Pacific Gas & Electric Co. v. Energy Resources Commission

Justice Blackmun, in an opinion joined by Justice Stevens, concurred in part and concurred in the judgment. He took issue, however, with the idea implicit in the Court's argument that a state motivated solely by safety concerns, rather than economic ones, lacked the authority to prohibit the construction of nuclear plants. He then addressed the three reasons why the Court held that a safety-motivated decision to prohibit construction would be preempted: (1) "the Federal Government has occupied the entire field of nuclear safety"; (2) a state judgment on safety would place a state in conflict with the NRC; and (3) a moratorium on further plant construction would, in the Court's words, "be in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use."

With regard to the first argument, Justice Blackmun held that Congress had not attempted to control the wide field of "nuclear safety concerns," only the smaller realm of safe plant construction and operation. Thus if the federal government attempted to preempt the states, given the fact that its area of authority was not large enough to cover all contingencies, this would create a "regulatory vacuum." As for the second argument, the issue of conflict with the NRC, Blackmun held that while the NRC had authority to determine whether it was safe for construction of a plant to proceed, it was not in a position to order that such construction take place. Finally, with regard to the state's possible obstruction of federal goals regarding nuclear development, Blackmun maintained that the federal government's policy of encouraging nuclear development should not be interpreted as an attempt to prevent states from developing alternative sources of energy.