Hanna: Vermont Yankee Ruling

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(HOST) Last week, the trial between Entergy and the state of Vermont
over the future of Vermont Yankee came to a close. As we await that
ruling, Vermont Law School Professor and commentator Cheryl Hanna shares
some of her thoughts about the case.

(HANNA) I honestly can’t
predict what Judge Murtha will do with the Vermont Yankee case. First,
he has to wade through volumes of legislative history, deciding both
what Vermont’s motives were in refusing to issue a certificate of public
good, and then deciding if those motives were permissible under federal
law. He also has to decide if Vermont Yankee is precluded from bringing
this suit in the first place because of its own actions. No question
that Judge Murtha will be very careful as this case is certain to be
appealed by the losing party.

What will be most important is how
the Judge characterizes the facts because the Second Circuit Court of
Appeals will give deference to his findings. But on any legal questions,
the Court of Appeals takes a second look.

Although the Vermont
Yankee case presents an issue that’s never been directly addressed by a
federal court, pre-emption cases brought by a regulated industry are
increasingly common. In most, albeit not all of these cases, it’s the
regulated industry, not the state, that has tended to prevail at both
the Circuit and the Supreme Courts. Courts often favor business
interests over states’ rights.

This question of federal
pre-emption is one that the Supreme Court will consider in a number of
cases this term. There’s one case in particular that may lend some
guidance on the future of Vermont Yankee. In National Meat Association
v. Harris, the Supreme Court will decide whether a California law that
requires slaughterhouses to immediately euthanize animals that are
unable to walk – sometimes referred to as downed animals – conflicts
with the Federal Meat Inspection Act, which requires that such animals
be separated and observed for disease, but not immediately killed.
There’s always the fear that the downed animal has a disease that can be
passed onto humans. Under federal law, many of these downed animals do
end up being slaughtered and eventually eaten. Under California law, no
downed animal would be in the food supply.

While there are
certainly differences between the cases, at the heart of each is what
role a state can play when the federal government has the final say over
safety.  In Vermont Yankee, it’s radio-active safety; in the National
Meat Association case, it’s food safety. One of the claims of California
is that it’s regulating the ethical and humane treatment of animals, a
different motive than safety. Yet, the distrust with which California
law makers must certainly regard the US Department of Agriculture must
be similar to the distrust many Vermont lawmakers have of the Nuclear
Regulatory Commission.

The Supreme Court will have to decide if
California over-stepped its role in the broader scheme of food safety
regulation. If the Court strikes down California’s law, then that
decision could play a role in how the Second Circuit Court of Appeals
eventually decides the Vermont Yankee case.

As we all await the
first decision on the merits of the Vermont Yankee case, nothing at this
stage is certain, except that Judge Murtha’s decision will not be the

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