• Judicial overreach
    August 20,2013

    The appeals court ruling siding with Vermont Yankee and against the state of Vermont has alarmed people beyond those who hoped the Vermont Legislature might use its authority to shut down the nuclear power plant.

    That’s because the 2nd U.S. Circuit Court of Appeals upheld findings by U.S. District Judge J. Garvan Murtha about the intentions of the Legislature in granting itself veto power over the future operations of Vermont Yankee.

    The historic record about legislative intent is sometimes useful when courts need to clarify the language of a law that is murky or ambiguous. But Murtha and the appeals court did something different: They delved into the murky and ambiguous realm of legislative debate to reverse laws that seemed clear.

    There is little debate about the division of labor between state and federal government when it comes to nuclear power. The federal Nuclear Regulatory Commission has authority to regulate nuclear power plants on issues related to radiological safety. The technical expertise for overseeing nuclear technology is beyond the capacity of most states, and so it makes sense to give that responsibility to the federal government.

    But in those areas where a nuclear plant is like other power plants — on environmental and economic issues, for example — states retain oversight authority. This division of labor has been upheld in a U.S. Supreme Court case from California that Vermont Attorney General William Sorrell had relied on in his appeal.

    Vermont legislators were aware of the distinction when they passed laws giving the Legislature authority to rule on whether Vermont Yankee would be allowed to seek approval from the Public Service Board. Legislators were told they needed to make sure that nuclear safety concerns were not their motivation. One legislator, Sen. Ann Cummings, is even on record as saying, “OK, let’s find another word for ‘safety.’”

    So were legislators secretly acting to address issues of nuclear safety while pretending to act on non-nuclear issues? That is what Murtha and the appeals court decided.

    Maybe some legislators were. But how many have to have impure motives to make the Legislature’s action contrary to federal law? Maybe Cummings changed her mind and decided that, in fact, she was supporting the law on environmental grounds.

    In an analogous situation, it could happen that a liberal judge might question a bill passed in Texas limiting access to the polls for some Texans. The judge might look at the offhand remarks of a few racist legislators and decide that the bill was racist. But the judge would be making assumptions.

    The judge would be on firmer ground if he or she looked at the outcome or effect of the law, rather than the intent. Did it have the effect or likelihood of infringing on voting rights in fact? Looking at the actual effect of laws is a more reliable basis for deciding than guessing about the frame of mind of legislators.

    In the case of the Vermont Legislature, the Vermont Senate went on to vote against a certificate of public good for Vermont Yankee. Senators had many concerns about Yankee, including the truthfulness of Yankee executives and their dependability in paying for decommissioning of the plant. If they secretly nursed a suspicion that nuclear power was not safe, does that negate their other concerns? The appeals court said it does.

    Following the Yankee decision, legislators around the nation have reason to worry about judicial overreach into the realm of lawmaking. It is an arrogant usurpation of power for the judiciary to assume for itself the power to read the minds of legislators.

    Sorrell will have to decide whether to appeal the Yankee case to the full appeals court or the U.S. Supreme Court. Appealing to the full appeals court would be pointless because if he were to win Yankee would certainly appeal to the Supreme Court. And at the Supreme Court, an activist conservative majority has shown it is willing to twist the law to its will to serve business interests. It’s hard to envision the Roberts court siding with the liberal Vermont Legislature to challenge the power of business to do as it likes.

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