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storage facility be in operation at the time
that disposal of nuclear waste must occur,
while the Oregon law also requires that
nuclear power proposals be placed on the
statewide ballot for approval by voters. The
Wisconsin law also requires that a nuclear
power plant be judged to be economically
advantageous to ratepayers compared with
other feasible alternatives.
The Montana law goes several steps
further, requiring that no legal limits exist
to nuclear plant financial liability in case of
an accident, that there be “no reasonable
chance” of the discharge of harmful radioactivity,
that the safety systems of the plant
be demonstrated as effective, and that
nuclear facility owners post a bond equal
to 30 percent of the capital cost of the plant
to cover decommissioning expenses. 64
In 1983, the U.S. Supreme Court considered
whether California’s conditional
moratorium on nuclear power plant construction
was legal. In a 9-0 decision, the
Supreme Court ruled that the state’s conditional
moratorium was not pre-empted
by federal law. Writing for the Court majority,
Justice Byron White stated:
Even a brief perusal of the Atomic
Energy Act reveals that, despite its
comprehensiveness, it does not at
any point expressly require the
States to construct or authorize
nuclear power plants or prohibit
the States from deciding, as an
absolute or conditional matter, not
to permit the construction of any
further reactors. 65
However, the decision went on to say
that states cannot reject nuclear power
plants on the grounds of safety, since the
regulation of nuclear safety is reserved to
the federal government. Rather, the rejection
must be based on non-safety criteria,
such as economics.
Similar state laws could be adopted that
constrain further construction of nuclear
power plants, if they have a substantial
nonsafety rationale. The poor economic
track record of nuclear power, the unresolved
problems of nuclear waste storage,
and the availability of energy sources with
lower economic costs all provide reasons
for states to adopt such policies.
State legislation and regulations also
help to create the economic playing field
on which nuclear power must compete with
other sources of electricity generation and
conservation. For example, states might
consider adopting legislation requiring
nuclear power plant owners to assume more
of the “hidden” costs of nuclear power, such
as the emergency planning costs incurred
by state and local governments to prepare
for potential nuclear accidents. For more
on strategies to ensure that the full costs of
nuclear power are considered in utility decision-making,
see “Public Utilities Commission
Processes,” page 23.
Environmental and
Land Use Permitting
States may not have the ability to reject
nuclear power on safety grounds, but they
do have the ability to set conditions on
where and how nuclear power plants may
operate in order to limit their impact on
the environment.
Environmental Permitting
Nuclear power plants—like most other industrial
and energy facilities—must receive
a series of environmental permits in order
to go into operation.
Plants that withdraw or discharge water
for cooling from waterways must obtain a
permit under section 316 of the federal
Clean Water Act. In 45 states, Clean Water
Act permitting authority is administered
by state environmental agencies, which
have the authority to grant or deny permits
according to EPA guidelines. 66
Challenging Nuclear Power in the States 19