(AP Photo/Vermont Yankee Corporation)
(AP Photo/Vermont Yankee Corporation)
Friday, February 3, 2012

BRATTLEBORO - The decision rendered by Federal District Court Judge J. Garvan Murtha in the Entergy v. Shumlin, et al, case could have consequences for state governments around the nation, said Vermont Attorney General Bill Sorrell.

Those consequences could be one of the reasons Vermont may appeal Murtha's decision to a federal appeals court, said Sorrell.

"Among the considerations is not just the impact of this decision on Vermont Yankee," he said. "There are important questions as to how this decision might be used as precedent going forward."

Federal Court Judge J. Garvan Murtha rendered his opinion on Jan. 19, ruling the state Senate crossed over into federal territory when it voted to prohibit the Vermont Public Service Board from issuing a certificate for public good for continued operation.

Murtha ruled the Senate inappropriately considered the radiological safety of the power plant - which is under the sole jurisdiction of the Nuclear Regulatory Commission - in deliberations over the future of Yankee. In his decision, Murtha prohibited the state Legislature from taking part in the issuance of a CPG. However, Murtha affirmed the PSB's authority to issue a CPG, as long as it only considers "economics, reliability, and other objectives over which the other entities may have jurisdiction ...


Advertisement

"

Murtha also found that the PSB cannot condition the issuance of a CPG on the existence of a below-wholesale-market power purchase agreement or at rates below those available to wholesale customers in other states.

Murtha's ruling was based in part on discussions conducted in the Legislature about the future of Yankee, discussions that invoked the safety of the plant.

But Sorrell has contended - before, during and after the hearings in September - that the state Legislature has the right to explore the bounds of its authority before writing legislation or taking a vote. Prohibiting a legislature from doing so would tie its hands, he has said.

"There's the question of whether the judge's decision to delve into the weeds of the legislative history, pulling a couple of dozen or so statements out of the record in the committee hearing process that is looking at different drafts of different kinds of legislation is not following the decision by the U.S. Supreme Court in the Pacific Gas and Electric case," said Sorrell.

In that case, which was decided in 1983, California refused to allow the construction of a new nuclear power plant because there was no adequate plans to deal with high-level nuclear waste. The state's resource commission had ruled that a new power plant couldn't be built until a remedy for storage of nuclear waste had been implemented.

PG&E took the case all the way to the U.S. Supreme Court, which ruled in favor of the state by a vote of 9 to 0.

Legislative intent was a major discussion point in Pacific Gas and Electric v. California State Energy Resources Conservation and Development Commission. The Supreme Court ruled it should "not become embroiled in attempting to ascertain California's true motive ... inquiry into legislative motive is often an unsatisfactory venture. What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.

Vermont Yankee nuclear power plant in Vernon (Entergy Corp.)
Vermont Yankee nuclear power plant in Vernon (Entergy Corp.)
"

In addition, reads the decision, "it would be particularly pointless for us to engage in such inquiry here when it is clear that the States have been allowed to retain authority over the need for electrical generating facilities easily sufficient to permit a state so inclined to halt the construction of new nuclear plants by refusing, on economic grounds, to issue certificates of public convenience in individual proceedings. In these circumstances, it should be up to Congress to determine whether a state has misused the authority left in its hands."

Today, every state has a regulatory body with authority for assuring adequate electric service at reasonable rates. In Vermont's case, that's the Public Service Board. But in Act 160, the state Legislature gave itself the authority to forbid the PSB from issuing a certificate of public good.

Murtha concluded that discussions by legislators and witnesses attested to the fact that the Legislature's decision to forbid the issuance was in fact based on radiological health and safety, not reliability, economics or other areas over which the state has authority.

"Here, the judge took the statements of two dozen legislators as speaking for all 180," said Sorrell.

Although in PG&E there were specific instances of legislators discussing safety, stated Justice Byron White in the final decision, "What motivates one legislator to vote for a statute is not necessarily what motivates scores of other to enact it."

"Does Judge Murtha's decision have a chilling effect on legislative debate going forward?" asked Sorrell. "One of the things we have to think about is what the potential impact will be in the future on the protected free speech during legislative discussion and debate."

Harvard Law Professor Laurence Tribe, who argued California's case before the Supreme Court, said legislative intent is "a huge bramble ... a terrible thicket" that the court has never made a clear decision on.

"The court is deeply divided," said Tribe. "For justices like (Antonin) Scalia, all that matters is what the law does and not what the lawmakers had in their heads."

But, he said, justices such as Stephen Breyer have stated the Supreme Court should look at what the law is trying to accomplish.

Tribe, who said he hasn't read Murtha's decision, despite the controversy over legislative intent, said the PG&E case was really about federal preemption and whether California was interfering in what Congress has decided is a federal process.

