Entergy case Judge has questions for lawyers
By Susan Smallheer
Staff Writer | September 16,2011
BRATTLEBORO — U.S. District Judge J. Garvan Murtha had several questions for lawyers in the Vermont Yankee lawsuit late Wednesday afternoon, after the attorneys completed their lengthy arguments in the lawsuit dubbed “VY vs. VT”
Murtha asked the lawyers about the legal issues of “waiver,” “estoppel” and “laches.”
And the judge also asked the attorneys about Act 248, the state’s long-standing law that regulates utilities.
He gave the attorneys until Sept. 26 to file post-trial briefs on those issues.
Murtha also asked Entergy lawyer Kathleen Sullivan to clarify what exact relief Entergy was seeking from the court.
Vermont Law School professor Patrick Parenteau, who attended the first day of the three-day trial, said Thursday it was hard to read which way Murtha was leaning.
“If he had made up his mind, he wouldn’t be asking for more paper,” said Parenteau, who did not attend closing arguments but has been closely following the case.
He said that Murtha’s questions about the legal issues of waiver, estoppel and laches were all interrelated, and could indicate that the issues of federal preemption weren’t foremost in Murtha’s mind.
The issue of estoppel might mean that Murtha is questioning whether Entergy should have raised its challenges to state authority much earlier, Parenteau said.
Laches is an ancient common law doctrine, Parenteau said, of “people who sleep on their rights.”
“If you have been harmed, you have to act on that, you have to sue and if you don’t, the other side relies on your failure to act,” Parenteau said.
Waiver deals with Entergy’s 2002 agreement with the state when it purchased Vermont Yankee not to challenge the state’s regulatory role in Yankee’s future.
Entergy only filed suit against the state in April, years after complying to state law, and submitting to the Legislature’s oversight, he said.
On Wednesday, Sullivan told Murtha that the proof of the Legislature’s motivation was revealed in remarks made by individual legislators, who said they were concerned about safety at Vermont Yankee.
Safety at nuclear power plants is the sole responsibility of federal regulators.
It was only after legislators were warned off the word “safety,” by state energy regulators, Sullivan argued, that the concerns about “reliability” appeared.
“The remedy is not to shut the plant down, it is to buy your power elsewhere,” Sullivan said in her closing arguments, pointing to Vermont Yankee’s status as a wholesale power producer.
Vermont Assistant Attorney General Bridget Asay said that it was the end result, the actual words of the laws now being challenged that mattered, not questions raised by individual legislators during the course of writing the legislation.
Asay, who presented the closing arguments for the state, told Murtha that Entergy was misinterpreting key provisions of a landmark state’s rights case on the issue of nuclear power, Pacific Gas & Electric.
Entergy contends that Vermont overstepped its bounds into the rights and responsibilities of the Nuclear Regulatory Commission and the Federal Energy Regulatory Commission, since Vermont Yankee is considered a merchant, or wholesale, plant and does not have any retail customers.
Entergy wants three key laws — Act 74, which deals with dry cask storage of high-level radioactive waste; Act 160, which gave the Legislature a role in any Vermont relicensing; and Act 189, a “vertical audit” of Vermont Yankee — to be tossed out.
And, Sullivan said, if Entergy should win and the case should go back to the state Public Service Board for its certificate of public good, the board has to “start from scratch” and ignore the recommendations from Act 189.
Parenteau’s fellow VLS professor, Cheryl Hanna, said Thursday that Murtha’s questions posed to the lawyers, indicated concerns about the 2002 memorandum of understanding signed by Entergy when it bought Yankee and agreed not to challenge the state PSB’s right on to weigh in on re-licensing.
Hanna said she was suprised that that issue wasn’t resolved before the trial.
Hanna said whatever Murtha’s ultimate decision, she said she thought it was likely that Yermont Yankee would continue to operate beyond March 21, 2012, when state approval expires.
If Entergy loses the first found before Murtha, she said, the company will seek immediate court action pending the appeal.
She said she expected Murtha in some way would “split the difference” and send the case back to the Public Service Board, which she said, would be more consistent with the original MOU.
Hanna had high praise for Entergy’s lawyer. “She is a brilliant lawyer, and she knows how to frame these issues,” said Hanna, a constitutional law scholar.
Parenteau said Sullivan’s opening argument was “the finest piece of oral argument” he had heard in a Vermont court.
“It was seamless. It was beautifully conceived and delivered,” Parenteau said. “It was very clever. She hit all the right points.”
But, said Parenteau, much of the law she cited “has nothing to do with pre-emption and energy issues.”
Parenteau said he couldn’t imagine Murtha writing a decision that concluded the Vermont Legislature “acted in bad faith.”
“I can’t see him writing that order. I think that argument falls flat. There are too many interpretations. I think the odds are against Entergy,” he said.