Should Vermont be able to shut down a nuke plant within its own borders?

[wtmusic]

From a legal standpoint, the answer is surprisingly complex. An analysis which is rare for its objectivity:

"Nuclear power plants are but just one of many, many industries that are regulated by the federal government. So too are automobile manufacturers, drug companies, and the meat industry, for example. The fundamental question is what role, if any, do states have in regulating these businesses.

Industry has been increasingly arguing that federal law trumps state law. Essentially, that they should have to answer to Uncle Sam, and Uncle Sam alone, because Congress intended the federal government, and not the states, to have the final say over how these industries operate, particularly when it comes to issues of consumer safety.

<>

We can debate the merits of having the federal government trump state control of regulated industries. On one hand, federal control provides for greater certainty and efficiency in interstate markets, and protects industries from the political and policy differences among the states. The feds often have the scientific expertise that the states don't. On the other hand, states like Vermont will no longer serve as a check on the power of the federal government and the private sector, which are often too chummy to start with. This leaves the states with very little power to control their own policies, while bearing the cost when the federal government gets it wrong."

http://www.vpr.net/episode/52865/hanna-vermont-yankee-ruling/

[phantom power]

1. It is a really interesting question

In my living memory, most examples of appeals to "states rights" have been motivated by conservatives, for causes I'm completely unsympathetic to. But for better or worse, we have this tension between the authority of states and the authority of the fed. This is a problem unique to the US as far as I know. The closest analog I can think of is the tension between nations and the United Nations. Everybody wants to be able to appeal to a higher authority, except when they don't.

[wtmusic]

2. A possible scenario.

In the wake of a tide of rulings favoring state regulation, Nuclearmegacorp Consolidated Industries (NCI) decides to build a reactor in a Small State. With their vast resources they bring jobs and a lot of money from selling electricity - much of it from out-of-state customers. They bribe local officials into overlooking safety violations and construction shortcuts. Why? Because they have a lot of money.

Because they can.

Lo and behold, Reactor #1 melts down and casts radiation about the countryside. Because winds show little consideration for state borders, the contamination quickly spreads to other states, which now have to bear the burden of Small State's poor choices. An argument for federal regulation.

Of course this is already happening with coal plants.

[saras]

3. ANY jurisdiction ought to be able to restrict pollution within its boundaries

With the more restrictive rules overriding less restrictive ones. Sensible and fair.

[wtmusic]

4. Then the federal government could shut down biomass plants within Vermont

if pollution spreads to New Hampshire?

[PamW]

8. It doesn't work that way.

It doesn't work that way. The local jurisdiction could chose ZERO as the standard
and thereby foreclose an activity that the Federal Government wants to proceed.

This issue comes up time and again, and the answer is in the US Constitution.

The US Constitution gives the regulation of certain activities to Congress, like those
covered under the Commerce Clause. When the Federal Government is given
jurisdiction, then Article VI Section 2 of the US Constitution, which is called the
"Supremacy Clause"; says the Federal law TRUMPS State and local law.

If the US Constitution does NOT give the Federal Government the right to regulate
something; then the 10-th Amendment says the States have the power instead.

In the case of nuclear power, nuclear weapons, transportation of radioactive material,... the US Supreme Court has ruled that those are activities that the US Constitution grants to the Federal Government.

Therefore, under the US Constitution's Supremacy Clause Article VI Section 2; the Federal law TRUMPS State and local laws. It's NOT the most restrictive trumps.

PamW

[BlueCaliDem]

5. Short answer: Yes.

But if they get Federal funding to maintain the site, that should be pulled as well.

[AndyTiedye]

6. Hell Yes!

They cite Federal regulation of automobiles as an example. Funny they should mention that,
since California has its own, more restrictive regulations.

[PamW]

7. ACTUALLY...

Actually, California needs PERMISSION from the Feds to enforce those more restrictive regulations.

PamW

[PamW]

9. US Constitution Supremacy Clause

It really isn't a matter to debate, and it isn't just the arguments of the industry that Federal law TRUMPS State law - it is a provision of the US Constitution.

