The Story of Vermont Yankee: A Cautionary Tale of Judicial Review and Nuclear Waste

摘要

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA’s procedural requirements has continued apace, and the Court’s simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court’s perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as the case unfolded. The Essay argues Vermont Yankee is very much a creature of its time, when dramatic expansions in congressionally-mandated regulation led to multiple political and institutional struggles—between advocates and agencies, between agencies and courts, and between the Supreme Court and the D.C. Circuit. But the cautionary tale of Vermont Yankee has broader significance and demonstrates the challenges facing judicial review in the modern administrative state.