2012] NUCLEAR GENIE 763 determining whether a particular power plant is necessary. 417 “[T]o require that

2012] NUCLEAR GENIE 763 determining whether a particular power plant is necessary. 417 “[T]o require that

commercial electric power shall not be generated until it is clear that the economic burden of using such power can be fully discharged in a finite time[] is only to impose a rational economic constraint on the generation and sale of electricity.” 418 This authority to require a utility to demonstrate the need for the power a plant will generate fits squarely within a state’s traditional power to regulate utilities that operate within its borders 419 and to protect its ratepayers from unsound investments, even if the exercise of that authority enables the public utility commission to exclude an investment in a nuclear plant from the rate base, making the nuclear plant a financially unattractive investment for the utility. 420 Thus, to the extent that Vermont Act 160 represented a determination by the state that the safety problems at the plant created untenable economic uncertainties for the comp any’s ratepayers and citizens of Vermont, then the state’s decision not to extend its operating lifetime until a complete cost-benefit evaluation had been done for the plant should be protected by the presumption against preemption.

It is hard to imagine a more “frontal assault” on state authority than a federal directive dictating to states what form of energy source they must invest in. 421 If a court construed the AEA to preempt Act 160, it would be telling

en ergy policy and federal law.”); see also Pac. Gas & Elec. Co. v. Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 208 (1983) (holding that the statutory language and history of section 271 “confirm[ed] that while the safety of nuclear technology was the exclusive business of the federal government, state power over the production of electricity was not otherwise displaced” (citing 100

C ONG . R EC . 12015, 12196-202 (remarks of Sen. Hickenlooper)). For a general discussion of the rate- setting process, see Tomain, supra note 16. 417. See Vt. Yankee Nuclear Power Corp. v. NRDC , 435 U.S. 519, 550 (1978) (”There is little doubt that under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regard ing the need for power.”).

418. Tribe, supra note 19, at 712. 419. See id. (“[S]uch an economic preference would fall within the traditional state function of

regulating public utilities —insuring that they provide adequate services at reasonable rates.”). 420. Id. at 712 n.157 (“[A] state under its regulatory authority could inquire into the prudence of investments by public utility companies into nuclear power reactors, and could exclude such investments fro m the rate base if they were determined to be imprudent,” even if that resulted in “prevent[ing] the development of nuclear energy within the state . . . . [I]t is not clear that the federal government could compel a state to invest its resources in a losi ng venture.”); see also Izhakoff, supra note 122, at 673 (“By employing economic considerations to justify state laws that block the operation of nuclear power plants, even though safety is the genuine but undisclosed goal of such laws, state legislatures effectively can prevent the further development of nuclear energy within their jurisdictions.”); Guastella, supra note

10, at 759 (“Two tests have traditionally been used by regulatory commissions for implementing this allocation of risk policy [between investors and ratepayers]. The prudent investment test disallows the use of plant costs in determining rates if the investment was imprudent in light of information that was reasonably available to management at the time the investment decision was made.”).

421. See Tribe, supra note 19, at 722 (“If, as the Court held in National League of Cities v. Usery, a congressional command that the states pay their public health and recreation employees a minimum wage must be struck down as a forbidden attempt to ‘devour the essentials of state sovereignty,’ then what is one to say of a congressional command that states invest their resources in nuclear energy rather than rely on a combination of fossil fuels, solar power, geother mal power and energy sources?” (quoting N at’l League of Cities v. Usery, 426 U.S. 833, 855 (1976))); id. (“If Congress requires California to open its gates to nuclear reactors, however, it is exercising a far more delicate power that, under National League of Cities , appears to call for extraord inary justification, such as a showing of ‘an