Greenberg: Why the Murtha decision should be appealed

Editor’s note: John Greenberg owns and operates The Bear Bookshop in Marlboro.

Judge Murtha’s Vermont Yankee decision ignores basic principles of legal interpretation and effectively overturns the existing court precedent concerning regulation of nuclear power. It should be reversed.

The Atomic Energy Act clearly establishes a role for the states as well as for the federal government in regulating nuclear power plants, a point clearly articulated by the Nuclear Regulatory Commission in its regulations. In the Pacific Gas & Electric case, the Supreme Court, explicitly refusing to look at legislative history upheld California’s moratorium on nuclear plant construction. While declaring that the field of radiological safety is clearly preempted from state legislation, the unanimous PG&E court asked only “whether there is a nonsafety rationale,” and went on to find that: “it is clear that the States have been allowed to retain authority over the need for electrical generating facilities easily sufficient to permit a State so inclined to halt the construction of new nuclear plants by refusing, on economic grounds, to issue certificates of public convenience in individual proceedings.”

In stark contrast, rather than closely examining the text of the laws the Vermont Legislature actually wrote to discern their meaning and intent, Judge Murtha gathered random tidbits from a highly selective sampling of legislative history, and made no effort at all to relate them to the actual text of the law as passed. Many of these quotes might relate to passages of legislation that were never enacted. Indeed, quite a few might not relate to legislation at all. Assembling random quotes with no context gives us no way of knowing.

For example, quoting one legislator saying, “Let’s find another word for safety,” Judge Murtha concludes that the law which results is “motivated by safety.” But the judge simply assumes the answers to a whole series of questions. Was that legislator’s suggestion ever followed? What new words were chosen? Is the wording in question still in the law? If so, where do they appear? Does the context suggest, as the judge implicitly deems self-evident, that the intent is merely to use a different word to discuss a pre-empted topic, or has the text now evolved to something entirely different?

In undisputed fact, the actual language of the legislation Vermont passed contains nothing about nuclear or radiological safety, and no words which somehow mask any such intent. The very structure of Act 160, the vast bulk of which (Section 4) establishes a detailed set of studies and procedures necessary for legislators to determine whether the plant is in the “public good,” makes the Legislature’s intent quite clear. These studies specifically relate to the very issues the Atomic Energy Act leaves in state hands: need for power, economic impacts on the state, etc. Indeed, they closely mirror the very issues which would be raised in a CPG proceeding, and have, in fact, been entered as testimony in PSB Docket 7440.

By contrast, these same provisions are totally inconsistent with the notion that the Legislature was motivated by safety considerations to shut the plant down. The suggestion that the entire Legislature and a conservative Republican governor endorsed a vast conspiracy to spend hundreds of thousands of dollars in meetings and studies solely to mask their “real” safety-driven purpose strains credibility.

The judge’s conclusions cannot be reconciled with actual historical facts. Indeed strikingly, Act 160 passed unanimously and was signed into law by Jim Douglas, an ardent supporter of Vermont Yankee’s continued operations.

There is no way to connect the laws passed to the intent that Judge Murtha tries to infer from the remarks he’s selected. But that’s precisely what one would expect when an interpreter fails to examine the text itself. In sum, as a matter of law, there is no violation of federal supremacy in the laws which Judge Murtha seeks to overturn, because there is no reference in them to the areas pre-empted by Congress.

Overturning legitimate legislation for specious reasons and allowing the plant to operate beyond its permitted time is bad enough, but this decision has nefarious and far-reaching unintended consequences as well.

Federal preemption laws do not abridge the free speech rights of legislators, who remain free to think and say whatever they like. The purpose of pre-emption is to prevent states from regulating areas declared to be solely within the purview of the federal government. But legislators do far more than regulate; they play a central role in the broad political dialogues – with constituents, with lobbyists, with administration officials, and even with federal agencies — which constitute our representative democracy.

When, for example, Yankee’s cooling towers collapsed, the NRC’s David Lew declared this to be a “very, very low significance issue.” Nonetheless, Vermonters, including legislators were concerned. Murtha’s decision absurdly suggests that giving any voice to that concern, especially if the word “safety” happens to be uttered, is somehow pre-empted under federal law, if it happens in a legislative committee and on tape. That conclusion doesn’t pass the straight-face test.

But the fallout from this decision will go well beyond that. In a citizen legislature, most elected representatives do not come to their jobs with legal, technical or any other expertise concerning the dozens of issues they must confront. With no staff beyond shared legislative counsel, they do not have the luxury of consulting in-house experts either. Instead, they are forced to learn on the job and on the record, by bringing in citizens, lobbyists, legal and technical experts, etc., to teach them what they need to know while drafting legislation.

In an area like nuclear power, where both legal and technical issues of considerable complexity abound, it is totally unsurprising to find legislators discussing issues about which they will, in the course of time, learn that they may not regulate. At the same time, some of the witnesses who offer testimony will be completely unaware of the legal niceties, and discussions of matters which cannot be regulated at the state level will ensue. As legislation moves forward, legislators hone their sense of what is and isn’t permitted. Illegal or wrong-headed provisions get re-crafted or dropped altogether. In the end, the only thing that matters is the result, that is: the law as enacted.

Judges must interpret laws to mean what they say, not what any of the witnesses or legislators who happened to be present in a committee room might have said. The Legislature does not enact and the governor does not sign legislative drafts, floor speeches, or committee discussions.

Just as Judge Murtha quotes the Second Circuit expressing the fear that legislatures could “nullify nearly all unwanted federal legislation by simply publishing a legislative committee report articulating some state interest or policy – other than frustration of the federal objective – that would be tangentially furthered by the proposed state law,” so too, if this ruling stands, legislators could nullify any state legislation merely by inserting terms pre-empted by federal legislation into the legislative history of otherwise perfectly permissible legislation. Even more absurdly, Judge Murtha’s methodology means that legislators don’t even have to succeed in introducing them into the law as passed.

If this ruling stands, no legislature could afford to be caught listening to any witnesses unschooled in the minute details of pre-emption law, when drafting legislation which could later be challenged. The legal chicanery feared by the Second Circuit is not a one-way street; but it is both a legislative and an interpretative cul-de-sac.

Finally, if the economic implications of safety issues and the rate implications of utility contracts are pre-empted, as Judge Murtha suggests, then the dual regulatory scheme established by Congress becomes a farce. This ruling makes it impossible to conduct the cost-benefits analysis needed to reach rational regulatory conclusions about the economic implications of housing a nuclear power plant in Vermont, ironically the very points Act 160 was intended to address.

Assume, for example, that the NRC is correct in assessing Vermont Yankee’s tritium leaks as having no safety consequence. That premise does not lead to the conclusion that the leaks are without economic impacts on tourism, on Vermont’s brand, and thus on a host of local businesses for whom the image of natural purity is crucial. Nor does it even relate to the fact that Entergy officials misled the state about the piping which could potentially carry tritium underground, thus creating an atmosphere of extreme distrust about a corporation attempting to do business in Vermont (while effectively poisoning the discussion of eventual decommissioning liabilities, which was the context in which the questions were raised in the first place). All of these matters are state responsibilities; the NRC has no authority over any of them.

Telling legislators and PSB regulators simply to ignore all this effectively instructs them to ignore the costs in cost-benefit analysis. That makes any regulating the state could possibly undertake a truly hollow enterprise. But without such regulation, we are left with a regulatory vacuum, which the PG&E declares was clearly not the intent of Congress. In other words, this decision subverts not only Vermont law, but federal law as well. It must be appealed.