I can’t imagine the faces on the lawyers at the Attorney General’s office when they learned that Entergy had hired Kathleen Sullivan.
Sullivan, a former constitutional law professor and dean, is the author of one of the most widely read books on Constitutional law and has been on the short list for an appointment to the United States Supreme Court. Among the elite group of lawyers that argues before the Court, well, let’s just say, she’s the man. I watched the case closely, attending both the trial and hearing in the Second Circuit, and read every brief. It’s my opinion that hiring Sullivan was perhaps the most critical decision anyone made. That’s because from the very beginning Sullivan positioned the case as one about the constitutional rights of corporations, not about energy or nuclear power.
She told a simple story: that the Vermont Legislature had improperly and implausibly masked its concerns over safety with other reasons to close the plant. This kind of narrative, whether or not you believe this one to be true, is not one typical in federal preemption cases. Rather, this is the kind of story civil rights lawyers tell when states try to discriminate against minorities. When a state dilutes the vote of black voters when redistricting, or marginalizes a religious group when outlawing a ritual, the court takes a very close look at the legislative record and the motives of lawmakers.
Sullivan borrowed that paradigm and applied it to federal preemption, which, technically, has nothing at all to do with corporate rights, and everything to do with the relationship between the state and federal government. But Sullivan understood the connection between constitutional doctrines in a way that the state never fully appreciated until it was too late.
When the Vermont legislature passed laws that would have effectively shut down the plant, it saw itself as the helpless David, fighting the powerful Goliath of corporate interests. Sullivan told it differently: it was the tyrannical state that was Goliath, bullying Entergy’s David, who was already answering to its real master, the NRC. Only a lawyer so steeped in constitutional law could have convincingly told this tale.
I know good and well-meaning people disagree about whether a state legislature should be able to close a federally licensed nuclear power plant. On that point, I will let you be the judge. And given the Entergy announcement to voluntarily decommission means the end of the case, it's a debate that's likely to remain largely unresolved in both by the Supreme Court, and in public discourse.
