John McClaughry’s piece “Ducking the health exchange bullet” obscures or misrepresents the facts on several key aspects of the new health insurance exchange the Legislature and the Shumlin administration are currently debating.

Set to begin in January 2014, the federally mandated health care exchange will be an online, Expedia-like marketplace where consumers can compare various health insurance plans. And the majority of working families in Vermont, such as those earning less than $90,000 per year for a family of four, will likely receive federal subsidies to make their insurance more affordable.

Mr. McClaughry’s first misstatement is that if Gov. Shumlin has his way, Vermonters “will only be allowed to buy legislatively mandated one-size-fits-all benefit plan offered by a single carrier.” In fact, it’s legislatively mandated that the state work to have at least two Vermont-based carriers offering health care in the exchange. More to the point, under Shumlin’s proposal, there will be three levels of insurance plans with different deductibles, co-pays and the like. Additionally, because there will also be two federally mandated, multi-state plans, most observers expect there to be somewhere between eight and 12 plans offered in the exchange.

It is true that the administration is proposing a comprehensive, standard level of benefits that every Vermonter will have access to, no matter which plan they choose. McClaughry paints this in a negative light, but based on my experience helping people get access to health care, this is a major step forward, substantially simplifying the process of selecting an insurance plan.

Why should a person have to spend time trying to figure out if a plan covers the cancer drug they need, or fear that their insurance won’t cover the mental health treatment they need, whereas another plan might? The exchange will take the guesswork and confusion out of choosing health care benefits, because they will be standardized across all plans.

McClaughry uses classic doublespeak when he states, “This provision of the act will kill off all but the most expensive and impractical HSA high deductible policies.” To translate: in the exchange plans with high deductibles like $5,000 or $10,000 will be banned. Again, he makes this sound like a terrible idea. But I haven’t heard any support for these high-deductible plans from the people who are actually in them and on the hook for thousands of dollars in medical costs. Virtually every day, in fact, we hear from people in these plans who feel trapped and financially squeezed, and want to know how they can get into low-cost Catamount Health or VHAP instead.

McClaughry expresses his opposition to the state mandating that businesses with 51 to 100 employees be required to purchase health benefits through the exchange. This would cost Vermonters millions of dollars because anyone buying insurance outside the exchange will not be eligible for federal premium and cost-sharing subsidies. If McClaughry had his way, millions of dollars would be going to insurance companies instead of being saved by Vermonters and spent in our economy.

What he also fails to mention is that if Vermont does not set up its own exchange, designed and implemented by a governor and Legislature accountable to Vermonters, the federal government will do it for us. I don’t see how that is a preferable outcome.

Based on what we now know, thanks to tens of millions of dollars from the federal government and comprehensive, standardized benefits, the exchange should make getting health insurance easier and more affordable for both individuals and thousands of business owners. Unlike Mr. McClaughry, I see this as helping Vermonters lead healthier, more productive lives.

VTDigger

Recent critical editorials about Vermont’s health reform plan are welcome. Perhaps they will spur the Vermonters affected, particularly small business owners and their employees, to take a closer look at the real opportunities available to them as we implement the federal and state health reform laws.Small business owners and their employees are the primary beneficiaries of premium subsidy provisions of the federal health reform law, the Affordable Care Act, known as the ACA. These benefits will be available to businesses and individuals purchasing insurance through the federally required health insurances exchange. Here are some examples:

• Tax credits of up to 35 percent of a small employer’s contribution to employees’ premiums between now and 2013 and of up to 50 percent of the contribution in 2014 and 2015.

• Free choice for small employers regarding whether or not to offer insurance to employees. No penalty if they decide to drop coverage.

• Tax credits for individuals and families who purchase insurance that will limit the impact of premiums. For a family of four earning $50,000 per year, monthly premium would be limited to $282, about one-half of what many families now pay. These credits will be available on a sliding scale to families earning up to $92,000 per year.

• Cost-sharing for families earning up to $57,636 per year to help pay for out-of-pocket expenses like deductibles and co-pays.

Some commentators have ignored these facts and focused on the ACA requirement that all states implement new insurance rules that reduce variation in rates. This requirement will eliminate a giant loophole in Vermont’s current law that allows certain businesses to band together to form “associations” and escape the normal insurance rate setting laws.

