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

Comments

  1. Jon Wharf :

    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 to be another substantial, credible, imperative reason to close down a business in the way Vermont attempted.

    I’m watching next for the PSB. See what desperate twists of logic they attempt to deny a CPG to Vermont Yankee. I hope I’m wrong and they issue what should be a perfectly uncontroversial CPG without undue delay.

  2. Howard Shaffer :

    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 :

      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 Vermont brand, and a wide variety of other issues laid out in detail in Act 160. All of this material and much more was also available to the Public Service Board, whose record, in turn, was available to the legislature and the public. Indeed, ironically, Entergy made plentiful use of many of these documents to support their arguments that the plant should continue to operate, but now challenges the law which mandated their production in the first place.

      In fact, both of these bills impressively detail what legislators were looking at, and situate themselves as well within an existing body of Vermont law, which has called for legislative oversight in this area since the late 1970s. Despite what some appear to believe, these laws did not just spring up out of a vast conspiratorial decision by legislators to shut down this nuclear plant.

      Finally, despite what Cheryl Hanna and Jon Wharf seem to believe, it is not for courts to decide whether legislators made the RIGHT decisions. If they do that, they will simply substitute themselves for the legislative process and become a mini-legislature in robes.

      Nothing in the Constitution guarantees that legislatures will make GOOD decisions, and clearly, sometimes they don’t. Courts are the arbiters of the LEGALITY of legislative decisions, not their substantive CORRECTNESS. Specifically, courts must decide whether the issues the legislature considered were within its purview, and even more specifically whether or not the decision encroached on federally preempted territory.

      As Pat Parenteau notes above, there is nothing in the texts of these laws themselves which does invade preempted territory.

      The closest they come is in the phrase “public health” in Act 160, which Entergy repeatedly takes completely out of context and elevates to a central point. Again, the ironies are inescapable. The words appear in the context of a mandate to the Department of Public Service to produce a report, to be given to the legislature and to the Public Service Board, which is then to be a part of the basis for ultimate decision-making by both bodies. Yet to my recollection at least, DPS never considered “public health” in ANY of the reports it produced, whether radiological (the word is NOT used in the law) or not. In other words, DPS simply overlooked this consideration, as did, accordingly the legislature and the Board. Put differently, whatever their intent may have been, the words had NO impact whatever.

      Despite the numerous red herrings that Entergy puts in their path, the courts will either decide that their decisions should be based on legislative PRODUCT and rule for the State, or they will set up a totally invidious precedent of preferring legislative PROCESS, which in a citizen legislature would have incredibly chilling impacts. It is worth adding, on this last point, that the State’s briefs have done an excellent job of detailing reasons why both in general and in this specific case, Entergy’s reliance on legislative process is a road to disaster.

    • James Gill :

      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.

  3. walter carpenter :

    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 :

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

  4. 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.

  5. Bob Stannard :

    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 whether or not it wants to host additional, high-level nuclear waste, then that will end this madness.

    We got hoodwinked by Entergy when we allowed them to uprate the plant and do dry cask storage. Had we said NO back then the plant would’ve had to close on schedule, because the fuel pool is max’d out.

    States should have the right to determine whether or not an industry/corporation should be allowed to heat up our rivers. Again, Vermont allowed its river to be heated as a means to accommodate this corporation. Now that this corporation is suing Vermont there should no longer be any reason to do favors for, or give breaks to this corporation.

    Once they go to a close loop system and have to use their sometimes collapsing cooling towers full-time, then in all likelihood they’re done. According to Entergy’s CEO this is a marginal plant. Increasing the costs and taking away from the bottom line will lead to Entergy making a business decision, which will be to close the plant.

    Most likely they will do so anyway when they have to replace the condensor unit, which should’ve been replaced years ago. Thanks to the generosity of the NRC they’ve been able to forestall that investment, at some risk to the public.

  6. Bruce Post :

    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 the meaning and objective of the policy proposals we were making. The Committee Report also included minority and supplemental views, the latter filed by individual or a combination of lawmakers from the committee that drafted and passed the legislative proposal.

    We also knew that a Member of Congress could slip in commentary in the Committee Report or during the floor debate that was an attempt to put a different coloration on legislative intent, but we understood that courts would weigh the specific language of the bill and the preponderance of the majority views explaining the bill.

    I am only modestly familiar with the Vermont legislation discussed here. Yet, I think our part-time legislature faces a challenge, particularly when it may not have the attendant staff resources, constructing a clear expression of legislative intent. The State’s brief acknowledges this:

    “Further, even the statements on which the district court and Entergy rely show only a part-time, citizen legislature attempting to educate itself about the boundaries of its authority. The full legislative record shows legislators learning, not being coached, about the limits of their authority in dealing with a nuclear power facility.”

