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View Diary: Court to Vermont: "Drop Dead" (200 comments)

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  •  Here's the actual decision (16+ / 0-)

    Folks can read it for themselves.  Essentially, the diarist supports a "states rights" argument that Vermont can pass laws regarding nuclear power superseding the federal restrictions.

    •  No that's not what the Vermont law does. (11+ / 0-)

      States do have lots of rights and regulatory authority regarding nuclear plants. The one area where the federal government supercedes states is in nuclear safety. States can and do regulate other environmental and economic matters relating to nuclear plants.

      In this case, whether one agrees with him or not, the judge found that in their action, the Vermont Legislature crossed the line and was motivated by nuclear safety issues. That can be debated, but the fact is, Vermont Yankee's renewal of its Certificate of Public Good now will be considered in a pending docket before the Public Service Board. The court did not challenge the PSB's authority.

      With that said, the "solemn contract" referred to by the diarist that Entergy broke is in fact a Memorandum of Understanding, signed as a condition of the sale of the plant to Entergy in 2002, that the company would abide by, and not challenge, Vermont's ability to approve or deny continued operation. So, all other issues aside, Entergy lied.

      "So, am I right or what?"

      by itzik shpitzik on Tue Jan 24, 2012 at 05:47:47 AM PST

      [ Parent ]

      •  I'm not sure what you're saying (4+ / 0-)
        Recommended by:
        campionrules, HeyMikey, marleycat, Losty

        You seem to be reading Adam B as implying that "Vermont can['t] pass laws regarding nuclear power." But I don't think the last phrase can be severed: the judge found that Vermont can't pass laws regarding nuclear power that supersede the federal restrictions. Is that wrong?

        Thanks for clarifying the premise of the diary, which wasn't clearly stated. I suppose Entergy has an account of why this lawsuit is completely consistent with the memorandum?

        Oh, I see.

        In 2006, the Vermont General Assembly passed a law that invalidated a key provision of a 2002 Memorandum of Understanding signed by ENVY, ENOI and Vermont officials when the company purchased Vermont Yankee. Under that provision of the MOU, Entergy’s two subsidiaries had agreed to seek a certificate of public good from the Vermont Public Service Board if it sought to operate the plant beyond March 21, 2012. This was in accordance with the process and standard for securing the state certificate in effect at that time. As the complaint alleges, Vermont repudiated the MOU, breaching that agreement and excusing the two Entergy subsidiaries’ obligation to further comply with that specific provision.

        “The 2006 state law took the decision about Vermont Yankee’s future away from the Public Service Board, a quasi-judicial expert decision-maker, independent of legislative control,” said Smith. “It instead placed Vermont Yankee’s fate in the hands of political decision-makers, namely the state General Assembly and governor who could deprive Entergy’s two subsidiaries of the opportunity to operate the Vermont Yankee plant beyond March 21, 2012, for unsupported or arbitrary reasons. This is not what we signed up for in 2002.”

        link to safecleanreliable.com

        That sure does sound like corporate PR, and it makes me want to read the memorandum. I found it here. What seems to be the relevant part is in point 12:

        Each of VYNPC, CVPS, GMP, ENVY and ENO expressly and irrevocably agrees: (a) that the Board has jurisdiction under current law to grant or deny
        approval of operation of the VYNPS beyond March 21, 2012 and (b) to waive any claim each may have that federal law preempts the jurisdiction of the Board to take the actions and impose the conditions agreed upon in this paragraph to renew, amend or extend the ENVY CPG and ENO CPG to allow operation of the VYNPS after March 21, 2012, or to decline to so renew, amend or extend.

        That seems to say that Entergy can't challenge the Public Service Board's jurisdiction, not that it can't challenge the legislature's jurisdiction. Am I missing something? I haven't followed the legal arguments at all, and I've barely skimmed the decision. But maybe Entergy does have the better of this particular set of arguments. (You didn't express an opinion on that, and I know I'm in no position to have one.)