Our analysis of this change shows that it will level the health insurance rate playing field for Vermont small businesses and their employees. Leveling the playing field means that there will be a one-time adjustment producing some winners and some losers. This will happen in 2014, when the tax credit and premium subsidy provisions listed above kick in to soften the impact on those who have benefited for more than 20 years from Vermont’s “association” loophole.

We are not “proposing” this change, as some commentators have said. It is a requirement of federal law that everyone in the small group market be treated alike and that costs be spread fairly. And as already noted, this is a one-time change. Some small employers, even some of those in associations, have seen annual premium increases for several years in a row greater than the elimination of the so-called association exemption will cause. And some small employers will see premium decreases as a result of giving fair treatment to all.

All of these changes are part of a transition to a more cost-effective, less complicated and fairer system. And when health care reform is fully implemented, we are willing to be held accountable for its level of success.

But we do need the help of all Vermonters in explaining and striving to understand the long path toward changing a health care system that threatens to bankrupt our state. Creating a successful health insurance exchange that complies with federal law is an absolutely essential step on that journey. But it is only one step.

Gov. Shumlin has proposed additional reforms that will have a more dramatic effect in the future. He has proposed that health care coverage be fully divorced from employment, so that employers no longer have to worry about insurance details and all Vermonters know they will have coverage regardless of their employment or income status. He has proposed significant changes in health care payment and delivery so that we can contain health care cost growth. And he has proposed investments in improving the health of Vermonters so that we assure access to good primary and preventive care and avoid illness. The Green Mountain Care Board is working to implement these reforms.

VTDigger

On Jan. 30 Gov. Peter Shumlin appeared before a chamber of commerce legislative breakfast in St. Johnsbury. During the question period he reported how his good friend Quebec Premier Jean Charest had told him that many companies had asked him about locating a plant in Vermont, New Hampshire, Maine or Quebec, and Charest had gotten all of them to choose Quebec because of Quebec’s single payer health care system. There are some who will be skeptical of this report.

Later I had the chance to ask a question: “Governor, since you mentioned Quebec, can you tell us how your Green Mountain Care will differ in any material respect from the Quebec single payer system?”

His reply was this: “In Quebec health care providers work for the government. They will stay private in Vermont. Vermonters will have universal access.”

In the first place, Canadian Medicare is more universal than Green Mountain Care will be. It covers all Canadians except those in the armed forces or in prison. To distinguish Green Mountain Care as being more universal is, frankly, ridiculous.

The other part of Shumlin’s answer is more troubling. He actually believes that Canadian health care providers are employed by the government. That’s true in the United Kingdom’s National Health Service, but it is unarguably false with respect to Quebec. Shumlin’s Green Mountain Care will operate exactly like Quebec Medicare, right down to the controlling board, government definition of essential benefits, setting compensation rates for providers, writing all the checks to pay private providers, and setting a global budget in the name of cost containment.

I am shocked that Gov. Shumlin is so totally ignorant about the system just 50 miles north of Montpelier, while he is trying to impose exactly that system on Vermonters.

VTDigger

From the recently released study done by Lawrence O. Picus and Associates, a study commissioned by the Legislature last spring, we know that how the money gets into the Education Fund is equitable across all Vermont towns and cities, that a penny on the tax rate does indeed raise the same amount of money in all towns. We also know that when money is distributed on an equalized per pupil basis that spending also has achieved equity.

But we do not know from the Picus study whether that equity of input of money to the Education Fund purchases equal educational opportunity for all Vermont’s children as required by the Supreme Court in “Brigham,” “that to fulfill its constitutional obligation the State must ensure substantial equality of educational opportunity throughout Vermont.”

To address that question, the towns of Dover and Wilmington, home of some of Vermont’s many, many small schools, believe from the many years of crafting their school budgets under the constraints of Act 60/68 that the equity of input to education funding does not buy equal education opportunity for its children. Therefore, the two towns commissioned a study by Northern Economic Consulting of Westford, Vt., to find out. That study was released on  Jan. 16. Among its finding are that:

•While under Act 60/68 the same school tax rate will allow the same dollar spending per pupil across Vermont towns, the same school tax rate does not lead to equal education opportunities.

•It also found that since 1997-98 per pupil spending nationally rose 30 percent, but in Vermont it rose 60 percent.

