Friend of the court briefs support Vt. appeal

Tuesday June 12, 2012

BRATTLEBORO -- At least eight different states and a group that advocates for state legislatures filed friend of the court briefs, Monday, supporting Vermont's appeal of a recent ruling in Entergy v. Shumlin.

The National Conference of State Legislatures, a bipartisan organization comprised of the legislators and staffs of the country's 50 states, commonwealths and territories, was among several parties filing briefs supporting Vermont's appeal of a January ruling by U.S. District Court Judge J. Garvan Murtha.

Eric T. Schneiderman, attorney general for the state of New York, on behalf of the state, and seven others, also filed a brief stating Murtha's decision overstepped judicial bounds.

Murtha ruled that lawmakers were attempting to regulate nuclear safety, the sole jurisdiction of the Nuclear Regulatory Commission, when they passed laws that gave them the power to determine if the Vermont Yankee nuclear power plant could operate past its initial 40-year license period which ended March 21.

Last year the NRC approved a 20-year license extension and Entergy, the owner and operator of the Vernon reactor, filed suit against the state. The plant continues to operate while the case is being appealed.

Entergy has applied for a similar 20-year license extension for its Indian Point reactors in Buchanan, N.Y.

New York Gov. Andrew Cuomo has opposed the extension saying that, at just 35 miles from Manhattan, the reactors are in an area that's too densely populated.

Steven F. Huefner, Professor of Law at Ohio State University, filing on behalf of the NCSL, wrote that the court's decision was an inappropriate use of partial legislative record to prove its purpose.

"There's no question what the Vermont statutes mean," Huefner told the Reformer Monday. "Instead the district court was looking behind the statute to decide if the purpose for which it was enacted was constitutional."

The NCSL constantly criticized Judge Murtha's decision in its filing, stating that relying on statements from "selected committee witnesses and a handful of state legislators ... threatens the entire legislative process and distorts its integrity."

Legislative record excerpts aren't a reliable indicator of lawmakers' motivations, the filing states.

"Left uncorrected, this type of misguided judicial inquiry will inevitably chill state legislatures' willingness to debate policy issues robustly and to solicit a variety of viewpoints about proposed legislation openly," Huefner wrote. "This erroneous methodology intrudes upon the independence of the legislative branch and threatens to disrupt its proper functioning."

As legislators banter and argue about various bills, any number of them may support or oppose a particular measure for a variety of unknown reasons.

"Those views cannot fairly be attributed to the legislature as a body ... to do so would deprive the body of its constitutional control over its own work," Huefner wrote.

He added that it leaves them "impotent against the assertions of individual members who have no lawful authority to bind the legislature except as part of a voting majority in the course of regular lawmaking process."

In the state's filing, Schneiderman urged the Second Appeals Court to reject the district court's preemption analysis, stating it would "severely limit the scope of states' traditional authority to regulate power utilities, including nuclear power plants."

Schneiderman has been active in nuclear issues, having just won a ruling Friday from a federal appeals court in Washington that the NRC had not properly reviewed the environmental impacts of storing nuclear waste at reactor sites around the county.

After reading the New York attorney general's brief, other states including Connecticut, Iowa, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire and Utah all signed on to proclaim their support for Vermont.

In their filing, Schneiderman wrote that while the Atomic Energy Act appoints the federal government to monitor nuclear safety, it also leaves the states with the responsibility for all other policy choices that relate to nuclear facility operations, including economic and environmental impacts and what the state should use for energy production.

He also argued that the judge gave individual lawmakers' remarks about safety too much weight.

"When a statute has a legitimate, non-safety rationale, courts should not look into individual legislators' remarks for evidence of some other, improper ‘true motive'," the brief stated.

The NCSL agreed in its filing, stating that "legislators should be encouraged to call witnesses who can provide guidance on the limits of the legislature's constitutional authority ..." and that "... legislators should generally be encouraged to solicit a range of views, critical and supportive, on proposed legislation, regardless of rationale."

Schneiderman wrote that Judge Murtha's analysis of preemption as it relates to Vermont's statues was "flatly inconsistent" with prior court rulings.

In Pacific Gas and Electric v. California, the Supreme Court ruled that it was pointless to examine the "true motive" behind any specific decision not to authorize a facility from operating, he wrote.

Murtha's decision, meanwhile, "limited its analysis of legislative purpose to the question ‘whether there is a non-safety rationale for (closing the plant)'."

Gov. Peter Shumlin said he was honored that other states are showing their support and that he hopes others will follow.

The case has been closely monitored throughout the country by both those for and against nuclear power wanting to know the fate of Vermont's lone reactor, and also by legal experts with an interest in where state governments' authority ends and the federal government's begins.

"This decision has ramifications throughout the United States; this isn't just about Vermont," said Sandra Levine, a lawyer with the Conservation Law Foundation. The New England-wide environmental group has supported closing Vermont Yankee and was expected to file its brief later Monday.

Josh Stilts can be reached at, or 802-254-2311 ext. 273.


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