Nuclear Power and Preemption under the Atomic Energy Act: Is a New Era Dawning?

Posted on January 23, 2019 by Shane Swindle

The Supreme Court recently heard argument in Virginia Uranium, Inc. v. Warren, a case concerning the scope of preemption under the Atomic Energy Act (AEA).  Based on the questions several justices asked at argument, the Court could be poised to issue a ruling that would allow states to enact new constraints on the generation of nuclear power, even if motivated by nuclear safety concerns that fall squarely within the scope of AEA preemption.

Back in 1983, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, the Supreme Court held that the Atomic Energy Act (“AEA”) “has occupied the entire field of nuclear safety concerns,” and that a state law that is “grounded in [radiological] safety concerns falls squarely within the prohibited field.” And a few years later, in English v. Gen. Elec. Co., the Court held that “the pre-empted field” under the AEA is defined, “in part, by . . .  the motivation behind state law[s],” and specifically whether those laws are animated by concerns regarding radiological safety.

Looking beyond the neutral language of state statutes and beyond the purposes put forward by state legislatures and regulators, lower federal courts have struck down a wide range of state statutes as preempted by the AEA. In Entergy Nuclear Vt. Yankee, LLC v. Shumlin, for example, the Second Circuit struck down a Vermont statute that required state legislative approval to build a nuclear power plant, even though the statute purported to regulate the generation, sale, and transmission of electric power. Noting that courts do not “blindly accept the articulated purpose . . . for preemption purposes,” the court considered “the legislative record” and found “references, almost too numerous to count, [that] reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk, and belief that the plant was too unsafe to operate.”  Other circuit courts similarly have looked beyond facially-neutral statutory language to find statutes preempted in cases addressing transportation of spent nuclear fuel and storage of radioactive wastes.

This approach to preemption under the AEA may be about to change. The Supreme Court heard argument on November 5, 2018 in Virginia Uranium, Inc. v. Warren and will decide whether Virginia’s ban on uranium mining on private land is preempted by the AEA. As reported on the SCOTUSBlog, multiple justices questioned whether the Court should look beyond the language of the statute at issue to consider the legislature’s motivation.

The nuclear power industry already faces many obstacles to increasing generation of nuclear power. If the Supreme Court holds that courts may not look behind the language and stated purposes of state statutes, the nuclear industry may also face the prospect of non-uniform, checkerboard regulations across the country, as states use their newfound authority to preclude or sharply limit nuclear power production within their borders.