•And, finally, it found that student performance did not improve during the years when Act 60/68 governed, when compared with like demographic in other states.

What both studies tell us is that outcomes for all Vermont children are not consistent with the amount of money we spend. What the studies do not tell us is why, for all the money we spend, we don’t provide a world-class education for all Vermont children.

What else don’t we know about our education funding system?

For one, where is accountability in this system for outcomes and how is it linked to how much has been and needs to be spent? Under Act 60/68 the state has taken over the financing of education, yet has failed to establish the link to accountability for outcomes. At the state level, we are reduced to “asking” school budgets to remain level without any idea of what that means to the education outcomes of our children.

Why have we not put in place a uniform code of accounts for all schools so that we might finally be able to establish how the $1.3 billion in the education fund is really being spent and how that relates to student achievement.

If we continue on the track we’ve been on where the economic principle of economy of scale drives decisions at the state level, which now holds the power of the purse, at the same time local schools  nd their voters are driven by the commitment to the best education for their children, we will remain in the current status where there exists an abyss between the state and local school districts where the levers of accountability between spending and outcomes simply don’t exist.

No amount of moving the pieces of the system around, say fewer supervisory districts or having the commissioner of Education report to the governor or creating Regional Education Districts (REDs) or other such districts will solve that problem.

We simply have put in place a system of funding education, while equitable in raising the money that goes into the Education Fund, has not gone the next step of putting in place a system from the state on down to local schools of delivering education where there is direct accountability between the decision to raise and spend and the results for our children.

VTDigger

Defying the will of Vermonters, Entergy Nuclear has successfully won the first stage of its trial to allow it to break its word and to usurp the rights of the Vermont Legislature. Judge J. Garvin Murtha effectively delivered a slap in the face to the people of Vermont by saying that [contrary to prior Supreme Court judgements] the Legislature has no right to regulate the operation of the Vermont Yankee nuclear reactor. The Public Service Board is now the only state entity that has the power to decide Vermont Yankee’s future.

The judge also bought Entergy’s argument that he should base his judgement not upon the written legislation in question, but rather by retroactively reading the minds of the legislators to judge what they were thinking at the time.

This ruling goes hand in glove with current federal policies that enrich the 1% and keep power firmly in the hands of America’s largest corporations. It affirms that corporate profits trump the interests of the citizenry. It attempts to belittle the state Legislature and misrepresents their legislation while defending the laughable notion that only the federal government can be trusted to keep us safe from radiological accidents caused by corporate malfeasance and profit-driven lax practices.

More significantly, the ruling should serve as the catalyst to spark Vermonters who have been watching this struggle from the sidelines to join the citizen effort to shut down Vermont Yankee before an accident shuts it down for us.

The executives of Entergy have lied under oath repeatedly to the Vermont Legislature, tried to bribe the Legislature (in Louisiana talk, they called it a gift offer) and have run roughshod over every aspect of the state’s self governance, relying on their tight association with the Nuclear Regulatory Commission, which abets rather than regulates the industry, to ensure that their reprehensible actions are allowed to occur unchecked.

The State of Vermont can fight back, trying to rein in this corporate behemoth, but federal law and the courts are limiting the state’s possible responses.

A majority of Vermonters know that Vermont Yankee has run its course and needs to be shut down as originally licensed. Now people are turning to their neighbors to organize. Affinity groups are forming throughout the region. Sagealliance.net http://sagealliance.net/ is providing non-violence trainings to people who are willing to risk arrest.

March is going to be a month for taking action. Students at Greenfield Community College are organizing a walk from GCC to the reactor on March 3. On March 11, the anniversary of the ongoing Fukishima nuclear disaster in Japan, commemorations will be held at the reactor and various locations throughout the state. There will be a shut it down rally at the Statehouse with our state representatives on March 21. On April 1, a major rally (without a civil disobedience component) will be held in Brattleboro, where Vermonters will make clear our support for the state’s right to regulate our utilities. Civil disobedience and direct action will be doubtlessly be directed towards Entergy Nuclear if they continue to operate past the March 21 license expiration date.

Our state will continue to assert its right to control our energy generating future, but it needs our help. Only with a strong partnership of people power and government action will we be able to achieve victory over the entrenched interests of the money powered corporate oligarchy.

