If Murtha rules for Entergy, then the state loses the authority it exercised through Acts 74, 160, and 189.
But, if Murtha rules for the state, then the state can shut a federally-licensed utility, which states don’t usually do.
“Both outcomes feel extreme,” said Hanna.
Kreis said he “never bought” the state’s argument that the state’s motivation focused on reliability.
“[The argument is] hard to take seriously,” he said.
He feels the state was working on nuclear safety concerns. Kreis bases this feeling on the fact that the state had no reason to regulate VY, because the utilities were “under no obligation to purchase power” from VY.
Kreis cautioned people following the case, specifically varying anti-nuclear organizations, to remember that “the rule of law is important, even if you don’t like nuclear power.”
People viewing grassroots efforts as influencing the process “should reconsider,” he said, adding this case is “not about democracy, or tritium, or if Entergy lied before the PSB.”
As much as people may not want the federal government to step in and rule in Entergy’s favor, Kreis said, the federal government steps in on issues also coming down on the side of civil rights or the environment.
“[Remember] we don’t know Murtha’s mind,” said Professor Patrick A. Parenteau. “None of us have probably nailed it.”
Parenteau specializes in environmental law in addition to serving as Senior Counsel to Vermont Law School’s Environmental and Natural Resources Law Clinic. He has sat across the court room from Entergy lawyers before.
Federal judges brains “work differently,” he said. The judge may issue a ruling completely new and unsuspected.
Given Murtha’s track record said Parenteau, he will probably “split the baby” by holding Entergy to its commitments, while not completely giving the state all it wants.
“We should all be humble,” Parenteau said.
Still Parenteau thinks the state has a few legal arguments going for it.
According to legal precedent, Murtha should only look at the end statutes and not at “the sausage making” process of legislative history, said Parenteau.
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