Why the Appeals court is wrong about VY (with addition)

How the Appeals court got it wrong


The 2nd Circuit’s decision errs because it fundamentally misinterprets Vermont’s laws concerning nuclear power, resulting in a totally failed analysis of the effect, intent, and therefore the meaning of the laws it overturns.


While the court acknowledges that longstanding Vermont law[1] – which preceded the contested laws by more than 25 years – required that the legislature vote affirmatively to store nuclear waste in Vermont (pp 6-7), its analysis completely fails to fully consider the effect of that enactment and thereby reaches unsupportable conclusions.


In discussing the passage of Act 74, the court acknowledges that Entergy tried and failed to get the legislature to change this 1977 law after the Vermont Attorney General’s office had ruled that a provision passed two years afterwards in 1979 (Section 6505) applied only to the Vermont Yankee Nuclear Power Corporation as such, and therefore not to Entergy.  The court summarizes this simply by noting: “This proposal failed to obtain support from the Vermont [8] Legislature, however,” (pp. 7-8) and then moves on to its discussion of the passage of Act 74.


The court’s analysis splits the effects of Act 74 into two time periods. During the first: “Entergy would only need to seek a CPG from the Board before constructing storage facilities for new spent nuclear fuel, rather than the Vermont Legislature as had been required by section 6501(a). However, this CPG would remain in effect only until March 21, 2012.” (p. 8) Given that prior to the passage of Act 74 Entergy needed legislative approval, during this first period, Act 74 shifts the decision from the legislature to the Public Service Board.


But that’s NOT the case for the second time period: “after March 21, 2012, the storage of any new spent nuclear fuel in Vermont would require an affirmative vote by the Vermont Legislature.” (p. 8) In making that statement, however, the court fails to note that this requirement simply restores the status quo ante, since section 6501a ALREADY required a legislative vote.


In other words, there is NO “post-March 21, 2012, shift of responsibility for approving the storage of spent nuclear fuel generated by Vermont Yankee from the Board to the Vermont Legislature” (p. 8), at least none due to Act 74.  The responsibility for approval during the second time period was in the legislature before and after the enactment of the law, and it continues today, with or without the preempted sections of Act 74.  The shift occurs only during the FIRST period, when the Legislature passes the responsibility (for a few years only) to the Board.


This is no small point.  Indeed, the whole case really turns on it.


For the sake of argument, let’s simply grant the court’s suggestion that the legislative records of Act 74 clearly show a pre-empted concern for nuclear safety and even its finding that the legislature was aware of that: “Indeed, the 2005 MOU endorsed by Act 74 includes a provision under which Entergy “waived” any right to bring a preemption challenge to the Board’s authority to regulate Vermont Yankee, which clearly demonstrates the concern of the Vermont Legislature and the Board as to whether their actions would withstand scrutiny under the Atomic Energy Act and Pacific Gas.”(p. 42)


Where would accepting all that leave us?  The court has already told us, but appears to have forgotten its own point: Section 6501a precluded the storage of spent fuel in Vermont without approval of the legislature.  The first section of Act 74 now being moot (the Board granted the CPG, the pre-2012 fuel is already being stored, and the casks are full), section 6501a continues to preclude any further storage. In consequence, whether before OR AFTER the passage of Act 74: “If no such affirmative vote occurred, storage of nuclear waste generated from operations after March 21, 2012, would not be permitted. Thus, Vermont Yankee would have to shut down.” (p. 8)


The court’s conclusion as to the law’s effect is thus precisely backwards.  If “the Vermont Legislature’s impermissible motive in passing Act 74 – namely, to shut down Vermont Yankee based on concerns of radiological safety while attempting to avoid a preemption challenge under Pacific Gas,” (p. 42) had been the purpose of the enactment, the legislature would simply have done nothing.  The plant would have then been required to close as soon as its spent fuel pool was full. Failure to enact a new law in 2005 would have left the 1977 law in place, and, exactly as the court repeatedly points out about the new law, the old law was not reviewable by any court.  In other words, only passage of Act 74 permitted Vermont Yankee to keep operating.


The court is thus led to the absurd conclusion that concerns over nuclear safety led legislators to pass a law whose passage allowed continued legal operation of a plant which would otherwise have closed, since passage didn’t force a shut down, but failure to pass the law would have.


