Why Nuclear is Regulated at the National Level

On Sunday, March 4, my local paper, the Valley News, published a letter to the editor about nuclear safety and Vermont. The letter was written by David C. and Shirley J. Montgomery. I quote part of their letter below:

"For about 60 years, we've been subjected to a seemingly endless Republican advocacy in favor of "states rights."....a decision to run the aged Vermont Yankee reactor above its rated capacity for another 20 years could be seen as indifference to events (such as Fukushima)...The legalistic arguments seem to have carried the day to date (as far as we can see, the Vermont state government is being dismissed for being concerned about the well-being of its citizens)...Where are the states righters when something as concrete as this is at stake?"

States Rights in Vermont

Many anti-nuclear protesters carry Vermont flags to the protests. (They wrap themselves in the flag?) They claim to stand for Vermont though they often live in Massachusetts. As I noted in an earlier blog post, states rights is no longer a dirty word to some people in Vermont.

Here is my letter that was was published in the Valley News on March 9.

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Why the Feds Regulate Safety

A recent letter from David and Shirley Montgomery inquires why Vermont Yankee is regulated at the Federal level. The letter-writers would prefer state control.

Some complex technologies are regulated at the federal level by federal law. Airplanes (inspection, pilot licenses, mechanics licenses) are regulated by the Federal Aviation Administration. New drugs are approved by the Food and Drug Administration. Nuclear plant safety and inspections are in the charge of the Nuclear Regulatory Commission. Determining the safety of airplanes, drugs and nuclear plants takes significant specialized expertise. Also, it is best that important safety rules be applied on a nation-wide basis, not just locally.

It Could be a Race to the Bottom

However, these laws can be changed through our democratic process. If Mr. and Mrs. Montgomery want individual states to test drugs, inspect airplanes, or inspect nuclear plants, the federal laws can be changed. However, the probable result will be a race to the bottom. The states with the least oversight will get the most business. Drug approval and aircraft maintenance would move to "friendly" states, and nuclear regulation could vary widely between states.

This type of differentiation already happens in other areas. For example, Delaware's laws are welcoming toward corporations, and many American companies are incorporated there. Poorly-maintained ships fly the Liberian flag (flag of convenience).

In general, small governmental units are not well equipped to regulate complex subjects. The current system of federal regulation is better and safer. State regulation would be a change for the worse.

A Little About States Rights Advocates

Perhaps an aside, but I wanted to say this. The writers also claimed that "for sixty years, we've been subjected to a seemingly endless Republican advocacy in favor of 'state's rights'.." This is not correct. The state's rights segregationist movement was run by Democrats, not Republicans. The infamous State's Rights governors Orville Faubus and George Wallace ran and served as Democrats.

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Endnote: After the letter was published, I received a note from a friend that Delaware is not mainly a pushover for corporations. Delaware's main attraction is that it set up an effective chancery court for civil lawsuits that involve companies in different states and different countries. I live and learn!

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Podcast: Yesterday, I was proud take part in this Atomic Show Podcast A Year After Fukushima. Rod Adams, Steve Aplin, Suzy Hobbs, Gwyneth Cravens and I talked about the accident, the coverage of the accident, and the implications for nuclear power. It was great to be on a program with such knowledgeable people!

Vermont's Attorney General: Guest Post by Vermont Senator Benning

2/8/2012

An Open Letter To Attorney General Sorrell

Dear Mr. Sorrel:

For the past twenty-eight years I have represented well over three thousand clients as a trial attorney in the Northeast Kingdom. In each of those cases I have had to examine a set of facts and assess how the law would be applied to those facts. This past weekend I read the decision of Judge Murtha in the Vermont Yankee case. Last night on the Channel 3 news I was alarmed to hear you remark that Judge Murtha had made the wrong decision. Respectfully, I must disagree. I'm writing to urge you to reconsider any thought of going forward with an appeal.

The facts of the case are quite clear. For over fifty pages Judge Murtha identifies quotation after quotation of state senators using safety as the basis for their desire to see Vermont Yankee close. Sprinkled throughout the decision are repeated warnings from various witnesses that safety concerns were not within the purview of state concern. Although there may exist other reasons why some senators voted the way they did, the facts found are iron-clad that safety concerns were the foundation for the ultimate vote. An appellate court will give great deference to the record below. The record below here is simply not in Vermont's favor.

The law is also quite clear. Under the Atomic Energy Act, safety of a nuclear power plant falls squarely within the purview of the federal government. State law does not trump federal law. That constitutional mandate was not just decided in a federal courthouse; it was cast in stone at Appomattox Courthouse back in 1865. An appellate court cannot change that. The law is simply not on Vermont's side.

