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Vermont gets 'clocks cleaned' in 'bad loss'

Judge's ruling didn't fully close the door on regulating
Vermont Yankee, say Vermont Law School professors

VERNON—Judge J. Garvan Murtha’s Jan. 19 ruling upheld Entergy’s claim of preemption — the concept that the federal government’s jurisdiction over atomic safety issues supersedes any state statutes.

In his ruling, Murtha also said that the state had not completely proved Entergy couldn’t sue the state despite promises made in a 2002 memorandum of understanding (MOU) in its purchase of Vermont Yankee.

Murtha’s ruling also agreed with Entergy’s arguments that Vermont’s actions had gone against the Commerce Clause, the provision in the U.S. Constitution that assigns regulations of interstate business transactions to the federal government.

Lawyers from the Vermont Law School have been watching the case closely from its filing last spring to the trial in U.S. District Court in the fall to anticipating Murtha's ruling into the winter months, until the release of the document this week.

“It was a bad loss for the state,” said Cheryl Hanna, professor of law and an expert in constitutional law.

In Hanna’s opinion, the state has tough decisions ahead.

One option for Vermont is to appeal, she said, but she warned that there’s a kink in that plan.

Murtha, as the trial judge, established the facts available for consideration by the appellate courts, and his ruling effectively established that safety concerns motivated Act 160.

Atomic safety concerns preempt federal laws and are therefore unconditional, said Hanna.

But, said Hanna, Murtha left Act 248 untouched.

Act 248 requires nuclear plants to acquire a state-issued Certificate of Public Good (CPG) from the state Public Service Board (PSB), which still can deny VY the certificate.

By buying Entergy’s lead attorney Kathleen Sullivan’s argument “hook, line, and sinker” that the state acted out of safety concerns, however, Murtha hasn’t left the PSB much room, said Hanna.

Hanna said that the public can feel frustrated with the ruling but that the real source of frustration should rest with federal law.

Federal law might say that states can shut down nuclear plants within their borders, she said, but at a practical level, it’s difficult for states to close a plant.

Hanna said observing the Entergy trial has taught her to appreciate the difficulty that states face regulating nuclear plants on their soil without considering safety concerns.

“It’s just hard for states to act proactively,” she said.

For the long term, Hanna is not reading the case as having implication beyond Vermont’s borders.

Murtha never said states can’t regulate nuclear plants — just that what happened in Vermont didn’t happen legally, said Hanna.

“The judge did leave open that the state could regulate somehow,” she said.

What Hanna will say with confidence is that the Entergy case is a long way from done.

She doubts Vermont Attorney General William Sorrell will “roll over and play dead.”

If Vermonters want to do anything to change the state’s power to shut down VY, said Hanna, they should focus efforts to lobby Congress to change the Atomic Energy Act.

Considering the legislative process ‘questionable’

“We got our clocks cleaned,” said Patrick Parenteau, senior counsel to the Environmental and Natural Resources Law Clinic and professor of law at the Vermont Law School.

“We were out-lawyered,” he added.

Partenteau thinks the key points of Murtha’s ruling exist in what the judge didn’t say — like what’s next.

Parenteau believes that although Murtha ruled that the state can’t rely on Acts 160 or 74, he didn’t explicitly rule that the state had no authority over the nuclear plant.

As a result, the PSB can reopen Entergy’s CPG docket, Parenteau said.

But if the board does so, will the company try to argue that it doesn’t need a CPG? Parenteau wondered.

Entergy still can’t argue against the state’s authority to rule on aesthetics, water quality, and other non-radiological issues, said Parenteau.

Parenteau was surprised Murtha concluded that Vermont tried to coerce Entergy to get below-market power rates. Still, Parenteau said, that aspect of the ruling is ultimately not significant in the long run because Vermont wasn’t attempting to get low rates.

Parenteau thinks that on appeal, Sorrell could argue against Murtha delving into the legislative history when considering the case. Parenteau described the judge’s considering the history of lawmakers’ conversations about VY as “questionable,” asserting that Murtha should have only considered the language that ultimately appeared in the statute.

Parenteau said he is “disappointed in Murtha” for letting Entergy wiggle out of the promises it made to Vermont in the 2002 MOU.

Murtha’s analysis that Entergy didn’t waive its right to sue doesn’t wash with Parenteau, who pointed out that allowing Entergy to walk away from its promises sends a bad message to other companies.

According to Parenteau, the PSBs of the world have only a company’s word. Murtha has sent the signal that companies get to walk away from promises that were considered legally binding.

Parenteau “wished [Entergy] was not let off the hook on that,” he said.

In the end, Parenteau believes that if the state plays its cards right it could still shut VY down. Murtha wrote that his ruling was “narrowly tailored” to strike down only Act 160 and 74.

Entergy won this hand, he said — but the game is not over.

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