Entergy pushes federal preemption argument in prelude to oral arguments in state’s appeal

Court drawing from the first round of hearings in June 2011, U.S. District Court, Brattleboro. Deb Lazar/The Commons

Court drawing from the first round of hearings in June 2011, U.S. District Court, Brattleboro. Deb Lazar/The Commons

Attorneys representing Vermont and Louisiana-based Entergy Corp. are getting in their last jabs before a New York City showdown in the U.S. Court of Appeals.

Last month, the state submitted a written argument and Vermont Yankee Nuclear Plant’s parent company followed up with a reply on Friday, Nov. 9.

The case was triggered by Vermont Attorney General Bill Sorrell’s February appeal of federal Judge J. Garvan Murtha’s decision to allow Vermont Yankee to continue operating past its state-mandated shutdown date of March 21.

The case is coming to a head, as the court of appeals in New York agreed to expedite oral arguments. The court will hear the case as early as Nov. 26, and an exact date has not been publicized. Neither the Attorney General’s Office nor the involved attorneys could be reached by the time of publication.

At the heart of this case is an argument over whether the state has the authority or has preempted federal authority to shut down the plant. The case stems from two legislative acts that Entergy first sued the state over: the first (Act 160), which prohibited Entergy from running the plant past its initial 40-year license, and the second (Act 74), which required the company to obtain legislative permission to store high-level nuclear waste on site.

Patrick Parenteau, former commissioner of the Vermont Department of Environmental Conservation and a professor at Vermont Law School, said that the state needs to persuade the court that it adopted legislation to close the plant for reasons other than those concerning radiological health and safety, which fall under the purview of the federal Nuclear Regulatory Commission (NRC).

The state’s October brief, as Vermont Public Radio reported, laid out a range of criteria within its authority to rationalize the state’s closing of the plant, from energy planning to environmental insecurity.

Entergy’s reply to that brief, in summary, says that the state enacted the aforementioned laws for safety concerns and that it is preempted from using such authority.

“There’s nothing unexpected in (Entergy’s) brief,” said Cheryl Hanna, a Vermont Law School professor who has followed this case closely. “At this level, there are no surprises and no arguments we haven’t really heard before. I think Entergy essentially reiterated its argument all along, which is the reasons Vermont has put forth for shutting down Vermont Yankee have been federally preempted.”

Parenteau speculates that the court’s decision to overturn Murtha’s ruling hinges on whether the adopted bills are interpreted at face value, or if the court considers the Legislature’s motivations for crafting the bills, as many lawmakers have frequently expressed concern about the plant’s safety.

“If the court sticks to the text of the statute, I think Entergy loses,” he said. “If the court is persuaded by all of the circumstantial evidence of this (legislator) said this and that (legislator) said that, and the court is persuaded that motivation can undo a statute that on its face doesn’t intrude on federal prerogatives, then Entergy wins.”

“The arguments advanced by the state for why they want to shut down the plant are not particularly persuasive.” ~Cheryl Hanna

The oral arguments in the court of appeals, said Parenteau, will be crucial to the outcome of this case. At this point, he said, it’s anyone’s game.

“It’s razor thin. It’s 50-50. But let’s face it, this is a terrible record to go up on,” he said. “The legislators muddied the record up. They created all of this circumstantial evidence, and Entergy was very skillful in ruling this out in front of Judge Murtha and convinced him that what was really going on here was a bunch of well-intentioned, lay-citizen legislators getting in over their heads.”

Hanna said that what could hurt the state most when it steps up to the plate in New York isn’t its legislative history, but the substance of its arguments.

“The arguments advanced by the state for why they want to shut down the plant are not particularly persuasive,” she said. “I think the law of federal preemption lies on Entergy’s side … The record really doesn’t support, in a significant way, that the state’s reasons for shutting down Vermont Yankee couldn’t be accomplished with (the plant) staying open.”

NRC’s decision to give Vermont Yankee a new 20-year federal operating license, said Hanna, is also a very real legal obstacle for the state to hurdle.

“I just think as a general matter of judicial restraint that a court is going to be very reluctant to shut down a nuclear power plant when the federal regulatory commission has maintained most of this area of law,” she said. “What Entergy knows they need to do is give the 2nd Circuit enough law to make them say we’re going to defer to Judge Murtha on this one.”

Asked about NRC’s decision to issue the new license, Parenteau said: “What they’re saying is that the plant can safely be operated for another 20 years. That’s all they said.”

Parenteau argued that the Atomic Energy Act divides power between the NRC and the state, only limiting the state from enacting law surrounding radiological health and safety.

“I don’t think Congress meant to foreclose the authority of individual states to say: ‘We do not want a nuclear power plant in our state,’” he said. “That’s the core issue here: who gets to make that decision. I don’t think the Atomic Energy Act took that decision away from the state.

“Now, did Vermont legislators screw this thing up so bad that they might lose the case anyway? Yeah, they might have.”

Andrew Stein

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17 Comments on "Entergy pushes federal preemption argument in prelude to oral arguments in state’s appeal"

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Jon Wharf
3 years 10 months ago
Cheryl Hanna states succinctly the problem Vermont government has here: “The record really doesn’t support, in a significant way, that the state’s reasons for shutting down Vermont Yankee couldn’t be accomplished with (the plant) staying open.” And that’s it – give the lady a cigar, or whatever the current equivalent is. The state doesn’t have a rational reason – within their remit – for why they want to close Vermont Yankee. Not one that withstands examination, anyway. It’s not enough to say insist that the reason is not radiological safety – for the state actions to be legal, there had… Read more »
Howard Shaffer
3 years 10 months ago

I missed something along the way. In Act 74 and 160 what were the reasons given for them? It ought to be easy for the courts to read the act and see the reasons.

