Judge's decision in Vermont Yankee case raises questions about the efficacy of an appeal

Judge’s decision in Vermont Yankee case raises questions about the efficacy of an appeal

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

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

Now that a federal judge has ruled in favor of Entergy, Vermonters are reflecting on what the decision means for the state and for future regulation of nuclear power facilities.

On Thursday, United States District Judge J. Garvan Murtha ruled that the Atomic Energy Act preempted two Vermont laws: one that prohibited the Vermont Yankee Nuclear Power Plant from operating beyond March without legislative approval and another that required Entergy to obtain permission to store high level nuclear waste at the site. Murtha’s decision also enjoined the Vermont Public Service Board from conditioning the issuance of a certificate of public good for continued operation on the existence of a below-wholesale-market power purchase agreement between Entergy and Vermont utilities.

Lawyers, lawmakers and Vermont citizens are sifting through the 102-page opinion, trying to determine just what it means for Vermont and the rest of the country.

One consistent response is that Judge Murtha bought Entergy attorney Kathleen Sullivan’s legal theory hook, line and sinker.

Cheryl Hanna, a constitutional law professor at Vermont Law School, has been following the case.

“The judge essentially agreed with their attorney Kathleen Sullivan that the legislature’s motive was safety,” she said.

Under U.S. Supreme Court precedent, states are preempted from regulating the radiological safety aspects involved in construction and operation of nuclear power facilities.

During the three-day trial in September, Entergy lawyers trudged through an exhaustive review of the legislative history of the Vermont law picking up references to safety concerns.

Murtha’s decision draws from that effort. The first 55 pages, or about half of the opinion lays out, in almost an academic way, the instances where lawmakers made references to radiological safety.

The decision states: “references, almost too numerous to count, however, reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk, and beliefs that the plant was too unsafe to operate, in deciding a petition for continued operation.”

This record of statements addressing safety will make it an uphill battle for the state to appeal the case to the Second Circuit Court of Appeals, Hanna said.

“The problem going forward is that everything has been tainted by what happened,” Hanna said.

As a practical matter, Hanna said, federal law makes it very difficult for states to regulate nuclear energy. The confusion over what constitutes safety and what states are actually allowed to regulate in this field add a layer of difficulty for the attorney general in giving the legislature frank advice about these types of cases. The extensive record of safety references make an appeal even more difficult, Hanna said.

“It’s a long way from done, but I have a hard time imagining a legal scenario where the state will be allowed to shutter Vermont Yankee,” she said.

For now, the Vermont Public Service Board has the ball. The certificate of public good for Vermont Yankee is set to expire March 21, and Murtha’s decision requires Entergy to go back to the board for a determination that continued operation of the plant will in fact serve the public good.

Part of Judge Murtha’s decision narrows the scope of the board’s review somewhat. Under the ruling, the board cannot condition a certificate of public good for Vermont Yankee to remain in operation on a below-market power purchase agreement with Vermont utilities. Murtha found this type of requirement violates the dormant Commerce Clause of the federal constitution, which prohibits states from placing an undue burden on interstate commerce.

The Public Service Board will also clearly not be able to base a denial of a certificate of public good on radiological safety concerns.

A more nuanced issue that may emerge is the fact that Vermont’s two largest utilities, which represent somewhere around three-quarters of the market in the state, have already locked into other contracts in anticipation of Vermont Yankee’s closure.

Green Mountain Power entered a new contracts with Hydro-Quebec and plans to get additional power from the Seabrook Nuclear Power Plant in New Hampshire.

Dorothy Schnure, a spokeswoman for Green Mountain Power, said Vermont Yankee currently provides about 40 percent of its power, but that contract expires in March. The utility could not reach an agreement with Entergy, and given the uncertainty of the plant’s continued operation, opted to get power elsewhere. Schnure said the utility does have openings a few years out, however, that could be filled with Vermont Yankee power.

Steve Costello, director of public affairs for Central Vermont Public Service, said the utility has filled its needs with other energy sources.

“Essentially, we don’t have a dog in the fight any more related to the plant,” Costello said.

Their power contract is up in March also, and CVPS has found a relatively stable power supply with Vermont Yankee.

