Let’s find another word for safety – Entergy v. Vermont in plain English

By Tamar Cerafici

Entergy’s Vermont Yankee nuclear power plant’s operating license would have expired on March 21, 2012, but the Nuclear Regulatory Commission extended the license to 2032. Vermont’s legislature and a vocal part of the state’s population don’t like the idea of Vermont Yankee’s continued operation. So, when confronted with an unpopular federal agency’s decision, what’s a concerned state legislature to do?

Pass laws against the plant, that’s what. Take as much legislative control over the operation of a privately held, federally licensed merchant nuclear plant as you possibly can. Tell your Public Services Board to consider radiological health as an economic issue. Base these activities on a misreading of a badly written Memorandum of Understanding. Do this during an election year.

There’s a problem with this strategy. It doesn’t work, at least according to Federal District Court Judge Gavan Murtha. On January 19, 2012, Murtha allowed Entergy to operate past the March 2012 deadline imposed by the Vermont legislature. The 102-page, historically rich ruling is instructive and clearly describes Vermont’s intentions about Vermont Yankee. But despite valiant efforts to slip through a preemption discussion, the legislature clearly overstepped its boundaries.

Vermont’s legislative efforts to limit the operation of Vermont Yankee

Better minds than mine have tackled the history of Vermont’s relationship with Entergy and Vermont Yankee. The matter came to a head when the state legislature passed several statutes that essentially prohibited Entergy’s ability to operate the plant after March 21, 2021. To understand Judge Murtha’s ruling and to put to rest any confusion that Vermont’s governor Peter Shumlin may have about it, here is a quick rundown of the offending legislation:

Act 160 enacted three substantive provisions governing Vermont Yankee.

  • The first section (Vt. Stat. Ann. tit. 30, § 248(e)(2)) provides that “[n]o nuclear energy generating plant within this state may be operated beyond the date permitted in any certificate of public good . . . unless the general assembly approves and determines that the operation will promote the general welfare.” This section gives Vermont the right to “pocket veto” any application from a nuclear plant for a certificate of public good (CPG), or by inaction allow an existing CPG to lapse. The legislature must pass a law affirmatively allowing continued operation.
  • Another section (248(m)) requires the Public Safety Board to consider current assumptions and analysis—rather than the supporting information for the existing CPG—in any review of a petition for continued nuclear operations.
  • Section 254 requires the board to analyze public health factors in a petition for renewal, including public health issues relating to dry-cask storage of spent fuel.

Act 74 contains provisions that allow Vermont to:

  • Require a CPG before implementing any uprates or construction of a spent fuel storage facility.
  • Requires legislative approval of spent fuel storage derived from the operation of Vermont Yankee after March 21, 2012.

Entergy cried “foul,” claiming that Vermont was preempted from enforcing the legislation, and Judge Murtha agreed.

How can this decision be confusing when the answer’s in the Constitution?

Shumlin, the governor of Vermont and a former legislator, is shocked and has implied that Vermont’s assistant attorney general had been badly outgunned by well-respected Washington, D.C. litigator Kathleen Sullivan. He even complained, “The first consideration is how do you take a disappointing decision that doesn’t make a lot of sense and ensure that you proceed in a way that meets the objectives of the state of Vermont.”

The home-team reaction to the result is a little naive. NRC authority clearly preempts Vermont’s authority to regulate Vermont Yankee’s operation.

The NRC’s power springs from the Supremacy Clause of the U.S. Constitution. Before 1787, the former colonies had sovereign power, and joined together in a loose confederation. As every fifth grader knows, this did not work. The states agreed to let Congress decide which powers they (the states) could keep. In other words, federal laws passed by Congress became the “supreme law of the land,” preempting any conflicting state law.

Judge Murtha’s ruling simply follows a long historic line. How is that confusing?

If it looks like a duck ….

There are several tests to determine whether a state’s activities are preempted by federal law. Judge Murtha used all of them. Primarily, the judge used what I call the Duck Test, which I borrow from that great legal philosopher Douglas Adams:

If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family anatidae on our hands.

