally, S.Ct. 1096.36 we note that a facial ly-neutral statute that imposes an inciden course, Of we do not suggest that tal “burden on interstate commerce incom any PPA providing favorable pricing for mensurate with secured,” the local benefits pass residents would muster un Ass’n, Nat’l Elec. 272 F.3d at Mfrs. der the dormant Commerce Clause. A would fail balancing test articulated regulation that “evinces” discriminatory e Court in Pik v. Bruce purpose against commerce, interstate “or Church, Inc., unambiguously discriminates in its effect (1970).37 ” L.Ed.2d 174 ... always almost per is ‘invalid se.’ However, no agreement is before us. Brown & Corp. Williamson Tobacco v. Accordingly, (2d analysis 200, Cir.2003) required under 320 F.3d 209 Pataki the dormant Commerce may Clause (quoting Nat'l be Elec. Ass’n v. Sorrell Mfrs. (2d performed, 104, Cir.2001)). Entergy’s and so 272 claim is un F.3d 108 For ex ripe at this time. ample, an Middle agreement Energy, S. requiring Entergy Cf. City Orleans, Inc. v. 488, New regulatory “to seek 800 approval in F.2d [Vermont] (5th Cir.1986) (“When 491 before undertaking a and how transaction anoth Council option, does, er” exercises its if likely per state would be it ever se invalid are under the dormant the critical Commerce determinants of the propri Clause. Brown-Forman, 582, ety of jurisdiction 476 U.S. at federal court 106 S.Ct. over this 2080; see City also Baldwin v. matter. Until the Seelig, G.A.F. Council actually Inc., 497, 294 U.S. votes 55 S.Ct. to exercise the purchase option, 79 we (1935) L.Ed. 1032 (holding that one must be imposition state careful to ‘avoid under project “has no to legislation jurisdiction through [our] into obtaining futile by [another regulating price state] to premature interventions, or especially in paid be in that state for [products] ac the field of public (quoting law.’” Pub. there”). quired It likely is also Co., Ver Serv. Comm’n Utah v. Wycoff 344 mont could 237, not require Entergy 243, to “affirm 236, U.S. 73 S.Ct. 97 L.Ed. 291 (1952))). prices are higher [its] no than the We therefore vacate the district Agreements (i) of this nature would be regulation "scru- shifts the costs of onto other i.e., strictly, tinized 'the states, burden falls on the permitting in-state lawmakers justify State to [the discrimination] both in decisions, political avoid the costs of their terms of the flowing local benefits from the (ii) practical has the requiring effect of out- statute unavailability and the of nondiscrimi- of-state commerce to be conducted at the natory adequate preserve alternatives direction, (iii) regulating state's or alters the " local interests at stake.' Brown & William- goods question, interstate flow of the son, (quoting 320 F.3d at 209 Hunt v. Wash. impact companies distinct trad- from Comm’n, 333, Apple-Advertising State 432 U.S. ing goods. in those 353, 2434, (1977)). 97 S.Ct. 53 L.Ed.2d 383 Dean, Am. Booksellers Found. v. (2d Cir.2003) (internal 102 quotation marks regulation 37. A statute or would discriminate omitted). against commerce itself when the statute 432 581-82, 69 101 injunction U.S. S.Ct. permanent grant

court’s (1981). conditioning filed-rate doc L.Ed.2d 856 enjoining defendants on the regu state applies a new CPG trine also efforts PPA.38 of a execution favorable of a FERC modify lators to terms cost allo mandated rate determination or Federal Act Claim Power C. La., Pub. Inc. v. La. cation. See Act, Federal Power Comm’n, 47-49, Under the 123 Serv. U.S. jurisdiction “the has over transmis (2003). FERC 2050, 156 L.Ed.2d 34 S.Ct. in interstate com energy of electric sion “encouraged has years, recent FERC energy ... sale of electric merce ‘Re- providers to establish transmission commerce.” at wholesale interstate gional Organizations’ Transmission —enti- 824(b)(1). in authority FERC’s U.S.C. transmission would providers ties which jurisdiction “exclusive over cludes facili- of their operational transfer control utility’s] interstate charged [a rates to be ties for coordina- purpose efficient Nantahala Power wholesale customers.” Stanley Morgan Capital Grp., tion.” Thornburg, Light & Co. U.S. Regional 128 S.Ct. 2733. U.S. (1986). L.Ed.2d (RTOs), organizations transmission exclusive, authority “without re This turn, system managed “independent production.” New gard to source of (ISOs), nonprofit en- operators” which are Power,

