Federal preemption of nuclear power regulation

THE CONFLICT between state sovereignty and federal supremacy has found another battleground: regulation of the nuclear power industry. And in cases like Northern States Power Co. v. Minnesota the states haven't fared well. For the past few years the Illinois General Assembly has attempted to pass legislation regulating nuclear power plants and disposal of high level nuclear waste — legislation similar to that struck down in Northern States. The courts have consistently quashed state attempts to regulate nuclear power in California, New York, New Jersey and Oklahoma.

In 1959 Congress amended the Atomic Energy Act to clarify those areas of the nuclear power industry which states could regulate. The amendment allowed "State regulation of activities for purposes other than protection against radiation hazards." Regulation of radiation hazards was preempted in the amendment, but Congress left the interpretation of radiation hazards up to the courts.

The courts have not set a specific rule of thumb in determining the difference between radiological hazards (which the states can't regulate) and nonradiological hazards (which they can). Yet, the courts seem to have established on a case-by-case basis that any state law or regulation dealing however tangentially with radiological matters is preempted by the federal government.

The Northern States case is probably the leading court test on the preemption question. This 1971 case, heard in the 8th Circuit U.S. Court of Appeals and affirmed in summary judgment by the Supreme Court, was over a Minnesota state waste disposal permit which limited the level of radioactive discharges (liquid and gaseous) from a nuclear power plant and required specific programs for detecting radioactive releases. These requirements were more stringent than the federal regulations.

Minnesota argued that the regulation of radioactive wastes released into the environment was within a state's power under 10th Amendment rights to protect the health, safety and welfare of its citizens. Minnesota also argued that the Atomic Energy Act did not preempt regulation of radioactive waste releases, and even if preempted this would not prevent concomitant regulation by a state. Briefs in support of this position were filed by four states — Illinois, Maryland, Vermont and Wisconsin — as well as the Michigan departments of Natural Resources and Public Health.

Northern States Power Co. argued that the federal energy act showed a clear congressional intent that regulation of radioactivity released from nuclear waste be solely a federal power. The company also argued that the nature of nuclear energy development and use required national uniform policies and regulations.

The court accepted the power company's argument. In doing so the court stated that preemption could be implied and did not have to be stated in legislation. The court ruled the federal government has exclusive authority to regulate the construction and operation of nuclear power plants, including the level of radioactive effluents discharged.

This ruling was used by the Illinois appellate court to strike down an act of the General Assembly. This 1972 case, Commonwealth Edison Co. v. Pollution Control Board, centered around the Illinois Environmental Protection Act of 1970 (P.A. 76-2429). One section of that act regulated the level of radioactive effluents from nuclear steam generators and required monitoring of those effluents as conditions for a state operating permit." Relying solely on the Northern States decision, the 3rd District Illinois Appellate Court struck down that section of the state's Environmental Protection Act.

For the past three years, the Illinois General Assembly has considered legislation which would halt the construction of nuclear power plants in the state. Similar legislation in California, however, was held unconstitutional by U.S. district court last year.

The California law — like the proposed Illinois law — places a moratorium on nuclear power plant construction which would be lifted when the technology for the permanent disposal of nuclear waste is developed. But the court ruled that such a precondition on nuclear plant construction was preempted.

In its unanimous decision in the case, Pacific Legal Foundation v. State Energy Resources Department and Conservation Commission, the court said that the question of whether nuclear power plants should be constructed or operated in the absence of a demonstrated technology for the permanent disposal of nuclear waste "is exclusively reserved to the NRC [Nuclear Regulatory Commission]."

The court relied on Northern States and other cases to rule out all moratoria on the construction and operation of nuclear power plants. "There seems little point in enacting an Atomic Energy Act and establishing a federal agency to promulgate extensive and pervasive regulations on the subject of construction and operation of nuclear reactors and the disposal of nuclear waste if it is within the prerogative of the states to outlaw the use of atomic energy within their borders."

Similar rulings have been made when states have legislated against the importation of nuclear waste. The General Assembly passed a bill this year which would prevent Illinois from accepting spent nuclear fuel for storage unless the state sending the fuel to Illinois agrees to a reciprocal arrangement. The measure was passed as an amendment to the bill creating the governor's new Department of Nuclear Safety (H.B. 3614). This would prohibit other states form using Illinois as a nuclear dumping ground, including the Morris site which is a likely candidate to become a national nuclear waste disposal site.

The courts have frowned upon such prohibitions. In the 1977 U.S. Supreme Court case, City of Philadelphia v. New Jersey, the state barred the importation of "valueless industrial wastes" from other states for disposal in New Jersey. In the statute the New Jersey legislature stated its intent: "the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside this state be prohibited." But the court found New Jersey's law to violate the Commerce Clause of the U.S. Constitution. The court said the legislative purpose of a state statute is immaterial in determining a violation of the Commerce Cause. Such protection may not be accomplished by discriminating against items from out of state. A state may not "isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade."

The New Jersey ruling was used by the 10th Circuit U.S. Court of Appeals in deciding a similar case in 1978. In Hardage v. Atkins an Oklahoma statute banning the importation of controlled industrial waste from out of state was challenged. The same statute was also challenged in the U.S. Supreme Court case, Oklahoma State Department of Health v. W. J. Lamberton. The court held — in both cases — that a state could not ban the importation of controlled industrial wastes and struck down the law.

Alden Solovy is the education reporter for the Decatur Herald & Review. He was an Illinois Issues intern this spring under the Public Affairs Reporting Program at Sangamon State University.

24/October 1980/Illinois Issues