Editor’s note: This op-ed is by James Marc Leas, a patent lawyer from South Burlington who served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island.
The decision by Federal District Court Judge Garvan Murtha appears to convey the message that the Vermont Legislature must never talk about radiological safety at Vermont Yankee. Otherwise proper state regulation will be declared unconstitutional. Although federal law pre-empts the state Legislature from passing its own laws regulating radiological safety, nothing in federal law prevents the Vermont state Legislature from advocating for health and safety before the federal agency responsible for radiological safety, the Nuclear Regulatory Commission, and before Congress. Freedom to advocate for safety is especially important in view of the catastrophic meltdowns, hydrogen explosions, and releases of radiation at three nuclear plants in Fukushima that are identical to Vermont Yankee.
Because (a) Vermont Yankee is an aging nuclear plant owned by a company that acknowledged untruthful statements under oath and that failed to provide maintenance sufficient to prevent radioactive leaks into Vermont groundwater; (b) the NRC is a captured agency, heavily influenced by the nuclear industry it is supposed to regulate; and (c) Vermont is pre-empted by federal courts from enacting its own regulations regarding radiological safety at Vermont Yankee, Vermonters need our state officials to be vigorous advocates at the NRC for vastly improving the safety of Vermont Yankee and for reforming the NRC to remove industry influence.
Vermont Yankee has the identical GE Mark I design and the identical design flaws as the Fukushima reactors that melted down and caused massive radiological releases in Japan last year. Those reactors melted down because they lost offsite power and did not have adequate backup power onsite to run cooling pumps. Massive amounts of radioactive fission products were released because their too-small Mark I reactor containment structures failed to contain. Additional massive amounts of radioactive fission products were released because their spent fuel pools had no containment structures at all. Vermont Yankee shares all the design flaws of Fukushima. In addition, Vermont Yankee has several times the amount of high level waste stored in its spent fuel pool than those three reactors put together.
Nothing in the Atomic Energy Act prevents our Legislature from being a vigorous advocate for radiological health and safety before the NRC and before Congress. Because the NRC is not doing its job, and has become a rubber stamp for the industry, our legislators have an overriding responsibility to educate themselves about reactor safety, speak out about what they learn, pass resolutions, attend meetings with federal officials, ask questions, mobilize the public for demanding improved safety, and put those demands before the NRC and Congress.
If the Vermont Public Service Board allows Vermont Yankee to continue to operate after March 21 our Legislature should hold hearings to expose the serious design, management, and age-related deficiencies of the Vermont Yankee nuclear plant. The Legislature should also hold hearings to consider the extent of industry influence over the Nuclear Regulatory Commission. Our Legislature must then use what it learns about deficiencies and flawed regulation to vigorously demand immediate action by Congress and the NRC to close the plant or for vastly improved radiological safety at Vermont Yankee. Precisely because radiological safety is pre-empted by the NRC, and because Vermont Yankee is an aging plant run by a company that cannot be trusted to tell the truth or to properly maintain the plant, in no way must the Legislature allow itself to be banned from thinking about or talking about radiological safety and pressing for action by the responsible federal agency, the NRC.
In interpreting the Atomic Energy Act in a way that has the effect of restricting legislators from talking about safety when considering bills properly regulating non-radiological aspects of Vermont Yankee, the decision by Federal District Court Judge Garvan Murtha appears to abridge the freedom of speech of legislators. That decision, now under appeal, illustrates a deeply flawed interpretation of what is pre-empted by the Atomic Energy Act by the majority of Justices on the U.S. Supreme Court. The flawed interpretation was pointed out in a footnote of the decision by Judge Martha in which he quoted two U.S. Supreme Court justices in the leading case on federal pre-emption of state law regarding radiological safety. In that case the majority of U.S. Supreme Court justices had stated that “A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field.”
A concurring opinion by Justice Blackmun, joined by Justice Stevens, disagreed with the majority to the extent it suggested “a State may not prohibit the construction of nuclear power plants if the State is motivated by concerns about the safety of such plants,” because there was nothing in the AEA to “force States to be blind to whatever special dangers are posed by nuclear plants” in exercising their traditional powers to choose “which technologies to rely on in meeting their energy needs.”
In this and other cases that Judge Martha relied on, the Supreme Court majority established as the law that the court look not just at whether a state law actually regulated radiological safety but also at whether the purpose in the minds of the state legislators when they considered the legislation was infected with caring about health and safety. In the Vermont Yankee case, Judge Murtha determined that the purpose was grounded in safety concerns from statements made by certain state legislators.
Even if one accepts, for the moment, that statements by a number of legislators demonstrates the purpose of the Legislature as a whole in enacting the legislation, I would ask the reader to consider that speech in the Legislature is not itself a form of regulating. Nor is desire for a safely operating nuclear plant itself a form of regulating. Even if every single member of the Vermont Legislature urgently wanted Vermont Yankee to operate safely — as they all should — wanting safety is not regulating safety.
How can the Legislature best fulfill its responsibility to regulate all areas of nuclear plant operation, except the pre-empted area of radiological safety, while also fulfilling its responsibility to advocate for radiological safety before Congress and the NRC? Certainly, the Legislature must be free to talk about both the non-pre-empted subjects and the pre-empted subject so it can ensure that the laws it adopts do regulate in the permitted areas, do not regulate in the pre-empted area, and provide the information about the pre-empted area with which legislators can pass resolutions pressing the NRC and Congress to take action to improve radiological safety.
Overturning Vermont law because of legislators talking about safety concerns could have the adverse effect of preventing legislators in all 50 states from talking about safety, leaving the dividing line obscured so regulations adopted either do not go far enough in the permitted areas or stray into the pre-empted area. Regarding talking as impermissible regulating is also likely to have the effect that legislators will fail to discharge their responsibility to discuss safety issues and press for the changes needed at the NRC and before Congress.
To the extent that the nuclear industry continues to have such catastrophic accidents as Fukushima, concern about radiological safety will inevitably rise. Deeply troubling is the fact that the elevated concern generated by serious accidents increases a Legislature’s risk that otherwise lawful regulation will be overturned. Under the decision by Judge Murtha, the more the nuclear industry makes legislators worry about safety the less the nuclear industry need worry about legitimate state regulation. All states thus have a compelling interest in seeing that Vermont is successful in its appeal.
The Legislature also has a responsibility to provide leadership for Vermont citizens by passing resolutions endorsing public protest against continued operation of Vermont Yankee and inviting all the citizens of Vermont and neighboring states to join such protests. In such resolutions the Legislature may announce that it is joining in demanding that the NRC take immediate action to close Vermont Yankee and other Mark I reactors in view of their demonstrated unacceptable risk to public health and safety. Because such resolutions are properly directed at demanding federal action they in no way would violate federal pre-emption.
State representatives and senators must have the freedom to discuss everything under the sun regarding Vermont Yankee so they can (a) craft the best possible legislation within the requirements of law using their authority to regulate everything but radiological safety at Vermont Yankee and (b) use their authority and leadership to press Congress to free the NRC from subservience to the nuclear industry and close plants, such as Vermont Yankee, that have the serious design flaws demonstrated at Fukushima. All without worrying that their statements can be used to overturn otherwise lawful state law.
