At Stake In Yankee Appeal: State’s Rights And A Big Legal Bill

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A federal appeals court in New York will hear a case this morning that may test the limits of a state’s control over nuclear power plants.

Vermont lost the first round last year, when a federal judge threw out two state laws that gave the Legislature a virtual veto over whether Vermont Yankee could operate for another 20 years.

The case is being watched closely by other states.

When U.S. District Judge Garvan Murtha ruled last January against Vermont, he said the Legislature was improperly motivated by safety when it passed two laws giving it control over Vermont Yankee’s future.

Nuclear safety is the sole province of the federal government, under federal law and Supreme Court precedent. Entergy Vermont Yankee has a federal license to operate until 2032, but does not yet have a new state license.

In the lower court case, Entergy’s lawyer mined the legislative record to come up with numerous references to safety in the legislative debate.

The challenge for Vermont, according to Vermont Law School Professor Cheryl Hanna, is to show the court it did not overstep its bounds.

"And both sides agree that federal law does not allow the state to regulate on the basis of safety. So unless the state’s lawyer can convince the court that either safety was not at issue, or that he has to take the law at face value and the law does not mention safety, I don’t think the state’s going to prevail," she said.

New York and eight other states have filed a brief supporting Vermont.

Patrick Parenteau is Vermont Law School professor who has also followed the case. He said the states are worried that a ruling against Vermont could limit their authority over nuclear plants. New York State, for example, has concerns about the Indian Point nuclear plant located near New York City.  

"First, they’d like to see Vermont’s position vindicated here – that is that the state gets the ultimate decision on whether nuclear power plants continue to operate. I think the states would like to see a decision validating a strong state role in that process," he said. "But, if they can’t achieve that goal I think they would want to narrow the decision as much as they can so it doesn’t have a spillover effect in these other cases."

The stakes are high for Vermont, both in terms of its authority over Vermont Yankee, but also because if it loses on all counts it may have to pay Entergy’s legal fees. A year ago, Entergy asked for $4.6 million, and the meter’s been spinning since.

State Attorney General Bill Sorrell hired an experienced appellate lawyer to argue the state’s case. The lawyer, David Frederick, has prepared by staging practice arguments with a Vermont law school professor.

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