The only tie the utility has to Vermont Yankee is a revenue sharing agreement whereby if the plant sells electricity at above a certain rate after 2012, the utilities will receive a share.

This begs the question: Is it in the general good of the state to continue operating Vermont Yankee if all the power is sold out of state?

Pat Parenteau, a professor of law at Vermont Law School, said the state likely cannot deny a merchant plant the ability to sell power out of state. Even if Vermont gets no benefit from the plant it may still have to let it operate. The issue is whether the board can find a way to deny a certificate of public good based on something besides safety concerns.

“The real focus now is Public Service Board,” Parenteau said. “They need to make a better case there with non-radiation reasons to shut it down.”

As for an appeal, Parenteau said the state is stuck with a bad record with all of the references to safety that make it seem like this was the legislature’s purpose. Whether to appeal, however, is a tough call.

Parenteau said the state could have a case for appealing the part of Murtha’s decision that implies that any discussion of radiological safety taints the whole process. That’s not what the Supreme Court precedent says, according to Parenteau, and it is a fair issue to litigate.

“His [Murtha’s] interpretation not totally irrational, but it’s not the only interpretation,” Parenteau said.

The record, both Parenteau and Hanna agree, will present a huge hurdle should the case go forward. Both agree the legislature could have received better legal advice spelling out what it really could and could not do in enacting legislation.

Vermont Attorney General Bill Sorrell said his office has yet to decide whether to appeal Judge Murtha’s decision. The state has 30 days to decide.

“The court found the laws were invalid because they were prompted by concerns for radiological safety and consequently should be struck down,” Sorrell said. “There wasn’t deference to the legislature, and we’re disappointed in that.”

Sorrell said the court read too much into the legislative history.

“To take statements during legislative hearings of a few legislators and say all or a majority of legislators were in fact motivated by safety concerns is a leap,” he said.

The legislative history produced by Entergy attorneys includes statements of experts hired by legislative counsel informing lawmakers they cannot base a law on radiological safety. Entergy used these statements to imply an impermissible purpose.

“You can argue lawyers were trying to create a sham situation for the legislature,” Sorrell said. “On the other side of coin, lawyers are trying to protect integrity of the legislative process and make sure the legislature didn’t break the law. It only seems prudent that the legislature receive advice about how to do it properly.”

Sorrell mentioned that he has succeeded in overturning a decision by Judge Murtha in the Second Circuit. In the data mining case Sorrell v. IMS Health, the attorney general successfully appealed a decision in the Second Circuit but lost in the U.S. Supreme Court.

Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont, called the decision a setback for Vermont and for clean energy going forward.

“This is a plant with a long and troubled history with operators providing false information to regulators, and it has completely lost the trust of Vermonters,” she said.

The Conservation Law Foundation filed a brief as amicus curiae supporting the state in the case.

The good news for environmentalists who supported shuttering the nuclear power plant, Levine said, is what Judge Murtha’s opinion did not say.

“The good news is that much of what has been accepted as state regulation remains in place,” she said.

For example, Entergy still needs to obtain a certificate of public good, and the Public Service Board can address economic and reliability issues.

Levine contends that the purpose of the law does not address safety, and Judge Murtha dug deep into the testimony to make a factual determination that the legislature based its laws on safety concerns. The next show, Levine agrees, will be with the Public Service Board, where Entergy will need to demonstrate the aging nuclear power plant is in the general good of the state. If the board denies a CPG, Entergy could appeal that decision to the state supreme court.

While Entergy released a statement Thursday praising the decision, Gov. Peter Shumlin and some Vermont lawmakers lamented.

Entergy’s statement read: “We’re pleased with the decision, which Judge Murtha issued after a thorough review of the facts and the law. The ruling is good news for our 600 employees, the environment and New England residents and industries that depend on clean, affordable, reliable power provided by Vermont Yankee.”

The corporation has not expanded on this statement.

Shumlin’s released statement read: “I am very disappointed in today’s ruling from the federal court. Entergy has not been a trustworthy partner with the state of Vermont. Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March, 2012. I continue to believe that it is in Vermont’s best interest to retire the plant.”