Vermonters are determined to thwart those who would put us at risk for the sake of their profits. The Arab Spring and the Occupy movement have shown us the potential power of the people. When we stand by and watch our leaders lead, we often find ourselves in peril. When we assert our own sovereign power we take the first step towards building a better future for us all.

VTDigger

I chair the Green Mountain Care Board, which is responsible for reducing health care cost growth in Vermont by changing health care payment and encouraging change in health care delivery. We are charged with making sure that cost containment results from real efficiencies, not arbitrary constraints.

When I speak with health care practitioners around the state, I try to make three central points:

•Significant transformation in our health care system to reduce cost growth is absolutely necessary and unavoidable;

•Doctors and other health care practitioners must lead this transformation, or we will get it wrong, and;

•Health care providers can’t tackle this challenge alone. State government, the federal government, hospital administrators, private payers and patients have to be part of the solution. Vermont has to embrace changes in health care delivery as a community.

Health care costs rise, in Vermont, at two to three times the rate of growth in the economy. That trend is impossible to sustain. We currently spend about one out of every five dollars we earn on health care, and we spend more with each passing year. If health care costs continue to rise at five percent per year (a reasonable expectation) and the state economy grows at two percent per year (also reasonable), health care costs would absorb 100 percent of gross state product around 2045.

This concept is ludicrous: We could not spend all of our income on health care. As with a family budget, we, as a state, have to buy food, housing and all other things that are essential. Yet we have seen the effect of rising health care costs on our spending. A recent Health Affairs article documented that, between 1999 and 2009, Americans, on average, gave up all real increases in their incomes to health care costs.

We won’t let it get that bad. The question is how will we stop it? If history is a guide, Medicare and Medicaid use the only tool that has any meaningful impact – provider fee reductions – to moderate overall health care cost growth. Public and private payers also will try to influence health care use, by requiring providers to ask for permission, requiring them to file paperwork, or second-guessing their decisions. That’s not the right way to reduce health care costs.

This is why providers must lead in crafting a solution. Health care practitioners have to own this one, and we must develop reforms that enhance their role in the health care system, which has been sadly diminished in recent years. They know there are better ways to reduce health care cost growth. Not easier, but better. There is avoidable hospital use. There are avoidable readmissions. There is better management of chronic conditions. There are better approaches to end-of-life care.

We know that, when doctors provide evidence-based care to patients, costs are reduced and quality is enhanced. The current system constrains them from providing evidence-based care – it forces providers to shorten visits, refer the patient up the line, or order stuff they might not think is necessary. Both the reimbursement system and the liability system encourage this.

Health care providers cannot do this alone. They need support and cooperation to change the health care delivery system, to make it more efficient and effective. They need public and private payment policies that pay fairly for doing the right thing. They need hospital administrators who support them. And perhaps most importantly, they need patients whose expectations and personal behavior are consistent with a system that rewards value. This is difficult to achieve, but essential to our success, as a community – a full community, not just a medical community – at health care reform.

Our goal, as a board, is to create an environment – in terms of payment, regulation and public policy – that supports health care practitioners in creating the best possible health care system for Vermont. To say we need their help in this endeavor would be an understatement – we need them to lead it.

VTDigger

Editor’s note: This op-ed is by Deb Katz, executive director of Vermont Citizens Action Network, an anti-nuclear group. http://www.vtcitizen.org/

How can a judge get it so wrong and the will of the people be so right?

On January 19 Judge Murtha issued his controversial decision to support a rogue corporation in its evisceration of state’s rights. When Murtha ruled that Entergy was no longer bound by contracts it signed with the state of Vermont in 2002, and until 2010 repeatedly sought state approval for its actions, it undermined Vermont’s authority. When the judge further ruled that the Vermont legislature could not determine its own energy future, he eviscerated the democratic process.

Act 160 passed unanimously by both houses of the Vermont legislature; Republicans and Democrats alike, and signed into law by Republican Gov. Jim Douglas. This law empowered the legislature to decide whether Vermont Yankee’s continued operation was in the public good not based on safety but on economics, reliability and the environment. Yet Murtha, by accepting Entergy’s cherry-picked record chose to determine what was in the hearts and minds of legislators based on comments of a few. He opted to second-guess 180 legislators rather than accepting the law as written. What is in the hearts of legislators is better left to confessionals and fortune tellers than to a federal court judges.