Judge Murtha's decision has thus left Vermont with an insurmountable obstacle. I'm writing because I fear the decision to appeal may be clouded by the emotions of politics. With neither facts nor law on a client's side, I believe we lawyers have a duty to rise above emotions and explain why pursuit of a legal claim is not going to produce the remedy desired. While the decision to appeal is ultimately yours, it will be up to my legislative colleagues and I to finance that decision. At a time when (among other things) we are struggling to fund a state hospital system for our most vulnerable citizens, I submit we should spend no more money on this case.

Sincerely,

Joe Benning

State Senator

Caledonia-Orange District

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This letter was also printed in the Caledonian Record. Why the illustration at the head of the post? Senator Benning was a charter member of the Paths Around Lyndonville (PAL) group. They organized a pedestrian walking path along the banks of the Passumpsic River. You can read more about Senator Benning here.

People ask me about my opinion of the Attorney General's decision to appeal. I could definitely write blogs about this, but I decided to print these guest posts instead. I think Vermont legislators such as Tom Koch (guest post yesterday) and Joe Benning (today) do a wonderful job of putting this issue in Vermont context. I couldn't do better and would probably do worse.

I must also include a link to today's editorial in my hometown paper: The Sorrel Record: Questions Mount Along with Losses. This editorial supports my conclusions that Vermont sometimes cares more for "state's rights" than for the rights of its citizens. I listed similar concerns in my blog post Citizen's Rights, State's Rights, and Vermont.

Citizen's Rights, State's Right, and Vermont

The Term States Rights Used to be Inflammatory

In April, Entergy sued the State of Vermont: the State was attempting to shut down Vermont Yankee, using illegal grounds and illegal tactics.

The Entergy case included federal pre-emption issues, derived from the Supremacy Clause of the Constitution. The Entergy case also described how the state had interfered with the Commerce Clause of the Constitution. In other words, the Entergy case depended on the Constitution.

Vermont's response to the lawsuit depended on the state's assertion of State's Rights. I blogged about this at ANS Nuclear Cafe, shortly after the lawsuit was filed. My April post was titled States's Rights and the NRC.

I caught an earful about that post. The first person to comment on the post didn't like it, and he ended his comment with what he thought was a real zinger of a criticism. Tom Murphy finished his remarks with the statement: Finally the use of the term “States Rights” has such a negative connotation it is almost inflammatory.

Defending State's Rights

I guess it used to be inflammatory. Times have changed in Vermont! It looks like the term "States' Rights" is no longer a term that liberals will avoid.

In January, when the judge's ruling supported Vermont Yankee, the Seven Days blog reported the reaction in the Vermont Statehouse.

• The Senate President Pro Tempore, John Campbell, was quoted as follows: I think it is a deterioration of states' rights.
• The Speaker of the House, Shap Smith, said: There are some concerns about whether states' rights have been constricted.
• Tony Klein, a long-time Vermont Yankee opponent who chairs the House Natural Resources and Energy Committee said: "It's a sad day for state's rights and a sad day for America."
• Margaret Cheney, a member of the House Natural Resources Committee has impeccable liberal credentials. She was quoted in my local paper: The court ruling is a step backward for state rights, she said, but it left an opening for Vermont to regulate its sole nuclear plant.

"A sad day for state's rights is a sad day for America." That statement makes me feel ill, and I don't care if my comment is inflammatory! (In an earlier version of this post, I put up a Confederate flag. It was too inflammatory. I have taken it down.) Do these people know what they are talking about?

I am a person who was alive during the days when Martin Luther King Jr. was active. I am a person whose husband lived in Florida and went to a segregated school (the only kind there were in Florida at the time). I don't think that a "Sad Day for State's Rights is a Sad Day for America." Quite the opposite, as a matter of fact. A Sad Day for State's Rights is a Good Day for America. In my opinion, champions of State's Rights are rarely champions of individual rights. And that hasn't changed since the days of the Freedom Riders.

The Vermont AG and the Vermont Citizen

I can just hear some of my readers groaning. "Oh for Pete's sake, Meredith! This was a lawsuit between a company and a state. No fire hoses or police dogs were involved! What on earth are you talking about? You insult the entire civil rights movement with this comparison."

Okay, my friends. I live in Vermont, and I am talking about the Vermont Attorney General and his disrespect for the rights of citizens. Lots of people are talking about him in my township, and it has nothing to do with Vermont Yankee. His actions are an important part my contention that states that begin challenging the Constitution are states that think they are a law unto themselves. These states see nothing wrong with trampling on the rights of their citizens, as Hume and Hamilton predicted.

(I describe the background of smaller versus larger jurisdictions in the previous post: Vermont and State's Rights, the Fundamental Problem.)

The Hartford Police and the Attorney General

In recent months, there have been three incidents where the police in my township trampled on the rights of citizens. They also trampled on the actual citizens, by beating them up. None of the citizens was even charged with any crime. In all three cases, the Vermont AG cleared the police of any wrong-doing.

Now, in many jurisdictions, police occasionally behave badly. This is no surprise. However, it is shocking to me (and to many people in my township) that the state Attorney General took no action, not even the mildest hand-slap, about these egregious beatings by the police.

