Preemption: Why The State Won't Appeal the Vermont Yankee Ruling

The Crystal Ball

Appeals Court Confirms that States Cannot Regulate Nuclear Safety

Recently, the Appeals Court ruled that the state of Vermont was trying to regulate nuclear safety. By federal law, nuclear safety is regulated at the federal level: therefore, regulating it at any other level is preempted by the  Constitution.  The Constitution says that when there is a conflict, Federal laws overrule state laws (Supremacy clause).

In this blog post, I give some of my reasons for believing that the state of Vermont will not appeal the Appellate Court ruling. I think Vermont will not appeal, and the case will not go to the Supreme Court.

Okay. Deep breath here. Every now and again, I look into my crystal ball while sticking my neck out.  It's a complicated maneuver, but hey--I blog. I make predictions.

Unlike the well-dressed lady in the painting, I usually need to give some reasons for my predictions.  If I gave all my reasons, this would be a terribly long blog post.  This post is only about my preemption reasons.  But first, an overview.

Five reasons the state won't appeal 

I am not a lawyer.  The appeals court ruling is written quite clearly, and I have reviewed it carefully. Within the ruling, I can reference five different parts of the ruling that convince me that the state will not appeal it. My reasons fall into two groups:

• Preemption: the first group  (three parts of the ruling) is about preemption,
• Money: the second group  (two parts of the ruling) is about money.  These reasons are NOT covered in this blog post, though I touch on one of them at the end.  I will write another blog post about this subject.

In this post, I am blogging about the preemption sections of the ruling. Here's a link to the ruling itself, for reference.

Preemption As Described in the Appeal Ruling


1) Vermont was Legislating on Nuclear Safety

It is a federal mandate to regulate nuclear safety through the NRC.  Both the district and the appeals court ruled that the Vermont legislature was trying to rule on nuclear safety, and preempting this federal mandate.

The appeals court more than upheld the district court ruling, it augmented it with more examples. For example, on page 10 of the appeals court ruling, it quotes a Vermont law in which the Vermont legislature required a certain arrangement of fuel bundles in the fuel pool.

On page 35 of the ruling, the court states explicitly that it agrees with the "district courts' careful analysis of the legislative intent."  On that same page, it notes the "remarkable consistency with which both state legislators and regulators expressed concern about radiological safety and expressed a desire to evade federal preemption."

The original ruling did not include the fuel-pool-arrangement quote,  or several other safety-related quotes that are included in the appeals court ruling.  Since the appeals court ruling confirms and extends the circuit court reasoning on legislating nuclear safety, this ruling means it would not be reasonable for the state to appeal on those grounds.  There's no judicial controversy here, so no rationale for an appeal.

2) The Footnote: Federal Rights Stay with the Federal Government

The right to rule on nuclear safety belongs to the federal government: nuclear safety is preempted to be a federal responsibility.  Neither Vermont nor Entergy can waive their rights about this preemption, because the power of the preemption does not rest with them.  Agreements in which Vermont and Entergy agree that Entergy shall "waive its rights" of federal preemption are meaningless:  the federal government has certain regulatory rights, no matter what agreements Entergy or Vermont sign.

In the Appellate ruling, the judges describe how the Vermont legislature attempted to put radiological safety issues into Memorandums of Understanding (MOUs) with Entergy instead of into the laws passed by the legislature. In these MOUs, Entergy supposedly "waived its rights" to preemption challenges.  This MOU strategy was Vermont's deliberate legal maneuver to avoid preemption challenges in the future.  On page 41 and 42 of the Appeals Court ruling includes several quotes from legislators explaining their "put it in the MOU" strategy.

And then, there's that footnote.

While not explicitly ruling on this "they waved preemption" strategy, the court wrote the following footnote (page 42 of the ruling):

33 We cite this provision of the 2005 MOU not for the purpose of ruling on whether a party may validly waive the right to bring a preemption challenge, but only to demonstrate the impermissible intent on the part of the Vermont Legislature. But see Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872, 883 (9th Cir. 2006) (“Preemption is a power of the federal government, not an individual right of a third party that the party can ‘waive.’ [The plaintiff] could not, therefore, waive a right that it did not possess.”

