Vermont Attorney General says Yankee decision could set precedent for lawmakers nationwide

Court drawing from the first round of hearings. Deb Lazar/The Commons

Court drawing from the first round of hearings. Deb Lazar/The Commons

As the issue of shuttering the Vermont Yankee Nuclear Power Plant heads to the Second Circuit Court of Appeals, legal experts say the case may affect areas of the law beyond regulation of nuclear energy.

The Vermont Attorney General announced Saturday that the state would appeal federal district court Judge J. Garvan Murtha’s decision in favor of Entergy Nuclear Vermont Yankee.

The judge’s lengthy decision, which focused heavily on legislative discussions of radiological safety, could have ramifications for many state legislatures, Vermont Attorney General William Sorrell said Tuesday. Judge Murtha found that Act 160, a law that would allow the power plant’s license to expire if the state did not act, was pre-empted by the Atomic Energy Act because the state was attempting to regulate radiological safety.

Although Judge Murtha’s decision is technically binding only in Vermont, it could serve as persuasive precedent for judges to look at the deliberative process of lawmaking in an attempt to decipher the legislative intent behind statutes.

About half of Murtha’s 102-page decision addresses discussion by Vermont lawmakers about radiological safety.

Under a 1983 U.S. Supreme Court case, judges are not supposed to delve into the legislative history of a law to find an improper purpose, Sorrell said.

“No matter where you stand on nuclear power or this particular plant, this approach of going into the details of legislative history in this way has ramifications for any congress,” Sorrell said.

Allowing this kind of inquiry, Sorrell said, could lead judges to invalidate any number of state laws that could potentially conflict with federal legislation. If it stands, Murtha’s ruling could also encourage corporations to go back on their word, Sorrell said.

In 2006, Entergy signed a memorandum of understanding with the state saying it would accept Vermont law and not raise pre-emption issues, which it later did.

“Murtha’s decision if left unchanged will be cited for the proposition that corporations can walk away from written agreements,” Sorrell said.

Sorrell said there have been conversations with attorneys general in New York and Massachusetts about whether those states will file briefs as friends of the court in support of Vermont.

Representatives for both offices declined to comment on the likelihood of supporting the state. The New York Attorney General’s office, which has haggled with Entergy over the Indian Point plant, filed a brief in November in the D.C. Circuit Court of Appeals supporting the Vermont Department of Public Service in its case against the Nuclear Regulatory Commission for issuing a new license to Vermont Yankee without water quality certification by the state under the Clean Water Act.

Patrick Parenteau, a professor of law at Vermont Law School, recently wrote an extensive commentary about why the state should appeal the district court decision. Parenteau thinks the state has a strong legal case because Murtha failed to accord the proper weight to the presumption against pre-emption outlined by the U.S. Supreme Court.

Parenteau said he hopes the state will allow David Frederick of the Washington, D.C., firm Kellogg, Huber, Hansen, Todd, Evans & Figel to argue the case in the Second Circuit. The Vermont Attorney General’s office consulted with Frederick at the lower court level, and Sorrell said he will play a more prominent role on appeal.

“If Kathleen Sullivan [former dean of Stanford Law School] is going to argue for Entergy you need to have comparable heavyweight on the other side,” Parenteau said.

Christopher Kilian, vice president and director of the Conservation Law Foundation in Vermont, said the case brings to light important legal issues regarding states’ rights.

“It’s obviously an important case that goes right to the heart of states’ rights in the face of large corporate interests,” Kilian said.

Kilian said he is concerned that Judge Murtha appears to have cherry-picked statements from the legislative history.

“It’s troubling and unsettling that there’s U.S. Supreme Court precedent that says specifically that federal judges should not go down the rabbit hole of trying to figure out what state legislature meant because it’s an impossible task,” he said. “It’s troubling that Murtha did exactly what the Supreme Court said he should not do.”

Entergy is asking for $4.6 million for legal fees from the state for the lower court case. The company declined to comment on the appeal.

Vermont Yankee’s currently license expires in March. A status conference for the Public Service Board proceeding will be held March 9 at the Statehouse.

Alan Panebaker


  1. Mike Kerin :

    I believe the AG is correct. I Hope the next court has more sense.
    It is like the court is trying to change the laws to fit the corporate wishes.

  2. Alex Barnham :

    Who would have never thought that in 1972, when Vermont Yankee was given the OK to build the plant, the owners would try to stick the state of Vermont with a $4.6 million legal bill in 2012. Another case of corporations out of control.

    A recent interview with former Governor Madeleine Kunin on 1/24/2012, who remembers the trouble she had as Governor with Vermont Yankee in 1985 falsifying inspection reports for years with thousands of unchecked parts installed. She remembers when the entire recirculation system had to be replaced, both the plant owners and the NRC kept her uninformed. We are still being kept uninformed about the possible venting of radioactive materials as there is no air quality monitoring of the newly installed vents.

    Everyone involved, from the Governor to the children, depend upon the NRC to protect us. The USDA now allows Monsanto to write its own report on its environmental impact. Has the NRC essentially allowed Entergy to write its own reports?

    We can count our blessings…the US government is still made up of states and, as much as the lawyers in Washington would like us to believe that they are above the law of the states, we have some courageous state lawmakers who are brave enough to disrobe the tin gods. Every state in the US does NOT have to have a nuclear waste dump. And for those of you who say that we cannot solve this problem until every last one of us is dead, shame on you. We are not that stupid.

  3. Douglas Hutchinson :

    It is certainly true that the jurisprudential use of legislative history has declined at the USSC since the mid 1980s.
    (See Justice Scalia is the Court’s principal legislative history critic maintaining that legislative history often contains gratuitous statements intentionally made by legislators for the purpose of shoring up statutes against challenges that have nothing to do with the state of mind (intent) of the legislators voting for a particular piece of legislation. In the recent Vermont Yankee decision, one could reasonably argue that the candid statements made by legislators underscored by Judge Murtha in his opinion are exactly the opposite of what Justice Scalia despises and as such reflect the true state of mind of the legislators. This should certainly be considered by Vermont’s lawyers in evaluating the state’s chances on appeal as this may alter the willingness of higher courts to second guess Judge Murtha.

    One should likewise bear in mind that a Judge must make inquiries into representations of trial counsel on both sides and as such Judge Murtha was compelled by that fact alone to evaluate the legislative history as presented by Entergy’s counsel. In short, his “excursion” into legislative history may have been something other than the improper inquiry alleged by his critics.



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