Appeals Judges Focus On 'Legislative Intent' In Yankee Case

01/14/13 11:22AM By John Dillon
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VPR/John Dillon
Lawyer David Frederick prepares to argue before a three-judge panel of the 2nd Circuit Court of Appeals.

Lawyers for Entergy and the state of Vermont faced off in a federal courtroom in New York on Monday in a case that will determine the state's power to close the Vermont Yankee nuclear plant.

A lower court ruled last year that Vermont illegally tried to regulate nuclear safety when the Legislature passed two laws governing Yankee's continued operation.

Vermont appealed that decision. And the ornate Thurgood Marshall federal courthouse in downtown New York was the scene of the latest legal confrontation.

David Frederick, a private lawyer hired by the state, argued that U.S. District Judge J. Garvan Murtha made several major errors in his ruling last January that invalidated two state laws covering Yankee.

Murtha ruled that Vermont was wrongly trying to regulate nuclear safety, which under federal law and Supreme Court precedent is the sole province of the federal government.

But Frederick said Act 160 - the law that gave the Legislature the ability to vote on Yankee's future operation - was simply a "process" statute that says nothing about nuclear safety.

"All it does is allow the state Legislature to have a role in deciding whether or not a nuclear license should be extended - a relicensing," Fredericks said. "That does not encroach at all on the field protected under the PG&E decision.

Frederick's reference to PG&E was a reminder that federal courts have looked before at this issue of a state's rights to regulate nuclear power.

In 1983 the U.S. Supreme Court ruled in a case involving the electric utility Pacific Gas and Electric. In that case, Frederick said, the high court said judges should not use the legislative record to determine whether lawmakers intended to regulate safety.

But Frederick said Judge Murtha wrongly and selectively picked through the record of the Vermont Legislature to rule that lawmakers in Montpelier had safety as their top priority.

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VPR/John Dillon
Attorney General Bill Sorrell and lawyer David Frederick speak to reporters outside the federal courthouse in New York City on Monday.
The Supreme Court confronted exactly very similar kind of background where there had been arguments and discussions of safety," he said. "But what the Supreme Court held is we're going to look at the face of the statute and we're not going to inquire into the motives of state legislators."

Frederick's reasoning was challenged by Judge Christopher Droney, one member of the three-judge panel.

"I don't read Pacific Gas to say you never look at legislative intent, either for the Congress or a state Legislature," Droney said.

Entergy lawyer Kathleen Sullivan picked up that theme. In response to Frederick's argument that the lower court "cherry-picked" the record to find selective quotes of lawmakers talking about safety, Sullivan said the record reflects an entire cherry orchard of safety concerns. She said it was simply implausible that Vermont was not trying to regulate safety.

"Contrary to Mr. Frederick's representation of what Act 160 is, it's not just a process statute," Sullivan told the judges. "It's a statute that enables the Legislature to shut down Vermont Yankee by declining to approve an ongoing license for operation, even though the NRC granted that license in 2011."

"But does the state of Vermont have an obligation to approve continued operation?" interjected Circuit Court Judge Susan Carney, who challenged Sullivan several times.

Vermont Law School professor Cheryl Hanna, who attended the hearing, said she thought David Frederick delivered the cleaner argument.

"I think the state's chances on appeal were better than they were at the trial court in part because I heard questions from the court that suggested that they were at least willing to entertain that Judge Murtha went too far in looking at the legislative record in deciding whether or not safety was the legislature's primary concern," Hanna said.

Attorney General Bill Sorrell said other states are watching the case closely.

"Because quite apart from the issues of nuclear power, what Judge Murtha did here could have a chilling effect on the traditional freedom of legislative debate," Sorrell said. "I mean, it's the legislative halls where you want discussion and debate."

Sorrell's office has paid about $250,00 to the outside law firm for help in the case. The attorney general says the money is worth it, in part because if the state wins on one part of the appeal it will not have to pay Entergy's legal fees.

There was no word from the court on when it may issue a decision.

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