NCSL Joins Appeal in Vermont Yankee Nuclear Power Case

yANKEE NUCLEAR PLANT

June 13, 2012

A controversial federal court decision regarding the ongoing operation of the Vermont Yankee Nuclear Power Station has prompted NCSL and nine states to join Vermont in appealing the decision.

In January, U.S. District Judge Garvan Murtha ruled Vermont legislators were improperly motivated by nuclear safety when they passed laws requiring  the plant operators to get a certificate from the state to continue operating past the end of its initial 40-year license period, which expired March 21. The plant continues to operate while the case is on appeal. Murtha said lawmakers overstepped their authority because federal law makes nuclear plant safety the sole jurisdiction of the Nuclear Regulatory Commission. The case is currently pending in the U.S. Court of Appeals for the Second Circuit.

If the lower court's ruling prevails, it has the potential to significantly chill legislative discourse and debate, which are requirements of the legislative policy process. NCSL, which joined the appeal to protect legislative authority, argues in its friend of the court brief that the “inappropriate use of partial legislative record materials to inquire into legislative motive both threatens the independence of legislative decision making and distorts the integrity of the legislative process. Left uncorrected, this type of misguided judicial inquiry will inevitably chill state legislatures’ willingness to debate policy issues robustly and to solicit a variety of viewpoints about proposed legislation openly.”

Instead of looking at partial legislative records, the brief suggests the court instead should look at the “statutory language itself, the only language to which both houses of the Vermont Legislature and the Governor have committed themselves.”

The case is being closely followed around the country not only because of the nuclear regulation issues involved, but also because of the core question of where the authority of state government ends and the federal government’s begins. New York also filed a brief in the case on behalf of itself and Connecticut, Iowa, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire and Utah. The brief argues states should have a say in the operation of a nuclear power plant and be able to negotiate a price for power.