Nuclear power represents more than 70 percent of our non-carbon generated electricity. It is unlikely that we can meet our aggressive climate goals if we eliminate nuclear power as an option.
These statements come from the official campaign energy policy of President Barack Obama. However, nuclear energy has not always been embraced as an environmentally friendly energy source. Only seventeen years ago, then Arkansas Governor William Clinton attacked his opponent for the 1992 Democratic nomination for president, Senator Paul Tsongas, accusing him of wanting to build “‘hundreds more’” nuclear reactors. Tsongas adamantly denied these accusations from his competitor. Another Democratic opponent, Iowa Senator Tom Harkin, ran ads against Tsongas claiming, “‘[t]here is no such thing as a pro-nuclear environmentalist.’” In contrast, by the 2008 presidential campaign, only one of the major Democratic candidates openly opposed exploration into expanded use of nuclear power. The current support and national need for nuclear energy requires a clarification of federal preemption standards.
This Comment argues that since the Supreme Court’s ruling in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, lower courts have consistently misapplied the preemption standards used to determine whether federal law preempts a state law regulating the nuclear industry. With the recent rebirth of the nuclear industry, a stable and predictable model is necessary to address the issue of preemption in the field of nuclear regulation. Accordingly, Congress must revise federal law regulating nuclear energy to provide a clear framework to allow states to regulate those issues that Congress intended the states to manage. Further, lower federal and state courts must be consistent in their application of the preemption doctrine in order to erase the confusion that exists today as to which state legislation of the nuclear industry is valid and which is not.
Part II of this Comment examines the history of the nuclear industry from the development of the controlled nuclear fission reaction through the more than sixty years of federal and state regulation of the industry. Part II.A examines the legislative enactments passed by Congress to control the growth of the nuclear industry. Part II.B provides background on the nuclear industry, including the factors that led to its decline and recent resurrection. Part II.C examines the Supreme Court’s interpretation of the congressional legislation, while Part II.D examines the interpretation of Supreme Court precedent, congressional legislation, and state regulations in the lower courts.
Part III.A specifies Congress’s intended approach to statutory interpretation. Parts III.B and III.C examine preemption and critique the misguided application of statutory interpretation and Supreme Court precedent in lower court decisions. Finally, prior to concluding, Part III.D provides proposals for clarification, including new legislation to provide a clearer framework for shared power between the federal government and the states.