How the Courts Got the Vermont Yankee Decision Wrong

How the Courts Got the Vermont Yankee Decision Wrong


Ever since the Supreme Court decided the PG& E case in 1983, it has been settled law that the federal government occupies the whole field of nuclear safety regulation, and that accordingly States may NOT pass legislation based on safety considerations.


In the Vermont Yankee case, no one contests this. The question before the courts was whether or not, by passing Acts 74 and 160, Vermont impermissibly attempted to shut the plant down for safety reasons.  Two courts decided that it did. But both are clearly mistaken, since neither law can be reasonably interpreted as an attempt to shut the plant down for ANY reason.  Indeed, the precise opposite is true.


What the laws really did


Since 1977, 10 VSA 6501a has given the legislature the right to decide whether or not establishing a “spent” fuel storage facility promotes Vermont’s “general good.”  Both courts acknowledge this; no party contests it.  This law remains on the books.


Vermont Yankee’s fuel pool was originally designed to hold fuel from only a few cycles of operation, after which the fuel was to be transported to an offsite facility.  When it became apparent that no such facility was going to be built in time, the plant’s operators re-designed the pool (twice) to maximize the amount it could hold.


Entergy’s 2006 “uprate” would have filled the pool BEFORE its license expired in 2012, requiring that some fuel be stored OUTSIDE. To continue operation after the uprate, Entergy effectively had to trigger the 1977 law.


This brought about Act 74, which actually REMOVES the 1977 impediment for the period prior to 2012 and hands authority to the PSB.  Had it not been enacted, section 6501a would have required the plant to cease operations BEFORE 2012. For operations after 2012, Act 74 maintains the status quo ante.


Act 160 doesn’t change this, since the vote it calls for and the CPG process it restructures concern ONLY the period after 2012.  The vote required by Act 160 involves no ADDITIONAL approval, a fact explicitly acknowledged by combining the 2 votes. (Sec. 1f)


The combined effect of the two laws, then, was to allow the plant to continue to operate from the moment its fuel pool would have been filled BEFORE 2012 until its operating license expired in March, 2012.  Without them, the plant would have been forced to shut down prematurely.  Operations after 2012 remain subject to another legislative vote, just as before the two laws passed.


Only this explains why 1) a legislature with plenty of supporters of Vermont Yankee (both Democrats AND Republicans) voted overwhelmingly FOR both these laws (Act 160 passed the House 130-0), 2) Vermont Yankee’s “best friend” Governor Jim Douglas signed both bills, and 3) Vermont Yankee’s manager emailed his co-workers with “GOOD NEWS” in the subject line when Act 74 passed.


No one has asserted that either of these two bills is unclear or ambiguous.  Neither bill makes any attempt to regulate or even discuss nuclear safety, despite a plethora of statements prior to enactment in legislative committees.


Actual Meaning vs. Conspiracy Theories


The courts viewed this silence about nuclear safety as conspiratorial following Entergy’s “dog that didn’t bark” hypothesis.  But for a conspiracy to have any footing in reality, the EFFECT of the conspirator’s intent must show up somewhere.


The courts allege that they have discovered this hidden intent by reading history backwards.  The Senate, they note, voted in 2010 NOT to allow VY to continue after 2012. That must explain why the legislature voted in 2005-2006 FOR continued operations.  Hmm.


The courts read the wrong detective story.  They should have read the “Purloined Letter,” where the needed evidence was placed right in the open for all to see, just like the legislative intent of Vermont’s two laws. Both laws lay out their intent in findings, which the enactments follow closely.  There is no mystery as to their meaning.


Act 74 represents a typical legislative bargain in which Entergy got the fuel storage it needed, and the State got money to promote renewable energy alternatives.


Act 160 clearly articulates the legislature’s desire to broaden considerably the scope of the decision before it, well beyond the usual standards for a Public Service Board CPG case. In addition, it allowed the legislature to acquire information (voluminous studies of every non-safety-related aspect of the plant’s operations and their consequences for Vermont’s “general good”) and public input (articulated in detail). These were sought so that a later legislature could rationally decide the plant’s fate.


Indeed, the courts use some of this very information in reaching the decision that THEY, the judges, would not have voted to shut the plant down based on the (very partial, albeit voluminous) record before them, unless preempted safety concerns motivated them to do so. But in reaching that conclusion, they totally ignore the fact that the very record on which they base those judgments did NOT exist in 2006, was created, in fact, by the articulated INTENT of Act 160, and exists ONLY because of Act 160.


Having failed to find the EFFECTS they impute to either law in the laws themselves, and ignoring the clearly stated intent which actually IS put into effect by the laws, the courts infer the supposed presence of legislative motivation by combining the very studies the law itself created with a selective misreading of miscellaneous snippets of legislative history.  Hmm.


