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The Dark Nuclear Lesson of Entergy v. Shumlin

by NANCY BURTON

The Atomic Energy Act of 1954 turns 60 in 2014. It has not aged well. It’s time to update and amend it with a single sentence: “Nothing herein shall prevent a state from permanently shutting a nuclear power plant within its borders for reasons of public health and safety.”

At the dawn of the Nuclear Age, in the Cold War 1950s, Congress gave the Atomic Energy Commission, predecessor to the Nuclear Regulatory Commission, exclusive jurisdiction over issues of nuclear safety as a means to encourage development of the “peaceful” uses of the atom. Congress prohibited states from regulating against radiation hazards of nuclear power plants once they made the fateful decision to allow nukes within their borders.

Unfortunately, for those states that fell for the lure of “too-cheap-to-meter” nuclear reactors, the past six decades have established that Congress’ faith that the federal government would live up to the task of actually protecting the public health and safety was cruelly misplaced.

In 1954, Congress could not have anticipated that the operator of Connecticut’s Millstone, as just one example of the nation’s 104 nuclear plants, would engage in activities risking radiation hazards such as these:

*  It lost track of two highly radioactive spent fuel rods;

* For years, it knowingly used defective nuclear fuel rods which allowed record levels of radiation releases to the air;

* It deactivated its perimeter security system post 9-11 to save money (the system was hypersensitive and plagued by false alarms that required manpower response);

* It falsified records of waste discharges, a federal felony under the Clean Water Act;

* It disabled its main radiation monitors during the periods it planned to vent unusually high levels of radioisotopes to the surrounding populated area;

* It refused to install free, taxpayer-funded floating barriers offshore from its giant intake structures to deter waterborne terrorism, despite the directive of the U.S. Department of Homeland Security post-9-11;

* It fired whistleblowers who revealed significant safety violations involving radiation hazards;

* It contaminated the surrounding marine environment and the milk of goats grazing five miles away with radioisotopes including cobalt-60, strontium-90 and -89, cesium-134 and-137;

Nor could Congress have anticipated that the NRC would permit Millstone – and the 103 other operating nukes under its exclusive jurisdiction – to continue to operate despite serious, repeated, flagrant violations of federal regulations intended to protect the public from radiation hazards.

In Vermont, as elsewhere, citizens have campaigned for decades to shutter their nuclear power plant. Vermont Yankee, the 1,912-megawatt reactor on the Connecticut River that sells most of its electricity out-of-state, went online in 1972.

Vermont citizens exposed safety violation after safety violation and kept the docket busy with futile petitions at the NRC’s adjudicatory arm. Most recently, Vermonters were shocked to see photographs of the plant’s collapsed cooling tower looking like it had been blown apart by terrorists. Despite it all, the NRC recently renewed VY’s 40-year license to operate another 20 years.

The Vermonters had campaigned hard, up and down the state. They spoke at meetings at local town halls. They got arrested in civil disobedience actions at VY’s gates. They wrote letters to the editor and agitated their state legislators and leaders. They aligned with the Bread and Puppet Theatre parading along Main Streets. Dave Dellinger, of the Chicago 7 (“From Yale to Jail”), joined their ranks, as did Ben & Jerry and Bonnie Raitt. Eventually, they got the Governor and the Legislature to exercise their authority to shut Vermont Yankee based on powers the Atomic Energy Act ceded to the states: economic and environmental issues. They didn’t argue the public health and safety card, aware that the Atomic Energy Act of 1954 stripped them of that right. All told, the citizens of Vermont went down every avenue conceivable within the democratic process.

It all came to a head last week when the U.S. Court of Appeals for the Second Circuit delivered a brutal decision castigating those Vermont state officials for using economic and environmental issues as “code words” for radiation safety and impugning their motives. The Court scrapped two state statutes that required VY to obtain state approval to extend its licensing life, although the statutes never mentioned radiation hazards.

The bullying language was unusual for a federal appellate court. The Court accused legislators of “disguising their comments” to avoid addressing radiation hazards directly and applying a “consistent effort . . . to obfuscate the record through the use of misleading statements.” The state officials were coached by their lawyers, the Court charged, to avoid overt references to radiological safety in their comments and in drafting the state legislation.

Yet, as dark as the decision in Entergy v. Shumlin is, a concurring opinion by Judge Susan L. Carney, newest member of the Court, is full of illumination.

Carney expressed concern that Congress, in enacting the Atomic Energy Act, “did not intend the result we reach.”

The Supreme Court’s pivotal 1983 Pacific Gas & Electric case, she wrote, recognized that, consistent with the Atomic Energy Act, “a state that once agreed to the construction of a nuclear plant within its borders might, at an appropriate inflection point, change course.”

These days, plenty of citizens and state officials are seriously thinking about changing course on nuclear power plants within their states’ borders in light of Fukushima and threats of terrorism, not to mention the everyday radiation hazards they are becoming aware of.

The lesson of Entergy v. Shumlin to states is not to waste time trying to push that proverbial boulder of their concerns over radiation hazards up the judicial hill.

The lesson is to end the Atomic Energy Act’s grant of exclusive federal jurisdiction over radiation hazards and to amend the Act to empower states to mothball their nukes for reasons of public health and safety.

Nancy Burton lives in Connecticut.

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