John Greenberg
3 years 10 months ago
Howard: You’ve obviously “missed” reading the laws themselves. In the case of Act 160 in particular, the whole law is dedicated to establishing, in detail, a process by which the State will consider a wide variety of issues — none of them within the NRC’s purview — before making its final decisions. One result of Act 160 — other than the subsequent 2010 Senate vote on which everyone is now concentrated — was the production of hundreds of pages of documents and thousands of pages of legislative testimony about economic issues, jobs, decommissioning, the effect of the plant on the… Read more »
James Gill
3 years 10 months ago

It has never been clear to me, as to what the arguments the State is using to justify closing VY, if it isn’t for safety.

walter carpenter
3 years 10 months ago

God, how many times has this plant leaked into the Connecticut? How many near meltdowns? How many rusted pipes? Isn’t that enough or do we need more? Not to mention that entergy was caught trying to shuffle it off into a holding company without our knowledge and how many more excuses do we need?

Carl Werth
3 years 10 months ago

Huh? When was there ever a “near meltdown”?

3 years 10 months ago

And while freedom of speech will be upheld for corporations and big money – legislators? Not so much.

EVERYBODY should fear a loss for Vermont based upon legislators’ comments.

Bob Stannard
3 years 10 months ago
The issue is one of state’s rights. Does a state have a right to have a say in whether or a particular industry/corporation can do business, and perhaps negatively impact the state? Can a state say “NO” to things like whether or not it can be forced to accept nuclear waste? Nevada said NO to Yucca Mt. Doesn’t Vermont have the right to say that it does not want to host one more dry cask of high-level nuclear waste for the next million years? If the answer to that last question is yes, Vermont does have the right to determine… Read more »
Bruce Post
3 years 10 months ago
I am just a little confused by this sentence: “Hanna said that what could hurt the state most when it steps up to the plate in New York isn’t its legislative history, but the substance of its arguments.” I am not clear if there is a distinction being made here between “legislative history” and “legislative intent.” Having written legislation that became federal law, I and my colleagues had these challenges: carefully writing the specific bill language; and developing the complementary material accompanying the proposed statutory language. That generally included the Committee Report, which included section-by-section analyses, and a reporting on… Read more »
David klein
3 years 10 months ago

How can the profit taking of one corporation be worth more than the health of citizens and the fate of the earth? Put that on your legal balance.

This Saturday, Nov. 17,12:30,Montpelier, City Hall march to State House,public rally 1 pm. The people (and animals if they could speak)say,”Close down VT Yankee!”

Howard Shaffer
3 years 10 months ago
States have rights. The Federal Government has rights. The people have rights. The balance was fixed by the Constitution, then affrimed by the Civil War. Those who pass through the Cabin Creek Room at the State House could look at the portrait of that Civil War battle and be reminded of what it was about. The California case is often mentioned in this debate over Vermont Yankee. As I understand it, California would not approve NEW nuclear power plants, BECAUSE of concern over the eventual cost of the ultimate solution for used fuel. The state did not try to shut… Read more »
Sally Shaw
3 years 10 months ago
“Entergy Vermont Yankee cannot be both “4” VT and sue VT. “–G. Sachs, at the PSB hearing Nov. 7 in Vernon. Entergy’s lying under oath to state officials, refusing the State’s request to test their contaminated drinking water well for months or years after regulated carcinogens from the reactor were found in it, and continuing to say “no tritium has been found in drinking water wells” (what a BLATANT lie), using a National Heritage River as their private toilet without a permit (their NPDES permits expired in 1996), contaminating the public trust resource that is the groundwater of Vernon, whether… Read more »
Howard Shaffer
3 years 10 months ago
The Legislature laid out criteria for consideration. They are in the Public Service Board’s charter. However, the vote took place before the Public Service Board completed its work and issued a ruling, and before the Legislature held hearings on whether or not the Board had applied the criteria correctly. So what was the basis for the vote? The law? How did the Legialature decide what the law proved? Where was the due process? Don’t we remember Legislative committee members complaining about how the process was rushed through? Perhaps that is why the judge found that the Legislature was tring to… Read more »
jed Guertin
3 years 10 months ago

Why is it that so many of those for VT Yankee are also so strongly against big government. Yet, when it comes to the NRC, probably the biggest nuclear industry/government bureaucracy revolving door, they have nothing but praise for this piece of big government?

Guy Page
3 years 10 months ago

That’s an easy one to answer. The NRC does its job professionally and fairly, and well: no recorded radiation-related fatalities in the history of the US nuclear generation industry. Like some other parts of the government, the NRC gets good results.

John Greenberg
3 years 10 months ago
Howard Shaffer is confused. Act 160 provided far more detail than previous general laws concerning certificates of public good, the issues the legislature wanted the Board to look at as well as some of the specific methods it would be required to use (e.g. public hearings) in this case. In particular, it mandated that this decision be “a part of the larger societal discussion of broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits, risks, and… Read more »
Guy Page
3 years 10 months ago
States’ rights for nuclear safety? Hmmm…..remember Rod Blagoyevich, the governor who sold jobs like candy. Want folks like him appointing the nuclear overseers? I don’t. The NRC has done a good job. Look at the only stat that really matters – no fatalities due to radiation in the history of the US NPP industry. Ever. Someone’s doing their job. Does Pat Parenteau really think the legislature was just a bunch of bumbling rubes who kind of mistakenly talked about safety too often? Oh, c’mon – if you were “there” – and by there I mean anywhere where VY was discussed… Read more »
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