        •  All authority of the PSB in this and any other.... (7+ / 0-)

          ...matter derives from the Legislature.  The Legislature empowers and authorizes the PSB as well as restricting and directing it. Vermont can pass laws regulating nuclear power, except it can't preempt federal law and regulation regarding nuclear safety specifically.

          "So, am I right or what?"

          by itzik shpitzik on Tue Jan 24, 2012 at 06:39:34 AM PST

          [ Parent ]

        •  Basically - If I understand the Opinion correctly: (1+ / 0-)
          Recommended by:
          Adam B

          The judge ruled that the MOU was too limited in it its scope and did not, in fact, cover the claims brought by Entergy - particularly the preemption aspect.

          Additionally, he goes on to say that even if the MOU had been more sweeping - and not just covered the Board's ability to grant CPG's - it would have likely still failed as the judge believes that the Federal right to govern Nuclear safety has supremacy over any State Legislature.  

    •  States rights is ALWAYS an argument of convenience (0+ / 0-)

      One of the main desires of those Southerners so deeply committed to "states rights" before the Civil War was a strong, federal Fugitive Slave Law.

      We have many competing sovereignties in our system of government (federal, state, county, municipality, tribal sovereignties).  99% of the time, people's preference for one or the other is based on what they believe will give them concrete goals they desire.

      Those usually most strongly in favor of "states rights" today also tend to have a very broad view of the federal 2nd Amendment and believe it should be incorporated to the states.

      Tunis...Cairo...Tripoli...Wall Street

      by GreenSooner on Tue Jan 24, 2012 at 06:07:35 AM PST

      [ Parent ]

    •  After reading - or rather skimming - the opinion (5+ / 0-)

      I'm not sure what Vermont can do in this situation.

      There was not any kind of 'solemn contract', it was a Memorandum of Understanding that apparently had a very limited scope.

      Plus, the court seems to believe that Federal oversight of nuclear safety supersedes what a State government can demand.

      Putting all of that aside - what does Vermont plan on doing if they are successful in shuttering the plant? If it provides one third of all power for the state and they sell off almost half of it - will the state then have to buy energy to supplement the loss of the plant?

      Are there coal fired plants in progress? Solar or Wind?

      What a giant mess.

    •  I must ask this, where do you stand on public (2+ / 0-)
      Recommended by:
      Sychotic1, Joieau

      safety? It's clear this corporation is a danger to hundreds of thousands of people.  Since the Federal Government has abdicated their responsibilities here, why wouldn't the State then have the authority to step in and protect the people?

      The duality of our governmental system allows for "congruent powers", does it not?  People can be prosecuted by the State and the Federal government.

      And haven't many laws been written that acknowledge this? NY had raised the minimum wage long before the Federal Government stepped in.

      What's so special here? I'm missing your point. Or have we irreversibly gone down the path of Federalism as defined by Bush & Cheney? Didn't they say that if the FDA approves a drug, that's it, no one can sue for damages even if said drug's approval was based on false studies???

      This corporation lied (or failed to meet their contractual obligations), can they not then be held accountable as per their agreement?

      -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

      by gerrilea on Tue Jan 24, 2012 at 06:38:01 AM PST

      [ Parent ]

      •  This is dangerous ground (9+ / 0-)

        Not just for the fact that this site may be in fact a severe health risk - and therefore should likely be remedied as quickly as possible.

        However, the argument that you make is also dangerous:

        Since the Federal Government has abdicated their responsibilities here, why wouldn't the State then have the authority to step in and protect the people?

        Word for word, that is the argument utilized by right wing state governments when it comes to instituting various laws that they would like - such as immigration laws like in Arizona.

        Not disagreeing with you - just pointing out where that road may end.

        •  Disgusting isn't it? (0+ / 0-)

          We're dammed if we do and dammed if we don't.