Legislators were clearly aware of this when they passed Act 74, which is the only conceivable reason that pro-nuclear, pro-VY legislators voted FOR its passage, a pro-nuclear, pro-VY governor signed it, and Vermont Yankee’s plant manager sent an email to his co-workers with “GOOD NEWS” in the subject line upon hearing that the law had passed.[2]


Very similar reasoning applies to Act 160. By the time Act 160 was contemplated, Act 74 had become law.  So in considering the new law, legislators knew that without an affirmative legislative vote prior to 2012, Vermont Yankee would be forced to shut down because it would have nowhere to store its spent fuel.


Legislators also knew that Vermont’s Public Service Board was created by the legislature to handle highly technical decisions in a quasi-judicial forum and that the Board’s history and mandate would limit discussion in a CPG case to evidence which is judicially admissible and to the precedents the Board had set over its years in existence.  And, last, they understood that the decision to allow Vermont Yankee to continue to operate for another 20 years had serious and broad implications for the State: millions of dollars, thousands of jobs, a burgeoning renewables industry and far more were at stake in the decision.


It’s hardly surprising, then, that the legislature decided to broaden consideration of the issues beyond what the Board would, in the normal course of its business, be allowed to consider. As the court notes: “Act 160 would also help foster a “larger [12] societal discussion of broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits, risks, and costs,” and of alternative methods of power generation as well. Id. § 1(d). Act 160 also includes a stated purpose of ensuring that the evaluation of new CPGs be conducted under new cost-benefit assumptions and analyses, rather than those that supported the previous CPG. Id. § 1(e).”  (pp. 11-12)  These are precisely the kinds of concerns which Pacific Gas affirms belong within the ambit of State decision-making (see p. 215).


While it’s certainly correct that shifting the decision from the Board to the legislature had the effect “that [the legislative] decision [unlike a Board decision] would not be subject to judicial review.” (p. 28), the court conveniently opts to overlook what we’ve already seen above: namely, that such a legislative decision was ALREADY ensconced in Vermont law (by BOTH Act 74 AND section 6501).


Legislators, on the other hand, did not miss this point. Indeed, the legislature explicitly recognizes that fact by combining the legislative vote required by Act 74 with the new vote to be taken in consequence of the passage of Act 160. (Section 1(f))


Now, suppose that, instead of paying lip service to the notion that “The proper place to begin the analysis of a statute is its text,” (p.27) we actually LOOK at the text of Act 160 to discern its intent.  The bulk of the law sets up a series of studies and timelines completely consonant with the intent quoted above: the law requires that the legislature and the Board be furnished with considerable new information on all aspects of the plant’s implications for Vermont EXCEPT nuclear safety.[3]


We would then note that a voluminous record of non-radiological, non-safety issues was created by numerous officials at considerable expense, resulting in literally tens of thousands of pages of testimony, reports, etc.  All of this effort would have been an exercise in total futility if the legislature had, when enacting Act 160, already decided to shut the plant down for preempted safety reasons (or for ANY reasons, for that matter).


The court’s interpretative conclusion leaves three obvious questions unanswered.  1) Why would busy legislators with far more on their plates than just this one issue opt to expend all those resources in a farcical charade just to accomplish a goal which could be more quickly and easily accomplished by doing nothing at all?  2) Why would fiscally conservative officials including legislators and the governor go along willingly with such a farce, especially given that many of these same officials actually supported continued operations of the plant? And 3) How did conspiring legislators convince Vermont Yankee supporters to keep their nasty secret under wraps?  In short, the court’s “analysis” leads directly to absurdities which defy credibility.


A far more natural interpretation of the law results from simply taking it at face value: the legislature of 2006 wanted the information it asked for in Act 160 BEFORE deciding whether or not the plant should be allowed to operate[4].  Had it wanted to shut the plant down then and there, after all, it could have done so, with no effort and no cost.


In a passing attempt to examine possible non-preempted rationales for the law, the court analyzes SOME of the multiple areas the legislature demanded be investigated, finding that SOME of the CONCLUSIONS offered by state experts years later in court did not warrant shutting the plant down.  (pp. 30-33)  Unfortunately, this attempt completely fails to explain how or why the legislature would or should have known in 2006 when it passed the law what the court THINKS  it knows (there’s no need to debate the details here) in 2013.  Hindsight certainly helps to sharpen vision, but the legislature was asking for information on these topics in 2006, not examining the results generated by their inquiries as the court did in 2013.


Like the district court before it, the appellate court is suggesting Act 160 was enacted IN ORDER TO shut down Vermont Yankee for safety reasons. But this makes NO sense either legally or historically, even if one takes at face value every statement quoted from every legislative record as supposed evidence of this intent.


