Business & Economy

In Vermont Yankee brief, state argues judge “cherry-picked” legislative record

Vermont AG William Sorrell, right, said his office lacked the evidence needed to bring criminal charges against Vermont Yankee Officials. At left is Asst. Attorney Gen. John Treadwell. VTD/Josh Larkin
Vermont AG William Sorrell, right, said his office lacked the evidence needed to bring criminal charges against Vermont Yankee Officials. At left is Assistant Attorney Gen. John Treadwell. VTD file photo/Josh Larkin

According to Vermont Attorney General Bill Sorrell, the federal judge who ruled that the state Legislature doesn’t have the authority to shutter the Vermont Yankee nuclear power plant took some lawmakers’ comments out of context.

“The district court’s cherry-picking from the incomplete legislative record for favorable snippets was erroneous, therefore, and should be reversed,” the attorney general wrote in a brief filed with the Second Circuit Court of Appeals Monday.

Under federal law, states are not allowed to regulate radiological safety, and in a lengthy opinion, Distric Court Judge J. Garvan Murtha mentioned dozens of references by state lawmakers to “safety.”

The state’s brief says this “cherry-picking” goes against precedent set in other cases that say courts should not look for “impermissible motives.”

On Jan. 19, the Vermont judge issued an opinion finding Acts 160 and 74 were preempted by federal law since they were passed for the purposes of regulating radiological safety — an area reserved for the feds.

Since then, both the state and Entergy Corp., the plant’s owner, appealed that decision. Although the plant has a valid federal license its application for a certificate of public good from the state is pending. The plant was scheduled to shut down March 21 but is currently operating while the state re-licensing process is ongoing.

Some observers expect the legal wrangling between the state and Entergy may make its way to the U.S. Supreme Court.

Vermont’s hot-button issue presents an issue of state’s rights and federal preemption under the Supremacy Clause of the Constitution.

“Although Act 160 sets forth a non-preempted purpose consistent with decades of Vermont energy policy, the district court nevertheless engaged in the ‘pointless’ and ‘unsatisfactory’ exercise of ‘attempting to ascertain [the Legislature’s] true motive,’ which the Supreme Court has rejected,” the brief reads.

Attorney General Bill Sorrell issued a statement Monday criticizing the lower court decision for basing its legal analysis on fragments from the legislative record.

“Vermonters are proud of our citizen legislature, a place where all Vermonters are welcome to express their concerns,” Sorrell’s statement read. “Its open, informal process allows the airing of a wide range of views. The district court’s approach in this case sets a troubling precedent that could chill legislative participation and debate.”

The state’s brief also argues that the lower court got it wrong when it found requiring “below-wholesale-market” electric rates to Vermont customers violated the Commerce Clause of the U.S. Constitution.

Sorrell has been criticized for not hiring outside counsel when his office took on Entergy’s high-powered legal team headed by former dean of Stanford Law School Kathleen Sullivan.

On appeal, Sorrell enlisted an outside Washington, D.C., firm Kellogg, Huber, Hansen, Todd, Evans & Figel.

Vermont Yankee’s continued operation has been a prominent issue in the state since 2005, when the Legislature passed the first of two laws that would require approval before it could continue operating. The federal court appeals could take years, especially if the case reaches the Supreme Court. The Vermont Public Service Board will hold hearings on the relicensing proceeding in summer 2013, and final briefs for that docket are due Aug. 26, 2013.

Briefs for “friends of the court” in the Second Circuit are due June 11. The Second Circuit will likely hear oral arguments in the case later this year.

If you read us, please support us.

Comment Policy requires that all commenters identify themselves by their authentic first and last names. Initials, pseudonyms or screen names are not permissible.

No personal harrassment, abuse, or hate speech is permitted. Comments should be 1000 characters or fewer.

We moderate every comment. Please go to our FAQ for the full policy.

