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Sorrell cites ‘chill’ of Murtha’s ruling in decision to challenge Entergy v. Vermont ruling

BRATTLEBORO—Attorney General William H. Sorrell has filed an appeal of the U.S. District Court’s recent decision in favor of Entergy Nuclear Vermont Yankee.

The appeal was filed Saturday morning, and will be heard by the Second Circuit Court of Appeals in New York City.

Judge J. Garvan Murtha, in his Jan. 19 ruling, invalidated two Vermont statutes that gave the Legislature a say on the ability of the Vermont Yankee nuclear power plant in Vernon to continue operations when its current state license expires on March 21.

In a news conference on Saturday, Sorrell said that the state has appealed all aspects of the judgment entered by the district court and is basing much of the appeal on the 1982 Pacific Gas & Electric (PG&E) v. California case that was heard by the U.S. Supreme Court.

Sorrell said Murtha’s decision used “undue reliance on legislative discussions” in deciding that the state overstepped its regulatory bounds.

In 2005, Vermont passed a law stating the Legislature had to give its approval before the Vermont Public Service Board (PSB) could issue a Certificate of Public Good (CPG) for Vermont Yankee to operate for another 20 years. The Vermont Senate, on a 26-4 vote in 2010, declined to give the PSB its approval.

Current federal law prohibits states from regulating nuclear safety, and Entergy filed a lawsuit last spring on those grounds.

During the trial that took place in Brattleboro last September, Entergy submitted numerous excerpts from legislative committee hearings to make the case that lawmakers were making decisions based on safety, a subject that falls under the sole jurisdiction of the U.S. Nuclear Regulatory Commission (NRC).

The state countered that the Legislature was acting out of concerns about the plant’s future reliability, as well as possible environmental and economic impacts. These concerns are permitted based on the PG&E case, Sorrell said.

In the PG&E case, Sorrell said that the U.S. Supreme Court decided that it was “not going to go into the legal weeds” and carefully review statements made by individual lawmakers. “Instead, they looked at the last, finished product.”

Sorrell said Murtha’s ruling “has the potential to chill legislative debates in the future” and will make lawmakers “afraid to make public statements that could be used later to challenge the legal validity of legislation.”

“[There would be] a definite disincentive for people to speak their minds,” said Sorrell. “Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings.”

The state had until Feb. 21 to announce its decision to file an appeal.

Last week, Sorrell had sought an extension until March 9 to respond to a motion filed by Entergy over legal fees in the lawsuit. Entergy is seeking more than $4.6 million.

Sorrell said Saturday that the state has spent roughly $400,000 on the Entergy v. VY case, and he doesn’t expect that pursuing an appeal will cost the state a substantial amount of money.

“An appeal is less expensive and less time-consuming than the trial itself,” he said.

Sorrell said he and his staff have been consulting with the Washington, D.C., law firm Kellogg, Huber, Hansen, Todd, Evans, and Figel on possible strategies for the appeal.

Sorrell said Saturday that he has been working with David Frederick, whom he described as a “nationally respected” attorney with extensive experience in federal appellate cases. He said that Frederick will play a “prominent role” in the appeal effort.

The state did not seek outside legal help during the initial trial that took place last September in Brattleboro.

When asked if he had any regrets for not doing so, Sorrell responded that he had “absolutely none,” adding that if the state had chosen to seek outside counsel “it wouldn’t have cost $4.6 million like Entergy.”

The Entergy legal team was led by Kathleen Sullivan, the former dean of Stanford Law School, who is considered one of the top attorneys in the country.

“Corporations can bring much more resources to bear [in a case] than a state the size of Vermont,” Sorrell said. “But the cost of the case should not have an effect on rightness of the cause and the desire to fight.”

“This is a case that will have wide effects beyond Vermont,” he said. “I did not think this case would end in Vermont, and my view on that hasn’t changed.”

Sorrell said he anticipates that other organizations, pro and con, as well as neighboring states, will likely file amicus, or “friend of the court,” briefs during the appeals process, but he predicted that the appeal will not hinge upon how much outside support the state receives.

“The bottom line is I want to see Judge Murtha’s ruling overturned,” Sorrell said.

Sorrell anticipates that the state will file its briefs to the Second Circuit within a couple of months, and then Entergy will have the opportunity to respond.

Initial oral arguments will likely take place in the spring, with a trial probably taking place in the fall.

As for the CPG that Vermont Yankee needs to operate legally under Vermont law, the case is before the Public Service Board, but the debate is now over whether additional testimony needs to be heard before a decision is made.

Shumlin said earlier this month that he supports taking additional testimony. In late January, Entergy CEO J. Wayne Leonard said his company believes that, based on Murtha’s ruling, there is no need to take additional testimony and that the PSB should issue a CPG without further delay.

U.S. Sen. Bernard Sanders, I-Vt., said Saturday that he supports Vermont’s decision to appeal.

“I believe the law is clear that states have the right to reject nuclear power based on economic and other reasons that have nothing to do with safety,” said Sanders in a news release.

“If Vermont wants to move to energy efficiency and sustainable energy, no corporation should have the right to force our state to stay tethered to an aging, problem-ridden nuclear plant,” Sanders added.

In a statement issued Saturday, Entergy spokesman Michael Burns said, “We stand ready to respond to the state’s appeal. We are committed to ensuring that Vermont Yankee continues to deliver safe, clean and reliable power to the people and businesses in New England, as it does today, and to protecting the jobs of the 600 dedicated Entergy employees in Vermont.”

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Originally published in The Commons issue #140 (Wednesday, February 22, 2012).

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