State and Local Permitting Restrictions on Nuclear Power
Introduction
In Part 3 of our analysis on state and local restrictions on siting energy-related infrastructure, we examine nuclear power. As an industry, nuclear power is unique in that most of its generating assets were built decades ago, and new nuclear deployment has slowed considerably. While this industry does not face the same siting challenges as others, difficulties do exist—and state and local policies may still come into play for future nuclear development.
Existing Prohibitions of Nuclear Energy Development Are Longstanding, Undergoing Reform
Currently, 12 states have laws that restrict the deployment of new nuclear energy: California, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, and Vermont. While this may not seem like many, bear in mind that these 12 states comprise 27 percent of all electricity customers.
In our analysis of wind and solar ordinances, a clear trend of new ordinances that restrict the market entry of capital became apparent. However, many of the prohibitions are longstanding for nuclear. As an example, California’s moratorium on new nuclear facilities dates back to 1976 and Hawaii’s to 1978. The trend of changes related to the siting of new nuclear power plants (NPPs) is inverted, dominated in recent years by states unwinding prohibitions on nuclear power rather than imposing new moratoria. By the end of 2023, Connecticut, Illinois, Kentucky, Montana, West Virginia, and Wisconsin had repealed laws prohibiting the deployment of new NPPs or adopted modifications that made it easier to build nuclear power in their states. This is likely a result of public interest in cleaner power generation as well as improved public understanding of nuclear power safety.
Notably, even states with restrictions on the deployment of nuclear power may already have NPPs. For example, there are power plants in California, Connecticut, Minnesota, New Jersey, and New York. This is because some of the laws have explicit exceptions, such as California’s exception for Diablo Canyon, or permit nuclear facilities based on legislature approval or compliance with a narrow set of requirements.
Though it may be possible to build NPPs in states with prohibitions on nuclear power, it is certainly more difficult to do so. Of the 92 nuclear reactors listed on the U.S. Energy Information Administration (EIA) website, 78 are in states without prohibitions. Put another way, states with nuclear prohibitions represent 27 percent of U.S. electricity customers but only 15 percent of nuclear reactors, indicating that there likely would be more NPPs if not for these prohibitive policies.
It is worth noting that, owing to relatively high electricity costs, many states with prohibitions on nuclear power are ideal locations for NPPs but (for the most part) have not used as much nuclear energy as expected. Interestingly, although the total share of nuclear power generation from states with moratoria is greater than the share of total electricity customers, this dynamic is not consistent across states—Illinois has an outsized share of generation, while California has far less than would be expected.
| State | Share of U.S. Customers | Share of U.S. Electricity Revenues | Electricity Price Relative to U.S. Average | Share of Nuclear Power Generation 2001-2023 |
|---|---|---|---|---|
| California | 9.9% | 11.6% | 180.7% | 3.2% |
| Connecticut | 1.1% | 1.2% | 170.6% | 2.1% |
| Hawaii | 0.3% | 0.7% | 321.4% | 0.0% |
| Illinois | 3.8% | 3.3% | 96.6% | 12.2% |
| Maine | 0.5% | 0.4% | 141.1% | 0.0% |
| Massachusetts | 0.2% | 2.2% | 172.1% | 0.5% |
| Minnesota | 1.8% | 1.7% | 97.4% | 1.7% |
| New Jersey | 2.6% | 2.3% | 119.7% | 3.9% |
| New York | 5.3% | 5.4% | 148.3% | 5.1% |
| Oregon | 1.3% | 1.1% | 74.9% | 0.0% |
| Rhode Island | 0.3% | 0.3% | 156.1% | 0.0% |
| Vermont | 0.2% | 0.2% | 137.5% | 0.4% |
| Total Share of U.S. | 27.3% | 30.4% | N/A | 29.1% |
In short, state policies that prohibit NPPs diminish the economic opportunity for market entry of NPPs. However, in instances where state restrictions allow for exceptions, nuclear power can still be an appealing and successful energy source.
Other Policy Considerations
Most nuclear permitting policy occurs at the federal level. The Nuclear Regulatory Commission is the primary authority for all nuclear regulation and has preemptive authority over state nuclear regulations—except for when a state imposes moratoria or discrete industry requirements, such as spent fuel management. Even so, state implementation of federal law can still impede nuclear power siting.
As an example, while Section 316(b) of the Clean Water Act (CWA) requires the regulation of structures that intake water (including structures for the cooling of nuclear reactors), related permits are issued by states. This creates an opportunity for states to restrict and regulate the nuclear industry; even in states without nuclear moratoria, excessively stringent requirements for receiving a permit in compliance with Section 316(b) can make nuclear power siting more difficult.
Additionally, the federal permitting process, which typically occurs through the National Environmental Policy Act (NEPA), also encompasses state and local permitting. In their environmental impact statement (a document prepared in compliance with NEPA) for an early site permit at the Clinch River Nuclear Site, the Tennessee Valley Authority consulted multiple state-level agencies to ensure compliance with state laws ranging from managing radioactive materials to consulting with the Tennessee State Historic Preservation Office. To the extent that states impose stringent environmental requirements that NEPA facilitates compliance with, this can indirectly impede future nuclear development. However, given how infrequently new NPPs are built, these local requirements rarely (if ever) factor into siting determination.
Policy Insight
While opportunities exist for states to restrict nuclear power deployment through moratoria or extraordinarily stringent implementation of environmental law, such restrictions are rare. Rather, we see states lifting or creating exceptions in their moratoria to make building new nuclear power easier. This distinguishes nuclear power from wind and solar energy, where ordinance counts are increasing.
There are likely two major reasons for this unique dynamic. The first is that new NPPs are relatively rare today. The average age of current U.S. NPPs is 42 years, with the youngest, Vogtle Unit 3, coming online in 2023—seven years after the next youngest. By contrast, trends in energy generation relative to wind and solar ordinances show that as those energy sources become more prevalent, so too do ordinances restricting them. This makes sense, as we do not expect legislatures to take up restrictions for power sources that are unlikely to ever be built in their state or county.
There is some optimism that the United States will see a nuclear renaissance in the form of advanced nuclear reactors and smaller-scale ones like small modular reactors (SMRs). If we do see such increases in nuclear adoption, then we should expect a similar dynamic to wind and solar ordinances, with states and counties moving to impose new restrictions on nuclear power.
The second likely reason for the lack of state restrictions on nuclear is the generally large labor force required to operate and maintain an NPP—typically between 500 and 800 workers. Unlike wind and solar farms, which are not labor-intensive and create relatively few jobs when sited, communities with NPPs may fear economic fallout from their closure and the associated job loss. This creates incentives to retain NPPs rather than restrict them; however, the smaller size of future reactors (like SMRs) will also require fewer workers and may not induce the same political interest as large NPPs.
Conclusion
While state and local policy can be disruptive to nuclear power, so much of nuclear policy is concentrated at the federal level that it is rarely the determining factor. This is partly because most of the current nuclear industry is comprised of aged incumbent NPPs that do not face the same political hurdles as technologies with rapidly growing market share and deployment, like wind and solar. That said, those hoping for future nuclear deployment utilizing advanced designs should consider that successful deployment would produce interest in ordinances that restrict future deployment, as has been observed for wind power.
Series: State Energy Infrastructure Permitting and Siting
Meeting electricity demands over the next few decades will require substantial infrastructure expansion throughout the energy sector. This new series surveys the challenges state and local permitting requirements pose to new energy infrastructure.