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Hanna: Vermont Yankee Ruling

01/23/12 5:55PM By Cheryl Hanna
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(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.

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