Alan Panebaker

About Alan

Alan Panebaker is a staff writer for He covers health care and energy issues. He graduated from the University of Montana School of Journalism in 2005 and cut his teeth reporting for the Ashland Daily Tidings and Mail Tribune newspapers in Southern Oregon where he covered education and the environment. A dedicated whitewater kayaker and backcountry skier, he later wrote a weekly outdoors column for the Anchorage Press in Anchorage, Alaska, and continues to publish freelance work for Canoe & Kayak magazine. Alan took a three-year hiatus from journalism to attend Vermont Law School. After passing the bar, he decided to return to his journalism roots and start chasing stories again. He lives in Montpelier.

Postscript: Alan died in a kayaking accident on Sept. 19, 2012, shortly after he took a job with American Whitewater. We here at VTDigger mourn his passing.

Email: [email protected]

Latest stories by Alan

Recent Stories

Thanks for reporting an error with the story, "In Vermont Yankee brief, state argues judge “cherry-picked̶..."
  • Mike Kerin

    I’m glad to see that the AG is doing the right thing here. The judge did “cherry pick” from debate and ignored the intent of the legislation.

  • Alex Barnham

    All 54 nuclear power plants in Japan have been shut down as of May 2012. The women of Japan are getting really upset over the Fukushima accident and we all know what happens when women get MADD. The nuclear and military industry, mostly run by men, around the world, is literally over the top as far as safety goes. All of the unheeded warnings and the common sense judgments that are being ignored are going to come home to roost VERY SOON.

  • William Boardman

    The judge’s behavior is troubling at best, and certainly raises questions of possible conflicts of interest. As a lawyer whose professional life was largely spent next door to Vermont Yankee, one wonders how he could be as pure as Caesar’s wife. Has Murtha made any disclosures of past clients, associations, etc.?

    Another take on the decision here:
    [Note: the article wrongly says he’s a Bush appointee — Clinton appointed him in 1995]

    • Lance Hagen

      Mr. Boardman,

      Your post cracks me up!

      You sound like a kid blaming his loss in a game on the bad calls by the ref.

      I suspect if Judge Murtha had made a judgment the other way, you wouldn’t be questioning his integrity, but writing letters to the pope, nominating him for sainthood.

      • Alex Barnham

        Your comment indicates you have no idea what is happening today. Alan’s substantive article and William’s comment and link were not only informative but head, if you understand the enormous complexity of nuclear fission, the direction of concern to the legal issue of conspiracy. Should one or more of the nuclear reactors situated in the USA develop a meltdown similar to the Fukushima incident, the Federal skirt will be removed and there will be no place for anyone to hide.
        Instead of spending a lot of time gaming, here are some worthwhile websites to increase your limited exposure to what is happening in Japan at this moment. Listen to the engineers who are taking nuclear contamination seriously.
        A. Stanley Thompson “Comments on Nuclear Power”
        The Economist node/21549936 “The Dream that Failed”

        • Lance Hagen

          Mr. Barnham

          My comment had nothing to do with the ‘pros or cons’ of nuclear power

          My comment was directed at Mr. Boardman questioning Judge Murtha’s integrity when the decision was not to his liking

          If the decision had gone the other way and someone from the other ‘side of the tracks’ had written similar post as Mr. Boardman’s, they would have received the same post from me.

          • William Boardman

            The question is a fair one and seeks information.
            It is a question all interested parties should answer up front, voluntarily.

            The answer to the question will suggest whether Murtha’s integrity is an issue.

            Transparency and accountability may be hard to grasp, but they are not
            forms of taking sides.

          • Lance Hagen

            Come on Bill …… we all know your posting questioning Judge Murtha’s integrity was motivated purely by the fact that the decision he made was not to your liking. So quit hiding behind ‘seeking information’ and ‘transparency and accountability’, like you are in quest for ‘justice and the American way’.

  • Good article, however you need to focus more on how the Legislature plays both sides to advance their political careers: