Another attempt to summarize the case against preemption

Jon Wharf asks for “a solid argument demonstrating how their discussions and considerations built a substantial case for some other form of non-preempted control over Vermont Yankee.”


It’s a fair request.  Here, in briefest terms, is what I think the argument looks like.


When Entergy purchased VY from its previous owner, it received a CPG from the PSB which was valid until March 21, 2002, but NOT thereafter.  The sale decision specifically required Entergy to seek a new CPG before continuing to operate after March, 2012.


In 2005, the legislature passed Act 74, which does 3 things: 1) It allows VY to store fuel generated before 2012 in dry casks on its site, after the PSB grants a CPG.  2) It establishes the Clean Energy Development Fund; 3) For fuel generated AFTER March 2012, it requires a legislative vote before storing outside of the spent-fuel pool.  Judge Murtha found that the 3rd provision is unconstitutionally preempted, but Act 74 says nothing at all about either safety or reliability, its supposed surrogate, and neither word appears in the text of the law.


When you think about it, it is hard to see how a legislature concerned with the plant’s radiological safety would pass BOTH provisions 1 and 3.  If safety were the concern, and shutdown the aim, the legislature’s easiest course would have been to do nothing at all. Without provision 1, VY would have been forced to close, probably BEFORE 2012, since its fuel pool was full and there was no place to put the fuel that would be contaminated.  That’s why Entergy ASKED FOR the first provision in this bill and noted the passage of the bill contemporaneously in an in-house email as “GOOD NEWS!”  It’s also worth noting that 2 of the 4 senators who voted FOR continuing operations in 2010 voted FOR this bill, and Governor Douglas, an ardent VY supporter, signed it.


Act 160, passed the following year in the 2nd year of the biennium essentially seeks to broaden the discussion, removing what the legislature sees as the limitations of the existing PSB process.  As finding a) puts it: “It remains the policy of the state that a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly expressed in law after full, open, and informed public deliberation and discussion with respect to pertinent factors…”


Act 160 has 3 operative sections.  In the first, the legislature requires a vote before a “final order” or CPG can be issued by the PSB.  In the second, it requires the PSB to “evaluate the application under current assumptions and analyses and not an extension of the cost benefit assumptions and analyses forming the basis of the previous certificate of public good for the operation of the facility.” (Section 3)


Finally, in the last section, the legislature mandates a detailed series of hearings and studies to be carried out by both the DPS and the PSB, whose purpose is “(A)  to facilitate public discussion of long‑term economic and environmental issues relating to the operation of any nuclear facility in the state;

(B)  to identify and assess the potential need for the operation of the facility and its long‑term economic and environmental benefits, risks, and costs; and

(C)  to assess all practical alternatives to those set forth in the applicant’s petition that may be more cost‑effective or that otherwise may better promote the general welfare.” (Section b(1))


Clearly, this bill redefines the legislature’s relationship to the PSB, at least as it pertains to the issue of VY’s continued operations.  It’s not much of a stretch to suggest that the legislature saw the existing PSB processes as too narrow and as insufficient with regard to public input.  The legislature therefore is VERY explicit on these points, specifying both issues and input processes (number of hearings, etc.)


The words “safety,” “radiological,” and “reliability” never appear anywhere in Act 160, nor are there any “code words” as Entergy and the Judge have suggested.  This bill passed unanimously in the House, and by an overwhelming bi-partisan majority in the Senate, again INCLUDING 2 of the 4 senators who later voted FOR continuing operations, and again it was signed by VY supporter Jim Douglas.  Entergy’s only contemporaneous objection to the bill was that it was “redundant,” since Act 74 already required a legislative vote.


The PG&E case, which is the precedent on which (all agree) we must rely, clearly states that Congress established a DUAL regulatory structure for nuclear power.  While the federal government retains exclusive regulatory authority over radiological safety and the “nuclear aspects” of nuclear power, States retain their “traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns,” (p. 205) or as it puts it later “traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.” (p. 212) It is just these questions which are EXPLICITLY what both acts 74 and 160 seek to examine.


It is a truism of all textual interpretation that one should start from the text itself, which is precisely what Judge Murtha did NOT do.  Had he done so, it would be clear that these laws are about economic and environmental considerations of energy policy which fall well within the scope of a State’s purview, and in the case of Act 160, the law demonstrates a particular concern with broadening the grounds and processes for making the decision.


Instead of this, Judge Murtha opted to begin and end his exegesis with legislative history, something the PG&E court specifically warned against: “inquiry into legislative motive is often an unsatisfactory venture… What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” (p. 216) Much worse, as the State pointed out to him, the judge had only a highly selected portion of the legislative history in front of him in the first place. And worse still, he never relates the comments he selects to ANYTHING in the laws that actually passed, making it impossible to know whether the comments quoted have any relationship at all to the final product.


The Judge NEVER carefully examines the text of the laws themselves. So, in effect, his search for meaning and intent ends up substituting his (skewed) reading of (cherry-picked) legislative history for an actual reading of the text.  Even if we accepted his (flawed) method of BEGINNING with the legislative history, he STILL should have shown HOW the final result actually reflects the meaning he purports to have discovered.  That’s something neither he nor his supporters have ever done.


That leaves us in a quandary.  Thanks to miscellaneous quotes (from mostly unattributed sources), however numerous they may be, we are told to conclude that 2 laws which mention neither the words nor the concepts of “radiological safety” are, in fact, about nothing else.  Entergy’s lawyers and others have suggested that the laws are full of “code” for these concepts, since even they admit their absence.  Even if, for the sake of argument, we agree to take them at their word, such a case STILL requires SOMEONE to show where the code words in these bills actually are, so that we can see with specificity exactly how the legislature pulled off this remarkable feat of writing 2 laws which mean PRECISELY what they do not say, and do NOT mean PRECISELY what they DO say.  Again, no one has ever bothered to do this.


What we SHOULD be asking is HOW this feat is accomplished IN PARTICULAR.  Without it, one could just as easily gather a bunch of quotes from legislators discussing football scores, and proclaim these laws to be code for them, rather than what the text actually says.  Or perhaps they’re REALLY about the JFK assassination.  With no tether to the text, this procedure can result in any “interpretation” at all; there are literally no limitations, except, apparently, the one obvious interpretative course: namely, that the laws are about what they say they’re about.


Finally, it should be noted that no one has alleged much of any ambiguity about these bills.  Their content, structure and meaning are all consistent, unambiguous, well-defined.  There is, in fact, no reason to go beyond what they actually say and search the ether for “meaning” to be found somewhere out in the great beyond.


Responding to Sen. Benning’s comments, Rama Schneider correctly calls Murtha’s process “a frontal assault on both your free speech as a legislator as you explore ideas and the right of your constituents to address you in matters that concern them.”


Along the same lines, it is important to recognize that those of us who are citizens are not just Vermonters, we’re also Americans.  This includes legislators and others.  Federal preemption law does NOT preclude expressions of concern about safety; it prevents States from LEGISLATING or REGULATING about nuclear safety issues.  Vermonters and Vermont legislators can and do interact with NRC officials on a regular basis, and safety issues are freely discussed – often quite vigorously – in these encounters.  Bernie Sanders, in the course of his duties as a senator, has oversight responsibilities vis-à-vis the NRC.  It would be a serious, presumably unintended, consequence of this misguided decision if these conversations were to be limited by the mistaken notion that they are somehow preempted.

Clairifying the problems of Nuclear Power in the Green Mountain State and beyond