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Hanna: Vermont Yankee Ruling

09/19/11 5:55PM By Cheryl Hanna
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(HOST) Last week, the trial between Entergy and the state of Vermont over the future of Vermont Yankee came to a close. As we await that ruling, Vermont Law School Professor and commentator Cheryl Hanna shares some of her thoughts about the case.

(HANNA) I honestly can't predict what Judge Murtha will do with the Vermont Yankee case. First, he has to wade through volumes of legislative history, deciding both what Vermont's motives were in refusing to issue a certificate of public good, and then deciding if those motives were permissible under federal law. He also has to decide if Vermont Yankee is precluded from bringing this suit in the first place because of its own actions. No question that Judge Murtha will be very careful as this case is certain to be appealed by the losing party.

What will be most important is how the Judge characterizes the facts because the Second Circuit Court of Appeals will give deference to his findings. But on any legal questions, the Court of Appeals takes a second look.

Although the Vermont Yankee case presents an issue that's never been directly addressed by a federal court, pre-emption cases brought by a regulated industry are increasingly common. In most, albeit not all of these cases, it's the regulated industry, not the state, that has tended to prevail at both the Circuit and the Supreme Courts. Courts often favor business interests over states' rights.

This question of federal pre-emption is one that the Supreme Court will consider in a number of cases this term. There's one case in particular that may lend some guidance on the future of Vermont Yankee. In National Meat Association v. Harris, the Supreme Court will decide whether a California law that requires slaughterhouses to immediately euthanize animals that are unable to walk - sometimes referred to as downed animals - conflicts with the Federal Meat Inspection Act, which requires that such animals be separated and observed for disease, but not immediately killed. There's always the fear that the downed animal has a disease that can be passed onto humans. Under federal law, many of these downed animals do end up being slaughtered and eventually eaten. Under California law, no downed animal would be in the food supply.

While there are certainly differences between the cases, at the heart of each is what role a state can play when the federal government has the final say over safety.  In Vermont Yankee, it's radio-active safety; in the National Meat Association case, it's food safety. One of the claims of California is that it's regulating the ethical and humane treatment of animals, a different motive than safety. Yet, the distrust with which California law makers must certainly regard the US Department of Agriculture must be similar to the distrust many Vermont lawmakers have of the Nuclear Regulatory Commission.

The Supreme Court will have to decide if California over-stepped its role in the broader scheme of food safety regulation. If the Court strikes down California's law, then that decision could play a role in how the Second Circuit Court of Appeals eventually decides the Vermont Yankee case.

As we all await the first decision on the merits of the Vermont Yankee case, nothing at this stage is certain, except that Judge Murtha's decision will not be the last.
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