The Dog That Didn’t Bark and The Cherry Orchard


But surely, there must be SOME reason Entergy was able to invoke a “veritable cherry orchard” of statements by legislators appearing to discuss the topic of nuclear safety.  Absent a conspiracy, what would account for that?


First, at most, there are a few hundred pages in which such quotes occur, out of a record of tens of thousands of pages which, as the State told the courts, is far from complete because not all legislative committees record everything and the House does not record its floor debates at all.  At most then, the “cherry orchard” constitutes less than 10% of what must be a corporate mega-farm.  Why did the courts fail to examine the other “crops?”


Second, the identified speakers represent only a handful – fewer than 5% — of the 180 legislators who actually voted on the bill.  Why are the courts completely silent about the “intent” of the other 95%?


Third, it is remarkable that not one judge made any attempt to read the quotes in context, to determine whether tone of voice, preceding statements, etc. might have made words which APPEAR to mean one thing actually signify the very opposite.


Fourth, and again because no one bothered to examine contexts, it’s not clear whether these quotes relate to the laws as they were enacted, to a discarded version, or even to a legislative text at all.


Fifth, no allowance is made for the fact that, in a citizen legislature, everything needs to be learned from scratch – especially a question as complex as the federal preemption of nuclear safety – and for this, witnesses must be questioned thoroughly.  Assuming that every witness who testified about preemption and every legislator who inquired about its details and limits engaged in a conspiracy is like assuming that every patient who asks a pharmacist how many pills to take intends to exceed the dose, and that every druggist who answers such a question is conspiring with the patient to that end.  In both cases, the obvious innocent explanation seems considerably more likely to be the correct one, especially when the patient is standing alive and well before you.


In light of all this, the “cherry orchard” looms considerably less large than first imagined. But nonetheless, it’s still there.  For the sake of argument, let’s grant that these suspicious citations really do express the motivation of the Vermont legislature, despite wise warnings from the Supreme Court about drawing just this kind of inference from precisely this kind of fishing expedition, and also despite an abundance of contrary evidence which these courts simply ignored.


Intent without effect is no basis for preemption


What should the courts have made of all these quotes in the absence of any evidence that this suspicious intent manifested itself in illicit regulation? Nothing.


Just as a man who has repeatedly expressed murderous intent towards another cannot be justly convicted of murder if the victim is sitting alive and well in the courtroom, so too legislators cannot be guilty of REGULATING in a preempted field merely because judges CLAIM they’ve found statements which demonstrate intent to do so.


For preemption to have a credible basis, the suspicious intent must show up somewhere in the ACTUALLY ENACTED LEGISLATION, yet neither law has language which relates in any way to any of these quotes. In fact, there is no connection at all between the quotes the courts cite and the laws the legislature passed and the governor signed.


One example can stand for many.  Both courts recount this anecdote:  “After being informed that regulation based on radiological safety was preempted and impermissible, the committee chair responded, “Okay, let’s find another word for safety,” an approach also adopted by the Board chairman.” (Appeals, p. 35) (Murtha, p. 29) That certainly SOUNDS suspicious. But neither court asks the obvious follow-up question: What word did the legislature come up with and where does it appear in the laws?


In other words, the courts overlook the absence of vital missing pieces of the puzzle, which no amount of conspiracy of intent can supply.


We’re left with this: Legislators were SO concerned about safety that they passed laws in which safety actually never appears and the effect of which is NOT to regulate it.  Nevertheless, the courts conclude that Congress intended to preempt such behavior.  Hmm.


Free Speech vs. Nuclear Safety Regulation


Courts exist not to decide what a legislature SHOULD HAVE DONE, but to judge what it actually did.  The question they must ask is not “was the legislature right?” – That’s none of their business – but, as pertains to this case, “did the legislature act constitutionally?”


Legislators do not leave their free speech rights at the Capitol door.  Lawmakers ARE permitted to TALK about nuclear safety just like everyone else; no law preempts them from doing so. They must not REGULATE it.  No evidence has ever been adduced that the Vermont legislature made any such attempt.



The courts found what they thought were barks, and then imagined they found a dog. But, like the Purloined letter, they ignored the obvious meaning of the laws found in the legislative text because they did not deign to read it.


Following any measure of normal statutory interpretation, there is simply nothing to indicate that by enacting Acts 74 and 160 Vermont’s legislature entered the preempted field of nuclear safety, and there is thus no basis for overturning these laws.


Prior to passage, legislators and others did indeed mention the issue of safety; nothing precludes that.  But since the laws were, as even the courts acknowledge, “scrubbed clean” both of the words AND (as the courts fail to note) of any impact those words may have had, the enactments are, as a matter of law, constitutionally permissible.


These decisions should not stand.


NOTE: A different version of this essay, with more detailed factual documentation and fuller analysis of some points passed over here is available at


John Greenberg

Marlboro, VT









Refocusing on clean energy and personal growth!in the Green Mountain State and beyond