Eng. tities that coordinate the transmission approved After a has been rate re- energy auctions across FERC, “a not conclude in set State 536-37, Id. at gional markets. the ting FERC-approved retail rates that (citing 2733 Midwest Transmission ISO rates are unreasonable. A State wholesale 1364). Owners, F.3d at To accommo- 373 Congress’ give rather effect to desire must development regional power date the authority in give plenary to FERC over markets, permit “has to sell- begun FERC rates, and to ensure terstate wholesale ‘market- electricity ers of wholesale to file the not interfere this that States do with tariffs,” which, setting based’ “instead Nantahala, 966, authority.” 476 U.S. at rate-fixing con- forth rate schedules or the filed-rate doc 106 S.Ct. Under tracts, state that the seller will simply trine, right is the “the to a reasonable rate freely negotiated with enter into contracts files or right rate which [FERC] 537, purchasers.” Id. at 128 S.Ct. 2733. fixes, that, except for review In held that KeySpan Corp., Simon v. we orders, courts can assume [FERC’s] there “no need for to decide wheth- was us ground to a one on right no different to always applies er the filed rate doctrine that, opinion, only in its it is the or the auction market-based rates.” more reasonable one.” Mont.-Dakota Cir.2012). (2d However, Co., when 204-05 v. Utils. Co. Nw. Pub. Serv. 341 U.S. auction apply, as 246, 251-52, doctrine does when 71 95 L.Ed. 912 S.Ct. (1951). process establishing for market-based The applies filed-rate doctrine FERC, safeguarded by adequately rates equal force to federal and state with Hall, energy that for plaintiffs 453 a claim the rates- courts. See Ark. La. Gas Co. Young, der 209 U.S. 38. Because we vacate the district court’s Ex Parte (1908), Mary- regarding Entergy's grant injunction of an 52 L.Ed. 714 and Verizon claim, Ma- we need land Inc. v. Public Service Commission dormant Commerce Clause ryland, 152 Entergy's U.S. question not address the of whether (2002). sought enjoin proper un- L.Ed.2d 871 suit officials Cases, 747, 767, the filed- Area are unreasonable is barred Rate 390 U.S. (1968) rate Id. at 207-08. doctrine. S.Ct. 20 L.Ed.2d (“[C]ourts authority are without to set Entergy argues Vermont’s any aside rate selected the Commission PPA to obtain a violate efforts favorable which is within a ‘zone of reasonable approved by the market-based tariff ” ness.’ (quoting Fed. Power Comm’n v. England for regional FERC the New Am., Natural Pipeline Gas Co. According Entergy, market. wholesale L.Ed. 1037 charge capping prices it can (1942)) added)); (emphasis Pub. Util. Dist. residents would interfere with the rates No. 1 Cnty. Snohomish v. Dynegy Pow market, approved FERC has Inc., (9th Mktg., er F.3d 761-62 PPA is under “preempted” so the the filed- Cir.2004) (holding utility However, rate doctrine. the market-based injunctive seek alleging relief manipulation approved by tariff FERC for Vermont of FERC-approved market based tariffs only Entergy “may Yankee states sell because doing so would upon “encroach[ ] energy capacity electric from time to tariff, provisions substantive rates, time conditions terms and estab FERC, area exclusively reserved both by agreement purchas lished with (internal to enforce and to remedy” seek er____All such transactions shall vol- be omitted)); quotation marks Cal. Pub. untary.” only tariffs market-based ¶ Comm’n, 61,047, Utils. 132 FERC at *17 guidance other on is that “[a]ll rates sales (“The authority Commission’s under the shall be made at rates established [Federal Power includes the Act] exclusive agreement between the and En- purchaser rates, jurisdiction regulate terms Nuclear tergy VY.” and conditions of sales resale of electric agree with the court’s deter- We district energy in by public interstate commerce ripe. mination that is not claim added)), utilities.” (emphasis clarified addition to the fact a new favorable ¶ (2010). 61,059 reh’g, 133 FERC We executed, yet PPA has not been agree therefore district court that sought has not from determination Entergy’s claim under Count Two un about FERC whether the terms of such a ripe at the present Entergy time. Nucle PPA would violate the market-based tar- ar, 838 234-35. F.Supp.2d at iff.39 Because FERC has the exclusive jurisdiction just to “determine and reason- CONCLUSION able wholesale to insure rates or that above, agreements affecting rates For wholesale the reasons stated we AF- reasonable,” Entergy’s grant recourse should be FIRM the district court’s of a de- claratory first to FERC to whether that judgment determine the Act 74 and Act complies PPA —if and when 160 are facially preempted the Atomic executed— Energy with this standard. Miss. Power See & Act. REVERSE the district We Miss, Moore, Co. v. Light ex rel. court’s that U.S. determination Vermont’s ef- L.Ed.2d 322 forts to condition a new Certifícate of Pub- (1988); see also Permian In re Basin lic Good for Vermont Yankee on the exe- Entergy explana- go finding 39. also has into effect constitute a not offered does not reasonable,” why just it did review the the tion not seek rate is as re- FERC, quired by before pursuant PPA and the record does not the Power Act Federal 824d(a). any prior attempts Morgan Stanley reveal to do so. Nonethe- 16 U.S.C. See less, "passive permission Capital Grp., FERC's for a rate to 128 S.Ct. 2733. Id. at preempted. therefore be purchase would power of a favorable

