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Vermont Yankee, State Rights and the Future of Nuclear Power

If the decision by Federal District Court Judge Garvan Murtha in the recent Entergy Nuclear case survives appeal state legislators throughout the country will have to stop talking about radiological safety. Otherwise their proper lawmaking about nuclear power plants within their borders will be declared unconstitutional.

The Vermont laws at issue in the case of Entergy v. Vermont Governor Peter Shumlin were not overturned because they improperly encroached on federal regulation of safety at a nuclear power plant. The court found nothing in the Vermont law, as written, that regulates radiological safety. The court overturned the Vermont laws because during deliberations certain legislators talked about their concerns about the safety of the aging nuclear plant in Vermont. The court found that the Vermont laws were “grounded in nuclear safety concerns and therefore invalid under the Supremacy Clause of the United States Constitution because they are preempted by the Atomic Energy Act” based on those remarks.

On the day he filed the appeal, Vermont Attorney General William H. Sorrell said:

The court’s undue reliance on the discussions among our citizen legislators, expert witnesses, advocates, and their constituents has the potential to chill legislative debates in the future. Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings.

Although the courts have long interpreted the federal Atomic Energy Act as preempting state legislatures from passing their own laws regulating any aspect of radiological safety at nuclear plants, until this Vermont case, nothing in federal law burdened discussion by members of state legislatures, including expressing concerns about nuclear safety.

The federal court decision is particularly troubling in view of the fact that the Atomic Energy Act requires states to rely entirely on proper and effective work by the federal agency responsible for radiological safety, the Nuclear Regulatory Commission (NRC). The NRC has been criticized as being a “captured agency,” heavily influenced by the nuclear industry it is supposed to regulate.

In addition, Vermont Yankee is a 40 year old nuclear plant owned by a company that acknowledged untruthful statements under oath to state officials and that failed to provide maintenance sufficient to prevent radioactive leaks into Vermont groundwater.

Because states are pre-empted by federal courts from enacting their own regulations regarding radiological safety at nuclear plants within their borders, state officials must be vigorous advocates at the NRC for vastly improving safety while simultaneously advocating before Congress for reforming the NRC to remove industry influence. Because federal law preempts states from issuing their own safety regulations state officials must have unimpeded freedom to advocate for health and safety both before the NRC and before Congress. And that requires that legislators be free to talk about safety.

Freedom to advocate for safety by state officials is especially important in view of the catastrophic meltdowns and hydrogen explosions at three nuclear plants in Fukushima. Vermont Yankee–along with 22 other nuclear reactors in the US–has the identical GE Mark I design and the identical design flaws as the Fukushima reactors that released massive amounts of radiation last year. Those reactors melted down because they lost offsite power and did not have adequate backup power onsite to run cooling pumps. Massive amounts of radioactive fission products were released because their too-small Mark I reactor containment structures failed to contain. Additional massive amounts of radioactive fission products were released because their spent fuel pools had no containment structures at all.

Vermont Yankee shares all the design flaws of Fukushima. In addition, Vermont Yankee has several times the amount of high level waste stored in its spent fuel pool as those three reactors put together.

Nothing in the Atomic Energy Act prevents legislatures from being vigorous advocates for radiological health and safety before the NRC and before Congress. Because the NRC has been criticized as being a rubber stamp for the industry, legislators have an overriding responsibility to educate themselves about reactor safety, speak out about what they learn, pass resolutions, attend meetings with federal officials, ask questions, mobilize the public for demanding improved safety, and put those demands before the NRC and Congress.

On Monday, March 19, Federal District Court Judge Garvin Martha issued a further order preventing the Vermont Public Service Board “from addressing the storage of spent fuel” and from bringing an enforcement action, or taking other action, to enforce subsection 6522(c)(2) [of Vermont Law] to compel Vermont Yankee to shut down because the “cumulative total amount of spent fuel stored at Vermont Yankee” exceeds “the amount derived from the operation of the facility up to, but not beyond, March 21, 2012.” While the Public Service Board appears to still have the authority to order Entergy to stop operating the reactor on other grounds, such as the fact that both the contract under which Entergy bought the reactor and its Certificate of Public Good only allow Entergy to decommission after March 21, 2012, the continuing Federal Court intervention on behalf of Entergy may have the effect of restricting even consideration of such action by the Public Service Board.

Thus, Vermont Yankee is continuing to operate after its 40 year design life ended on March 21 of this year. And Vermont legislators may now fear that the Federal District Court may overturn any otherwise legitimate action regarding Vermont Yankee, such as reasonable taxation.

Precisely because radiological safety is preempted by the NRC, and because Vermont Yankee is an aging plant run by a company that cannot be trusted to tell the truth or to properly maintain the plant, in no way must the legislature allow itself to be banned from talking about radiological safety and pressing for action by the responsible federal agency, the NRC.