          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

          by gerrilea on Tue Jan 24, 2012 at 08:21:26 AM PST

          [ Parent ]

      •  Why must you ask? (6+ / 0-)

        Because Adam volunteered up the actual legal document that forms the basis for this horribly written diary, and offered a lawyer's interpretation of what the opinion means, you challenge his progressive cred?

        •  What??? (0+ / 0-)

          So, you disagree on the premise or the writing style of the diarist, fine but me asking a question to illicit a better understanding is challenging "his progressive cred"?

          I've pointed out why I asked my questions. Why is it okay in one venue  (labor law) for the State to mandate stricter standards than the Federal Government, but in this area it is not?

          Maybe you cannot understand the dichotomy and inconsistencies here, but I see it as plain as day.

          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

          by gerrilea on Tue Jan 24, 2012 at 08:10:40 AM PST

          [ Parent ]

          •  The answer to your question (7+ / 0-)
            I've pointed out why I asked my questions. Why is it okay in one venue  (labor law) for the State to mandate stricter standards than the Federal Government, but in this area it is not?

            is in the doctrine of federal preemption.  See a brief explanation here.

            Basically, Congress can pass laws that indicate an intent to be the final and only word on the subject -- an intent to preempt state law.  Congress does that where it determines that it is necessary to have single legal standard throughout the country.  Here's another discussion, with some examples.  

            •  Thank you, I'm getting it, very dangerous (0+ / 0-)

              proposition that can be used to strip us all of so many things.

              It occurred to me that congress could pass laws preempting every State law in existence.  Bush & Co could have said that the Federal Minimum wage laws were now superior to any and all State requirements.

              I shutter at the prospect of this idea and the potential for abuse and tyranny.

              -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

              by gerrilea on Tue Jan 24, 2012 at 09:03:37 AM PST

              [ Parent ]

              •  You, perhaps unintentionally, sound a bit like (4+ / 0-)

                Ron Paul, who decries federal power at the expense of state authority, for precisely that reason -- the potential for abuse and tyranny.

                "I shudder at the prospect of this idea [federal preemption of state authority and power] and the potential for abuse and tyranny."

                •  ROFL, maybe I do, but it's not intentional (0+ / 0-)

                  just a bit of reality checking and self awareness.

                  I don't decry federal authority but we have to understand that the best laid plans of mice and men DO go awry. And the road to hell is paved with good intentions.

                  ;)

                  In all seriousness, I label myself as a Progressive Libertarian.  My definition: Make the words and ideals of the Declaration of Independence apply to everyone in this country. No special classes, no exemptions if you are a member of Congress or a corporation, no waivers from equality and justice.  All must be equal to and accountable under the law. If the second document we created (our current constitution) is deficient, amend it through Article V.

                  -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                  by gerrilea on Tue Jan 24, 2012 at 09:37:39 AM PST

                  [ Parent ]

      •  preemption is an old doctrine (2+ / 0-)
        Recommended by:
        gerrilea, charliehall2

        In areas of the Constitution given to Congress, congress can regulate to the exclusion of all state authority.  Congress can also delegate back to the states (see the Clean Air Act). The ability of states to ignore federal law was one of the issues fought over in the civil war. In short the supremacy clause gives Congress the right to regulate commerce (including electric power) and push out the states if it chooses as it seems to have done here. It is an all eggs in one basket approach that can fail as it did here

        •  Thanks, I have reservations on some of this (1+ / 0-)
          Recommended by:
          Joieau

          http://law2.umkc.edu/...

          It seems that "preemption" idea is in flux and open for debate.

          SILKWOOD v. KERR-McGEE CORP.

          We do not suggest that there could never be an instance in which the federal law would pre-empt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, pre-emption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. We perceive no such conflict or frustration in the circumstances of this case.