    Therefore, the courts should look toward all available evidence to determine that intent. The floor debate would only be a portion of the record. Entergy will argue its case, and the State will argue its brief. The Court will have to decide if the “circumstantial” and “muddy” record introduced during the floor debate is the most persuasive evidence of legislative intent.

  7. David klein :

    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!”

  8. Howard Shaffer :

    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 down the existing nuclear power plants, recognizing that this would do nothing about the used fuel solution. The court correctly recognized that the cost to ratepayrers/taxpayers is a legitmate concern of the state, as is energy policy.

    Vermont Yankee is an existing power plant. It’s used fuel is the ultimate responsibility of the Federal Government. This policy decision was made to protect the public safety, and to help enable the commercial nuclear power industry. The Federal Governmnt has its own used fuel and high and low level radioactive waste to deal with, from weapons, naval, and reserech progams.

    The argument that Vemont has the right to refuse to accept one more Dry Cask of used fuel for the next million years is strange. It is not consistent with the physical reality. If the plant was blocked by the state at the point where it need to fill the next Dry Cask, and so had to shut down, the used fuel would stay right where it is. In the Dry Casks, and in the pool. There is no place for it to go, thanks to Nevada.

    Used fuel in Dry Casks is the safest form. It is air cooled by the chimney effect of the concrete cylinder around the metal cans. No power of any kind is needed.

    The granite in the grave stones in cemetaries will still be radioactive a million years from now. The stones are safe now, and will be safe then. Saying radioactive means nothing technically. The kind of radiation, and how much must be understood, to judge the safety. Saying radioactive alone is a politically motivated scare tactic.

  9. Sally Shaw :

    “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 it is under their reactor or elsewhere, not to mention the ISO and the state energy plan saying ENVY is not needed for the grid– Vermont has plenty of reasons and every right to shut down an aging, leaking, poorly managed reactor that has passed it’s legally agreed upon expiration date. No brainer. Let’s see what our corrupt judicial system does with this.

  10. Howard Shaffer :

    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 regulate something other than what the law says.

  11. jed Guertin :

    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 :

      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.

  12. John Greenberg :

    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 costs; and … allow opportunity to assess alternatives that may be more cost effective or that otherwise may better promote the general welfare.” (Section 1(d))

    Act 160 was signed into law in 2006, and it also specified that the Board could not even open its docket until July, 2008. (Section 2(e)(2) (Entergy’s initial application and testimony were therefore pre-filed to facilitate somewhat longer consideration).

    The vote to which Mr. Shaffer refers — the 26-4 Senate vote of February 2010 — was taken AFTER more than a year and a half of Board testimony and AFTER final briefs had been filed at the Board, but before the Board had ruled. That’s BECAUSE Act 160 had also specified that the Board could issue no final ruling UNTIL the legislature had acted affirmatively. In the meantime, the Board, after hearing from the parties including Entergy, of course, decided not to issue any interim decision. None of the parties thought pursuing an interim decision would be the right course.

    As I noted in my previous comment, the Legislature had received from DPS (and others) testimony and reports concerning a variety of matters about which the legislature made specific inquiries in 2006’s Act 160. (See Section 254 (b) for details) Additionally, since the Board’s proceedings are on the public record, the Legislature had full access to all of the briefs, testimony, rebuttals, etc. in the docket. So by the time it voted, Senators had literally tens of thousands of pages of testimony and reports available to them.

    As to how the legislature made the decision, Act 160 additionally specified that the legislature intended to take a wider view of this decision than that usually taken by the Board. Rather than being guided solely by previously enacted laws and Board precedents, the legislature wanted this particular decision to be far more subject to public input and to a wider variety of testimony than usually is accepted in Board case. To quote Act 160’s preamble, the Legislature wanted the issue considered “after full, open, and informed public deliberation and discussion with respect to pertinent factors, including the state’s need for power, the economics and environmental impacts of long term storage of nuclear waste, and choice of power sources among various alternatives.” (Sec 1(a)) None of these is a preempted inquiry.

    Two final points. First, legislators WRITE laws, so they can regulate anything they wish to, as long as it complies with the constitutions of the US and Vermont. They are are fully entitled “to regulate something other than what the [existing] law says.”

    Second, complaints about rushed process were VERY specific to the fact that the vote was taken before a report detailing the impact of the tritium leaks on the Public Oversight Committee’s work could be finalized. There is no evidence at all that the report would have had ANY impact on any senator’s vote.

  13. Guy Page :

    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 in the last 20 years – you would know that concern about VY was, first and foremost, safety. Have other legitimate concerns been raised? Sure. Were they the “driver”? Heck no, concern for safety was in the driver’s seat of the anti-VY movement. Remove that component and it’s going nowhere. Let’s be honest. Let your case stand on the merits, not on revisionist deception.

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