In interpreting the Atomic Energy Act in a way that has the effect of restricting legislators from talking about safety when considering bills properly regulating non-radiological aspects of Vermont Yankee, the decision by Judge Murtha illustrates a deeply flawed interpretation of what is preempted by the Atomic Energy Act by the majority of Justices on the US Supreme Court. The flawed interpretation was pointed out in a footnote of the decision by Judge Martha in which he quoted two Supreme Court Justices in the leading case on federal preemption of state law regarding radiological safety. In that case the majority of Supreme Court Justices had stated that “a state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field.”

A concurring opinion by Justice Blackmun, joined by Justice Stevens, disagreed with the majority to the extent it suggested “a State may not prohibit the construction of nuclear power plants if the State is motivated by concerns about the safety of such plants,” because there was nothing in the AEA to “force States to be blind to whatever special dangers are posed by nuclear plants” in exercising their traditional powers to choose “which technologies to rely on in meeting their energy needs.”

In this and other cases that Judge Martha relied on, the Supreme Court majority established as the law that the Court look not just at whether a state law actually regulated radiological safety but also at whether the purpose in the minds of the state legislators when they considered the legislation was infected with caring about health and safety. In the Vermont Yankee case, Judge Martha determined that the purpose was grounded in safety concerns from statements made by certain state legislators.

Even if one accepts, for the moment, that statements by a number of legislators demonstrates the purpose of the legislature as a whole in enacting the legislation, speech in the legislature is not itself a form of regulating. Nor is desire for a safely operating nuclear plant itself a form of regulating. Even if every single member of the Vermont legislature urgently wanted Vermont Yankee to operate safely–as they all should–wanting safety is not regulating safety.

How can legislators best fulfill their responsibility to regulate all areas of nuclear plant operation, except the preempted area of radiological safety, while also fulfilling their responsibility to advocate for radiological safety before Congress and the NRC? Certainly, legislators must be free to talk about both the non-pre-empted subjects and the pre-empted subject so they can ensure that the laws adopted do regulate in the permitted areas, do not regulate in the pre-empted area, and provide the information about the pre-empted area with which legislators can pass resolutions pressing the NRC and Congress to take action to improve radiological safety.

Overturning Vermont law because of legislators talking about safety concerns could have the adverse effect of preventing legislators in all 50 states from talking about safety, leaving the dividing line obscured so regulations adopted either do not go far enough in the permitted areas or stray into the preempted area. Regarding talking as impermissible regulating is also likely to have the effect that legislators will fail to discharge their responsibility to discuss safety issues and press for the changes needed at the NRC and before Congress.

To the extent that the nuclear industry continues to have such catastrophic accidents as Fukushima, concern about radiological safety will inevitably rise. Deeply troubling is the fact that the elevated concern generated by serious accidents increases a legislature’s risk that otherwise lawful regulation will be overturned. Under the decision by Judge Martha, the more the nuclear industry makes legislators worry about safety the less the nuclear industry need worry about legitimate state regulation. All states thus have a compelling interest in seeing that Vermont is successful in its appeal.

Legislature have the responsibility to hold hearings to expose the serious design, management, and age-related deficiencies of nuclear reactors, consider the extent of industry influence over the Nuclear Regulatory Commission, and use what they learn about deficiencies and flawed regulation to vigorously demand immediate action by Congress and the NRC to close the reactor or for immediate action to vastly improved radiological safety.

Legislatures also have responsibility to provide leadership for their citizens by passing resolutions endorsing public protests against considering continued operation of unsafe plantsand inviting the citizens of their state and neighboring states to join such events. In such resolutions the legislature may demand that the NRC take immediate action to close aging plants, like Vermont Yankee and the other Mark I reactors, in view of their demonstrated unacceptable risk to public health and safety. Because such resolutions are properly directed at demanding federal action they in no way would violate federal preemption. Nor should passage of such resolutions provide basis for ruling otherwise proper legislation unconstitutional.

The public has every right to be indignant that the Supreme Court overturned state and federal election laws that restricted corrupting corporate spending in elections because those laws supposedly violated the first amendment rights of the voters to hear from all sources while at the same time a federal district court is now severely burdening the speech of state legislators who express concerns about nuclear safety.

State representatives and senators must have the freedom to discuss everything under the sun regarding nuclear power so they can craft the best possible legislation within the requirements of law using their authority to regulate everything but radiological safety and so they can use their authority and leadership to press Congress to free the NRC from subservience to the nuclear industry and close plants, such as Vermont Yankee, that have the serious design flaws demonstrated at Fukushima. All without worrying that their statements can be used to overturn otherwise lawful state law.

James Marc Leas is a patent lawyer from South Burlington, Vermont who served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island.

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James Marc Leas is a patent attorney and a past co-chair of the National Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza immediately after Operation Pillar of Defense in November 2012 as part of a 20 member delegation from the U.S. and Europe and authored or co-authored four articles for Counterpunch describing findings, including Why the Self-Defense Doctrine Doesn’t Legitimize Israel’s Assault on Gaza. He also participated in the February 2009 National Lawyers Guild delegation to Gaza immediately after Operation Cast Lead and contributed to its report, “Onslaught: Israel’s Attack on Gaza and the Rule of Law.”

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