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.

Alan Panebaker

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