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Abstract

On November 3, 1987, Maine voters once again rejected a proposal which would have forced closure of the Maine Yankee nuclear power plant, the state's only nuclear utility. The vote was the most recent in a series of attempts to close the plant, utilizing the vehicle of popular referendum. This latest initiative was in large part a consequence of intense public outcry against the possible location of a permanent nuclear waste repository in the state. It is therefore uniquely and personally linked to current passions concerning the future of nuclear electrical generation in the nation. The previous referenda to close the plant were rejected by substantial margins, and the margin of decision this time around was once again lopsided. The vote was decisive, but three such referenda demonstrate the determination of antinuclear activists in Maine. It is entirely possible that the issue might come up again. The purpose of this Comment is threefold. First, this Comment will briefly examine the history of nuclear regulation in the United States. This history is clouded by confusion and uncertainty concerning the boundaries between federal and state control of nuclear industry. This unique but tortured saga continues with no final resolution in view. Any assessment of America's nuclear future must be firmly grounded in a basic understanding of the various forces that have shaped the nuclear past. Second, this Comment will utilize prophetic hindsight to analyze the 1987 Maine Nuclear Referendum. The purpose of this analysis is to determine whether the initiative would have survived federal preemption if passed. This Comment concludes that the 1987 referendum would have had little hope of surviving a preemption challenge. Though it rests upon informed speculation, such analysis will give future referendum proponents pause before they begin their labors. Finally, this Comment proposes a model statute for future referendum approval. Though it is probable that any legislation enacted to close an operating nuclear utility would have little chance of survival, there are ways to better the odds. This Comment discusses some of those ways.

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