(Host)
Last week, Federal District Court Judge Gavin Murtha ruled that the
Vermont Legislature could not shut down the Vermont Yankee Nuclear Power
Plant. Commentator and Vermont Law School professor Cheryl Hanna
reflects upon the ruling.
(Hanna) I know that reasonable,
well-meaning people can disagree over the future of Vermont Yankee. Now
that we have had a few days to contemplate Judge Murtha’s decision, it
may be helpful to understand the broader context of the case.
Nuclear
power plants are but just one of many, many industries that are
regulated by the federal government. So too are automobile
manufacturers, drug companies, and the meat industry, for example. The
fundamental question is what role, if any, do states have in regulating
these businesses.
Industry has been increasingly arguing that
federal law trumps state law. Essentially, that they should have to
answer to Uncle Sam, and Uncle Sam alone, because Congress intended the
federal government, and not the states, to have the final say over how
these industries operate, particularly when it comes to issues of
consumer safety.
As a legal matter, states still do have some say
in these industries. Judge Murtha made that clear in the decision by
allowing the Public Service Board to now take up the case. But, as I
think we will eventually see, when the Vermont Yankee case is finally
over, that, as a practical matter, states will have very little say in
how these industries operate within their borders. Separating safety
from other concerns is simply very hard to do.
Just today, in
fact, the United States Supreme Court struck down a California law that
sought to regulate how slaughterhouses dealt with non-ambulatory
animals. In the unanimous opinion of National Meat Association v.
Harris, the Court found that the pre-emption language in the federal law
is to be read broadly, and that the state just can’t frame its concern a
particular way to avoid running afoul of federal law. It also said that
the state must provide clear evidence in record of what it is trying to
accomplish. My reading of this case suggests that it just got even
harder for states to regulate in areas where Congress has reserved the
bulk of enforcement for itself.
We can debate the merits of
having the federal government trump state control of regulated
industries. On one hand, federal control provides for greater certainty
and efficiency in interstate markets, and protects industries from the
political and policy differences among the states. The feds often have
the scientific expertise that the states don’t. On the other hand,
states like Vermont will no longer serve as a check on the power of the
federal government and the private sector, which are often too chummy to
start with. This leaves the states with very little power to control
their own policies, while bearing the cost when the federal government
gets it wrong.
There are legitimate arguments on both sides, and I
will let you think through which you find most persuasive. But it is
imperative that we understand the Vermont Yankee case is part of a far
greater debate, that will have far-reaching consequences.