A Way Around the Federal Nuclear Power Fix

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 19th 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.

Indeed, that is central to the scheme concocted in the late 1940s and 1950s by those seeking to promote atomic energy. They came out of the Manhattan Project, the World War II program to build nuclear weapons. They sought after the war to continue and expand their nuclear work. They would keep building weapons but atomic bombs don’t lend themselves to commercial spin-off—they can’t be sold. So there would be a limit in constructing atomic and hydrogen bombs. Thus this “nuclear establishment”—officials and scientists of the multi-billion dollar Manhattan Project and the project’s corporate contractors, notably General Electric and Westinghouse—sought to perpetuate the endeavor with other uses of atomic energy, especially nuclear power plants.

The Manhattan Project in 1946 became the Atomic Energy Commission, to be given extraordinary powers, particularly with the Atomic Energy Act of 1954, by a U.S. Congress that the “nuclear establishment” found (then and now) easy for it to manipulate. This included federal jurisdiction over the issue of radioactivity, as noted by Judge Murtha.

A licensing system for nuclear power plants was devised to give an illusion of democratic process. Hearing officers, many of whom would come from the national nuclear laboratories which sprang up with the Manhattan Project, would be called “judges.” In fact, the hearings have been kangaroo courts—consistently approving atomic projects. The NRC, like the AEC before it, has been an unabashed booster of nuclear power. The system is a sham.

Like, in the 1960s, learned well about the impossibility of making change when a government is dominated by a special interest. He was deeply involved in efforts to stop New York State public works czar Robert Moses from building a four-lane highway on Fire Island, a slender barrier beach south of Long Island. The road would have devastated the famed nature and communities on Fire Island. Moses—the subject of the Pulitzer Prize-winning book The Power Broker—had such huge power in New York State that stopping his plan through the state couldn’t happen, concluded Like and other highway opponents.

So, instead, a campaign to create a Fire Island National Seashore was launched—to use the power of the federal government to stop Moses.

A Citizens Committee for a Fire Island National Seashore was formed with Like as its counsel. It was chaired by Maurice Barbash, also a lover of Fire Island and Like’s brother-in-law. By 1964, it had led in getting a Fire Island National Seashore established and the Moses road stopped.

Two decades later, Like and Barbash flipped the strategy when it came to Shoreham –and LILCO’s other proposed Long Island nuclear plants. A Citizens Committee to Replace LILCO—with a state public power entity—was created with Like its counsel, Barbash its chairman.

State power would be used to stop the nuclear assault on Long Island.
The Long Island Power Act created a foundation for preventing this plan from moving ahead and also committed the state agency it created, the Long Island Power Authority, to developing clean, safe, renewable energy for Long Island.

In 1989, LILCO abandoned Shoreham because of the Long Island Power Act. It sold Shoreham to LIPA for $1. It was then decommissioned as a nuclear facility. Also helping greatly with this outcome were continuing anti-nuclear demonstrations on Long Island, legal action by Suffolk County against LILCO under the Racketeer Influenced and Corrupt Organizations (RICO) Act, the refusal of Suffolk and New York State to adopt or implement a federally-required evacuation plan for the plant (after both governments concluded evacuation of heavily-populated Long Island would be impossible in the event of a major nuclear accident), and other legal, political and activist challenges.

Federal nuclear promoters were extremely upset. U.S. Energy Secretary John S. Herrington declared at a Nuclear Power Assembly in Washington that “the Shoreham plant must open!” He asserted: “If it doesn’t, the signals will be the low point in this [nuclear] industry’s history. If it does, we are going to begin a brand new era.”

Well, it didn’t open.

In recent times, trying to use global warming as an excuse (although the nuclear “cycle” of mining, milling, fuel enrichment and the rest of it contributes significantly to global warming), the federal government and the nuclear industry has tried for what it calls a “revival” of nuclear power.

The Fukushima Daiichi disaster has threatened that effort. And, not incidentally, the reactor at Vermont Yankee—and the one which had been at Shoreham—were both General Electric Mark I reactors, the same as those that exploded and released many thousands of tons of radioactive poisons at Fukushima.

For the federal government and nuclear industry to allow Vermont Yankee and other U.S. nuclear plants to operate for 60 years is inviting disaster. The NRC has now given 20-year “license renewals” to more than half of the 104 U.S. nuclear plants—turning a deaf ear to strong state and local opposition. Nuclear plants have been long seen as having an operating life of no more than 40 years, after which their metal components would become embrittled by radioactivity and they’d be far more prone to accidents. The NRC is also considering extending the 60 year extension period to 80 years. Meanwhile, the claim of nuclear promoters that the new nuclear plants they seek to build (and the NRC has started to approve) are “inherently safe” is completely false. They, like the Fukushima plants, like Chernobyl, like Vermont Yankee, like all nuclear power plants, are inherently unsafe.

Importantly, nuclear power is not necessary. From solar to wind to wave power to tidal power to bio-fuels to geothermal to hydropower and on and on, safe, clean, renewable energy technologies can provide all the power we need.

But how to stop the decades-old “nuclear establishment” and its confederates?

A challenge to the Atomic Energy Act and other such laws giving federal nuclear officials the powers to run roughshod over state and local governments—and the people—is vital. There must be an end to the rigged U.S. nuclear power program Taking on the federal nuclear officials must happen. Vermont should appeal Judge Murtha’s ruling. And, as in the case of Shoreham and the scheme to load Long Island with nuclear power plants, other legal, political and activist initiatives need be launched.

Meanwhile, Vermont and other states can replicate New York State’s use of the state power of “eminent domain” to fight nuclear power. It’s a strategy that can work. Through it an end-run can be made around the would-be mandate of federal nuclear officials and the nuclear industry that we must accept deadly nuclear power.