cution added). 1713 (emphasis Commerce agreement violate dormant court’s AFFIRM the district Clause. We demon- Judge Droney persuasively As challenge Entergy’s determination strates, legislative record before State unripe. Act is Federal Power under radiologi- “replete us is with references grant court’s AFFIRM district We safety.” Maj. 422. No Op. at reader cal injunction enjoining the de- a permanent fairly record can claim the stat- 6522(c)(2) enforcing from sections fendants in “grounded at issue utes were 6522(c)(4) in title 10 of the Vermont or Gas, 461 U.S. at concerns.” Statutes, sections Pacific enacted Act or as 74 and 160 therefore 103 S.Ct. 1713. Acts 248(m), of the 248(e)(2), or in title 30 run afoul the dictate Gas. Statutes, as Vermont enacted Pacific court’s the district Finally, we VACATE Gas, up the Court yet, And Pacific injunction enjoining the defen- permanent on the held a State moratorium construc of a conditioning the issuance dants plants, declining nuclear tion of execution of Public Good on the Certifícate closely look too at the State’s motivation. power pur- of a below-wholesale-market might Cognizant setting, of that we feel agreement between chase in safety “grounded free to discount the requiring utilities or otherwise stray phrase merely com concerns” Yankee to sell to Vermont undeniably But it full captures ment. preferential utilities at rates. opinion: thrust Court’s that “[a] the Court stressed state separate concurs in a Judge CARNEY construction for prohibition nuclear opinion. ... safety reasons would he in teeth of objective Atomic Act’s to in CARNEY, Judge, L. SUSAN Circuit technology be sure safe concurring: development enough widespread concur, majority’s reluctantly, I in the preempted would for that rea use—and be opinion carefully detailed and reasoned 1713 (emphasis son.” 74 and striking down Vermont Acts added). majority And Gas the Pacific My any stems flaw in reluctance not from pointedly accept declined to more tai my majority’s analysis, rather from but field preempted view of offered lored Congress, enacting concern that concurrence, by Justice Blackmun when (“AEA”), in- did not Energy Atomic suggested “Congress that has he instead Rather, we tend the result we reach. occupied not broad field ‘nuclear the by an principally led our conclusion concerns,’ only the safety but narrower scope expansive gloss preemptive on plant area of how a nuclear should be set forth in Gas & the AEA first Pacific protect operated to constructed Energy v. State Resources Electric Co. at against radiation hazards.” Id. 103 Development & Commis- Conservation after, Furthermore, long S.Ct. sion, 75 461 U.S. 103 S.Ct. Corp., v. Kerr-McGee both Silkwood ”). (1983) (“Pacific Gas L.Ed.2d 238, 104 615, 78 L.Ed.2d 443 464 U.S. S.Ct. There, Court instructed that (1984), English v. General Electric nuclear construc- state moratorium on “[a] Co., U.S. grounded safety concerns falls tion (1990), its prohibited field” and L.Ed.2d 65 the Court reiterated squarely within allegiance preemption contours it But the today not, outcome we reach does mind, my drew Gas. reflect a “clear and manifest Pacific purpose Congress.” primarily Based separately I write that emphasize it is general Vermont’s safety concern for judicial principally phrase “grounded public health any rather than on finding concerns,” and not the Court’s actually statutes intrude on the holdings or the text of the Atomic field radiological safety, our decision Act, that compels us to strike down Ver- seems to me to a invite reconsideration— Particularly mont’s statutes. in the con- one our Court is not free to under- Congressional text of a enactment take —of the preemptive boundaries set in protection contains for State and local in- Gas. Pacific terests, § 42 U.S.C. and indeed in- vites State-Federal cooperation, id. In thinking preemption about in the it context, seems anomalous to conclude AEA it important to distinguish that nothing legis- more than the Vermont between categories two of State laws. The expression lature’s of concern about nucle- first consists of State laws that impose ar safety is needed to invalidate these concrete safety requirements other than largely procedural statutes. those imposed by the Nuclear Regulatory (“NRC”). Commission A State require- observed, recently As the Court “Feder ment that nuclear plants use a par- alism, design, central to the constitutional type ticular backup generator par- or a adopts principle that both the National ticular protecting against method of leaks and State Governments have elements of falls within category. The second cat- sovereignty the other is respect.” bound to egory consists of State laws that do not in — States, -, Arizona v. United U.S. their language operation or upon intrude 2492, 2500, 132 S.Ct. 183 L.Ed.2d 351 of radiological safety. field legisla- A (2012). The “[n]eed new facili permit tive decision to plant construction ties, their feasibility, economic and rates or to deny continued plant of a services, are areas that have been at expiration of a license period, for characteristically governed by the States.” example, fall category. would into this Gas, U.S. Pacific 1713; Comm’n, see Corp. also Frost v. I have no Congress doubt that intended U.S. 73 L.Ed. 483 to preempt State laws that fall within the , (1929) (“[A] franchise to operate public category. first See utility is general right 211-12, not like the to en 103 S.Ct. 1713. But I am less gage in a lawful ... business is of the Congress [but] convinced that intended to fore- special privilege essence ... close enacting States from laws that fall granted be or pleasure withheld at the category. all, of within the second After state----”) (Brandéis, /., dissenting). AEA—while expressing a federal intent to Repeatedly, we have held that support we will not pow- introduction of nuclear find federal statute to supersede a require any er—does not State to host State’s exercise of its historic police pow power plants. nuclear Id. at (“Even ers it “unless was ‘the clear and manifest S.Ct. 1713 perusal brief of the purpose of Congress’ that, to so.” N.Y. despite reveals comprehen- [AEA] do its Clarkstown, SMSA Ltd. P’ship siveness, v. Town any point it does not at expressly of (2d Cir.2010) curiam) (per F.3d require the States to construct or author- Levine, (quoting Wyeth v. 555 U.S. ize nuclear powerplants prohibit or the 565, 129 (2009)). 1187, 173 S.Ct. L.Ed.2d from deciding, States as an absolute or the need authority over traditional con- their matter, the permit not to

