Aug. 5, 2011, Don Kreis: A Ptolemaic Policy Pronouncement from Peter Shumlin?

Don Kreis

Editor Anne Galloway of the news web site recently spent a long day driving around the state with Gov. Shumlin. Among her conclusions after 13 hours of meeting and greeting is that the former state Senate leader has changed his ways and “appeared to have sworn off whiplash, headline statements.”
Quite possibly, but you wouldn’t necessarily know that from the comments Shumlin made, while Galloway was watching and scribbling, about the Vermont Yankee lawsuit.
Please do not misunderstand. I am a fan of Peter Shumlin; I voted for him, I donated to his campaign and I heartily approve of both the policy initiatives he has launched and the appointments he has made. Maybe I am just getting too cranky about important public figures aiding and abetting what I see, as a law professor and a former government lawyer, as widespread misunderstanding among the general public about matters of law.
Here is what Galloway reported the governor as saying in a meeting with editors and writers from the Valley News:
“Entergy Louisiana has such a broad case that if it were to prevail, it would have huge ramifications for not only Vermont, but the other 49 states. Basically, it would suggest, or make clear, that energy policy has been removed from the states — that’s whether it’s land use, price, environmental considerations or all the other issues that states consider in regulating generators of electricity — (and) that they are abrogating that responsibility to the federal government. That’s a huge shift in the history of state’s rights, so I just think we’re in good shape, and Entergy Louisiana is going to have to comply with Vermont laws just like Vermonters do.”
This is so exaggerated and misleading that it merits the “pants on fire” rating on the ol’ Politifact truth-o-meter. The issue in the Vermont Yankee lawsuit is not whether all of energy policy is being federalized by judicial fiat. The U.S. Supreme Court made clear, fully 28 years ago in its Pacific Gas & Electric decision, that states are free to decide whether they want nuclear power plants constructed within their borders. This is a choice Vermont made, well over 40 years ago, when it granted a certificate of public good authorizing the construction of Vermont Yankee in Vernon.
The question in the Vermont Yankee lawsuit is whether the state can come along and shut down your duly permitted business and tell you to dismantle your facility, at your expense, on grounds of safety, even after you have fully complied with a duly enacted federal safety regime. According to the state of Vermont, the answer to that question is “yes” if you are a nuclear power plant.
Please do not misunderstand. I dislike Vermont Yankee about as much as I like Peter Shumlin. I hope the latter gets reauthorized in 2012 and the former does not. But it remains my respectful contention that because the issue in Vermont Yankee is nuclear power, Gov. Shumlin and other people of goodwill embrace legal propositions they would never suffer in other realms.
Those who believe that Vermont will prevail in the litigation are now almost certainly leaping to their keyboards to rebut what I wrote two paragraphs ago. They will argue that Vermont’s assertion of authority is not based on radiological safety but on economics, environmental protection, reliability of electric service and just about every other plausible reason for the state to exercise its police power. This, of course, is an open question that the U.S. District Court will resolve after next month’s trial. Based on what we know, there certainly is a colorable argument that the Legislature was regulating radiological safety when, in 2006, it ordered Vermont Yankee closed as of March 21, 2011, unless a subsequent Legislature changed its mind and the Public Service Board agreed.
I would also point out that based on what was known in the time of Ptolemy, there was a colorable argument that the Earth was the center of the universe. The explanations one reads for why the state was not legislating about radiological safety in 2006 have the same inventive character as the explanations offered in the Second Century A.D. for the seemingly bizarre behavior of celestial objects under a geocentric notion of cosmology.
But I digress. The problem with Shumlin’s comment about energy law is not just that it offers a vastly overbroad gloss on the federal Atomic Energy Act. The comment also ignores the Federal Power Act. And the public deserves to understand that it is not the Atomic Energy Act, which, obviously, covers only nuclear power, but the Federal Power Act that truly defines and delimits what is federal and what belongs to the states when it comes to energy policy.
Basically, the Federal Energy Regulatory Commission (FERC) regulates the sale of power at wholesale. The states regulate the sale of power at retail. The FERC regulates the high-voltage bulk power transmission system. The states regulate the electricity distribution network – everything from the low-voltage side of substations down to the meter on the side of your house.
States retain the authority to make decisions about the siting of transmission lines – witness the ongoing fight before state regulators in New Hampshire over the so-called Northern Pass project. (But note that Congress gave the FERC so-called “backstop” authority over transmission line siting a few years ago, an untested source of FERC authority to override certain state decisions not to permit transmission lines.) States also retain the authority to regulate the siting of, and to determine the need for, generation facilities of any type. Hence, among other things, the Pacific Gas & Electric decision referenced above.
The name of this game is federalism, and our elected officials should work to overcome, rather than pander to, widespread public misunderstanding of the concept. The Supremacy Clause of the U.S. Constitution means that when Congress legislates, its enactments are the law of the land and supercede (or, in legal parlance, preempt) state laws to the contrary. In some sense, the Civil War was fought to defend this proposition.
At the same time, other constitutional principles constrain what Congress can do. The Tenth Amendment makes clear that unless a power is delegated to the federal government by the Constitution, that power is “reserved to the states . . . or to the people.” This is why the issue of same-gender marriage is resolved on a state-by-state basis; regulating peoples’ marital relations is a classic example of a power not delegated by the Constitution to Congress. By contrast, Article 1, Section 8 of the U.S. Constitution explicitly grants Congress the power to regulate interstate commerce and it is this so-called Commerce Clause that forms the basis of such federal statutes as the Atomic Energy Act and the Federal Power Act.
Here is the upshot. Energy involves both interstate and intrastate commerce, and so the constitutionally grounded concept of federalism means that certain aspects of energy policy belong to the federal government while other aspects repose in the states. Where shutting down Vermont Yankee falls, on the divide between state and federal authority, is a hotly contested but still unresolved question – one that, hopefully, the federal judiciary will resolve in Vermont’s favor. That’s what Gov. Shumlin should have told the editors of the Valley News and
[Relevant ethical disclosure: I am a member of the board of the Vermont Journalism Trust, publisher of]


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