Blogger note...footnotes are important. Several of the early Vermont Law School blogs on the case were ALL about the footnotes!  In this situation,  I translate the footnote above as:

"Yeah, we could rule based on this one, too,  if we had time. ("But see" this other case....) We could rule on the fact that only the federal government can "waive" preemption, because only the federal government HAS it.  But this court has plenty of other evidence of the illegal intents of the Vermont legislature, so we don't really need to go there in order to make a solid ruling.  But still, there it is...preemption is a power of the federal government, not the right of a third party.  Just sayin'. "

In this case, the appeals court is mentioning an area which the circuit court didn't even cover--that is--the inability of a third party (Entergy, the state) to "waive" the federal prerogative of preemption. In my view, when appeals court brought up this issue, they made it harder for the state to appeal the ruling.  The footnote says: "Vermont, your actions have loaded another legal gun and aimed it at yourself.  We aren't bothering to fire it yet, but we just want you to know it is there..."

3) A separate ruling confirms the fact that states cannot rule on nuclear safety. 

The appeal was heard by three judges: Susan L. Carney, Christopher F. Droney, and Paul G. Gardephe.  Judge Carney agreed with the ruling, but she wrote a separate opinion because she agreed with it on different grounds. Carney's nine-page ruling starts after page 53 (the end of the combined ruling) in the decision.

Basically, she concurs that the Atomic Energy Act was meant to prevent state legislatures from regulating nuclear safety.  She quotes the majority ruling that "the State legislative record before us is 'replete with references to radiological safety.' " She further notes that "no reader of this record can fairly claim that the statutes at issue were not "grounded in safety concerns."

But then she begs to differ.  She basically claims that the Supreme Court case (Pacific Gas, 1984) which is referenced throughout the rulings goes too far in its requirements that states avoid regulating nuclear safety.  As I read her ruling, she would prefer if states could consider nuclear safety along with other concerns in their deliberations about a power plant.

However, in the last two sentences, she acknowledges that "there is no avoiding the Supreme Court’s teachings in Pacific Gas. The statutes before us are preempted, and I therefore must concur. "

In my opinion, this separate concurrence means that this ruling is completely correct in terms of existing precedent.  In other words, the state should only appeal this ruling IF the state thinks the Supreme Court will overturn the Pacific Gas decision.

That's a pretty high bar.

Okay. While I think "Pacific Gas has to be overturned for Vermont to win" is a reason that Vermont won't appeal, I admit that it is the weakest of my set of preemption reasons.  Vermont is a state of about 600,000 people.  In other words, it doesn't really have a tax base to support mounting precedent-setting challenges at the Supreme Court level.   But it could decide to do this anyway.  As I said, it is the weakest of my reasons that the state won't appeal.

The Three Reasons Vermont Won't Appeal on Preemption Grounds  

1) Three opinions (District opinion and two opinions at the Appellate level) concur that the legislative record shows that Vermont was trying to legislate nuclear safety.  All three opinions agree that safety regulation is reserved to the federal government.

2) There's a whole separate legal argument that could be mustered about the Vermont legislature trying to hide the preempted concerns in "waivers" in Memorandums of Understanding.  The Supremacy Clause of the Constitution cannot be abrogated by third party "waivers." This legal comment was made by the judges in a mere footnote to the case.  In my opinion, that footnote was a warning to the state that they were on shaky ground in this case, eight ways from Sunday.

3) Even a judge who would have liked to rule for the state (as I read it) admitted that existing Supreme Court precedents meant she must rule against them. (Carney's separate opinion.)  If Vermont takes the case to the Supreme Court, it would not be arguing about the legislative intent any more (that is settled, see above) but about changing a major precedent. That's a harder argument to make.

Another Reason Vermont Won't Appeal

Follow the money.

This appellate ruling reversed a different section of the district court ruling--the section that was the basis for Vermont having to pay Entergy's legal fees.  The Vermont Attorney General is quite reasonably counting this as a win: By appealing Murtha's decision, I saved the state around five million dollars!

The preemption question is solid in all the courts, but the legal-fees part has gone back and forth. In other words, since the courts have already disagreed on the issue about legal fees, in a further appeal, the state risks the court reversing itself on this and making the state pay Entergy's legal fees.

I think the state will take the money, declare victory, and go home.

However, the financial implications of the ruling have to be a blog post for another day.