Much will be at stake as Attorney General William Sorrell pursues his appeal of the decision by U.S. District Judge J. Garvan Murtha striking down Vermont laws allowing the Legislature to refuse to license Vermont Yankee nuclear power plant.

One of the most important issues involves the question of federal pre-emption of state laws. In many areas, federal pre-emption is vital in protecting people’s rights. Federal laws on civil rights, for example, pre-empt state laws that infringe on the rights of minorities.

But on many matters, state legislatures decide to pursue regulatory policies that are more rigorous than federal policy, and it is in the public interest that lax federal law not be allowed to undermine state interests. A good example is the decision in U.S. District Court in Vermont to uphold air pollution laws more stringent than federal laws. The auto industry fought the state of Vermont, but U.S. District Judge William Sessions did not allow federal law to pre-empt laws in Vermont and other states.

Murtha’s decision found that Vermont laws concerning the licensing of Vermont Yankee were in conflict with federal law granting regulatory authority on nuclear safety matters to the federal Nuclear Regulatory Commission. He based his decision on the legislative record that, in his view, showed that as legislators made up their minds on the law they were motivated by concerns about nuclear safety.

There is good reason to question whether Murtha is in a position to discern legislative intent, or whether he ought to try. A legislator concerned about safety may also have been concerned about economics or corporate behavior. Who is not concerned about safety? The question is whether safety issues somehow taint the consideration of non-safety issues by state policymakers, undermining the state’s authority entirely.

Sorrell faces a formidable challenge in appealing the Yankee decision. Sorrell has a poor record on big cases, and his abilities as a litigator at the Supreme Court or at the appeals court level are not considered by legal observers to be first rate. On appeal he would be up against one of the nation’s most formidable and expensive legal teams, and questions linger about whether he would be up for the job.

The closing of Vermont Yankee has been a longtime goal of Gov. Peter Shumlin, and the failings of Entergy Nuclear, the owner of Yankee, have made the closing of the plant a popular cause among many Vermonters. So the political momentum is there to pursue an appeal.

Sorrell, however, is not part of the Shumlin administration. He is elected independently and has served through the terms of Democratic and Republican governors. Nevertheless, he is a member in good standing of the Democratic establishment, and it would have been hard for him to resist pressure from Shumlin and others to appeal Murtha’s decision.

The worst possible outcome would be for the appeals court — or the Supreme Court, should it get that far — to back Vermont Yankee and, in doing so, to establish a sweeping precedent undermining state authority in regulatory matters. In numerous areas states seek to be more ambitious than the federal government in advancing the general welfare, within the bounds of the Constitution. The states’ rights to do good must be preserved.

Entergy will argue that granting states the authority to limit the company’s ability to do business is not in the public interest and is not authorized by federal law. Much will turn on how the appeals court views the Supreme Court precedent in the PG&E case establishing state authority on non-safety issues.

Given Sorrell’s less than stellar record in high-stakes litigation, it is good to know he has been consulting an experienced Supreme Court litigator, David Frederick, of Washington, D.C. Sorrell needs all the advice he can get.

The future of Vermont Yankee is at stake, but so is the states’ power, as established in federal law, to protect their own interests.