764 ECOLOGY LAW QUARTERLY [Vol. 39:691 Vermont that the state must continue to rely on nuclear power as its preferred

764 ECOLOGY LAW QUARTERLY [Vol. 39:691 Vermont that the state must continue to rely on nuclear power as its preferred

energy source and dedicate the plant site to that use. Surely, after forty years of fraught experience with Vermont Yankee, Vermont should be able to change its mind. Indeed, if Vermont were not allowed to protect its citizens from the risk considerations of Act 160, there would be a regulatory vacuum leaving the state exposed to those risks. 422

Another police power is a state’s ability to determine land uses within its borders, which has long been considered a matter of exclusive state control. 423 This power remains plenary even when it might be used to block construction of a nuclear power plant. 424 Additionally, a state has a legitimate interest in shielding its environment from harm and protecting its citizens from anxiety caused by the operation of a nuclear power plant. 425 To the extent it may be difficult to tease apart radiological impacts from other forms or causes of environmental harm and public anxiety, courts should give deference to a

state’s determination of where the dividing line should fall. 426 Therefore, the determination by Vermont in Act 160 that the continuing use of land within the

state’s borders for the use of Vermont Yankee is unwarranted because of potential harm to its citizens is an exercise of the state’s traditional police powers.

However, since a contrary federal interest can overcome the exercise of a

extremely serious problem which endanger[s] the well-being of all the component parts of our federal system and which only collective action by the National Government might fore stall.’” (quoting Nat’l League of Cities , 426 U.S. at 852 –53)).

422. See id. at 714 (“[S]tate requirements not directed at radiation safety would not be duplicative of federal efforts, and a holding of preemption in such a case would create a legal vacuum.”); see also supra notes 59 –66 and accompanying text for an example of a regulatory gap.

423. See supra note 95 and accompanying text (discussing a state’s traditional authority to regulate land use). 424. See Baum, supra note 77, at 679 (noting many ways states can “prevent the development of nuclear power plants by means of stringent land use requirements, or by using the authority granted the states under the Clean Air Act Amendments of 1977”).

425. See Tribe, supra note 19, at 703 –04 (“In order to meet its responsibilities towards its citizens for regulating public utilities, managing public resources, and maintaining public tranquility, and also its responsibilities towards future generations, a state has a duty and a right to: (1) require economy and efficiency in the generation of electricity, (2) minimize the economic and social burdens of nuclear reactor failure or catastrophe, (3) guarantee its citizens maximum peace of mind concerning nuclear energy activity, and (4) avoid irreconcilable conflict with sound principles of ecological m anagement.”); id. at 708 (“Other problems flow from the public anxiety inevitably associated with the manifest difficulties of this [nuclear waste] containment, and from the many tangible and troubling symptoms of social unrest to which such unrelieved anx iety can contribute.”); see also Cavers, supra note 19, at 51 (arguing that a state law banning construction of nuclear reactors near major population centers because of the anxiety this might cause city residents, re gardless of the objective safety of a reactor “seems . . . a purpose distinct from ‘protection against radiation hazards,’ . . . [and] would be sheltered by subsection k against attack based on a theory of pre- emption”).

426. See Murphy, supra note 96, at 877 (arguing that the court in Me. Yankee Atomic Power Co. v. Bonsey, 107 F. Supp. 2d 47, 55 –56 (D. Me. 2000), held “deference must be given to the state assertions that the state did not intend to regulate radiological areas, and, therefore, federal law did not preempt the state investigation”).