States Restrictions on New Nuclear Power Facility Construction

8/17/2021

nuclear towers

Twelve states currently have restrictions on the construction of new nuclear power facilities: California, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island and Vermont.

Minnesota has adopted an outright ban on the construction of new nuclear power facilities and New York has outlined a similar ban in a limited area of the state. Other states have set conditions on the construction of new nuclear power facilities. These conditions include requiring:

  • the identification a demonstrable technology or a means for high level waste disposal or reprocessing (California, Connecticut, Illinois, Maine and Oregon);
  • approval by the state Commissioner of Environmental Protection finding that the proposed method for disposal of radioactive waste material to be produced or generated by the facility will be safe (New Jersey);
  • approval by the state legislature (Hawaii, Illinois, Massachusetts, Rhode Island and Vermont);
  • voter approval (Maine, Massachusetts and Oregon).

However, these state restrictions are changing. Montana and West Virginia are the most recent states to end their long-standing restrictions on new nuclear construction. Montana enacted H.B. 273 in April 2021 and West Virginia enacted S.B. 4 in February 2022; each measure repealed restrictions on the construction of new nuclear facilities. Kentucky ended its moratorium with the passage of S.B. 11 in 2017. Previous law required the federal government to establish a permanent repository before a nuclear plant could be built. The new law allows for the construction of new nuclear plants so long as the plans for waste storage are approved by the Nuclear Regulatory Commission. Wisconsin ended its moratorium in April 2016 when A.B. 384 was signed into law. Hawaii and Minnesota have also considered measures to remove the current bans in place in recent years.

States with Nuclear Power Restrictions

State

Conditions

Citations

California

- Waste disposal capability

West's Ann.Cal.Pub.Res.Code § 25524.1

(a) Except for the existing Diablo Canyon Units 1 and 2 owned by Pacific Gas and Electric Company and San Onofre Units 2 and 3 owned by Southern California Edison Company and San Diego Gas and Electric Company, no nuclear fission thermal powerplant requiring the reprocessing of fuel rods, including any to which this chapter does not otherwise apply, excepting any having a vested right as defined in this section, shall be permitted land use in the state or, where applicable, certified by the commission until both of the following conditions are met:

(1) The commission finds that the United States through its authorized agency has identified and approved, and there exists a technology for the construction and operation of, nuclear fuel rod reprocessing plants.

(2) The commission has reported its findings and the reasons therefor pursuant to paragraph (1) to the Legislature. That report shall be assigned to the appropriate policy committees for review. The commission may proceed to certify nuclear fission thermal powerplants 100 legislative days after reporting its findings unless within those 100 legislative days either house of the Legislature adopts by a majority vote of its members a resolution disaffirming the findings of the commission made pursuant to paragraph (1).

Connecticut

- Waste disposal capability

C.G.S.A. § 22a-136

No construction shall commence on a fifth nuclear power facility until the Commissioner of Environmental Protection finds that the United States Government, through its authorized agency, has identified and approved a demonstrable technology or means for the disposal of high level nuclear waste. As used in this section, "high level nuclear waste" means those aqueous wastes resulting from the operation of the first cycle of the solvent extraction system or equivalent and the concentrated wastes of the subsequent extraction cycles or equivalent in a facility for reprocessing irradiated reactor fuel and shall include spent fuel assemblies prior to fuel reprocessing.

Hawaii

- Legislature approval

Const. Art. 11, § 8

No nuclear fission power plant shall be constructed or radioactive material disposed of in the State without the prior approval by a two-thirds vote in each house of the legislature

Illinois

- Waste disposal capability

or

- Legislature approval

220 ILCS 5/8-406

(c) After the effective date of this amendatory Act of 1987, no construction shall commence on any new nuclear power plant to be located within this State, and no certificate of public convenience and necessity or other authorization shall be issued therefor by the Commission, until the Director of the Illinois Environmental Protection Agency finds that the United States Government, through its authorized agency, has identified and approved a demonstrable technology or means for the disposal of high level nuclear waste, or until such construction has been specifically approved by a statute enacted by the General Assembly.

As used in this Section, "high level nuclear waste" means those aqueous wastes resulting from the operation of the first cycle of the solvent extraction system or equivalent and the concentrated wastes of the subsequent extraction cycles or equivalent in a facility for reprocessing irradiated reactor fuel and shall include spent fuel assemblies prior to fuel reprocessing.
 

Maine

- Voter approval

- Waste disposal capability

35-A M.R.S.A. § 4302

1. Question submitted to voters. Prior to the construction of any nuclear power plant within the State, the question of approving that construction must be submitted to the voters of the State in the manner prescribed by law for holding a statewide election. This question must be submitted to the legal voters of the State at the next following statewide election. The municipal officers and plantation assessors of this State shall notify the inhabitants of their respective cities, towns and plantations to meet, in the manner prescribed by law for holding a statewide election, to vote on the acceptance or rejection of construction by voting on the following question:

"Do you approve construction of the nuclear power plant proposed for (insert locations)?"

35-A M.R.S.A. § 4373

No construction may commence on a nuclear power plant, until the Public Utilities Commission has certified it under this subchapter.