"What lawmakers had in their heads or what was said on the record can be manipulated and isn't particularly important," said Tribe. "The real question is whether what the state is doing is based on an economic decision rather than radiological safety."

In its decision, the Supreme Court wrote that the Atomic Energy Act was intended to promote the technological development of nuclear power, at a time when there was no private nuclear power industry, but more recent legislation did not prevent states from choosing to rely on technologies they consider to be safer than nuclear power.

Justice White also wrote that states retain many means of prohibiting the construction of nuclear plants within their borders, may refuse to issue certificate of public convenience and necessity for individual nuclear powerplants, may establish siting and land use requirements for nuclear plants that are more stringent than those of the NRC and may regulate radioactive air emissions from nuclear plants, and may impose more stringent emission standards than those promulgated by the NRC.

"This authority may be used to prevent the construction of nuclear plants altogether," wrote White.

But Justices Harry Blackmun and John Paul Stevens wanted the Supreme Court to take it one step further.

"Rather than rest on the elusive test of legislative motive, therefore, I would conclude that the decision whether to build nuclear plants remains with the states," they wrote. "In my view, a ban on construction of nuclear powerplants would be valid even if its authors were motivated by fear of a core meltdown or other nuclear catastrophe."

Justice White and the six other justices disagreed.

"A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field," he wrote.

However, he added, "The NRC's imprimatur ... indicates only that it is safe to proceed with such plants, not that it is economically wise to do so."

In his decision, Murtha wrote "Defendants (Shumlin, et al) urge that this Court must accept the purposes articulated in the text of the challenged statutes without looking any further, and that it should not consider legislative history to elucidate purpose. This court, however, would be remiss if it failed to evaluate the purposes behind Vermont's enactments 'as a whole,' and failed to consider and weigh the significance of a legislative history filled with references to safety, particularly where the legislation is specifically targeted at the only nuclear plant operating in the state."

Pat Parenteau, Senior counsel to the Environmental and Natural Resources Law Clinic and Professor of Law at the Vermont Law School, said he believes Murtha's decision "comes down to how one reads the PG&E case."

"Does it absolutely forbid the court from contributing motives to a legislature?" he asked.

Parenteau believes Murtha "cherry-picked" the legislative history to focus on statements related to radiological health and safety.

"In some cases the statements were made by witnesses and not even legislators," said Parenteau. "To me, that's a potentially reversible error."

In his opinion, the Legislature's actions in no way interfered with the NRC's duties and obligations. He also said it's unrealistic to separate safety from reliability.

"You can't deal with reliability and the economics of nuclear power if you don't take into account the special requirements of safety," said Parenteau. "That's not the same as interfering (in a federal decision)."

Murtha has created "a trap," said Parenteau.

"Anybody who comes into the Legislature and starts testifying about nuclear safety issues taints the record. That's absurd."

Murtha parsed through legislative history to dig out statements that supported his decision, said Parenteau.

"There are hundreds of people in the Legislature and people who gave testimony. He picked 16. It's the kind of thing federal courts almost never do. It shows no respect for the state Legislature."

But Vermont Law School Professor Cheryl Hanna, an expert on constitutional law, the United States Supreme Court, and women and the law, agreed with Tribe.

"The legislative intent is pretty peripheral to the central question," she said.

Hanna received her law degree from Harvard in 1992 and was instructed in constitutional law by Tribe.

"Federal law is stacked against Vermont no matter what," she said. "But I think people may be misreading Murtha's decision."

It wasn't necessarily legislative intent that Murtha based his decision on, said Hanna, it was the fact there was an absence of "any other articulable reason" for the Legislature's decision.

"The state didn't give a plausible reason," said Hanna.

She also congratulated Entergy's legal counsel for its well-presented and well-argued case.

"Kathleen Sullivan really understands the issues around federalism and the relationship between the state and the federal government and how the court will look at the way a legislature acts when there doesn't seem to be a plausible reason," said Hanna. "Sullivan made the case the difference between motive and intent."

Sullivan was able to convince the judge that the legislative language was a pretense for an impermissible motive, she said.

Both Parenteau and Hanna believe the state will appeal Murtha's decision to the Second District Court of Appeals.

Parenteau believes the state may have a good chance of winning an appeal, but Hanna said Vermont has a very high burden to overcome. "The appellate court usually gives high preference to what a trial court has found," she said. "And courts don't have a lot of patience with state regulations that interfere with the federal government's job. The law tends to take Entergy's side."

But Murtha's decision was clear in affirming the Public Service Board's role in determining whether Yankee should receive a certificate of public good, said Hanna.

She believes it would be best for all concerned if a CPG is issued but for a term of less than 20 years.

Such an agreement could take into account Vermont's concerns about decommissioning and Entergy's concerns about making the necessary expensive infrastructure investments to keep the plant running for another 20 years.

"The law doesn't favor Vermont, but the market doesn't favor Vermont Yankee," said Hanna.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160.