Catch-ww

Murtha stated that although legislators never mentioned safety in Act 160 that’s what they really meant; they really wanted to wrestle federal control — pre-emption of nuclear power out of the government’s hands. Entergy, with its endless leaks and lies, its systemic mismanagement at VY and its other plants, and duplicity is the poster child for what was wrong in the nuclear industry. Entergy’s failing record demonstrates the abdication by the federal government to actually address safety.

The NRC approved Vermont Yankee’s license for continued operation days before the core meltdowns at the Fukushima reactors, (sister plants to VY) and then reaffirmed days later that VY was “safe” to operate. Although the state had good reason to pre-empt the federal government in its blatant disregard for health and safety, it did not. Act 160 specifically addressed state’s rights and responsibilities upheld in a previous Supreme Court ruling.

It’s curious that the state’s act of defiance would go unrecognized by the federal government; the DOJ chose not to intervene in the case, and in fact NRC’s Chairman Jaczko stated that nothing Vermont was doing violated NRC rules or regulations. Instead of looking at the written law, Judge Murtha opted to buy into a conspiracy theory that a handful of legislators were able to manipulate not one, but two separately elected bodies in the legislature.

So did Murtha do anything right?

Murtha sent the case back to the Vermont Public Service Board, a quasi-judicial entity, to determine whether Entergy is entitled to a Certificate of Public Good to operate in the state after March 2012. Although he put some constraints on the state, he upheld the state’s ability to decide whether it was in the best interests of the state to have a rogue corporation operate and erect a high-level waste dump along the banks of the Connecticut River. The judge also issued a permanent injunction which permits Entergy to continue to operate until the CPG is granted or rejected.

What can citizens do to ensure that democracy prevails?

It is essential that the governor and the attorney general understand how important this issue is to all of us. We are asking Vermonters to contact Shumlin and Attorney General Bill Sorrell, and thank them for the good work they have done on our behalf and urge them to continue to fight this bad decision and this equally bad corporation.

It is essential that the legislators act to hold this slippery corporation accountable for its waste, its thermal pollution of the Connecticut River and it corporate irresponsibility. With Murtha’s ruling ,Entergy has grown bolder in its disregard for the state. Entergy is now refusing the state’s request to continue the testing of contaminated wells to determine the level of contamination. Entergy now is also requesting that instead of inspecting the ancient steam dryers for cracks every 18 months that they be allowed to do so only every 10 years!

We call upon the Vermont legislature to do what Judge Murtha refused to do, which is to hold Entergy accountable to its remaining commitments to rehabilitate the site to greenfield status and cease denigrating our environment.

VTDigger

(This slightly revised excerpt is from Dr. Hendricks’ original letter to his good friend, Ayn Rand.)

To: Vermont’s Legislature
From: Dr. Thomas Hendricks
Re: Health Care Reform

Should Vermont’s single-payer health care proposal go forward as envisioned, know that I shall quit when medicine is placed under state control.

Do you know what it takes to perform a brain operation? Do you know the kind of skill it demands, and the years of passionate, merciless, excruciating devotion that go into acquiring this skill?

This is what I will not place at the disposal of Vermont’s Legislature, whose sole qualification to rule me is their capacity to spout the fraudulent generalities that got them elected to the privilege of enforcing their wishes at the point of a gun.

I will not let Vermont’s Legislature dictate the purpose for which my years of study had been spent, or the conditions of my work, or my choice of patients, or the amount of my reward.
I have observed that in all the discussions that has preceded the eventual enslavement of medicine; men discussed everything — except the desires of the doctors.

Here, when discussing Dr. William Hsaio’s single-payer proposal, in this Feb. 18, 2011, one-minute video, the Vermont Legislature’s House Health Care Committee displays the arrogance to which I write of: http://www.youtube.com/watch?v=EPnxG0IUKTo&feature=youtube_gdata

These legislators supposedly consider only the “welfare” of the patients, with no thought for those who are to provide it. That a doctor should have any right, desire or choice in the matter seems regarded as irrelevant, selfishness; his is not to choose, they say, but “to serve.”

I have often wondered at the smugness at which Vermont’s Legislature asserts their right to enslave me, to control my work, to force my will, to violate my conscience, to stifle my mind — yet what is it they expect to depend on, when they lie on an operating table under my hands?

The Vermont Legislature’s moral code has taught them to believe that it is safe to rely on the virtue of their victims.

