Vermont Yankee employees ask court not to dismiss lawsuit

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BRATTLEBORO -- The attorneys for a group of Vermont Yankee employees who are suing the state over its ability to force the closure of the nuclear power plant in Vermont are asking a federal judge to deny the State's motion to dismiss their case and to allow the case to proceed to trial.

Seven senior nuclear operators at the power plant are suing the state, claiming that the failure of the State to approve the continued operations of the plant will result in a violation of their due process rights. The operators claim that their federally-issued Senior Reactor Operators' licenses are a constitutionally protected property interest and that automatic termination of these licenses, which will occur upon the closure of the plant, is a violation of both procedural and substantive due process.

In documents filed earlier this week with the United States District Court for the District of Vermont by Attorney Joel Iannuzzi, of Cleary, Shahi & Aicher in Rutland, the employees asked Judge J. Garvan Murtha to deny the State's motion to dismiss their lawsuit.

Murtha is the same judge who has been hearing the case of Entergy versus Vermont regarding whether the State Senate overstepped its authority when it forbid the Public Service Board from issuing a certificate of public good for the continued operation of Yankee, which Entergy owns and operates. The state can base its decision only on reliability, environmental impact and economic issues, not safety, which is under the purview of the Nuclear Regulatory Commission. The NRC issued a 20-year license for continued operation through 2032 earlier this year.

Hearings in Entergy versus Vermont case concluded in October but Murtha has not yet ruled on the case.

On June 22, Michael Harris, John Twarog, Derek Jones, Vincent Ferrizzi, Neal Jennison, Albert Zander and Thomas Roberts filed their lawsuit claiming a violation of their due process rights and also alleging that the State's action was pre-empted by federal law.

"It is important to understand that the issue to be decided by Judge Murtha on the current motion filed by the State is whether the plaintiff-employees' lawsuit plausibly gives rise to an entitlement to relief, rather than deciding the substantive merits of the claim," Iannuzzi told the Reformer. "It is our position that the termination of our clients' operators' licenses, which will automatically occur if the plant is closed, represents a deprivation of a constitutionally protected property interest without due process."

In August, the Vermont Attorney General's Office filed a motion to dismiss the lawsuit on the grounds that the operators can't show injury because they don't have a legally protected interest in keeping particular jobs at a particular facility for as long as they wish.

But through their attorneys, the seven employees claimed the plant itself has a "federally protected right" to receive a new CPG and the state, as a third party, is depriving the employees of their due process rights.

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The Attorney General's Office argued in its motion to dismiss the employee lawsuit that the NRC licenses the seven operators have obtained are a necessary prerequisite to holding their positions, not a guarantee they will have particular jobs at particular plants for as long as they wish.

"Operators' due process claim is without merit because Operators do not have a constitutionally cognizable property interest in VY operating beyond March 21, 2012," wrote the Attorney General. "Operators are asking this court to accept the radical notion that whenever someone obtains a federal license, that person becomes legally injured if anyone takes any action that interferes with the full use of that license."

But, wrote Iannuzzi, "As the First Circuit has explained, an actor may be held liable for ‘those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.'"

In response to the State's claim that the employees lack standing to assert a procedural due process claim based on Act 160 because the statute is rationally related to a government interest, Iannuzzi responded that Act 160 is not rationally related to a non-pre-empted interest, citing the fact that the Court has received evidence in the related Entergy case "showing that the claimed non-preempted purposes underlying the challenged Vermont statutes are pretextual and/or are not plausibly advanced by a premature shutdown of Vermont Yankee."

Therefore, contended Iannuzzi, if the state has based its decision on safety, the potential loss of the operators' licenses is a harm inflicted upon them without justification, thereby precluding the state from forcing the closure of the plant.

According to stanford.edu, the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures be used whenever the government is punishing a person or otherwise taking away a person's life, freedom or property, but that these clauses also guarantee that a person's life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking.

Iannuzzi is claiming that the operators' licenses represent property interests, which they will lose if the plant closes. When an operator transfers to a different nuclear power plant, they must go through a training process of several years before they can be re-certified as an operator.

"Supporters of Substantive Due Process ... point to its long history and its dynamic ability to defend basic human rights from infringement by the government," states stanford.edu. "They argue that the doctrine is a simple recognition that no procedure can be just if it is being used to unjustly deprive a person of his basic human liberties and that the Due Process Clause was intentionally written in broad terms to give the Court flexibility in interpreting it."

But those who criticize a broad interpretation of Substantive Due Process believe that just because something is a basic human right does not make it a Constitutional right, according to stanford.edu.

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


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