We’ve already seen that the easiest way available to the legislature to shut the plant down was to simply do nothing.  As the Appeals court keeps telling us, such a decision would have been unreviewable by the courts, and therefore final.  It’s clear that the intent of Acts 74 and 160 can NOT have been to shut the plant down as the courts suggest, unless one also assumes that all 180 legislators were so stupid that they forgot that they could achieve their aim by doing nothing, and unless one also fails to note that the effect of the enactment of these laws – for the next several years at least – was precisely the opposite of the supposed intent: namely, to allow the plant to continue to operate (as safely or as unsafely as ever) and then to re-examine the issue when more information became available.


Similarly, the court’s rendition is simply not credible politically.  Vermont has NEVER spoken with one voice about nuclear power. The plant was built originally thanks to a one-vote legislative majority. In the succeeding years, there were ALWAYS members of the legislature who were highly supportive both of nuclear power in general and of Vermont Yankee in particular.  (Given recent Entergy actions, the number of the latter might be approaching zero now, but that was not the case in 2005, when Act 74 was passed, nor was it true in 2006, when Act 160 was enacted.)


If either Act 74 or Act 160 is interpreted to mean what the courts say they mean, in other words, it is simply impossible to explain why the latter passed the Vermont House unanimously, and the remaining votes in both chambers on both bills were lopsidedly supportive. It is also impossible to explain why Vermont Yankee’s “best friend” former Governor Jim Douglas would have signed them.


In short, the analysis the courts are offering of these bills simply fails of its own weight: the bills CANNOT possibly mean what the courts say they do, REGARDLESS of whether or not safety was a motivating factor.  While it’s true that the ultimate effect of the failure to achieve legislative approval is, as the courts have declared, that the plant is not operating with legal approval from the State, elimination of these 2 laws does not change that basic fact in any way: section 6501a has required that same vote since 1977.


That being the case, the court’s entire discussion of legislative comments on safety during the passage of Act 74 and Act 160 is to no avail: the intention of legislators in 2005-2006 cannot have influenced the decisions of legislators in 1977, and is accordingly irrelevant.  Moreover, if the laws’ meaning were correctly understood in the first place, there would have been no need for these forays into the legislative record.


Nonetheless, let’s examine just a bit more closely the methodology being employed here by the courts. The appeals court summarizes its reading of legislative history by noting that “The record also indicates that during hearings on the bill that would become Act 160, members of the Department, regulators, and Vermont legislators repeatedly demonstrated awareness of the potential for a preemption problem and disguised their comments accordingly.” (p. 36)


“Disguised” is, of course, a loaded term, and it is used here because the court already assumes that it understands that legislative intent – a “court’s primary purpose in statutory interpretation,” (p.34) — is to shut the plant down, though our analysis has shown that neither Vermont law, nor the history of these enactments supports that reading.


Why then is the record “as consistent and replete [38] with references to radiological safety as that here?”  First, we should note that “replete” is a relative term.  The courts, following Entergy’s lead, have cherry picked a multi-thousand page record and found, not to quibble, perhaps a hundred pages in which safety concerns are raised in any fashion.  In so doing, and especially in raising these concerns to the PRIMARY motivation of the legislature, these “analysts” are simply ignoring the far more voluminous record of concerns which have nothing whatsoever to do with safety.  That’s an odd way to consider ANY historical record.  Similarly, if memory serves me correctly, only 6 identified speakers account for ALL of the safety-related quotes, which means that 97% of legislators did NOT raise these concerns.  Yet somehow, this small contingent, not the silent remainder, is ASSUMED to represent the legislature’s intent.  Again, this is an odd way to examine ANY record.  Finally, the courts never bother to provide any context for the quoted statements, so we do not know, for example, whether they occurred in the context of passages of the law which passed, or passages (or drafts) which never passed.  One could be forgiven for concluding that this is a distinction of some importance here since laws are reviewable, but legislative (or committee) drafts are not.


Putting all this to one side, the question persists as to why there are ANY references to radiological safety when federal law preempts State legislatures from regulating in that area.[5]


The simple answer is that Vermont legislators are not legal, nuclear, or technical experts, and the legislative process ALWAYS involves a learning curve.  Legislators do not enter the Capitol and suddenly benefit from divine inspiration concerning the details of nuclear preemption law, or any of the other highly technical legal and financial questions they need answered.  They must learn everything the hard way.  They bring in experts, they ask them questions, and they LEARN how to legislate by legislating.  Courts may legitimately interpret legislative products, they have no right to judge legislative process. Any effort to discern legislative intent needs to examine what comes OUT of a legislature; NOT what went in to the sausage factory.


