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Legislatures group rips judge in Vt. nuke case

By Dave Gram
Associated Press / June 11, 2012
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MONTPELIER, Vt.—A group that advocates for state legislatures filed court papers Monday saying a federal judge erred when he relied on excerpts from Vermont's legislative record for a ruling that sharply limited the state's authority over the Vermont Yankee nuclear plant.

The National Conference of State Legislatures was among several parties filing friend-of-the-court, or amicus, briefs supporting the state's appeal of a January ruling by Judge J. Garvan Murtha of the U.S. District Court in Brattleboro.

Murtha ruled lawmakers were improperly motivated by nuclear safety, which federal law makes the sole jurisdiction of the federal Nuclear Regulatory Commission, when they passed laws saying they had to give the OK for Vermont Yankee to operate past the end of its initial 40-year license period, which was March 21. The plant continues to operate while the case is on appeal.

The case has been closely followed around the country, both by supporters and foes of nuclear power following the fate of Vermont's lone reactor, and 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.

New York state's attorney general also filed a brief saying it and eight other states that signed onto the same brief supported Vermont's bid to have a say over the future of its nuclear plant. New York argued that state's authority over nuclear plants may not include radiation safety, but does include several other topics, including keeping costs down for consumers and protecting the environment, and that the judge gave individuals lawmakers' remarks about safety too much weight.

"When a statute has a legitimate, non-safety rationale, courts should not look to individual legislators' remarks for evidence of some other, improper `true motive'," said the brief from New York Attorney General Eric Schneiderman's office.

The other states signing on included Connecticut, Iowa, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire and Utah. Massachusetts and New Hampshire contain communities within the 10-mile evacuation zone of Vermont Yankee, which is located in Vernon, in Vermont's southeast corner.

Vermont Yankee's owner, New Orleans-based Entergy Corp., also owns the twin Indian Point reactors in Buchanan, N.Y. It has applied for the same sort of 20-year license extension for them that the NRC granted Vermont Yankee last year. Gov. Andrew Cuomo opposes relicensing the Indian Point reactors, saying that, at just 35 miles from Manhattan, they are in too densely populated an area.

Schneiderman has been active on nuclear issues, winning a ruling just 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 country.

Steven Huefner, a professor at Ohio State University's Moritz College of Law and a lawyer for the legislatures' group, echoed a key part of Vermont's arguments when the state attorney general's office filed its appeal brief a week earlier: the judge cherry-picked snippets from legislative committee testimony and deliberations that touched on nuclear safety, rather than merely reviewing the laws that resulted from the legislative process.

"Legislative record excerpts are neither an appropriate means of controlling legislative authority nor a reliable indicator of legislative motivation," Huefner wrote. "Rather, the relevant motivation is always best expressed in the statutory language itself, the only language to which both houses of the Vermont Legislature and the Governor have committed themselves."

He said Vermont had other reasons aside from nuclear safety for wanting a say over the nuclear plant's future. He cited passages from the legislation in question calling for Vermont to have a "choice of power sources from various alternatives" and a "diverse, reliable, economically sound and environmentally sustainable" power supply.

Huefner also criticized Judge Murtha's ruling as it related to the Commerce Clause of the U.S. Constitution. Murtha ruled Vermont had given improper consideration to whether a relicensed Vermont Yankee might provide cheap power for the state's utility customers.

The Commerce Clause "does not preclude Vermont from seeking to obtain favorable electricity rates for its residents. Indeed, regulating intrastate utility rates is a traditional state function," Huefner wrote.

Entergy spokesman Mike Burns did not immediately respond to phone messages.

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