There Is No Implied Conflict or Obstacle Preemption of Vermont Act 160

2. There Is No Implied Conflict or Obstacle Preemption of Vermont Act 160

Although there may be tension between the two levels of regulatory authority, 402 no actual conflict between state and federal law exists here that makes it impossible for a regulated entity to comply with applicable federal and state laws. 403 Vermont has not enacted a law that conflicts with any NRC regulation. Since the NRC’s decision to authorize Vermont Yankee’s continued operation was safety- based, Vermont’s decision to deny the plant a certificate for non- safety reasons did not conflict with the federal agency’s safety rationale for its decision. Nor was the state’s impact on the basis for the NRC’s decision

direct or substantial. 404 Vermont’s law authorized the PSB to deny Entergy a certificate of public good to continue to operate Vermont Yankee based on an

401. See Tribe, supra note 19, at 712 (“A state’s rejection of an electric power source that reasonably appears to create a source of indefinitely growing back-charges to ratepayers no more than exercises the authority recognized by section 271.”); see also supra notes 7–9 and accompanying text (discussing the costs of building and operating a nuclear power plant).

402. See Murphy, supra note 96, at 881 (The Supreme Court in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), “emphasized the point that Congress expected tension between state and federal law. . . . Accordingly, this tension implies coexis tence.”); see also Izhakoff, supra note 122, at 675 (“The Silkwood Court also recognized that punitive damage awards could force utilities to conform to safety standards determined at the state level. . . . [T]he Court admitted that allowing state law punitive damage awards, which have the effect of regulating safety standards, was inconsistent with the notion of exclusive federal jurisdiction over radiological safety. Nevertheless, the majority found that Congress intended to recognize both concepts —the NRC’s exclusive authority to set safety standards and the ability of states to award punitive damages if a jury decided that a plant’s safety standards were not reasonable. The Court paused over the potential conflict between these two policies, yet ultimately concluded that Congress intended to ‘tolerate whatever tension there was between them.’” (quoting Silkwood , 464 U.S. at 256)).

403. See supra notes 196 –210 and accompanying text (discussing implied conflict and obstacle preemption). 404. See English v. Gen. Elec. Co., 496 U.S. 72, 85 (1990) (“[F]for a state law to fall within the pre-empted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning ra diological safety levels,” and the intentional infliction of emotional distress claim “may have some effect” on safety concerns, but that the effect was “neither direct nor substantial.” (emphasis added)). But see Scott S. Smith, Federal Preemption and the AEA:

How Federal Preemption Law “Nukes” State Law that Affects Nuclear Waste, 9 M O . E NVTL . L. & P OL ’ Y R EV . 111, 119 –20 (2002) (discussing Brown v. Kerr-McGee, 767 F.2d 1134, 1240–41 (7th Cir. 1985), and saying that even though radioactive and nonradioactive materials were “‘inextricably mixed,’” Congress did not intend to preempt applicable state laws, and the state law “did not fall within

a specific field oc cupied by the federal government,” the district court injunction ordering Kerr-McGee to remove byproduct material from the site “would substitute the judgment of the district court for that of the NRC as to the best method of storing the waste material” and, therefore, the state law was preempted).