My conclusion: State's rights count for a lot in Vermont. Citizen's rights don't count for very much.

Three Cases and How the Attorney General Dismissed Them

Burrell case: In the first case, the Burrell case, the police did not have to reveal their records, because they said they hadn't made an arrest. Oh yeah. They pepper sprayed a homeowner in his own home, put handcuffs on him that cut his wrists, and then discovered they were wrong and took him to the hospital. No arrest, no records revealed. The Attorney General was fine with this.

Here's the case: an African-American man was very sick, naked and sitting on the toilet in his own home. He had knocked over a lamp, and the police got a call that there was a burglary at the home. The man was then "subdued" by the police who thought the home had been burglarized. (And the burglar had decided to sit naked and sweating on the toilet?) The man was muscular, sweating profusely, and did not respond to police orders. Pepper spray time!

Here's a link to the incident as Anne Galloway and the ACLU filed suit about it. Here's a link to Attorney General Sorrell's final disposition of the case against the police. In the AG's opinion, the police did nothing wrong and no harm done.

Thierren: Monica Thierren is not a homeowner. At the time of the incident, she was living in an inexpensive motel with her boyfriend, and had called in a domestic violence situation to the police. When the police arrived, Ms. Thierren was very drunk and the officers found no evidence of domestic violence. At that point, the police said that they attempted to "grab her shoulder in an attempt to place her in protective custody" but she fell and suffered a head injury. Three witnesses at the motel said that the police slammed her to the ground.

The AG investigated for 13 months (supposedly) but didn't interview the witnesses. As my local paper wrote in Missing Witnesses: That's a pretty long time, so it is puzzling to learn that during those 13 months, only one of the three civilian witnesses to this encounter was interviewed and her statement was essentially ignored. Granted, the attorney general's office had other things to do during this time, like losing the Vermont Yankee case in federal court, but it doesn't seem too much to ask to at least talk to the witnesses and address the contradictions between their account and the official Hartford police version.

Daoust case: The third case is that of Derek Daoust. This man is a resident of Quechee, an upscale village in my township. He drove his car into the ditch on the way home one night. He sensibly got out of the car and walked home, deciding to get the car towed in the morning. The police found his car and went to his house. That is when the fun began.

The police didn't have a warrant for an arrest or search, but they came to Daoust's door and insisted that he step outside to talk with him. He refused, since they had no warrant and he was committing no crime by being at his own house. They pulled him out of his house and once again "subdued" him, this time beating him with their flashlights. The local paper wrote about this in Without Warrant or Consent.

The Attorney General again found no wrong-doing by police, though he did suggest that the Hartford police should be trained to obtain either a consent or a search warrant in order to enter a residence.

The AG was supposed to decide if the police committed a crime. Instead, he decided they needed "more training." Really? As the local paper concluded: The bad news is that the narrative of Darrek Daoust's encounter with Hartford police ought to chill to the bone anyone who believes that the Fourth Amendment means what it says about the people's right to be free from unreasonable searches and seizures, and the requirement for authorities to obtain warrants.

This violation of the most clear aspects of the Constitution didn't bother our Attorney General. He decided to act as an authority on police training, rather than an authority on the law.

Disrespect for the Constitution is Disrespect for the Constitution

In my opinion, disrespect for the Constitution and insistence on State's Rights cuts two ways. Yes, it leads to lawsuits in federal court. It also leads to disrespect for the rights of citizens, especially if they are African-American, poor and drunk, or even well-off but insisting on their constitutional rights. I don't like the cry of "state's rights" and I don't mind saying so. I like the Constitution.

As one of my local friends (who is against Vermont Yankee) put it: "I wouldn't open my door to the Hartford police. And we have got to do something about that Attorney General!"

Hume from Wikipedia

Vermont and State's Rights: The Fundamental Problem

The Fundamental Problem Of State's Rights

States that espouse State's Rights in contention against the federal government are also more likely to consider themselves a law unto themselves, and trample on the rights of their own citizens.

David Hume pointed out the fundamental problem with state's rights, though he didn't use the term. Small jurisdictions are more easily captured by "factions and intrigue" which can trample the rights of the citizens. As Hume wrote:

We ... observ(e) the falsehood of the common opinion, that no large state, such as France or Great Britain, could ever be modelled into a commonwealth, but that such a form of government can only take place in a city or small territory. The contrary seems probable...(In a large state) the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.

Hume's words were further refined in the Federalist papers, where Hamilton wrote:

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it....The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.

So we have defined the problem philosophically: the potential tyranny of a small state over its citizens, unless checked by a Constitution or by federal powers.

Civil rights were enacted at the Federal level. That wasn't by chance. The Bill of Rights is also at the Federal level. Again, not by chance.

When a state begins stepping on the Constitution, it will soon begin stepping on its citizens.

Hume from Wikipedia