The Vermont legislature tried like crazy to avoid crossing into the NRC’s turf, and they didn’t even try to hide it. In fact, Shumlin and the rest of the legislature knew they were trespassing on federal turf when they crafted the law. Judge Murtha dedicated at least 40 percent of his opinion on legislative bon mots like:

“Okay, let’s find another word for safety.” – Senate Finance Committee Chair

“…we don’t say safety when we’re talking Vermont Yankee in this room.” – unidentified representative

The legislature could consider a “broader range” of issues than the [Public Service] Board, referring to “three-headed turtles and sterile sheep” – unknown senator

“[W]e also intend to change the title, an act relating to an independent audit rather than a safety assessment.” – Sen. Peter Shumlin

“editorial changes … deleting the word safety and putting the word emergency, things like that.” – Chief Legislative Counsel

Witnesses also urged the legislature to assert oversight authority over dry cask storage, because there was “very little faith in the Nuclear Regulatory Commission.”

Judge Murtha’s decision makes complete sense. His conclusion is straight out of the Federalist Papers. The authority retained by the federal government invalidates any state legislation that conflicts with federal law or authority. So, the NRC’s federal power to regulate safety at nuclear power plants preempts Vermont’s right to legislate a nuclear power plant out of existence.

Whither now?

Entergy must still get its extended CPG to continue operations. The CPG was already leaning toward extension. Vermont’s attorney general can appeal the ruling, but that seems unlikely. Decisions like this are treated with great deference on the appellate level.

Barring any economic decisions from Entergy, it looks like Vermont Yankee will still operate long past March 21.

____________________

Cerafici

Tamar Cerafici is an environmental lawyer practicing in the areas of environmental, nuclear, and sustainable development law. Feel free to use any material in this guest post; just give credit where credit’s due: to Dan Yurman for asking me, and to me for writing it.

15 Responses to Let’s find another word for safety – Entergy v. Vermont in plain English

  1. How might this logic be applied to the Yucca Mtn debacle? Wasn’t that a situation where Federal pre-emption could dictate that the waste be stored in Nevada, in the interest of the country’s good?

  2. And here lies my biggest problem with nuclear energy, well, the whole funding cycle too. Another article made a good point, this ruling may be good for Vermont Yankee and Entergy but it is a potential suicide pill for the industry.

    What state or locality with any sense would permit construction of a nuclear plant in their jurisdiction after this ruling? You completely surrender ALL rights regarding plant operations and have zero recourse to address any problems with the plant or the operator. There is no way you can look at the actions of Entergy leading up to the “big vote” and believe that safety or being a good neighbor was a concern for them. And then to say, despite everything that took place in Vermont, you have no say as a local government to influence the actions of this guest on your state is ludicrous.

    Be careful what you wish for. Even as my attitude has changed on nuclear power, there is no way I would ever support construction of a new plant in my state until changes are made to how they are funded and regulated.

  3. Gerry. Would you allow a meat-packing plant or an airport in your state? These entities are also regulated by the federal government. Some types of businesses are regulated by the federal government because Congress considered that their potential safety problems need to be addressed in a consistent fashion throughout the country.

    States still get to regulate on the basis of reliability, water pollution, lots of things. For example, California cars need to meet stricter emission standards than cars in other parts of the country, due to the smog issues in California.

    This ruling isn’t a poison pill for nuclear unless it is also a poison pill for air travel, drug certification, meatpacking firms, etc. In other words, it isn’t a poison pill. It’s a reasonable ruling based on consistent regulation for certain industries. If you don’t like it, you should get Congress to set nuclear power inspections, drug certifications, airplane certification and inspection, meat safety and grading, etc., to be in the hands of the states.

    I think that would be much worse.

  4. Good article Tamar – maybe you could expand it into a little book called “Constitutional Law for Dummies”, and send the first copies to Shumlin and his AG?

  5. The thought HAS crossed my mind. But at 102 pages, Judge Murtha’s opinion has already beaten me to it.

  6. Mark, Yucca Mtn’s demise is a political question. One could write a small book on the legislation that created the problem in the first place, the Nuclear Waste Policy Act of 1982. That thing is a mess.

    Further, it is, unlike Entergy’s VY, a government project, wholly dependent on government funding. Nevada was working to scotch the project entirely – it was not usurping NRC’s power to license the project, or regulate the transportation of the spent fuel once it was built.

    Thanks for the comment!

  7. You could have, like, a meat packing fission transit centre, so stark are the similarities in what they do. Not.

    Whilst it sounds like Gerri’s attitude toward bustin’ atoms may have changed for the worse, he/she raises a genuine concern about a local population’s ability to decide what happens in their own back yard. Seems Uncle Sam is all up in Vermont’s grill. They aren’t wanting to declare sharia law. They simply want an old nuclear plant to adhere to it’s use by date before it kills a bunch of people.

