Business & Economy

Vermont Attorney General appeals federal court decision favoring Entergy

Vermont Yankee on the banks of the Connecticut River

William Sorrell, the Vermont Attorney General, filed an appeal on Saturday morning of a federal district court decision that effectively allows Entergy Corporation to continue operation of the Vermont Yankee Nuclear Power Plant beyond its planned shutdown date of March 21.

In an email to members of the press at the beginning of the three-day Presidents Day weekend, Sorrell said he had filed a notice of intent to appeal U.S. District Court Judge J. Garvan Murtha’s ruling against the state on Jan. 19.

Briefs in the case, Sorrell said, will be filed over a two month period.

Download the Notice of Appeal of Vermont Yankee Decision

Murtha struck down two state statutes — one that gave the state Legislature the authority to approve the process for renewal of an operating license for the plant and another that gave lawmakers the ability to approve long-term storage of high-level nuclear waste on the Vermont Yankee site, which is located on the banks of the Connecticut River.

Murtha’s decision also enjoined the Vermont Public Service Board from conditioning the issuance of a certificate of public good for continued operation on a below-wholesale-market power purchase agreement between Entergy and Vermont utilities.

Download Murtha Decision on Vermont Yankee.

The attorney general said he is appealing all aspects of the district court ruling, including whether the Vermont Public Service Board has jurisdiction over the plant. Entergy has petitioned the board to review its certificate of public good application as soon as possible.

Sorrell had 30 days to file an appeal.

“We have strong arguments to make on appeal,” Sorrell said in a statement. “The district court’s decision improperly limits the state’s legitimate role in deciding whether Vermont Yankee should operate in Vermont beyond March 21, 2012. 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. Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings.”

In a conference call with reporters, Sorrell reiterated that if Murtha’s decision is left to stand, it could have an impact not only on the Vermont’s General Assembly, but also on legislatures around the country. His office argued that Judge Murtha should base his decision on the end result of the legislative process — the statutes that were voted and signed into law by the governor — and not “go into the weeds of the legislative history and pull out quotes by a handful of a couple dozen legislators.”

“There would be some disincentive to have people speak their mind because of worries that a statute could be struck down,” Sorrell said. “There is a long history in this country, in this state of constitutional protection of the freedom of legislative debate.”

Sorrell said he anticipates that other states, entities and individuals will file amicus briefs in the case — on behalf of the state of Vermont and Entergy.

Entergy spokesman Michael Burns said the company is ready for the appeal.

“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,” Burns said in a statement.

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, according to Cheryl Hanna, a law professor at Vermont Law School who has watched the Entergy lawsuit. As a practical matter, Hanna said last month, 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.

Earlier this month, Entergy filed a request to the court asking the state to pay for $4.6 million in legal fees the corporation incurred in pursuing the litigation against the named parties: Gov. Peter Shumlin, Sorrell and the three members of the Vermont Public Service Board — James Volz, John Burke and David Coen.

The Entergy decision comes on the heels of a major court case Sorrell has lost last summer against IMS, a drug data mining company, in proceedings before the U.S. Supreme Court. The attorney general said he couldn’t reveal how much IMS is requesting for attorneys’ fees, but the state is negotiating with the company to reach a settlement. The state has already settled with one of the litigants in the case, Pharma, an advocacy group affiliated with IMS for about $1.75 million.

Both the governor and the attorney general have deflected questions until now about whether there would be an appeal. Sorrell has sought the advice of a Washington, D.C., law firm Kellogg, Huber, Hansen, Todd, Evans, and Figel. The state set aside $50,000 to consult with attorney David Frederick, who has experience litigating cases before the U.S. Supreme Court. In a recent press conference, Sorrell said it has cost about $400,000 to defend the state against the Entergy lawsuit so far. On Saturday, he said legal fees for appellate court costs could be an additional $300,000 to $400,000.

It’s not clear yet who will take the lead on the appeal — Frederick or the attorney general’s office. Sorrell is meeting with Kellogg Huber next week.

“David Frederick is a nationally known appellate attorney who frequently argues before the U.S. Supreme Court,” Sorrell said. “He’ll play an prominent role; what role we’ll decide shortly.”

When asked if he regretted not bringing in outside counsel sooner, Sorrell said “absolutely not.” The attorney general said he had received some legal advice, but he had “no regrets whatsoever” that a high-profile attorney hadn’t led the effort for Vermont at the trial court level. If the state had hired outside help from the get-go, the price tag would have been “a heck of a lot more than the $400,000 we spent at the trial level.”

“Cost is certainly a factor,” Sorrell said. “You don’t want to waste taxpayers‘ money, but this is a hugely important issue for Vermont and for us to just sort of surrender before this very wealthy corporation and say look this is David versus Goliath and we can’t stay with you costwise and we’re going to surrender — we’re not going to do it. We’re going to fight some more.”

Susie Steimle of WCAX asked Sorrell if the David versus Goliath analogy was an indication that the attorney general felt the state’s case was a longshot.

“Didn’t David win?” Sorrell quipped. The attorney general then cited the state’s win against U.S. automakers in the California emissions standard lawsuit as a recent success.

“The David and Goliath (reference) doesn’t have any reflection on the rightness of the cause nor the resolve to fight and the distinct possibility of prevailing in those kinds of fights,” Sorrell said.

Reaction from the governor came via email 10 minutes after Sorrell released the appeal decision to the press.

“As I said when the court opinion was issued, I do not agree with Judge Murtha’s decision,” Shumlin said in a statement. “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.  I support the Attorney General’s work in getting a positive result on appeal.  Meanwhile, my administration will be focusing on the state’s continuing authority over Vermont Yankee.”

Sen. Bernie Sanders, I-Vt., weighed in 15 minutes later and threw his support behind the decision to appeal Murtha’s “flawed” 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,” Sanders said. “The Vermont Senate in a bipartisan 26-4 vote decided against renewing Vermont Yankee’s license. 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.”

Vermont Yankee has had numerous physical plant problems over the last 10 years, including a cooling tower collapse, a transformer fire, and tritium leaking from underground pipes that Entergy officials claimed under oath didn’t exist.

Guy Page, communications director of the Vermont Energy Partnership, which counts Entergy among its members, said the decision was disappointing.

“Vermont Yankee provides important benefits to Vermont in terms of electricity cost saving, jobs, and environmental benefits,” Page said. “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.”

The appeal will be heard by the Second Circuit Court of Appeals in New York City.

Editor’s note: This story was updated at 11 a.m. and 11:20 a.m. and 1:30 p.m. on Feb. 18.

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Anne Galloway

About Anne

Anne Galloway is the founder and editor of VTDigger and the executive director of the Vermont Journalism Trust. Galloway founded VTDigger in 2009 after she was laid off from her position as Sunday editor of the Rutland Herald and Times Argus. VTDigger has grown from a $16,000 a year nonprofit with no employees to a $2 million nonprofit daily news operation with a staff of 25. In 2017, Galloway was a finalist for the Ancil Payne Award for Ethics, the Al Neuharth Innovation in Investigative Journalism Award and the Investigative Reporters and Editors FOIA Award for her investigation into allegations of foreign investor fraud at Jay Peak Resort.

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