Vermont Act 160 Is Protected by the Presumption Against Preemption The presumption against preemption is particularly strong when the basis

B. Vermont Act 160 Is Protected by the Presumption Against Preemption The presumption against preemption is particularly strong when the basis

for state action is its traditional police powers, as is the case with Vermont Act 160, and where there is no expression of contrary intent in the federal law, as with the AEA. 414 One sacrosanct area of state regulation is determining electric utility rates, 415 including electricity from nuclear power plants; 416 another is

that while a basic purpose of the AEA is to promote nuclear power, the objective of promoting nuclear power is to be achieved economically” and, thus, the California law, which the Court “construed as a guarantor of economically viable nuclear development, was not at cross- purposes with the AEA . . . .”); Li, supra note 44, at 1203 –04 (Local nuclear free zones “do not conflict with federal statutes or obstruct federal pur poses. Because the AEA does not require the manufacture of nuclear weapons ‘at all costs,’ and because nuclear free zones do not impose unacceptable costs on the production of nuclear weapons, their impact on federal defense poli cy does not require invalidation.”). But see Martin, supra note 296, at 996 (“[I]f Congress does not act, and the courts are precluded from reviewing local enactments, ‘the effective final decision weighing state and federal interests would . . . rest with . . . state and local lawmaking bodies’ likely to emphasize local concerns and discount the federal interest in an unob structed foreign policy.”); Izhakoff, supra note 122, at 674 (“This result in Pacific Gas undercuts Congress’s promotional objectives for nuclear power as set forth in the AEA and gave individual states a means to exer cise leverage over the safer development and use of nuclear power.”).

411. Even the granting of a construction permit is not a mandate to build and operate a plant. See Izhakoff, supra note 122, at 672 (“NRC licensing permits the construction of a nuclear power plant without compelling it . . . .”); see also Tribe, supra note 19, at 703 (“’[T]he license granted by the AEC is merely

a permit to construct a power plant, not a Federal order to do so.’ Therefore, if legitimate state interests lead a state to delay, relocate, or even reject a proposed nuclear power plant, the 1954 Act as amended cannot be treated as mandating a contrary c hoice.” (quoting Marshall v. Consumers Power Co., 237 N.W.2d 266, 280 (1975))).

412. See Wiggins, supra note 83, at 66 –67 (highlighting “California’s unique position” as a reason why “states should be free to establish their own priorities and guidelines for meeting energy needs,” listing among these features California’s leadership in environmental consciousness resulting in a public “debate over the desirability of nuclear power” and that it is “geographically and geologically well situated” to use nonnuclear energy, mentioning “solar, wind, geothermal and tidal sources,” and stating that the argument that “California cannot choose to develop alternative energy technologies, but that it must be bound by some nationally standardized selection of nuclear power, makes very little sense in the absence of an unambiguous show ing of congressional intent”); see also supra notes 244–45 and accompanying text (discussing the clear statement rule).

413. Cf. Nishimura-Paige, supra note 81, at 1032 (“In Commonwealth Edison Co. v. Montana, [453 U.S. 609 (1981),] the Court rejected a claim that congressional policy favoring the use of coal as a fuel source preempted state legislation that may have had an adverse effect on the use of coal.”).

414. See supra notes 234 –55 and accompanying text (discussing the judicial presumption against preemption). 415. See Wiggins, supra note 83, at 67. 416. See Tribe, supra note 19, at 686 (The nuclear provisions of the California Public Resources

Code “are not preempted by federal law. On the contrary, they properly serve the vital interests of the people of California in providing California citizens with a plan of maximal accountability for the development of a responsible and economical state energy program within the framework of national