    Nuclear power is a contentious issue and the population immediately surrounding any plant or proposed plant should absolutely have a say in licence grants or licence extension.

    Way to condescend her/him, Mere-death, with your meat packing nonsense.

  8. Bully, the so-called supremacy clause does not take away a State’s or local governments right to exclude certain activities. Just because the Federal Government makes some forms of pornography “legal” does not mean that a State or City must allow all that porn into their shops.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

  9. There are many ways a State may regulate and control what happens within the operational license of a nuclear plant. For regulated monopolistic facilities the State public service commissions, some elected and some appointed, decide the rate structure and thus the long term competitiveness of the facility. For merchant plants, where the cost effectiveness of the facility is dependent on the open market, the States can still act on safety and environmental issues if they can prove them negative and adverse to the public good. Note that Vermont has stricter radiological standards for exposure at the site boundary than the federal standards, as noted in related articles about VY. I would refer readers to the Oyster Creek plant for which Exelon has announced closure by 2019 due to the high investment cost of adding cooling towers in order to meet newly imposed cooling water discharge temperature limits developed by the State of New Jersey. The cost of the towers makes the Oyster Creek business case uneconomical. I suppose if Vermont could have proven unsafe and adverse conditions as related to the public health or common good, then the federal preemption might not have stood. Since I’m not a lawyer or an expert on Vermont’s previous arguments I won’t comment on that any further. At any rate, if I was in charge of Entergy’s portfolio of commercial nukes I would have pursued a different strategy altogether. I would have tried to cut a deal with the State to shut down the station, have Vermont provide remedy for that decision by ante-ing up the imbedded costs based on book value and then pass them on to the citizens as if the facility was fully and truly regulated during the agreed upon end of life transition. Many years ago when de-regulation was the buzz word many utilities agreed to divest of generation, and did so with decent economic remedies of various sorts. With VY shuttered, the locals could sit around and scratch themselves in the dark or pay for more expensive imported power. As an object lessen they could also install wind and solar and get an early education in capacity factor and grid stability as they hurried to line up for some combustion turbines and a volatile natural gas contract future. They could trade a fearful carbon footprint that is very small for a much bigger one that they think they understand.They remind me of the NIMBY’s in California who hate the thought of fossil and nuke power in their state but are perfectly content to have it generated just over the borders in either Arizona or Nevada. Environmental stewardship for some folks ends at the state line.

  10. Luke, way to insert maturity into the debate.

    Actually meat packing and airports are perfectly apt comparators. Like nuclear, they’re federally regulated. I know you think nuclear is in a special category, and you’re right, it is. Just not the category you think. If you were to venture to any depth into any credible nuclear power statistics, you’d see that it’s safer to have a nuclear plant than a meat packing plant or an airport.

    In fact, if you took that nasty old fission product cesium-137 and aimed it at ground beef or poultry, there’d be a lot less e. Coli- and salmonella-related deaths each year.

  11. Tell that to the residents of Fukushima.

  12. The Federal government, I believe, still operates the hydroelectric facilities in the Columbia River watershed, under the Bonneville Power Authority. The USA get an appreciable amount of highly dispatchable power from these facilities.
    The problems we have with nuclear power in the USA are in part aggravated by their being owned by private corporations. France’s enormously successful Electricite de France it should have acute accents was built by the government, for the people. Energy companies in the EU, finding they couldn’t compete, bullied France into privatising it, but so far the only ill effect seems to be that they’ve added a wind energy branch.

  13. Dear Luke,
    The residents of Fukushima are far less threatened by the failure of the nuclear plants than they would have been if the tsunami and earthquake had hit an equivalent amount of coal waste. When hurricane Andrew hit a nuclear power plant, it survived and the only casualty was the smokestack of the coal burning plant that shared the site. This, in spite of the fact that the thermal power released around the eye was at least a thousand times the combined power of the reactors and the coal burner. Which explains why, until we can tame hurricanes for power, we’ll have to make do with nuclear.

  14. Pingback: 92nd Carnival of Nuclear Energy Bloggers | ANS Nuclear Cafe

  15. They simply want an old nuclear plant to adhere to it’s use by date before it kills a bunch of people.

    Nice scare-mongering, but the NRC already verified that the plant is safe.  A legislature lobbied by a bunch of professional activists financed by the plant’s competition is not in a better position to judge safety than a board of specialists employed by the one Federal agency with nuclear safety as its charter.