conditional type capacity, the -reactors.”). generating for additional In- further any of struction licensed, land to be generating seemed to the Court deed, Gas facilities of Pacific Id. at use, the like.” ratemaking, and that, consistent possibility the recognize added). Indeed, (emphasis 103 S.Ct. to AEA, agreed that once a State the with “[njoth- expressly provides the AEA within plant a nuclear of the construction construed to shall be ing chapter in this inflec- appropriate at an might, its borders any regulations or authority the affect 223, 103 at change course. Id. point, tion respect Federal, agency local State or (“[T]he reality remains legal sale, or transmission generation, to authority left sufficient Congress has through the use of produced power electric development to allow in the States by the [NRC].” facilities licensed nuclear or even to be slowed power nuclear 2018; 42 U.S.C. § see also 42 U.S.C. reasons.”). for economic stopped 2021(k) section shall be (“Nothing in this § the second 160 fall within Acts 74 and authority any to affect the construed They alter of State laws. category activities regulate agency or local State with re- decision-making process State’s against protection than other purposes sure, requir- To be plant. spect hazards.”). strongly text This radiation leg- Yankee obtain State ing that the States Congress’s intent suggests continue it approval before islative nu- authority whether to determine retain legislature the State they place operations, from alternative energy or power, clear its judicial review of to foil position in a sources, within their generated be should They may at 427. Maj. Op. decision. borders. reject the State to thereby enable by what is buttressed This conclusion operating license for a new plant’s bid AEA. men- from the As Congress omitted concerns, includ- amalgam of on an based not, in its text tioned, AEA does either concerns, general or safety ing general it, has construed or as the Court not, They do how- alone. safety concerns the construction approve force a State at all ever, safety any requirements impose Gas, plant. power of a nuclear Pacific incor- the extent Act 74 plant. To on 1713. Nor does 461 U.S. understanding a memorandum porates AEA, text or as con- either safety-related requirements imposes strued, the contin- permit force a State to stor- relating to cask on Vermont power plant a nuclear ued presence The clearly preempted. age, it is has operating license State-issued whose however, serves requirements, of these few so even where Id. This is expired. re- scope of the the limited highlight federally- plant’s has renewed the NRC the Acts. provisions of maining See, e.g., Nucle- license. operating issued every commit deci- Report AEA does not Re- Regulatory ar Commission generation of Power related to the Yankee Nuclear garding sion rather, NUREG-1437, 1 at government; Station, Supp. Vol. to the federal (“Once [Operating of nu- regulation “the dual an OL provides (Aug.2007) it 1.4 NRC], electricity.” [by the State is renewed clear-powered License] 211-212, the owners regulatory agencies 1713. Un- whether gov- ultimately decide approach, plant the federal will der the AEA’s operate based control of will continue complete plant ernment “maintains need for or such as the energy factors aspects ‘nuclear’ jurisdic- matters within' the State’s other “exercise while States generation” purview special of the owners.... whatever dangers posed tion or in NRC does not have a role nuclear plants.” [T]he 461 U.S. at 103 S.Ct. (citation omitted). energy-planning regu- decisions State To conclude that utility legislative history lators and officials as to whether a State reflecting con- concern, nuclear particular power plant primary should con- cern—even a Maj. Op. at operate”). tinue to 420-21—about safety enough nuclear is statute, invalidate even absent an actual parties The have not directed our atten regulatory conflict with federal require- in any tion to case which the meaningful ments or intrusion into the Court has struck down a State statute or field, effectively could disable the States judgment preemption. tort on AEA enacting legislation in the realm of Gas, 222-23, 461 U.S. at 103 S.Ct. Pacific energy production.