Well, that is the virtue I have withdrawn.

Let the Vermont Legislature discover the kind of doctors that their system will now produce.

Let the Vermont Legislature discover, in the operating rooms and hospital wards, that it is not safe to place their lives in the hands of a man they have throttled.

It is not safe; if he is the sort of man who resents it — and still less safe, if he is the sort who doesn’t.

VTDigger

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.

VTDigger

In all likelihood the Republican presidential primary is down to two. Yes, as of this writing Rick Santorum and Ron Paul are still in the race and both have declared that they are in it for the long haul. However, the pressure on these two to get out of the race will be mounting as the slugfest between the Newt and the Mitt continues in debate after debate after debate.

The many debates that these candidates have had have served a purpose. They have helped to educate Republican voters on their possible choices for the candidate of their choice to go up against an incumbent president who’s had the luxury of sitting back and watching the show.

And what a show it has become. We’ve seen Mr. Santorum wearing his conservatism on his sleeve, but for some unexplained reason he doesn’t seem to excite the conservative base. Perhaps it could be because he’s not that exciting; certainly not a disqualifier for serving as president (remember, we sent Calvin Coolidge down there, ya know).

Then there’s Ron Paul. Here is a man who has tossed out ideas that even I have liked. For instance, he’s not a big fan of jumping into war willy-nilly, as our previous president was fond of doing. However, he does come across as the crazy uncle at the family Thanksgiving dinner. (I can forgive him for that as there are those in my family who’d put me in that category as well. I love them just the same.)

So the Republicans are seemingly left between a guy who wants us to move to the moon and a guy who has never held fewer than two positions on every issue imaginable. The Republicans have strived, begged and pleaded for someone, anyone to come forward other than the Mitt. Michelle Bachmann, the slightly more than moderately insane congresswoman from Minnesota, was originally the darling of the party, but she quickly fell from grace once she began speaking.

Rick Perry led the pack briefly until he couldn’t remember the third agency that he would abolish, thus providing Americans of all stripes with one of the most excruciating video clips ever recorded. I’ve never been a big fan of Texas governors, but I would hope that there was not one among us who couldn’t feel a little sympathy for this guy. Notwithstanding the fact that he was not presidential timber, all of us over 50 can be a little forgiving of someone forgetting something.

There wasn’t a lot of forgiveness to be had with Herman Cain, with the exception of Stephen Colbert who invited Cain to campaign with him in South Carolina. One wonders who does the vetting of these guys. Cain was a bus accident waiting to happen. The only question is what took so long.

John Huntsman was apparently the only rational one of the bunch. It was very clear from the start that he was not going to last long.

Now we’re down to two (not counting the other two); a Mitt and a Newt. They are fun to watch. You may remember not too long ago, after Newt led the impeachment of Bill Clinton, that the term “family values” was the standard bearer of the Republican Party. What a difference a decade or so makes. Newt is a serial adulterer. He was committing adultery while he was persecuting a president for doing the same thing. No double standard there. He was brought up on ethics charges while serving this country and paid a hefty fine. His colleagues stripped him of his position as Speaker of the House. Maybe he’ll do better on the moon.

That leaves us with the candidate in the primary that 76 percent of Republicans don’t want to see as their candidate; the Mitt. Why would Republicans distrust this man so? Could it be because he supported a woman’s right to choose before he opposed it (John Kerry comes to mind)? Could it be because he supported mandatory health care before he opposed it? Maybe because he supported climate change before he opposed it, or that he supported the bank bailouts before he opposed them?

John Kerry got his clocked cleaned, for among other reasons, because he was perceived as a flip-flopper on the Iraq War. Apparently now if a candidate flip-flops on key issues and core beliefs, all is forgiven; or maybe not.

The Republicans are in a tough spot. It appears as though their candidate is going to be the poster child for the 1 percent. He’s incredibly wealthy having made a fortune, not by manufacturing anything of value, but by being a predator buying up marginal businesses, loading them with debt and then selling them off for a profit, while ruining lives of everyday people. He’s also known for having tied his dog to the roof of his car and driving to Canada on a family trip.

It’ll be interesting to see how President Obama fares. Perhaps he’s not been a great president, but he did kill Bin Laden and didn’t tie his dog on the roof of his car.

VTDigger