35-A M.R.S.A. § 4374

The commission may certify a nuclear power plant if it finds that:

1. Federal Government identification and approval of technology. The Federal Government, through its authorized agency, has identified and approved a demonstrable technology or means for the disposal of high-level nuclear waste;

2. Waste storage facilities operational. Specific facilities with adequate capacity to contain high-level nuclear waste are in actual operation, or will be in operation, at the time the nuclear power plant being certified requires the means for the disposal of high-level nuclear waste; and

3. Proposal for disposal is in conformity. The disposal of high-level nuclear waste proposed for any nuclear power plant to be certified according to this subchapter is in full conformity with the technology approved by the authorized agency of the Federal Government.
 

Massachusetts 

- Voter approval

- Legislature approval (when certain conditions are met)

M.G.L.A. 164 App. § 3-3

No new nuclear power plant shall be constructed or operated within the Commonwealth unless:

(a) construction and operation of the proposed nuclear power plant have been approved by a majority of the voters voting thereon in a state-wide general election; and

(b) the General Court has found, and has so certified by resolution duly adopted by majority vote of the members of each House:

(i) that there exists an operating, federally-licensed facility for the timely and economical permanent disposal of high-level radioactive wastes generated by the proposed nuclear power plant;

(ii) that an adequate emergency preparedness plan for the proposed nuclear power plant has been developed, approved, and implemented by the Commonwealth;

(iii) that effective emission standards applicable to the proposed nuclear power plant have been promulgated by the Commonwealth to protect the public against health and safety hazards of radioactive air pollutants traceable to nuclear power plants within the Commonwealth;

(iv) that there exists a demonstrated, federally-approved technology or means for the timely and economical decommissioning, dismantling, and disposal of the proposed nuclear power plant; and

(v) that the proposed nuclear power plant offers the optimal means of meeting energy needs from the combined standpoints of overall cost, reliability, safety, environmental impact, land-use planning, and avoiding potential social and economic dislocation.
 

Minnesota

- Outright ban

M.S.A. § 216B.243

Subd. 3b. Nuclear power plant; new construction prohibited; relicensing. (a) The commission may not issue a certificate of need for the construction of a new nuclear-powered electric generating plant.

(b) Any certificate of need for additional storage of spent nuclear fuel for a facility seeking a license extension shall address the impacts of continued operations over the period for which approval is sought.
 

New Jersey -Waste disposal safety

N.J.S.A. 13:19-11

The construction and operation of a nuclear electricity generating facility shall, however, not be approved by the commissioner unless the commissioner finds that the proposed method for disposal of radioactive waste material to be produced or generated by the facility will be safe, conforms to standards established by the Nuclear Regulatory Commission and will effectively remove danger to life and the environment from such waste material.

New York -Outright ban (limited area)

McKinney's Public Authorities Law § 1020-t

In no event shall the authority construct or operate a nuclear powered facility in the service area (which is defined in McKinney's Public Authorities Law § 1020-b as “the counties of Suffolk and Nassau and that portion of the county of Queens constituting LILCO's [the Long Island lighting company] franchise area as of the effective date of this title.”
Oregon

- Waste disposal capability

- Voter approval

O.R.S. § 469.595

Before issuing a site certificate for a nuclear-fueled thermal power plant, the Energy Facility Siting Council must find that an adequate repository for the disposal of the high-level radioactive waste produced by the plant has been licensed to operate by the appropriate agency of the federal government. The repository must provide for the terminal disposition of such waste, with or without provision for retrieval for reprocessing.

O.R.S. § 469.597

(1) Notwithstanding the provisions of ORS 469.370, if the Energy Facility Siting Council finds that the requirements of ORS 469.595 have been satisfied and proposes to issue a site certificate for a nuclear-fueled thermal power plant, the proposal shall be submitted to the electors of this state for their approval or rejection at the next available statewide general election. The procedures for submitting a proposal to the electors under this section shall conform, as nearly as possible to those for state measures, including but not limited to procedures for printing related material in the voters' pamphlet.

(2) A site certificate for a nuclear-fueled thermal power plant shall not be issued until the electors of this state have approved the issuance of the certificate at an election held pursuant to subsection (1) of this section.
 

Rhode Island

- Legislature approval

Gen.Laws 1956, § 42-64-14.1

The final approval or denial of a project plan for the location and construction of an oil refinery or a nuclear plant within the state is hereby expressly reserved to the general assembly notwithstanding any general or public law or ordinance to the contrary, and exclusively within the jurisdiction of the general assembly. The exclusive jurisdiction is vested in the general assembly notwithstanding any other general, special, or public law to the contrary, including, but not limited to, those laws granting regulatory powers to the cities and towns, and any ordinances enacted pursuant to these laws.

Vermont

- Legislature approval

30 V.S.A. § 248

(e)(1) Before a certificate of public good is issued for the construction of a nuclear energy generating plant within the state, the public service board shall obtain the approval of the general assembly and the assembly's determination that the construction of the proposed facility will promote the general welfare. The public service board shall advise the general assembly of any petition submitted under this section for the construction of a nuclear energy generating plant within this state, by written notice delivered to the speaker of the house of representatives and to the president of the senate. The department of public service shall submit recommendations relating to the proposed plant, and shall make available to the general assembly all relevant material. The requirements of this subsection shall be in addition to the findings set forth in subsection (b) of this section.