Rep. Tony Klein, D-East Montpelier, has been fighting to shutter the plant for years. Klein, who chairs the House Committee on Natural Resources and Energy, said he was disappointed that a Vermont judge went the route Murtha did.

Saying the legislature intended to regulate radiological safety based on legislative history is nonsense, Klein said.

“To ask me to strike the word safety from my vocabulary for 10 years is outrageous,” Klein said. “What we are not allowed to do is pass legislation based on safety, and we didn’t.”

Klein introduced a law this term to establish a tax on the storage of spent nuclear fuel in Vermont. He says he plans to continue pursuing that legislation.

John Campbell, President Pro Tempore of the Senate, said he was still reviewing the intricacies of the opinion. It seems, however, to be a further degradation of states’ rights, he said.

Campbell said he was curious to see how certain evidence came into play, particularly all of the references to safety in the record. Other evidence never emerged, Campbell said, like discussion in the Senate concerning the reliability of the plan that would have justified taking it off line.

The next step for the Vermont Yankee show will be the Public Service Board. Beyond that is anyone’s guess.

Alan Panebaker

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24 Comments on "Judge’s decision in Vermont Yankee case raises questions about the efficacy of an appeal"


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Townsend Peters
5 years 1 day ago

“The Public Service Board will also clearly not be able to base a denial of a certificate of public good on radiological safety concerns.”

This is not news. The state’s always been preempted on radiological safety.

“Both [Parenteau and Hanna] agree the legislature could have received better legal advice spelling out what it really could and could not do in enacting legislation.”

LOL. How would a couple of law professors know what legal advice the legislature got? Advice from legislative counsel is subject to the attorney-client privilege unless given in open hearing.

timothy k price
5 years 1 day ago

“Under U.S. Supreme Court precedent, states are preempted from regulating the radiological safety aspects involved in construction and operation of nuclear power facilities.”

The Supreme Court ruling is what needs to change. This is not the first bad Supreme Court decision. Citizen United, for example, … how many more insane opinions do we need before we do what is right? There are hazards connected with corrupt courts and their impositions over the people.

5 years 1 day ago
Murtha has moved to strangle free and open discussion by legislatures across this nation – an extremely important part of a representative government. Because Murtha has raised floor and committee discussions to a level equivalent to a law that gets passed, legislators will now have to retreat to hidden, smoke filled, back rooms to hash out their limits. Oh – and Murtha did this without offering a scintilla of evidence that the safety issue decided the final vote outcome! Nice – he used crappy evidence presented by Louisiana Entergy that crappy lawyers from the state didn’t properly refute to come… Read more »
5 years 1 day ago
Alan, Vermont Yankee has been a major low-cost, near-zero CO2-free, steady (24/7/365), high-dispatch-value, highly reliable (0.92 capacity factor) energy producer for New England; a public good for New England and for Vermont. Judge Murtha saved a $90 million/yr payroll, plus 650 high-paying VY jobs, plus about 1,000 other jobs within a 25-mile radius of VY; a public good for New England and Vermont. It is time for Vermont’s legislature to stop wasting time and other resources by hair-splitting, legalistic second-guessing Judge Murtha and start encouraging investment for raising household incomes by creating high-paying jobs. Tax collections are lagging due to… Read more »
timothy k price
5 years 1 day ago
Even 28 Lowell Mountain projects would not result in turning New England and New York into uninhabitable nuclear wastelands, should there be a malfunction in one or more wind turbines. The analogy that wind-power, though noticeable, is somehow threatening in any comparable way to released fission reactions is, of course, not sensible. “Japan’s nuclear disaster demonstrates in powerful and poignant terms the degree to which the state prioritizes security interests over the fundamental rights of people and their environment. Japan’s response to its nuclear disaster — similar to other government responses to catastrophic events like Katrina and Chernobyl — has… Read more »
George Coppenrath
5 years 1 day ago
Judge Murtha’s made sense to me from every perspective. As a Senator during the time that this was debated, I argued on the floor of the Senate that this bill made no sense. It was written deviously to require a positive vote to allow the application for a “certificate of public good” to proceed through the normal, legislatively approved process to the Public Service Board. The bill created a roadblock to the process. How in the world would a group of 30 politicians like me make a decision as to the radiological safety, the impact on the distribution of electricity… Read more »
Raymond Shadis
4 years 11 months ago
Regarding the purported perpetual design life of Vermont Yankee ( And with all due respect to Senator Copperath): The Senator is not alone in accepting the arguement of the nuclear industry and NRC staff that the 40 year license duration is unrelated to plant design life. The USNRC Commissioners and even the Advisory Committee on Reactor Safeguards(Safety)also bought into the arguement that the license life was tied to financial and insurance consideration and not the designed ability of nuclear plants to withstand the physical punishment inherent in more than 40-years of operation. Regardless, the 40-year license term ( construction and… Read more »
ben graham
5 years 1 day ago
George, I don’t agree that the closure of VTY is the aim of only a small group of senators. Where is this information from? I also don’t know where you got the idea that VTY was designed to operate forever from. I think you will find yourself in quicksand on this one. I also don’t agree that a certification board should have the only ability to make decisions on safety. You assume they are filled with people who are perfectly, aligned with both the reality, which as we know with Japan is not always predictable and the actual feeling of… Read more »
Jim Candon
5 years 1 day ago

