2012] NUCLEAR GENIE 769 sur mounted without the law’s preemption. 450

2012] NUCLEAR GENIE 769 sur mounted without the law’s preemption. 450

Collective action problems may arise if Act 160 vested negative externalities on adjacent states or on the states as a whole. Since Vermont is not closing its borders to an unwanted land use, which another state or the federal government wants to locate there, its law is not forcing that unwanted land use and its harms onto another state; 451 Vermont Yankee is not going to be relocated because the plant’s only purpose is to provide power to local customers. Vermont’s law will not have a direct impact on any other state’s treatment of nuclear power plants. Nor will national regulations that might affect some regulatory threshold result from Vermont Act 160. Thus, allowing Vermont Act 160 to stay in effect will not create a barrier to the location of nuclear plants in other states or the location of non-nuclear plants in Vermont. So, no other state will suffer lost positive externalities and Vermont Act 160 will not create any transboundary pollution. Indeed, shuttering Vermont Yankee eliminates that likelihood. 452 This is also not a situation involving resource pooling —creating incentives for other states to free ride on the efforts of Vermont —or resource hording—giving Vermont an unfair advantage. Therefore, Vermont Act 160 does not create any collective action problems for other states or the country as a whole.

While Vermont’s citizens may benefit from the shutdown of Vermont Yankee to the extent that they are protected from unwanted future costs or health risks, the state will also suffer costs, such as the need to buy or develop replacement power, the loss of plant-related jobs, and the loss of state revenue from plant operation. 453 Vermont might even find itself subject to a takings claim should it deny a certificate of public good for the plant. 454

450. See Glicksman & Levy, supra note 175, at 647 –48. 451. Conceivably, as a seller of wholesale power to customers in other states, the loss of that power

or any increase in its costs could hurt those out-of-state consumers. But it is assumed that Vermont would be able to produce or purchase replacement power, thus eliminating any such harm.

452. The plant would be decommissioned and dismantled in accordance with NRC rules and the remaining fuel would be sent to a licensed waste repository or stored onsite. 453. See generally H EAPS , supra note 432. Vermont may also not be able to recoup these costs in the rate base. See Guastella, supra note 10, at 759 (“The second test is the used and useful test, which excludes from the rate base the costs of a plant that is not providing service. In reality, it is not a test at all. The principle strips the regulatory body of any discretion and denies recovery regardless of whether the investment was prudent, without regard to the potentially devastating effect such a decision might have on a utility.”).

454. See Guastella, supra note 10, at 763 (discussing Appeal of Pub. Serv. Co. of N.H., 454 A.2d 435 (1982), which found a decision by the state public utility commission prohibiting the expenditure of capital received in “a routine stock issuance, on construction of Unit II of the Seabrook nuclear facility”

a regulatory taking be cause it “effectively precluded completion of the project”); id. at 760–61 (New York’s Used and Useful law when “combined with the state’s new anti-Shoreham policies, appear[ed] to unreasonably defeat the investment expectations of LILCO. LILCO shareholders would be injured by receiving no return on their investment in an operational nuclear plant for which the state, through past participation and support, was partly responsible. Management and investors relied on this government cooperation and the prudent investment rule. It now appears they were misled by the state and county, which have embarked on policies of active opposition to Shoreham.”); see also Shattuck, supra note 17, at 267 (“To saddle a utility with the costs of a political change of mind by a state or local government, and to allow their consequent nonparticipation in emergency planning to become a de facto veto after