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A Way Around The Federal Nuclear Power Fix

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Headlined to None 1/24/12

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            The nuclear power program in the United States was set up rigged--to allow the federal government to push atomic energy with state and local governments "pre-empted" on most issues.  

That's what the State of Vermont was confronted with last week as a federal judge blocked the state's attempts to shut down the accident-plagued Vermont Yankee nuclear plant.

But there's a way around this federal nuclear fix--the use by states of their power of "eminent domain." That's a legal principle going back centuries and is how, commonly, states condemn property for a highway right-of-way if the owners refuse to sell.

The application of the state's power of "eminent domain" to nuclear power was pioneered in New York State in the 1980s--and was how the completed Shoreham nuclear plant was stopped from opening. That ended the scheme of nuclear promoters to turn Long Island into a "nuclear park" with seven to 11 nuclear plants.

The Long Island Power Act was passed by New York State in 1985 creating a Long Island Power Authority (LIPA) with the power to seize the assets and stock of the utility behind this nuclear scheme, the Long Island Lighting Company (LILCO).

The federal government was gung-ho for Shoreham. The Nuclear Regulatory Commission (NRC) had approved the start-up of operations at Shoreham, the first of three nuclear plants to be built on that site, and the construction of two more nuclear plants at Jamesport, to be joined by two more there. More plants would go up between the two with all fronting on the Long Island Sound.

But by enacting the Long Island Power Act that utilized the state's power of "eminent domain," New York State made clear that if LILCO persisted with nuclear power, the state would eliminate it.

This strategy can be used by the State of Vermont--and other states--faced by the nuclear juggernaut of the federal government and nuclear industry. Indeed, it's a strategy that needs to be pursued because it is highly unlikely that federal nuclear officials will be sensible or fair--or uphold democracy.

The NRC like its predecessor agency, the Atomic Energy Commission (AEC), has never, for example, denied a construction or operating license for a nuclear plant anyplace, anywhere in the United States.   These days, with no new nuclear plants having both been ordered and built in the U.S. since 1973, the NRC has been busy rubber-stamping "license renewal" applications of utilities to run their existing plants--including Vermont Yankee--20 more years. It has also begun to give the go-ahead to utilities to build new plants.

            The Long Island Power Act "set forth a mechanism for getting rid of the utility by giving the public authority which it created the power to condemn the utility's assets and stock," explains Irving Like, a co-author of the act.

            "With this we had the ability to tell LILCO: either you shut down the Shoreham plant or we will condemn you," he said. Like, of Babylon, Long Island, had previously written the Environmental Bill of Rights of the New York State Constitution.

            With Vermont now "looking for a path forward," Like suggested last week that it--and other states faced by the federal government and nuclear industry's drive--should "see if you can model a statute along those lines." He would be glad to share his knowledge and can be contacted at ilike@rlt-law.com

            Also co-author of the Long Island Power Act was Steve Liss, counsel to the Environmental Conservation Committee of the New York State Assembly, who last week spoke of how "eminent domain" gives a state the power to act "in the public interest for a lawful purpose." The state must pay "fair market value" for what it condemns, Liss added.

Although Vermont Yankee's owner is Entergy, a utility based in Louisiana which has   been buying nuclear plants around the U.S.--including Vermont Yankee from its original owner--the State of Vermont's power of "eminent domain" can be applied to it, Liss said. The state, after enacting a legal foundation similar to the Long Island Power Act, could move against the assets of Entergy in Vermont, he said.

Another strategy, said Liss, would be for Vermont to acquire the utilities in Vermont that distribute the electricity from Vermont Yankee and which own the transmission lines through which it runs--and refuse the electricity and bar its transmission over the lines.

In his January 19 th ruling, U.S. District Court Judge J. Garvan Murtha declared that the State of Vermont's demand that Vermont Yankee be shut down was "grounded in radiological concerns," and this is an issue on which the federal government has "pre-empted" state and local governments.

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www.karlgrossman.com

Karl Grossman is a professor of journalism at the State University of New York/College at Old Westbury and host of the nationally syndicated TV program Enviro Close-Up.
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