I am working on a blog post about Vermont and State's Rights. Meanwhile, here are three recent articles on related issues.
Geoff Norman at Vermont Tiger. We have abundant evidence that the Vermont legislature repeatedly passes unfair laws that fail the constitutional test. However, the only people who can fight these laws are big companies like Entergy. What does that mean for the ordinary Vermont citizens who do not have resources to fight unfair laws? Read Norman at Grounds for Appeal.
Howard Shaffer at ANS Nuclear Cafe. Howard Shaffer describes the irony of the legislature promoting States Rights while holding press conferences in the Cedar Creek Room. The huge painting in this room commemorates Vermont's important role in the Battle of Cedar Creek during the Civil War. Read Reflections on the Cedar Creek Room.
Tamar Cerafici at ANS Nuclear Cafe. Lawyer Tamar Cerafici describes the ruling and its constitutional grounds. Read Cerafici Let's Find Another Word for Safety--Entergy v. Vermont in plain English.
Sheridan at the Battle of Cedar Creek and Vermont State House in Winter from Wikipedia.
On the question of pre-emption. Why is it that states can have their own EPA (e.g. The Ohio EPA: http://www.epa.state.oh.us/ ) when there is a federal EPA, without invoking these pre-emption problems, but Vermont can't regulate nuclear safety because it is pre-empted by the NRC?
Jeff. An excellent question and it is hard to answer in a non-ambiguous way. I have all asked some other people for input on this.
There are two factors that I can tell off-hand. First of all, states can have state EPAs (I believe) as long as their rules are at least as stringent as the federal rules. Also, state EPAs do not generally say HOW you are to achieve some goal (low NOx emissions, for example) but what the goal is. The NRC regulates how a plant is to operate. Just like with federal rules on drug testing and new drugs, meat packing, and airplane safety, the NRC gets to say how things get done at a power plant.
States still have a lot of power to regulate even about radiation. For example, the NRC rule on the boundary line radiation for a nuclear plant is 100 millirems per year at the boundary. The Vermont rule is 20 millirems per year. There have been problems as people try to measure a radiation quantity which is so close to background, but nobody has ever claimed that Vermont did not have a right to set this lower standard.
I will try to get a more authoritative answer in the future.
So, it sounds like, in theory, if the VT Legislature hadn't been in such a rush in the first place, they actually could have crafted up regs to make it so VY couldn't operate, and not necessarily been pre-empted by the NRC, but in this case they did run afoul of pre-emption because of how they went about it?
That is indeed one way to look at it. In my opinion, the legislature is captive to groupthink. They pass laws without any concern about the constitutionality of the law. They passed a law requiring Vermont Yankee to pay for the state's costs in the lawsuit. Yes, they got together and PASSED that law, but even Vermont's Attorney General knows it is unenforceable.
On a post on FB, you described one legislator as "not the sharpest tool in the shed." There's a certain amount of that going around Montpelier, for sure. But the problem is mostly groupthink, in my opinion.
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