BRATTLEBORO -- Attorneys for Entergy are asking a federal court to award it more than $5.4 million in fees, costs and expenses incurred in Entergy's successful suit to prohibit the state from forcing the closure of its Vermont Yankee nuclear power plant in Vernon.
In documents filed Oct. 31 with the U.S. District Court for the District of Vermont, Entergy's attorneys claim because both the District Court and the U.S. Court of Appeals for the Second Circuit found in Entergy's favor, the state of Vermont should be forced to pay its legal fees.
"Entergy won judgment in this court and a substantial affirmance in the Court of Appeals, and are therefore ‘prevailing parties' entitled to an award of their attorney's fees and expenses ..." wrote the attorneys.
The courts found that the Atomic Energy Act preempted legislative actions by the state that attempted to thwart Entergy's application for continued operation of the plant. That finding in and of itself doesn't warrant the award of attorney's fees, the attorneys admitted, but they believe the Dormant Commerce Clause does.
"The Vermont Legislature acted explicitly out of a desire to arrange ‘compensation' for the state's assumption of the risk of radiological disaster."
Most specifically, they wrote, legislation was enacted "in part by the Legislature's desire to extract a favorable (power purchase agreement) from Entergy."
That legislation burdened interstate commerce, the attorneys wrote, meaning the Legislature's actions violated the Dormant Commerce Clause, which, in this case, prohibits states from interfering in the sale of electricity between states.
In its response, the state replied the Second Circuit Court vacated the District Court's injunction under the Dormant Commerce Clause and federal law "bars a claim for attorney's fees where a party prevailed only on a claim that a federal statute preempts state law."
"The only argument Entergy made for obtaining fees associated with other claims is explicitly premised on a successful Dormant Commerce Clause claim," wrote the Vermont Attorney General's Office in its response.
After the District Court trial, Entergy asked the court to force the state to pay its legal fees, but the court responded that it could not award fees if the case was being appealed.
In the original motion filed before the District Court, "Nothing in the petition suggested Entergy believed it was entitled to a fee award because it prevailed on the preemption claim," wrote the Attorney General's Office. "To the contrary, Entery specifically grounded its request on the Dormant Commerce Clause ..."
In addition, court rules mandate that a request for fees be filed with 14 days after entry of judgment.
"That deadline has come and gone," wrote the AG's Office.
And even if Entergy sought the award of attorney's fees under the Atomic Energy Act, "the Eleventh Amendment precludes awarding Entergy such a large fee from the coffers of a small state like Vermont."
The Eleventh Amendment immunizes states from suit for money damages or equitable relief without their consent.
"There is no doubt that such a substantial fee, if awarded, would ‘impose enormous fiscal burdens' on a small state like Vermont and ‘interfer with the budgeting process," wrote the Attorney General's Office.
Bob Audette can be reached at email@example.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.