- nuclear I am aware upheld the Court California’s mora no for concluding basis that Congress construction, accepting, torium on nuclear made such choice. competing explanations, in the face of Cali fornia’s avowed financial Placing concerns as the emphasis decisive on motivation legislation. rationale for the In Silkwood to impact, here, the exclusion of as we do Corp., v. Kerr-McGee also creates an irresistible incentive for (1984), 78 L.Ed.2d 443 the States to do their best to mask their con- Further, Court found that safety. “state-authorized cerns about promi- punitive damages” against safety award of the nence of concerns in the record operator of a power plant regrettably nuclear for con before us overshadows the leg- injuries tamination-related did not attempt “fall[] islature’s to address economic is- sues, prohibited within field.” And En ones the AEA’s savings clause Co., glish v. General Electric protects. original U.S. support- rationale (1990), ing savings L.Ed.2d clause’s protection for Gas, the Court concluded that the AEA legislation, did State economic see Pacific preempt a state-law claim for intentional 461 U.S. at have infliction of emotional brought distress been undermined the advent of the against operator of a nuclear power generator,” Maj. “merchant Op. see plant arising But, out of perceived viola 412-14. pro- while Vermont Yankee of nuclear-safety lines, tions standards. energy only vides across State citizens of Vermont are faced "with the Further, matter, practical as a it seems consequences fiscal adequacy or in- impossible safety to divorce concerns from adequacy Entergy’s provisions to ad- any legislature’s State consideration of potential dress financial dissolution. To allow, allow, whether to or continue to rule that concern for fatal is to a generation of within its bor- legislative State’s initiatives is to disable legislation ders. Even ostensibly within the States from legislating their solely oriented to economic concerns—and to respond legitimate borders eco- savings therefore within the AEA’s clause nomic of their concerns citizens. interpreted Gas—can be ex- Pacific pected Thus, to have bearing plant some safe- like the construction moratorium But ty. this should not upheld doom the statute. the statutes before Pacific As Justice Blackmun wrote his us not seek to regulate “do[ ] the construc- concurrence, Gas “There is no evidence tion or of a nuclear power plant.” Congress had a ‘clear and manifest 461 U.S. at 103 S.Ct. 1713. Unfortu- purpose’ Vermont, to force nately States to be blind to analysis our cannot above, under Pa-

end As discussed there. “[ajstate moratorium on nuclear

cific in safety concerns grounded

construction prohibited field.”

falls within the squarely writing 1713. Were I slate, to I would be inclined

on a blank concerns for

conclude that State’s change

do its efforts preempt or its

decision-making ultimate de- process

cision, inflection in the point a natural plant, that it -no

life a nuclear operate within

longer plant wishes

its borders. avoiding is no

But there Gas. The stat- teachings

Court’s I there- preempted,

utes us are before

fore concur. must America,

UNITED STATES

Appellee, STOKES,

Vaughn known

Qua, Defendant-Appellant.*

Docket No. 12-2843-cr. of Appeals, States Court

United Circuit.

Second

Argued: May Aug.

Decided: * respectfully caption amend the to conform that above. Clerk of Court is directed

Case Details

Case Name: Entergy Nuclear Vermont Yankee, LLC v. Shumlin

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 14, 2013

Citation: 733 F.3d 393

Docket Number: Docket 12-707-cv (L) 12-791-cv (XAP)

Court Abbreviation: 2d Cir.