2012] NUCLEAR GENIE 767 capture by large economic interests than at the federal level. 441 Preempting the

2012] NUCLEAR GENIE 767 capture by large economic interests than at the federal level. 441 Preempting the

state law would foreclose such participation with the attendant risks of federal agency capture and the loss of public input into the decision-making process.

Furthermore, the Supreme Court has largely settled the question of whether states should be robust centers of nuclear power plant regulation. 442 In Pacific Gas and Silkwood, the Court effectively decentralized nuclear regulation. 443 Subsequent Supreme Court decisions affirmed that result despite the strong federal interest in assuring nuclear reactor safety, achieving national energy independence and an uninterrupted supply of power for the country, and reducing the country’s carbon footprint. 444 The Court may have done this in response to increasing public concern about nuclear safety 445 or, perhaps, because it realized that concentrating nuclear regulation in the federal government might increase the likelihood of error and stifle regulatory creativity at the state level.

Because of the desirability of having states as robust centers of

441. See supra notes 345 –57 and accompanying text (discussing the importance of public participation at the local level); supra notes 324 –26 and accompanying text (noting the role of public participation in avoiding agency capture).

442. See Reilly, supra note 43, at 684 (“The Court agreed that the Federal Government ‘has occupied the entire field of nuclear safety concerns’ . . . . Consequently, state regulation of nuclear power plant construction bas

ed on public health and safety concerns ‘would . . . be in the teeth of the Atomic Energy Act’s objective to insure that nuclear technology be safe enough for widespread development and use —and would be pre-empted for that reason.’” (quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212–13 (1983))).

443. See Izhakoff, supra note 122, at 673 –74 (“[B]ecause the Supreme Court sanctioned direct state regulation of all ‘non-safety’ matters, it effectively decentralized government decisionmaking over the nuclear power industry.”); id. at 677 (“In Pacific Gas and Silkwood, the Court reassessed the extent of federal preemption under the AEA and interpreted the Act to permit greater state authority over the nuclear power industry. The Court thus cleared the way for joint regulation of nuclear power plants by both the states and the NRC, notwithstanding the potential future impact of this policy upon the congressional desire to promote nuclear en ergy.”). But see Cavers, supra note 19, at 31 n.7 (“Licensing and regulation of more dangerous activities —such as nuclear reactors—will remain the exclusive responsibility of the Commission. It is not intended to leave room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards by regulating by-product, source, or special nuclear materials. The intent is to have the material regulated and licensed by the Commission, or by the State

and local governments, but not by both.’” (quoting S. R EP . N O . 870, 86th Cong., 1st Sess., at 8 –9 (1959))). 444. See Izhakoff, supra note 122, at 665 (“Despite its emphasis on the indirect effect of the regulations at issue, the Goodyear Atomic Court again provided specific precedent that allowed states to participate more significantly in the safety regulation of nuclear plants —an area inherently bound to national security and over which the states previously had been denied author ity.” (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988))); see also English v. Gen. Elec. Co., 496 U.S. 72, 90 (1990) (holding the state law action for intentional in fliction of emotional distress did not “fall within the pre- empted field of nuclear safety as that field has been defined in prior cases”).

445. See Izhakoff, supra note 122, at 689 –90 (“The Court’s somewhat inconsistent positions in Pacific Gas , Silkwood, and Goodyear Atomic might best be interpreted when viewed in their historical context. Since the early 1980s, the Supreme Court has faced increasing public sensitivity to inadequate regulation by the NRC and, after the Three Mile Island accident, growing doubts about the safety of nuclear power. Aware of this public sentiment and under mounting pressure from state legislatures seeking to involve themselves in regulating nuclear safety, the Court in Silkwood and Goodyear Atomic may have decided to adopt an analytical interpretation of the AEA which broadens the permissible scope of state control over the nu clear industry.”).