Cheryl Hanna: Preliminary injunction redux, read the footnotes

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Cheryl Hanna: Preliminary injunction redux, read the footnotes

Tue, 07/19/2011 - 9:29am -- tim

When my students first begin to study law, they have a tendency to focus on the holding of the case, such as ‘Preliminary Injunction Denied.’ It’s like reading the headlines in a newspaper. But any good lawyer knows that the most important part of the decision is often found in the footnotes. And in Judge Murtha’s decision denying Entergy a preliminary injunction, the footnotes say far more than the headline.

But let’s start with the headline: Yes, Judge Murtha ruled no preliminary injunction because Entergy did not convince him that it would suffer irreparable harm between now and the September 12 hearing on the merits. Judge Murtha essentially called Entergy’s bluff. To paraphrase the decision: ‘You’re really going to shut the plant down in the next two months if I don’t grant the injunction? Really? I don’t think so.’ The decision to either order new fuel rods or suspend operation is a business decision made difficult by litigation, but any harm to Entergy is neither likely nor imminent.  Judge Murtha went out of his way to state that he is not making any ruling on the likelihood Entergy will ultimately prevail.
Entergy didn’t get the preliminary injunction, but it also didn’t lose the case. If you read the footnotes, you will see that Judge Murtha has tipped his hand about the merits of the case. Or at least he has signaled to the state that it better have some answers to some hard questions he’ll be asking.
Let’s start with footnote #2:  Here it is (and I have taken the liberty of highlighting the important stuff) :
Defendants argue the Vermont Senate’s February 23, 2010, 26-4 vote against reading Senate bill S. 289 for a third time amounts to ‘no legislative action’ on Vermont Yankee’s petition. (Prelim. Inj. Hr’g Tr. at 130:3-21, June 24, 2010 (Doc. 83).)
The ‘Legislative Policy and Purpose’ section of Act 160 suggests ‘the general assembly,’ which comprises two houses, the Senate and the House of Representatives, ‘shall grant the approval or deny the approval’ of a petition for operation and storage of spent nuclear fuel beyond March 21, 2012. 2006 Vt. Laws 160 § 1(f) (LexisNexis). The substantive provision of the enactment speaks only of ‘approval’ and appears to allow inaction by the Senate to prohibit continued operation. Vt. Stat. Ann. tit. 30, § 248(e)(2). The State’s position is that Vermont’s statutes do not require a final determination of a petition and Acts 74 and 160 themselves amount to a decision to prohibit continued operation. (Hr’g Tr. 132:19-24, 134:22-24, 135:2-13 (’a decision was made in Act 74 and Act 160â ³ although the legislature is ‘always free to take it up’).) Vermont Yankee’s petition for a renewed license, filed March 3, 2008, is in a suspended docket before the Public Service Board. Entergy argues that because this legislative inaction, which amounts to a one-house ‘pocket veto,’ is to be given significant executive effect, this Court may consider events in 2010 in determining Entergy’s claim that Act 160 is preempted as applied. Id. at 62:9-13, 40:8-11, 68:25-69:2. The arguments on this question may warrant further development at trial. It is also unclear to the Court how a legislative scheme that does not require final determination of a renewal petition for a nuclear plant is compatible with the safe decommissioning of a plant. Cf. 10 C.F.R. § 2.109(c).
Translation: The Court is concerned that the statute giving the Legislature the power shut down Vermont Yankee by simply doing nothing, thereby placing VY in legal limbo, may be seriously flawed. And if Vermont loses because the statute does not have the proper checks and balances among the branches of government, nor the proper due process requirements, then the Court never  has to get to the harder legal question of field preemption.
Now let’s look at footnote #3 (I have again highlighted the important parts):
The Court is aware the challenged statutes contain words that may or may not permit consideration of preempted grounds for granting or denying certificates of public good, and that the legislative history of the challenged enactments contains numerous references to ‘safety,’ some of which may be problematic, some of which may merely reflect legislators’ responsible recognition that Vermont cannot regulate radiological health and safety. Act 189 commissioned a study of ‘reliability,’ which initiated ongoing oversight at Vermont Yankee that appears to examine numerous aspects of radiological safety affecting reliability. It is not clear if reliabilityoversight pursuant to that enactment is still ongoing. The Court believes the parties’ arguments warrant further development on full evidence offered at a trial on the merits.
Translation: Vermont must convince this Court that the statutes in question were not enacted because of radiological concerns. The Court is not yet convinced. This is critically important and the crux of Entergy’s case. If Vermont can’t convince Judge Murtha that the Legislature was regulating for reasons other than safety, then, again, the Court never has to reach the harder legal question of field preemption
Here’s what is NOT in any footnote or in the decision: the Memorandum of Understanding. Not even a passing reference. Judge Murtha told the parties in footnotes  #2  and #3 the issues on which the case will proceed ‘ the procedural integrity of the law, and the rationale behind the legislature’s actions. The argument that Entergy waived the right to bring this lawsuit or that it has breached its contract with Vermont is MIA (missing in action), and DOA (dead on appeal).
Bottom line from the footnotes: Judge Murtha hasn’t yet made up his mind on the merits, but he strikes me as skeptical about Vermont’s case. As one of my colleagues noted after reading the opinion, the state better get its act together for the trial. But given the actions of the Vermont Legislature that lead to this case, it may be too late. [1]
[1] Just a final thought:  My colleagues and I have often suggested that this case could ultimately be decided by the U.S. Supreme Court. I am not so sure of that anymore. If Entergy ultimately prevails on the issues from footnotes #2 or #3, then there is really no pressing legal issue for the highest Court to address. If the trial Court finds as a matter of fact that the statutes have some fatal flaws, the Second Circuit is likely to give deference to those findings. It is only if Vermont wins the case on the merits that the Supreme Court would have to address whether a state that refuses to issue a certificate of public good because of concerns other than safety is still preempted from doing so because Congress has occupied the field and never intended states to have such power. In light of Judge Murtha’s opinion, it is just not clear to me that any Court will reach that question. Of course, like any good unpaid talking head, I reserve the right to change my opinion. 
July 19, 2011. Cheryl Hanna is a lawyer and professor at Vermont Law School.