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

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