Vermont appeals Vermont Yankee ruling

Monday February 20, 2012


Brattleboro Reformer

BRATTLEBORO -- On Saturday, Vermont Attorney General William Sorrell appealed a federal judge's decision that legislation passed to dictate Vermont Yankee's future infringed on federal law.

Last month, U.S. District Court Judge J. Garvan Murtha ruled that Acts 74 and 160, which gave the state Legislature the ability to prevent the nuclear plant's continued operation, were preempted by federal law.

The notice was filed in the Second Circuit Court of Appeals in New York City.

During a conference call with reporters this past weekend, Sorrell said the state was appealing "all aspects" of Murtha's decision.

"We have strong arguments to make on appeal," Sorrell wrote in a statement. "The court's undue reliance on the discussions among our citizen legislators, expert witnesses, advocates and their constituents has the potential to chill legislative debates in the future."

Critics of Murtha's decision said his ruling of what was legislative intent was based more on informal discussions of the acts and not the actual politicians' motives.

Last fall, lawyers for Entergy, owners of Vermont Yankee, played hours of recordings from legislative committee hearings discussing Acts 74 and 160.

Entergy's attorneys stated that testimony clearly proved the laws that gave the Legislature the power to prevent the Vernon plant from receiving a certificate of public good from the Public Service Board were passed because of concerns about radiological safety.

Ultimately Murtha agreed and ruled that both acts were preempted but he also stated the plant still needed either an amended or a new CPG from the PSB.

Sorrell wrote that if Murtha's decision wasn't appealed it could greatly affect how politicians, not just in Vermont but all states, express their ideas and suggestions for fear it might be used to invalidate any bills or act that get passed.

"Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings," he wrote.

In their notice of appeal, Vermont's attorneys point to nine specific sections of Murtha's rule and his decisions during the proceedings they say should be overturned.

According to the document, Murtha's denial of the Attorney General's motion to combine the preliminary injunction hearing with the trial on the merits and his denial of the their motion to strike portions of Entergy's supplemental proposed findings of fact should be overturned.

They're also requesting expert testimony on the preemptive scope of the Atomic Energy Act be allowed.

Murtha had granted a motion by Entergy to prevent such testimony during the trial.

He wrote in his acceptance of that motion that "generally expert testimony is admissible if it is helpful to the factfinder" but "expert testimony stating a legal conclusion ... is inadmissible."

He added, "opining that state laws are not preempted is a legal conclusion and not helpful to the Court," and "use of the term ‘legitimate' or ‘reasonable' for example, does not automatically transform a statement into a legal conclusion."

He also overruled the state's objections to witness testimony, the document states.

During the trial and in briefs they filed, state's attorneys repeatedly argued that lawmakers weren't passing bills to effectively close the plant because of safety concerns but because of the plant's environmental and economic impacts and most importantly, its reliability.

In 2010, the state Senate voted 26-4 to prevent the Public Service Board from issuing a CPG, a decision that came just a month after radioactive tritium, a radioactive isotope, was found in the groundwater and soil at the plant, leaking from underground pipes.

About 13 months later, the Nuclear Regulatory Commission approved a 20-year license extension for Vermont Yankee, which led to Entergy filing its suit against Vermont.

After hearing the news that Vermont had filed its appeal, Michael Burns, spokesman for Entergy, said the company and its legal team are prepared.

"We stand ready to respond to the state's appeal," Burns wrote in an e-mail to the Reformer. "We are committed to ensuring that Vermont Yankee continues to deliver safe, clean and reliable power to the people and businesses in New England, as it does today, and to protecting the jobs of the 600 dedicated Entergy employees in Vermont."

Sorrell's decision this weekend was met with mixed reactions.

Gov. Peter Shumlin, who had met with Sorrell several times before he filed the motion, said it was imperative to defend Vermont laws and set the record straight about what has happened at the nuclear plant in Vernon.

"We as a state have had many important and legitimate concerns with Entergy Louisiana and its operation of Vermont Yankee that are not reflected in the opinion," he wrote in a statement.

Supporters of Vermont Yankee, the Vermont Energy Partnership, called the appeal "disappointing."

They said the plant provides important benefits to the state in terms of energy cost savings, jobs and environmental benefits.

"It is hard-working Vermonters and businesses looking to survive and expand in Vermont who are hurt by the crusade to close this important component of Vermont's economic infrastructure," a spokesman wrote.

U.S. Sen. Bernie Sanders, I-Vt., told reporters that he was glad the state had decided to appeal the decision.

"I believe the law is clear that states have the right to reject nuclear power based on economic and other reasons that have nothing to do with safety," he wrote in a statement. "If Vermont wants to move to energy efficiency and sustainable energy, no corporation should have the right to force our state to stay tethered to an aging, problem-ridden nuclear plant."

Likewise, state House Speaker Shap Smith, was pleased with the appeal. "I believe that the Court's decision undermines the authority of the legislature and its ability to give voice to the concerns of Vermonters," Smith wrote in a press release. "I appreciate that the Attorney General is working to defend the right of Vermonters to speak through their legislators."


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