The Supreme Court struck another blow to the frail figure of objectivity recently as the justices unanimously concluded that the state of California was not deciding against nuclear power plants on safety grounds when Gov. Jerry Brown and his legislature passed state laws effectively banning new nuclear power plants.
California statute 25524.2 imposes a moratorium on new nuclear plants until the state energy commission finds that a demonstrated technology exists for permanent disposal of high-level waste. A U.S. District Court overturned the statute, ruling regulation of nuclear power plants was preempted by the federal government. A federal Court of Appeals reinstated the statute, concluding that the law was not preempted. The Supreme Court, as a basis for agreeing there was no preemption, accepted the representation that California's law "was aimed at economic problems, not radioactive hazards."
The decision essentially says: economic regulation of nuclear power is left to the states; the state of of California claims its law is economic regulation; the court does not look very far behind the statement of a state legislature; therefore, the state's law is confirmed. The court essentially acknowledges that under its approach a state can circumvent federal preemption by being clever, but argues "it should be up to Congress to determine whether a state has misused the authority left in its hands."
There is a lesson to be learned from this particular Supreme Court decision: the federal judicial system is far more interested in style than in substance, much more interested in sophistry than in objectivity.
The court, in the opinion written by Justice Byron White, recognizes that Congress intended the federal government should regulate the radiological aspects of construction and operation of nuclear plants, and, in fact, rejects California's argument that a state may completely prohibit new construction of nuclear plants until the state's safety concerns are satisfied by the federal government. It is unfortunate that argument was rejected, not because it is correct, but because it was the one attempt that California made to be honest in presenting its case to the court.
Justice Harry Blackmun, with Justice John Paul Stevens agreeing, is frank. In his separate opinion he notes "rather than rest on the elusive test of legislative motives, therefore, I would conclude that the decision whether to build nuclear plants remains with the states. In my view, a ban on the construction of nuclear power plants would be valid even if its authors were motivated by fear of a core meltdown or other nuclear catastrophes."
No such clarity for White and the other jurists.
The court's opinion rightly notes that the federal government alone can regulate radiological safety and reminds us that when Minnesota attempted to regulate radioactive waste discharges from nuclear plants, the court denied such action because "it fell squarely within the field of safety regulation reserved for federal regulation." Thus another lesson to be learned by readers of the arcane texts of the Supreme Court is that the Midwest continues to produce unsophisticated people who advance honest arguments. The Children of Light should look to the West if they wish to win in the Supreme Court (or to the East, if one wishes to attribute California's success to the smooth arguments of the lawyer who argued its case before the court).
Utility companies argued to the court that the state law shows no real concern for the economics of nuclear power, adding that if the California legislature had really been concerned, it would have prohibited California utilities from using nuclear plants outside the state. The court slays that insidious suggestion with a comment that there is no indication that California utilities are contemplating such construction and that the state legislature is not obligated to address purely hypothetical facets of a problem. Residents of Arizona, where several units of the mammoth five-plant Palo Verde station were to have been built to produce power for California, may be surprised to read of the hypothetical nature of this issue. (As was recently remarked, California's solution to the energy problem seems to be to build plants in other states and hope that the prevailing winds will carry any pollutants eastward.)
The California statute was passed after voters of that state had rejected Proposition 15, which would have barred the construction of new nuclear plants unless a permanent method of waste disposal was developed, i.e., the same action as the California statute. However, Proposition 15 was more straightforward, giving as its reason the threat of harm to the people of California. The debate in California in 1976 focused on the opposition to nuclear power on the grounds that it would be unsafe. A major lobbying campaign throughout the state by opponents and supporters led to rejection of Proposition 15. There was really little doubt in the minds of the observers at that time that the particular law which the Supreme Court reviewed last week was an attempt to get around that rejection.
The court dismisses this historical context simply by noting that Proposition 15 was not passed and therefore it does not taint the statute. The court emphasized that the statute does not seek to regulate the construction and operation of nuclear power plants. That will amuse Jerry Brown and those who were in the state legislature when this act was passed. It may perplex the voters of California, who, after having rejected Proposition 15, saw the supporters of the proposition work with the legislature to pass this act.
In a rare hint at the hypothetical nature of its own formulation, the court notes that "it would be useful to have the benefit of California's interpretation of what constitutes a demonstrated technology or means for the disposal of high-level nuclear waste." However, after many pages the court accepts California's economic purpose as the rationale behind the law. Perhaps recognizing what has been done, the court does close by suggesting "it is for Congress to rethink the dimension of regulatory authority in light of its possible exercise by the states to undercut a federal objective."
As President Derek Bok of Harvard has recently written, "the elaborateness of our laws and the complexity of our procedures" are characteristic of our legal system. "One hallmark of (our legal) tradition is a steadfast faith in intricate procedures where evidence and arguments are presented through an adversary process to a neutral judge who renders a decision on the merits." However, he noted "much responsibility rests on those who umpire the contest." Those of us who are not lawyers but have participated in the legal process often come away with strong feelings about the value of the system: feelings of skepticism, frustration, and despair. The Supreme Court decision on the California statute induces all three.
The issue of whether a state should regulate nuclear safety is a good issue. States rights is a good issue. What is unfortunate in this decision is that neither of those issues was argued, but rather a sham was perpetrated. It is appropriate for Congress to address the question of whether states should be allowed to regulate the safety of nuclear plants. What does not seem appropriate is for a state legislature to cleverly write a statute saying it has one purpose when it is clear that it has another, and then for the Supreme Court, delivering the ultimate product of a legal process spanning almost five years, to spend 30 pages discussing what clearly were not the issues.
Attending the Supreme Court argument one was struck not only by the lack of understanding of nuclear power plants and of high-level waste disposal, but more vividly by the reluctance of the justices to probe the motivation for the California statute.
Honesty and objectivity seem to be virtues that are strongly supported in the abstract but get short shrift when the opportunity comes to apply them. Sophistry is a veil used to mask the necessity to make hard decisions. This Supreme Court decision is another victory for sophistry and another loss for objectivity.