Deb Lazar/The Commons
Judge J. Garvan Murtha presiding over last month’s hearing over Entergy’s request for a preliminary injunction to prevent Vermont from enforcing laws that regulate nuclear power at the Vermont Yankee nuclear station in Vernon.
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News editor Randolph T. Holhut contributed to this story.
Originally published in The Commons issue #110 (Wednesday, July 20, 2011).
Kreis thinks “the big moment” is 2006, because that year the Legislature passed a statute stating the plant could not operate past 2012 without the renewed certificate.
In another footnote, Murtha reflected on the word “safety.”
In its arguments before the court last month, Entergy focused on the Legislature’s use of the word, saying it stood in for “radiological safety,” and therefore proved Entergy’s preemption claim.
Murtha, however, wrote that the Legislature’s references to “safety” remain unclear, “some of which may be problematic, [and] some of which may merely reflect legislators’ responsible recognition that Vermont cannot regulate radiological health and safety.”
Kreis viewed Murtha’s footnote as an expression of “real concern” that the state tried regulating radiological safety, and in the process, going against the federal supremacy clause and the federal Atomic Energy Act.
To Kreis, the case hinges on pure law. Did Vermont stumble into the realm of preemption? Or does the memorandum of understanding (MOU) that Entergy signed when it bought the plant in 2002, in which it agreed to seek a state-issued Certificate of Public Good and not sue the state if the CPG was denied, render moot the preemption argument?
Kreis said the absence of a reference to the MOU in Murtha’s ruling backs up his argument on preemption.
He added that he wonders what evidence the court needs from the partiesto decide the case. Preemption, he said, is about law, and not about who said what.
“The state is in a more tenuous place” than Monday’s victory would lead people to believe, he said.
A dissenting view
Parenteau disputed Kreis’s take on the ruling.
In Parenteau’s view, Murtha seemed to tell the state, “You haven’t given me enough to rule in your favor.”
“They [Entergy] threw everything, and the kitchen sink, at the judge during the preliminary hearing,” said Parenteau.
So now what?
Parenteau said he will not feel surprised if Entergy subpoenas Gov. Peter Shumlin or other officials and grills them in court about what kind of safety they had on their minds at the various points when they used the term in the process of crafting the current laws.
“I know how they play the game. It’s not beanbag, folks,” said Parenteau, who has gone up against Entergy in court.
If they want to go “bare knuckles,” they’ll do it, he said, but he was quick to add that “I don’t see a winner in the deck for Entergy.”
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