Overcoming Collective Action Problems Created by Vermont Act 160 Since Vermont Act 160 affects a single nuclear power plant, and not state

C. Overcoming Collective Action Problems Created by Vermont Act 160 Since Vermont Act 160 affects a single nuclear power plant, and not state

regulatory standards or other plants, many of the arguments set forth in Part IV supporting preemption of state laws are inapplicable to the argument in this Article, such as the need for uniformity, the ability to achieve economies of scale at the national level, the avoidance of burdens on interstate commerce, and the need to facilitate interstate markets and resource management. However, Vermont’s enactment of Act 160 was clearly motivated by its self- interest. In all likelihood, the state based its assessment of its sole nuclear plant’s costs, benefits, and risks on parochial concerns, 447 ignoring benefits and harms beyond its borders. 448 This motivation provides a strong justification for federal preemption. 449 Fol lowing Professors Glicksman and Levy’s suggestion that a court should only find preemption when collective action problems could not be overcome, this Part examines whether Vermont Act 160 creates collective action problems and, if it does, whether those problems could be

446. See Wiggins, supra note 83, at 82 (“[I]n keeping with the state-supportive presumption in preemption cases generally, the states themselves may determine priorities for types of power plants to

be constructed within their borders. Until Congress ‘unmistakably’ declares a preference for a specific fuel source, which it has not yet done, the states should retain responsibility to monitor choices made initially by a public utility. In this way their traditional police power au thority can best be maintained.”).

447. See Reilly, supra note 43, at 701 (“States, observing nuclear power from a localized point of view, inevitably base their safety estimations on parochial concerns. They may very well overemphasize the risk of a severe nuclear accident, since this would profoundly affect the population within their border s.”).

448. See id. (“While states overemphasize the likelihood of a nuclear disaster, they simultaneously de-emphasize the significant environmental benefits of nuclear energy. Many of these benefits would be external to state borders and thus apparent only from a national or global per spective.”); id. at 702 (California’s nuclear moratorium law “may have forced California to import electricity from states in the Northwest. Production of this electricity may severely pollute the Northwest, but leave the Californian environment untouched.”); id. (“In Northern States Power, the Eight Circuit Court of Appeals anticipated state overregulation of nuclear power,” and “enforced federal preemption of state nuclear regulation because ‘[states] might conceivably be so overprotective in the area of health and safety as to unnecessarily stultify the industrial development and use of atomic energy for the production of electric power.’” (quoting N. States Power Co. v. Minn., 447 F.2d 1143, 1154 (8th Cir. 1971), aff’d per curiam, 405 U.S. 1035 (1972))).

449. See Levy & Glicksman, supra note 207 , at 930 (“[F]ederal action is necessary or justified when state regulation is unlikely to produce the optimal result, viewed from the perspective of the United States as a whole, because the incentives of individual states and the interests of the states as a collective run in different directions.”); Cavers, supra note 19, at 51 (“If the reactor were simply a part of an electric power system, ministering to no special federal objectives in its particular location, I should not be surprised if the authority of the state were held to pre vail.”). But see Tribe, supra note 19, at 723 (“[E]ven if California’s nuclear provisions were to result in the exclusion of nuclear reactors—a wholly speculative possibility —they should not, solely for that reason, be deemed preempted by federal law.”).