MARLBORO — The U.S. Constitution establishes a dual structure of governance: Powers given to Congress are enumerated and specific; those left to the states are not.
In the case of wholesale nuclear power plants, including Vermont Yankee, Congress has reserved two “fields” for itself: safety and radiological issues, and rate regulation. These roles are uncontested.
Vermont Yankee's owner, Entergy, wants us to make it three areas by adding reliability to the Federal Energy Regulatory Commission (FERC) list. That's much more controversial, but for the purposes of this discussion, we'll just accept it and add it to the list.
In any case, anything not pertaining to safety, rates, or reliability is not preempted, and states are free to regulate.
Since no other grounds for preemption have been alleged or presented, the record in the case of Entergy v. Shumlin supports the conclusion that Vermont is free to decide whether Vermont Yankee should be closed.
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With minor exceptions, Entergy does not argue that the Vermont laws it is challenging, read as written, contain language that would raise the issue of federal preemption.
Instead, Entergy insists, the language was carefully crafted to avoid showing its “true intent,” and we must look elsewhere to find its meaning.
Put differently, if the laws mean what they say, they are not preempted; only if we look elsewhere for their “true purpose” do we find the hidden, preempted intent.
The argument works like this: We are to conclude that the hidden meaning of the word “reliability,” for example, must be “safety.” It can mean, Entergy says, nothing else.
That's because the evidence they've introduced shows that Vermont Yankee is reliable, and from this, we are told to deduce that the legislature cannot possibly have been thinking about reliability in its decisions about Vermont Yankee, so that it follows the legislature must have really meant safety.
Since safety is incontestably preempted, Entergy's core contention is that we must conclude that Vermont has acted unconstitutionally.
The studies presented as evidence are, in fact, considerably more nuanced and less compelling than Entergy suggests, but let's not quibble. Instead, we'll take this argument at face value and grant Entergy's point. As Energy requests, let's also agree that this implies that the legislature must not have been thinking about reliability.
Entergy also tells us that the evidence shows that Vermont Yankee is beneficial to rates. Again, let's not quibble over the facts (which are questionable at the very best), but rather accept the company's argument at face value. That means, once again, that the legislature cannot have been thinking about rates, either.
We also are repeatedly instructed to believe that Vermont Yankee is safe. The Nuclear Regulatory Commission (NRC) has also said so repeatedly and has granted Vermont Yankee a license for another 20 years.
So, clearly, we must infer, using the same reasoning we were just instructed to follow, that the legislature can not possibly have been thinking about safety, either.
Entergy doesn't point this out. But if the previous two deductions are correct, then this one must be, too, because otherwise, Entergy's whole case falls apart.
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Putting all these arguments together and following Entergy's own logic, we must therefore deduce that none of Vermont's enactments about Vermont Yankee can possibly pertain to reliability, rates, or safety. Yet these are the only three fields that anyone suggests that Congress has preempted.
In other words, Entergy's own argument inevitably leads us to conclude that the laws the Vermont legislature passed did not enter into the three preempted fields. Hmmm.
While this argument may well leave us scratching our heads about what legislators were thinking, the state has no burden of proof in this area at all.
As long as it wasn't a preempted area, it must have been a non-preempted area.
And the only contention in this lawsuit that matters is that Vermont's laws are unconstitutional because they are preempted.
Thus, the only possible inference we can draw from Entergy's own arguments is that the laws the Vermont legislature passed must be constitutional.
This isn't my logic; it's Entergy's.
Alternatively, we can arrive at the same conclusion by a far less circuitous path: Vermont's laws mean what they say, and are therefore not preempted.
Either way, Entergy has no case.
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There is a temptation to step beyond the Constitutional issues into the question of whether the legislature's decisions are correct; in truth, there are many policy questions swirling around Vermont Yankee. But these are not before the court; indeed, in our system of three co-equal branches of government, they cannot be brought before the court.
Courts may not stop legislatures from passing incorrect or even dumb laws. They may stop them only from passing unconstitutional laws. Otherwise, courts become unelected mini-legislatures. Legislatures do not always act wisely, but it is not for courts to decide whether they have or not.
There are many peripheral legal issues that have been raised and debated in this suit, but none of them constitutes the basis for a federal complaint.
The most prominent is Entergy's decision to ignore its waiver in the 2002 Memorandum of Understanding (MOU), which has received a great deal of attention.
But under the terms of the MOU itself, any conflicts are to be resolved by the Public Service Board under Vermont law, not in federal court. In any case, since there is no legitimate issue of preemption, the issue is moot: Entergy must obtain Vermont's permission to continue to operate.
The conclusion then is inevitable.
Despite its misuse and mischaracterization of much of the evidence it has presented, Entergy has presented no evidence to show that the Vermont legislature's enactments entered into any of the preempted fields of federal authority, nor is there any evidence that Entergy failed to present which would justify such a claim.
That being the case, Entergy's own reasoning leads us to the only possible inference: Vermont was not preempted from enacting the laws Entergy is challenging and therefore does have the authority to have passed them.
The case must therefore be dismissed.