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Larger issues, local control at stake in appeal of Entergy ruling

A lawyer on the Selectboard says state should press forward with effort to decide VY issue here

DAVID GARTENSTEIN, a member of the Brattleboro Selectboard, works as Windham County Deputy State’s Attorney.


We don’t want Entergy to be producing nuclear power and storing nuclear waste in Vermont: this is the view of many Vermonters (myself included).

However, our ability to impact the decision whether Vermont Yankee is going to continue operating appears subject to serious restrictions.

Our federalist system of government in the United States results in a division of authority between the federal government and the states. While some decisions are controlled locally, other matters are controlled by Washington D.C., where individual citizens often have very little input.

It certainly seems reasonable to expect that citizens of Vermont should have the ability to impact whether a company with a questionable track record should be allowed to conduct ultra-hazardous power generation activities here.

It also seems reasonable to expect that if the United States government is in a position to and does disregard Vermont’s decision that Vermont Yankee should no longer be allowed to operate here, then the federal government should also be required to take custody of the nuclear waste resulting from the plant’s operation and remove it from Vermont.

These reasonable positions, however, might not become reality.

Local control is regularly thwarted by our federal government. In 2002, Vermont tried to regulate campaign financing, but the United States Supreme Court held that Vermont’s efforts violated federal law. Local schools are subjected to significant unfunded federal mandates and are required to teach to the tests mandated by No Child Left Behind. Health care reform in Vermont is proceeding, but creating effective change will require coordination with a central government that is paralyzed by a bitter partisan divide.

* * *

As a lawyer, two issues about Entergy v. Vermont are particularly intriguing to me.

First, it will be interesting to watch how the federal courts balance states’ rights against principles of federalism and political pressures.

If the appellate courts hold that the federal government has the power to require Vermont to host Entergy’s nuclear power plant, will it follow that the federal government also has the authority to enact health care reform that is binding on the states?

Second, it will be interesting to watch the courts’ approach to determining legislative intent.

There is a bloc of justices on the United States Supreme Court that is skeptical about relying on legislative history to determine the purpose behind a statute, preferring to look instead to the statute’s language and plain meaning. Will these principles of statutory construction have an impact on this case?

Attorney General Sorrell has said that one reason for Vermont’s appeal of the District Court’s Entergy decision is to ensure that political activity is not chilled.

I certainly agree that Vermont should press forward with our effort to make our own decision with respect to the continued operation of Vermont Yankee.

Self determination is the essence of freedom and democracy.

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Originally published in The Commons issue #143 (Wednesday, March 14, 2012).

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