by Tom Brown August 14, 2013 vtdigger.org Three judges in the US Court of Appeals decided Wednesday that the Vermont Legislature is federally preempted from shutting down the Vermont Yankee nuclear plant.
SEE DECISION
After US District Court Judge J Garvan Murtha made the same ruling in January 2012, Vermont Attorney General Bill Sorrell appealed the decision. While the 56-page decision upheld Murtha’s preemption rulings in favor of Entergy, Corp., Vermont Yankee’s parent company, it reversed Murtha’s determination that the state violated the dormant Commerce Clause.
This latter ruling by the appellate judges means that the state does not have to foot the bill for Entergy’s legal expenses.
In addition to the decision, Justice Susan L Carney issued an opinion.
‘I concur, reluctantly, in the majority’s detailed and carefully reasoned opinion striking down Vermont Acts 74 and 160,’ she wrote. ‘My reluctance stems not from any flaw in the majority’s analysis, but rather from my concern that Congress, in enacting the Atomic Energy Act â ¦ did not intend the result we reach.’
Governor Peter Shumlin issued the following statement in response to ruling: "While I disagree with the result the Second Circuit reached in preempting Vermont’s Legislature, the process does not end today. Importantly, the Vermont Public Service Board's role in reviewing Entergy's request for a state Certificate of Public Good is preserved and will continue. I am also glad the Second Circuit agreed that the trial judge went too far in ruling against the State on the dormant commerce clause issue. I know that the Attorney General’s office is reviewing today's lengthy decision and will continue to take the lead in the State’s response to it.
"To me, the decision does not change the simple fact that Entergy has over the years not been a good partner with Vermont, preferring to focus on multiple lawsuits against the State. I remain steadfast in my belief that Entergy’s continued operation of this facility is not in the best interest of Vermont. Our state’s energy future should be charted by Vermonters, and I am committed to increasing Vermont’s reliance on renewable, sustainable, and responsibly managed sources of energy."
The dormant commerce clause ruling removes the basis for Entergy’s current claim that state taxpayers should reimburse Entergy for $4.62 million in attorney’s fees in addition to any fees incurred by Entergy during the course of this appeal.
Attorney General William H Sorrell said in a statement that he is disappointed that the appeals court concluded that the legislative acts were preempted by federal law. He noted, however, that: ‘This is a good decision for Vermont taxpayers. Winning on the issue that triggered attorney’s fees saved Vermont millions of dollars.’
Sorrell further noted that the important role of the Public Service Board was not affected by the court’s ruling. The court’s decision notes that the Board has statutory authority to consider issues such as ‘power generation stability, economic impact on the State, aesthetic and environmental issues, and likelihood of compliance with federal regulations’ in deciding whether to grant Entergy’s pending application for a certificate of public good.
Brad Ferland, president of the Vermont Energy Partnership, issued the following statement: ‘This is very good news for Vermont, particularly the 1,000+ people Vermont Yankee employs directly and indirectly, as well as their families. We congratulate them for staying focused, working hard and persevering through difficult circumstances.
‘Vermont Yankee has consistently met and exceeded the highest safety standards as determined by the independent US Nuclear Regulatory Commission. The plant’s abundant and very low-carbon power is important for Vermont’s economy and environment. Vermont Yankee can also serve as a bridge for greater use of renewable energy. In light of all this, the State of Vermont should accept these two court rulings and not spend more of taxpayers’ hard-earned dollars in this regard.’
Entergy Vermont Yankee is a member of the VEP.
To read background on the case and the hearing in New York City, click here.
Tim McQuiston of Vermont Business Magazine contributed to this report.