Monday, April 18, 2011
Necessary, Not Sufficient
Let me admit the obvious at the outset: IANAL. Still, a few things in Entergy's lawsuit against Shumlin and the State regarding Vermont Yankee.
For now I'll ignore the Memorandum of Understanding where Entergy agreed that the Public Services Board and Vermont law are not pre-empted by Federal regulations. Paragraphs 6 through 8 of their complaint in particular caught my eye:
6. The question presented by this case is whether the State of Vermont, either through a state administrative agency (the PSB) and/or the state legislature (the General Assembly) may effectively veto the federal governments authorization to operate the Vermont Yankee Station through March 21, 2032. The answer is no.
7. Vermont’s attempt to shut down operations at the Vermont Yankee Station through regulatory or legislative denial of a CPG is preempted by the federal Atomic Energy Act(“AE.A”), 42 U.S.C. § 2011 el seq.
8. Under the AEA, a State may not interfere with the federal government's exclusive authority over the operation of a nuclear power plant. A State’s regulation of the “construction or operation of a nuclear powerplant[,] ... even if enacted out of non-safety concerns, ... directly conflict[s] with the NRC’s exclusive authority over plant construction and operation." PacificGas & Elec. Co. v. State Energy Res. Conserv. & Dev. Comm 'n, 461 U.S. 190, 212 (1983)(“PG&E”). Vermont’s CPG scheme, whether administered by the PSB or the General Assembly interferes with exclusive federal authority over the continued operation of a nuclear power plant.
It's interesting to me that they choose to cite PG&E v State Energy Comm'n because I find much that undermines their argument therein:
From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking.
[A State moratorium on plant certification] does not conflict with federal regulation of nuclear waste disposal, with the decision of the Nuclear Regulatory Commission (NRC) that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, or with Congress' recent passage of the Nuclear Waste Policy Act of 1982 directed at that problem. Because the NRC's decision does not and could not compel a utility to develop a nuclear plant, compliance with both that decision and [A State moratorium on plant certification]is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, [A State moratorium on plant certification] does not interfere with the objective of those regulations.
[A State moratorium on plant certification] does not frustrate the Atomic Energy Act's purpose to develop the commercial use of nuclear power. Promotion of nuclear power is not to be accomplished "at all costs."
The Supreme Court noted that States can make decisions about nuke plants based on non-safety, including economic, considerations. But notice the broad fudge word in Paragraph 8 that Entergy uses to condemn our Legislature's role in certifying the plant: operation.
They claim that a "State may not interfere with the federal government's exclusive authority over the operation of a nuclear power plant," and I guess that's true as far as it goes. But they rely on the logical fallacy of ambiquity. Does 'operation' in this context mean day-to-day activities that are clearly in the NRC's demesne, or simply whether a plant can operate or function at all per a State's certification requirements?
Clearly the Legislature is not attempting the former. Nobody is asserting the State has power or responsibility for safety or generation at Vermont Yankee. However, we have the right to decide whether to allow the plant to continue operating in our state in the first place, as the SCOTUS held:
[T]he legal reality remains that Congress has left sufficient authority in the States to allow the development of nuclear power to be slowed or even stopped for economic reasons.
The Court affirmed that if we'd rather shut down VY and invest heavily in sustainable energy, for example, which will create more jobs and cut our electricity costs, we can do so without violating the AEA. Our Certificate of Public good, per Act 160, must be issued under the auspices of precisely the same language as the AEA, if the Legislature determines it promotes "the general welfare". It is not predicated on any safety determination.
So, Vermont does, in fact, have an "effective veto" over the NRC's authorization to operate VY after its sell-by date. I even confirmed that interpretation with the NRC itself:
The holding of an NRC license does not guarantee operation of a facility. The facility may have other requirements, such as permits with the state, which preclude operation of the facility.
Sr. Public Affairs Officer
NRC approval is a NECESSARY, not a SUFFICIENT, condition for continued operation. In other words, Vermont could not say VY's license will be extended if the NRC said no, because we need uniform minimum standards to keep other states safe (imagine if we had a Fukushima-esque event where highly radioactive water spilled into the Connecticut River), but the mere possession of the NRC's blessing does not compel a utility or the State to actually run the plant.
I'm sure clever lawyers can make hay with just about anything in the PG&E decicion or AEA or Constitution or common law or whatever else, but my read is that Entergy's argument is radioactive poppycock and their case will melt down like an exposed fuel pellet. And VY is neither necessary nor sufficient for Vermont's energy future.
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