Thank you George Coppenrath for your history lesson. Courts have to deal with stinking facts and the stinking law to make their decisions. Emotion and rhetoric and hysteria play well politically in Vt but – oops – those stinking judjes have to deal with the stinking facts. Gotta love it!

George Coppenrath
5 years 1 day ago
To Vt Digger readers; my apology for the typographical and grammatical errors in my previous submission… I was on my way to the dump and did not proofread it very carefully, until my return a few minutes ago. Ben, the information comes from my personal observation of then Sen. Shumlin shepherding the bill in the Senate with a few chairpersons on key committees and then “encouraging” other D’s to support the bill. To leap from that to statements that “Vermont does not support the re-licensing of VY is as superhuman as to leap buildings. Designed to operate forever might be… Read more »
Mike Kerin
5 years 1 day ago
Would any of you put all your money into one stock? Not a good idea, right? Well , why do we have one entity to oversee the safety of an industry that has so much potential for devastation of our environment? The NRC is the only entity that can regulate the safety of the nuclear industry. The states have no way to enforce safety rules. I have written to both my Senators asking them to introduce legislation allowing states to enforce safety rules. Because the NRC is NOT doing their job. The NRC has morphed into the advocate branch of… Read more »
Mike Kerin
5 years 21 hours ago
Mr. Hudson, if you do not read the news and keep up with all the stories it is not my fault. There are so many stories about the NRC not doing safety regulation. Look at the Nebraska nuclear plants, VY leaks, Indian Point, and the “help” the NRC has given the Japanese with their meltdowns. I find information through the Huffington Post and Google. There are several other sources as well. The NRC issued the re-license to Entergy only days after the earthquake, tsunami, meltdowns that Japan experienced without so much as an inspection of Vermont Yankee. Even though we… Read more »
walter carpenter
5 years 16 hours ago

“The NRC has morphed into the advocate branch of the nuclear industry.”

At taxpayer expense too. We should demand that our reps take on the nrc. And I would be willing to bet that as soon as entergy can unload this unsafe plant that should be retired, they will do it, go far away, and stick us with the bill for cleaning their mess up. And this Murtha let them do it.

Duncan Kilmartin
5 years 5 hours ago
Ever heard of the name “Volz”? Judge Murtha didn’t have to mention the Chairman of the Public Service Board, much less by name, to write his near “bullet proof” Decision, but yet he did. He also mentioned Senator Shumlin by name, and referenced Dworkin by the title as the former Chair of the PSB. Other Senators and Representatives were not named. Why? I suspect the following. Because Volz violated several rules of judicial ethics by appearing before the legislature, giving advisory opinions, and doing the “nod and wink” routine so valued by Tony Klein, Gov. Shumlin and Attorney General Sorrell.… Read more »
Mike Kerin
4 years 11 months ago
Mr. Hudson please reread the quoted statement. The NRC issued that license extension days after the earthquake, tsunami, meltdowns without so much as an inspection. That means they didn’t inspect VY after knowing that the same type reactors failed in Japan. The NRC is supposed to be the safety watchdog but did not do its job. VY should have been inspected after the Japan disaster. VY has been leaking for years now and they can’t seem to find the reason , but the NRC rubber stamped the license. BTW this is me talking not Huffpo or anyone else. I’m NOT… Read more »
Alex Barnham
4 years 11 months ago
VY will probably not have a problem like in Japan, I hope. But we can plainly see that Federal judges are shills for the US government and can do little more than a clerk processing a complaint at Walmart if they know what is good for them. Big government is, in fact, jerking around doing the corporate dance. The question is: how long before we can straighten it out? We sit and root for the home team whilst big money is merrily cutting our throats. It is like being in the control of a bunch of ruthless mafiosa pretending to… Read more »
Chris Williams
4 years 11 months ago

