The case is Entergy Nuclear Vermont Yankee, LLC, et al v. Schumlin, et al. At issue is which government, state or federal, has the power to decide whether the Vermont Yankee nuclear power plant may continue operation after the expiration of its original license. Vermont has refused to renew Vermont Yankee’s licensee to operate. The federal government claims that it, not Vermont, has the right to decide whether Vermont Yankee may continue operation. The federal government has decided that Vermont Yankee “is good to go.”
There have been recent examples of failures by federal regulators to regulate in the public interest with well known catastrophic results. The failures to regulate BP and financial derivatives come immediately to mind.
Government regulation is a subject that rarely receives detailed, sustained journalistic attention until after a disaster. In a sense, government regulation is a red herring, The whole point of government regulation is to protect the health, safety and welfare of the public, which, especially on matters as complex as nuclear energy, is unable to protect itself. It ought to be priority number one of CEO’s whose businesses can put public safety at risk to protect public, health, safety and welfare. But it isn’t. By law it isn’t. CEO’s primary obligations are to their shareholders. How to balance the two interests? Surely it is not an easy task, but recent events suggest that some CEO’s, in order to keep shareholders happy, are blind to corner cutting that can lead – and recently has led – to disasters of unimaginable proportions. Hence the need for what no one wishes were necessary: government regulation.
Government regulators are underfunded and subject to political influence. Such is life in a democracy whose life blood is money. That is not to say that all regulators are incapable or corrupt. Most are probably capable, honest and reliable. But, at crucial points, where a great deal of money / economic interests are at stake political influence can be brought to bear and it is.
What makes the Entergy case particularly interesting is tension between federal and state regulation. It is hard to think of an issue that has more significance to lives of Vermonters than the reliability, environmental and economic impact of nuclear plants. The same, of course, is true for residents of other states in which nuclear power plants are located. Vermont’s neighbor, Massachusetts, has filed an amicus brief supporting Vermont’s claim that under the facts of this case, Vermont has the power to not to renew Entergy’s license to operate. It is human nature to respond to incentives in one’s environment. It is fair to ask which set of regulators, state or federal, has the greater incentive to protect the health, safety and welfare of Vermont residents?
The Vermont Law School faculty is providing a public service by offering commentary on the Entergy case as it happens through its blog Vermont Yankee Lawsuit: Faculty Commentary From Vermont Law School Faculty.
Law school professors are sometimes criticized for spending a great deal of time theorizing about subjects that seem to orbit the earth or even reach into other galaxies rather than contribute to the law as an exercise in the practical application of human judgment. Much attention is paid to the stilted, repetitive, uninviting and all but impenetrable writing style of some legal academicians.
Not nearly enough attention is paid to the contributions that law professors make to the communities in which they live and work. Those professors and their law schools could use some marketing advice not to toot their own horns but rather to show that in the law very bright people can and do do things in the public interest without charging by the hour. To be a law professor is a singular privilege and offers an enviable freedom and independence far removed from the life of the practicing lawyer. More recognition should be given to those law professsosrs who use their unusual freedom and enviable independence to improve the legal profession and to help citizens understand legal issues that have a direct bearing on public, health, safety and welfare.
Note: The author is a 1978 graduate of Vermont Law School.