Our Atomic Dominoes are Falling

[PamW]

17. Runs afoul of the US Constitution

Last edited Tue Feb 19, 2013, 10:56 AM - Edit history (1)

That initiative runs afoul of the US Constitution.

The US Supreme Court has held that the Commerce Clause of the US Constitution gives Congress the power to regulate nuclear power plants. If the States attempt to interfere, then their laws are unconstitutional under the US Constitution's Supremacy Clause; Article VI, Section 2.

The Supreme Court has upheld the States LIMITED power under NRC regulations to bar new power plants due economic concerns.

Additionally, recent changes in the laws may actually lessen the States' control on nuclear power.

The US Supreme Court upheld California's ban on new nuclear reactors back when Diablo Canyon was owned by the public regulated utility Pacific Gas and Electric. The argument was that if the utility built more nuclear power plants, and the federal waste depository was not forthcoming, then the additional waste disposal costs would be passed on to the utility's customers; the citizens of California.

However, in the decades since that decision was handed down, the legal landscape has changed.

Diablo Canyon is no longer owned by the State-regulated utility Pacific Gas and Electric. In the deregulation of a decade ago, Diablo Canyon is now owned by a corporate holding company PGECorp. PGECorp also owns the State-regulated utility Pacific Gas & Electric as a wholly owned subsidiary.

However, if PGECorp gets in financial trouble due to Diablo Canyon or any other nuclear power plant it owns; the State of California is not obligated to bail-out a private company as it has to bail-out a State-regulated utility.

The exposure of California citizens to financial problems of Diablo Canyon is lessened. But so also is the State's power to regulate Diablo Canyon.

Besides federal regulation has NEVER allowed a State the power to shutdown an operating plant; that power is held SOLELY by the Federal Government.

That's what the Vermont Yankee lawsuit is all about; and the State of Vermont LOST round 1.

I expect that Vermont will also lose on appeal; and at the US Supreme Court level should it go that far.

The US Supreme Court has been less tolerant of late on the States interfering with Federal regulations; see National Meat Association v. Harris. "Harris" in this case is Kamela Harris, the Attorney General of California. This recent US Supreme Court case authored by Obama-appointee Elana Kagan struck down a California law that had to do with the treatment of "downer" beef cattle. Justice Kagan stated that it doesn't matter that the State of California had "pure" motives based on concerns of animal cruelty; the California law interfered with Federal regulation, and was thereby pre-empted by the US Constitution, the motives of the State of California, notwithstanding.

I learned of the above case from a posting by Law Professor Cheryl Hanna of the Vermont Law School:

http://vtyankeelawsuit.vermontlaw.edu/january-24-2012-chery-hanna-national-meat-association-v-harris-read-the-footnotes-part-ii/

I don’t need to provide Entergy’s lawyers with my specific analysis of why National Meat Association just made their job a lot easier either if Vermont appeals or if the PSB rejects Vermont Yankee’s certificate of public good petition. They were on it the minute the case was decided.

But what I will offer is this: Animal rights activists and anti-nuclear advocates face similar uphill battles when it comes to using state law as a means for accomplishing their ends. If you carefully examine the last five years of federal pre-emption cases, the federal courts continue to side more often (albeit not always) with industry. When states such as California and Vermont, with progressive political agendas, try to respond to federal acquiescence to industry by seeking a route around federal law, they will find it very hard to do.


PamW