For the record, on 4/27/06 Representative Duncan Kilmartin joined 129 of his fellow Representatives and voted YES for the passage of S.124 which became Act 160. The House vote was unanimous.

Alex Barnham
4 years 11 months ago
Now comes the BS, which, by the way, does not stand for a degree in science, but rather, a BIG PILE OF NUCLEAR WASTE MATERIALS. Fairewinds Associates, Inc first notified the Vermont State Legislature of its concerns regarding the decommissioning fund for the Entergy Nuclear Vermont Yankee Nuclear Power Plant. Now, there’s a very big rhinoceros in the room and everyone can smell it but it is so big and dangerous, everyone just fails to see it. Uncle Sammy was going to put all those rhinos in Yukky Mountain but that would not Be Strong enough to hold them. Instead,… Read more »
Donald Kreis
4 years 11 months ago
In response to Mr. Kilmartin’s intemperate post accusing PSB Chair Volz of wrongdoing, I would like to point out that there is a perfectly plausible and completely benign explanation for why Judge Murtha named some participants but not others in his recitation of the legislative events in question. Much of the evidence on which the judge relies consists of tape recordings in which the speaker is not identified. Beyond that, I would challenge those who believe Chairman Volz acted improperly to cite chapter and verse which applicable standards the chairman transgressed. Generalized allegations do not merit being taken seriously. I… Read more »
Leonard Suschena
4 years 11 months ago
Interesting comments. I am not a Vermonter, nor do I work for Entergy, but I split my first atom in 1972 and work commercial nuclear since 1980 with Seabrook startup. Interesting to note that the rhetoric and dis-infomation about nuclear power hasn’t changed in 30+ years by the same type of individuals with no knowledge or understanding in the science and technology of nuclear power. Well, Entergy bought a “used” reactor from companies that operated it for nearly 30 years before Entergy came on the scene. These companies were VT companies and in that respect there was a great deal… Read more »
4 years 11 months ago
Leonard, Your’s is one of the best comments. Vermont Yankee,, to get state permission to store spent fuel on its site, had to pay $4-$6 million/yr into the Clean Energy Development Fund that had on its board Dostes, Wolfe, Blittersdorf, etc., all part of the Vermont’s renewables leadership. The CEDF became a slush fund for the politically well-connected to award grants and low-cost loans to some dubious projects, including a 100 kW wind turbine for the Bolton Valley Ski Resort that has not performed up to promised production, and a 10 kW residential wind turbine that has a capacity factor… Read more »
don eggleston
4 years 11 months ago

“In response to Mr. Kilmartin’s intemperate post accusing PSB Chair Volz of wrongdoing,”

Volz must be doing something right.

It’s not just kooks on the far Right, like Mr. Kilmartin, who attack him, but also anti-wind zealots, who call themselves “environmentalists,” on the far Left.

Rob Simoneau
4 years 10 months ago
It is unfortunate that all this “legal” haggling has nothing to do with Vermont Yankee. Yep, you are all wasting your valuable time. The law has no place here; really, the real issue is when will Vermont Yankee experience its catastrophic fail? It is currently the most unreliable and dangerous nuclear plant in the world. There are many others, many close seconds depending on nature’s mood and farcical design and operating procedures of all nuclear power plants. Others regional nuclear plants that come immediately to mind are The Indian Head Point plant which lies on a fault line as dangerous… Read more »
Tom Look
4 years 9 months ago

It’s time for the anti-nuke protesters to go home and turn off the power to their homes and they will be allowed to complain!!

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