Neither the district court nor the appeals court have shown in their interpretations of these laws how the supposed intent of regulating nuclear safety issues manifests itself in texts which do not, in any way, regulate these issues. If the courts could show in the language of the text the well-hidden, preempted, safety implications that legislators supposedly buried there, then its efforts to rake through legislative history MIGHT bear fruit.  Which words in these laws are disguised surrogates for the preempted topics of radiological health and safety?


Since the answer, with the possible exception of “public health” (see footnote 3) is “None,” then on what basis are the courts imputing a hidden safety motivation to the laws actually passed?  If safety is indeed the motivator for these laws, it must “surface” somewhere in the language, unless the courts’ contention is that the motivation is so well hidden as to not appear at all in texts whose meaning is otherwise perfectly clear.  Because the courts are mistaken about the EFFECTS of these laws as well, there is, in actuality, no such motivation apparent anywhere: not in the language of the laws, and not in their effects.  The courts’ foray into legislative history then appears to be exactly what it truly is: a futile exercise in search of a justification.


This decision, like its lower court predecessor, has implications that go well beyond the failed analysis of nuclear law. If allowed to stand, it will have a remarkably chilling effect on legislators everywhere and, in some cases, may well bring the legislative process to a screeching halt.  The implications are far-reaching, and they go well beyond the narrow issue of federal preemption of nuclear safety issues.


One last point, raised and basically dismissed by Judge Carney’s concurrence is this: one could read the decisions of both the district court and the appellate court and forget the HOLDING in Pacific Gas.  Unanimously, the Supreme Court upheld California’s moratorium, despite evidence that safety issues may have played a role in California’s deliberations. The Court did not stop at the notion that a decision “grounded in safety” would be preempted; rather, it asked “whether there is a nonsafety rationale.” (p. 213) Although the appellate court APPEARS to have done that here, I’ve suggested that the analysis is totally colored by the temporal distortion which it brought to its examination of the issue.  A proper reading of Act 160 shows not just a non-safety rationale, but a plethora of points which the legislature thought it needed to consider, all but one of which (Public health) clearly have NO safety motive.


For all these – and other – reasons, this decision should be appealed AT LEAST to the whole appeals court.


John Greenberg


August 16, 2013









[1] VSA 10 §6501: “No facility for deposit, storage, reprocessing or disposal of spent nuclear fuel elements or radioactive waste material shall be constructed or established in the state of Vermont unless the general assembly first finds that it promotes the general good of the state and approves, through either bill or joint resolution, a petition for approval of the facility.”

[2] This also explains why the only opponents of the law in the House were a small number of anti-VY Democrats and Progressives.

[3] As the both the district and the appellate courts note, the words “public health” do indeed appear in Section 254 b(2)(B), where they are part of a list of items on which the Department is to “identify, collect information on, and provide analysis.”  As the appellate court correctly suggests, preemption analysis requires that we look at purpose AND at “the state law’s actual effect” (p. 30) In this case, the effect of the term “public health” was NIL. The studies were subsequently produced, and there is no mention of public health in them.


Should, therefore, the court discern preempted purpose behind these 2 (out of more than 1800) words, it should have declared that these 2 words are, in fact, preempted, while leaving the rest of the law intact. Doing so, as just noted, would be moot in any case.  However, given the care with which the rest of the law is written, a more reasonable approach would be to attribute non-radiological meaning to the two words in question.  Assistant Attorney General Asay provided a number of possibilities in her oral arguments in the district court.

[4] And also before the Board reached any final conclusions as well.

[5] I have chosen my words carefully here.  Federal law preempts REGULATING about nuclear safety.  It does NOT preempt legislators or officials (or anyone else) from TALKING ABOUT it.


A quick afterthought


Both the appeals court and Judge Murtha 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.” (p. 35) (Murtha, p. 29)


Interestingly, neither court asks the obvious follow-up questions: What word did the legislature come up with and where does it appear in the law?  If the answer is, as I suspect, there is no such word, then alarm bells should be ringing.  After all, the courts are judging the laws which actually got written, passed, and signed.  If the substitute word never made it into the legislation being considered here, then how and why is this story relevant to THIS law?


Is it really legitimate to discern the intent of a law by looking at random statements of legislators without showing how they actually impacted the law?  To ask the question is, I think, to answer it.

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