House Speaker May Be Called To Testify In State, VY Lawsuit

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(Host) A three day trial is scheduled next month in Entergy Vermont Yankee’s lawsuit challenging the state’s authority over nuclear power.

Both sides have begun to assemble evidence. And as VPR’s John Dillon reports, among the witnesses who may be called to testify is Speaker of the House Shap Smith.

(Dillon) Entergy has challenged several state laws giving Vermont oversight over the nuclear plant in Vernon. Entergy says only the federal government, not the state, can regulate nuclear safety.

Now Entergy tells the court it wants to question Shap Smith, the speaker of the Vermont House.

Vermont Law School Professor Cheryl Hanna expects Entergy will grill Smith on the issue of nuclear safety.

(Hanna) "Their case is really being built around the question of why pass these laws,- taking the decision away from the Public Service Board and giving it to the legislature, and why would the Legislature refuse to grant a certificate of public good, but for safety? So by deposing Shap Smith they’re going to show he really can’t articulate any other reason, but safety concerns."

(Dillon) Of course, Hanna says the state hopes Speaker Smith will do the opposite, and will spell out the non-safety reasons behind the legislative action. The state argues lawmakers were mainly concerned about reliability issues with the 39 year old nuclear plant.

Smith, who is listed as a witness for the state, declined to comment because of the ongoing litigation. Attorney General Bill Sorrell says the speaker is a potential witness to rebut Entergy’s arguments about the intent of the legislature.

(Sorrell) "Clearly, legislative enactments, actions and inactions, are certainly relevant to the issues in the case. And depending on exactly what Entergy is going to be arguing at trial we want to be in a position to try to counter that evidence if we think that would help our case."

(Dillon) The other issue that Smith may be asked to testify about is why only the Senate – and not the House – voted on Vermont Yankee in 2010. The federal judge in the case, J. Garvan Murtha, focused on that question in a recent ruling. He questioned if a vote by the Senate alone constituted – quote – "final action" by the Legislature.

Vermont Law School professor Patrick Parenteau has also followed the case closely.

(Parenteau) "I do think Judge Murtha is uncertain as to what exactly legislative action he’s being asked to review in determining whether the state has acted on pre-empted ground. The state is arguing that the judge should just look at the 2005 bill, the bill that says there will be no further renewal of the certificate of public good in the absence of an affirmative vote by the Legislature."

(Dillon) But Parenteau says it’s unclear whether the judge is buying the state’s argument.

Speaker Smith is just one of many potential witnesses in the case. Entergy has also put the state on notice that it may depose Peter Bradford, a former member of the Nuclear Regulatory Commission who served on a state nuclear oversight panel.

And the state has told Entergy it wants to question Timothy Meehan, a longtime lobbyist for Entergy in the Statehouse.

 For VPR News, I’m John Dillon in Montpelier.

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