Article VI Section 2 of the US Constitution is called the Supremacy Clause.

The Framers of the Constitution anticipated that the Federal Government could be in conflict with State Governments. So the Framers provided a solution, and it was written into the Constitution.

The Supremacy Clause says Federal law TRUMPS State law in the areas where the Constitution has given power to the Federal Government. As you state correctly, activities such as automobiles, drugs, nuclear power, airline safety,... a whole host of things are within the purview of the Federal Government under the Commerce Clause and other provisions in the US Constitution.

When the Federal Government has legitimately been given the power to regulate an activity by the US Constitution, the Framers provided that Federal law TRUMPS State and local laws.

For example, the Federal Government may deem that maintaining a military base with missiles and nuclear weapons is paramount to the security of the entire Nation. Now what jurisdiction wants to have a whole cache of nuclear weapons in its territory. It would be NIMBY on steroids.

But it is important to the national security of the USA, which the US Constitution puts into the hands of Congress and the Administration. If we say most restrictive wins; then every State and local government sets ZERO as their limit; and the USA can't have the military deterrent it requires.

Therefore, the US Constitution takes care of the NIMBY problem by saying that Federal law TRUMPS.

No State or local government can stand in the way of the Federal Government when it is doing its job of providing for the common defense.

Case in point, was back in the '80s, Oakland California passed a "Nuclear Free" ordinance that says no one can do anything related to nuclear anything within the confines of Oakland CA. The real target of this ordinance by the local "peaceniks" was the Oakland Field Office of the Dept. of Energy. The Oakland office oversaw the operation of Lawrence Livermore National Lab, one of the two nuclear weapons design labs in the USA; located in Livermore, CA some 30 miles away. The Oakland ordinance essentially criminalized the function of that Federal office. DOE sued Oakland to vacate that ordinance.

The DOE was successful, and the Federal Courts ruled that the Oakland "Nuclear Free" ordinance, and ALL so called "Nuclear Free" ordinances were UNCONSTITUTIONAL since they prohibited the Federal Government from carrying out its Constitutionally mandated functions. Also Federal law trumps State and local law; so the Oakland ordinance was voided.

PamW

[PamW]

10. The Framers and the Constitution...

On the other hand, states like Vermont will no longer serve as a check on the power of the federal government
==============================

Although the Framers of the Constitution set up the 3 branches of the Federal Government with "checks and balances" the Framers did NOT enshrine in the Constitution any notion that the States were to be a "check" on the Federal Government.

NO - instead they said one or the other TRUMPS. In cases where the Federal Government has been given a power to regulate by the Constitution, the Federal law trumps State law. In cases where the Federal Government has NOT been given a power; then the State law trumps.

Another reason you don't want a "check" system with the most restrictive winning is the following. Consider back in the '50s and '60s, when the question was how many black students could attend the University of Mississippi? The residents of the State were quite content to attempt to "check" the Federal government in terms of the number of black students admitted. The State promulgated the more restrictive limit of ZERO!!

Now do you really want the State to win that type of contest? Where would the civil rights movement be if we had States checking and frustrating Federal mandates?

I think the Framers would say that if you think the Federal Government is not doing its job properly; then the Framers wouldn't advocate a State vs Federal clash. No, the Framers would say that the voters have to do their job in electing the people they put in charge of the Federal Government.

I know $$$ can buy lots of advertising. But $$$ doesn't buy actual votes; not if we have an honest electorate.

PamW

[Nihil]

11. Also bear in mind ...

... that this would set precedents for the other side of the argument too ...

If a "right-wing fossil-fuel using state" wants to overrule the federal laws
controlling the extraction of fossil fuels or even controlling the use of
coal- or gas-fired generation, should they be allowed to do so?



It's not quite as simple a question as certain parties would like it to be
in Vermont's case ...

[wtmusic]

12. Ironically a similar situation may arise in Vermont

If residents do succeed in closing down Vermont Yankee, the state will be forced to rely more on its most valuable energy resource: wood. How's that going to affect the air quality in-state, as well as downwind in New Hampshire?

[badtoworse]

13. A wood fired power plant is not particularly clean