2012] NUCLEAR GENIE 761 assessment of the plant’s economic and social risks, while the AEA authorizes

2012] NUCLEAR GENIE 761 assessment of the plant’s economic and social risks, while the AEA authorizes

the NRC to extend the operating life of the plant based solely on safety considerations. 405 There is also no impossibility problem; Entergy could take steps to lessen the risk of economic surprises from the plant’s operation and demonstrate that the concerns raised in association with Act 160 are groundless.

Moreover, Vermont Act 160 does not create an obstacle to the fulfillment of any legislative purposes of the AEA. There is no mandate in the AEA that nuclear power be the preferred future source of energy. 406 Nor is there any indication that Congress intended to prevent state public service commissions from choosing to not certify nuclear power plants. 407 There is nothing in the statute or its legislative history directing states to choose the nuclear option; instead, Professor Wiggins finds a clear statement of legislative intent to make nuclear power an option a state might choose. 408

Regardless of whether the AEA’s initial primary purpose was the safe development of commercial nuclear power, the passage of time has made any such legislative directive less clear as alternative forms of energy have become available and, in some cases, more appealing. 409 Indeed, the Court in Pacific Gas specifically stated that the pro-development bias of the AEA did not require that nuclear power plants should be built regardless of their costs. 410

405. See Wildermuth, supra note 3, at 529 (“[G]iven the danger associated with fission reactions and the radioactive waste generated by the process as well as the potential national security threat it poses, nuclear energy is regulated under a strict legal regime that gives the Nuclear Regulatory Commission exclusive jurisdiction over the safety of nuclear power plants.”).

406. See Wiggins, supra note 83, at 65. 407. See id. at 78 (“[T]here is simply no room for the conclusion that Congress ‘unmistakably’

intended to prohibit states from disfavoring nuclear plants when certifying public utility ap plications.”). 408. See id. (The AEA “inaugurated the very beginning of the private nonmilitary use of nuclear energy. . . . In this setting, it would be surprising indeed to find Congress intending to eliminate states’ discretion to utilize nonnuclear energy facilities. Far more likely, what was to be ‘promoted’ was not nuclear power at the expense of alternatives but the development of the technology that would permit nuclear power plants to be one of the alternatives”). But see Baum, supra note 77, at 668 (“The primary purpose of the Atomic Energy Act of 1954 (AEA) is to foster the safe development of nuclear energy as

a power source.” (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 221 (1983))). 409. See Tribe, supra note 19, at 721 (“Since [California’s] nuclear provisions may result in an indefinite exclusion of nuclear power plants from California, it may be argued that the state is interfering with activity that Congress set out to promote through the Atomic Energy Act. Congress, however, has neither made a judgment nor enacted any requirement that the nation as

a whole must ‘go nuclear.’ On the contrary, by separating promotional from regulatory activities in the nuclear field, and by recently permitting states to subject nuclear power plants to state health regulations no less stringent than those applicable to other energy sources [in Clean Air Act § 122], Congress has clearly indicated its intent to provide the states with a nuclear option, not a nuclear mandate.”); see also Wiggins, supra note 83, at 80 (saying the enactment of the 1974 Energy Reorganization Act, “which completely restructured federal regulation of atomic energy,” indicated Congress’s unwillingness “to give nuclear power a legislative preference, and instead provided for a bal anced system of meeting national energy demands”).

410. See Pacific Gas, 461 U.S. at 221 –23 (saying the AEA’s primary purpose of developing commercial use nuclear power did not imply congressional intent to do so “at all costs” and states retained “sufficient authority . . . to allow the development of nuclear power to be slowed or even stopped for economic reasons”); see also Borchers & Dauer, supra note 123, at 104 (“The Court noted