          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

          by gerrilea on Tue Jan 24, 2012 at 08:52:44 AM PST

          [ Parent ]

          •  Not so much in flux as very complex (2+ / 0-)
            Recommended by:
            gerrilea, Adam B

            There are at least three flavors. Where Congress intends to be the exclusive authority and push out the states, then a doctrine called field preemption applies.  Otherwise, states are preempts only to the extent that they can't pass conflicting laws (your quote here says the court decided that this was a conflict preemption case not a field preemption case).  Also, the commerce and other clauses limit the states without federal action to prohibit certain state laws that reach into federal areas like interstate commerce or military affairs or foreign affairs.  

            Here it sounds likebthe court determined that the authority of the NRC preempts the entire field of nuclear safety regulation so the state isn't allowed to shut the plant down for safety reasons only for economic or grid integrity reasons

    •  So far they have not succeeded in winning that.... (2+ / 0-)
      Recommended by:
      Joieau, happymisanthropy

      argument.

      While I understand federal law is the issue here, it is important for us all to understand the limits states have in regulating these plants.

      Frankly, after this ruling I cannot imagine any state approving any NEW plants in the near future.

      Where ignorance is our master, there is no possibility of real peace. - Dalai Lama

      by kimoconnor on Tue Jan 24, 2012 at 07:10:05 AM PST

      [ Parent ]

      •  From what I've gathered here so far (0+ / 0-)

        The State does not have any authority to stop them from being built.  If we are to accept the ruling that only the federal government can regulate them.

        Meaning my own State's (New York) push to stop and control fracking is moot.

        -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

        by gerrilea on Tue Jan 24, 2012 at 08:27:00 AM PST

        [ Parent ]

    •  The diarist misunderstands the case (2+ / 0-)
      Recommended by:
      Adam B, NYFM

      1) Not related to safety at all.
      2) It's a contract case that Entergy is trying to turn into a pre-emption case. Unfortunately, the state did a crappy job in presenting its side of the case.

    •  thanks for doing the diarists job (1+ / 0-)
      Recommended by:
      erush1345

      I'll give it a read but the diary sounds a little tentherish it is true

      Devil is in the details and I wonder if the diarist read the opinion

      •  the point is the court said... (3+ / 0-)
        Recommended by:
        Just Bob, happymisanthropy, Joieau

        vt overstepped its bounds by even considering safety issues.  i think that's crazy....but so is the atomic energy act of 1954, and the use of nuke power altogether.

        •   It depends on the Feds (0+ / 0-)

          It sucks, but that's US law. Here in California we are being forced to use crappy polluting fuels from the rest of the country because too few want to do anything about climate change.  

          As you say, yet more crazy policy

          •  I read something (0+ / 0-)

            awhile back about one of your universities (CalTech? One of the UC's?) developing vertical wind technology that looked promising. Based on the air flow dynamics of flocking birds, each vertical 'screw' tower receives positive help from its neighbors to keep its 'screw' turning. Improving efficiency by something north of 50%. In "Wind Farms" where as many as a dozen units occupy a single acre it looks to be quite conservative land use as well. You could always grow corn or melons in between them if you really wanted.

            Dang... used to keep these links somewhere...

    •  your comments that i remember (0+ / 0-)

      (which are probably only a small sample of your actual comments) always seem to point out that whatever is right (in this instance, democratically elected representatives preserving the safety of their constituents from an evil corporation) is in some way illegal.

      It creates a very disturbing cognitive dissonance for me, because I'm often thinking in other case that the rule of law is paramount, but then you remind me how annoying the rule of law can be when the people who've made the laws were wrong/assholes, which usually leads to me contemplating how our forefathers rebelled against the law of the land, and wondering what is a reasonable threshold for rebellion.

      I think it's clear that this plant should be shut down, ASAP. If the law prevents the state from doing that, and the Feds won't do it, then something has to give. in this case, it should probably be the law that gives the NRC final say over these matters. It should be like CAFE standards, where the federal regulations are the minimum but states can be more restrictive if they please.

      "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

      by joey c on Tue Jan 24, 2012 at 11:26:26 AM PST

      [ Parent ]

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