Federal Court Appeals Decision

April 2012 Defend Democracy Rally

April 2012 Defend Democracy Rally

“The nuclear power industry has just been delivered a tremendous victory against the attempt by any state to shut down federally regulated nuclear power plants,” said Kathleen Sullivan, a lawyer for Entergy, which owns Vermont Yankee.”

“Three judges in the U.S. Court of Appeals decided Wednesday that the Vermont Legislature is federally preempted from shutting down the Vermont Yankee nuclear plant.” – VtDigger.org

You can read the 54 page decision here:


It was announced around noon today (08-14-13). Not much analysis has come in as of yet but the gist appears to be:

(1) Act 74 and Act 160 are preempted; the legislature does not have a role in the licensing process because their overriding concern was safety.

(2) VT Public Service Board okay to proceed with their role in permit process (on non-radiological health and safety issues);

(3) VT does not need to pay Entergy for its legal fees related to the federal case.

Early press:



Selected Thursday press:

NY Times by Matt Wald

Noon Edition on VPR (talk show) with AG Bill Sorrell, VT Rep. Hebert (R-Vernon), and Chris Recchia, VT Dept of Public Service

The Commons by Andrew Stein

AP by David Gram

Copied in full below:

(1) Rutland Herald/Times Argus editorial 08/20/13 “Judicial Overreach”

(2) Greenfield Recorder 08/16/13 “Vt. Yankee opponents rail against court  By Richie Davis”

(1) Judicial Overreach, Rutland Herald/Times Argus 08-20-13 Editorial

 The appeals court ruling siding with Vermont Yankee and against the state of Vermont has alarmed people beyond those who hoped the Vermont Legislature might use its authority to shut down the nuclear power plant.

That’s because the 2nd U.S. Circuit Court of Appeals upheld findings by U.S. District Judge J. Garvan Murtha about the intentions of the Legislature in granting itself veto power over the future operations of Vermont Yankee.

The historic record about legislative intent is sometimes useful when courts need to clarify the language of a law that is murky or ambiguous. But Murtha and the appeals court did something different: They delved into the murky and ambiguous realm of legislative debate to reverse laws that seemed clear.

There is little debate about the division of labor between state and federal government when it comes to nuclear power. The federal Nuclear Regulatory Commission has authority to regulate nuclear power plants on issues related to radiological safety. The technical expertise for overseeing nuclear technology is beyond the capacity of most states, and so it makes sense to give that responsibility to the federal government.

But in those areas where a nuclear plant is like other power plants — on environmental and economic issues, for example — states retain oversight authority. This division of labor has been upheld in a U.S. Supreme Court case from California that Vermont Attorney General William Sorrell had relied on in his appeal.

Vermont legislators were aware of the distinction when they passed laws giving the Legislature authority to rule on whether Vermont Yankee would be allowed to seek approval from the Public Service Board. Legislators were told they needed to make sure that nuclear safety concerns were not their motivation. One legislator, Sen. Ann Cummings, is even on record as saying, “OK, let’s find another word for ‘safety.’”

So were legislators secretly acting to address issues of nuclear safety while pretending to act on non-nuclear issues? That is what Murtha and the appeals court decided.

Maybe some legislators were. But how many have to have impure motives to make the Legislature’s action contrary to federal law? Maybe Cummings changed her mind and decided that, in fact, she was supporting the law on environmental grounds.

In an analogous situation, it could happen that a liberal judge might question a bill passed in Texas limiting access to the polls for some Texans. The judge might look at the offhand remarks of a few racist legislators and decide that the bill was racist. But the judge would be making assumptions.

The judge would be on firmer ground if he or she looked at the outcome or effect of the law, rather than the intent. Did it have the effect or likelihood of infringing on voting rights in fact? Looking at the actual effect of laws is a more reliable basis for deciding than guessing about the frame of mind of legislators.

In the case of the Vermont Legislature, the Vermont Senate went on to vote against a certificate of public good for Vermont Yankee. Senators had many concerns about Yankee, including the truthfulness of Yankee executives and their dependability in paying for decommissioning of the plant. If they secretly nursed a suspicion that nuclear power was not safe, does that negate their other concerns? The appeals court said it does.

Following the Yankee decision, legislators around the nation have reason to worry about judicial overreach into the realm of lawmaking. It is an arrogant usurpation of power for the judiciary to assume for itself the power to read the minds of legislators.

Sorrell will have to decide whether to appeal the Yankee case to the full appeals court or the U.S. Supreme Court. Appealing to the full appeals court would be pointless because if he were to win Yankee would certainly appeal to the Supreme Court. And at the Supreme Court, an activist conservative majority has shown it is willing to twist the law to its will to serve business interests. It’s hard to envision the Roberts court siding with the liberal Vermont Legislature to challenge the power of business to do as it likes.

 (2) Vt. Yankee opponents rail against court  Greenfield Recorder 08/16/13 By Richie Davis

Area anti-nuclear activists, who have been hoping to see the Vermont Yankee nuclear reactor shut down for years, say they’re disappointed in a U.S. Appeals Court ruling Wednesday against Vermont’s attempt to shut the plant through legislative action.

Their comments came after the affirmation of a lower court-ruling against the state, whose legislators passed laws making it harder for Vermont Yankee to operate for another 20 years. The three-judge panel’s ruling said legislators were concerned about the plant’s safety but tried to hide that because they were aware that nuclear safety is the sole province of the U.S. government under federal law.

“I’m not surprised, but I am disappointed,” said Randy Kehler of Colrain, a member of the Safe and Green Campaign to shut down the Vernon reactor. “It was yet another example of putting a higher priority on alleged corporate rights than the rights of states. We cannot count on any help from the federal judiciary to uphold the right of a state to determine its own energy future.”

Kehler said that regardless of the three-member panel’s ruling, he believes the plant is operating illegally, in violation of a Vermont state law, and that plant opponents need to “find ways for people to more loudly” protest the continued operation of the plant.

The judges’ consideration of some legislators’ comments about their concerns over nuclear safety “has a chilling effect” on open discussion by state legislatures everywhere, and was insulting to legislators for essentially calling them liars, added Kehler, a point echoed by Raymond Shadis, a consultant for Brattleboro, Vt.-based New England Coalition.

 “The elephant in the room, which has not been addressed by the litigants, by district court or the appeals court, is the question of free speech rights,” said Shadis. “Legislators should not have to be guarded about any casual remark they make when they’re in committee meetings, which in Vermont are informal to say the least. They’re talking about stuff, and it’s part of the political stew. Incoming legislators should not have to be read their Miranda rights.”

Yet Deb Katz of Rowe, president of Citizens Awareness Network, said, “We’re disappointed, but we also feel that states’ rights were upheld,” because the decision pointed to Vermont state Public Service Board’s right to consider whether to issue a Certificate of Public Good based on economic, environmental and aesthetic criteria.

“We believe that the PSB is going to rule against Entergy,” Katz said, particularly because of recent concerns that have been raised about Entergy’s financial problems. The company recently announced it would lay off 30 of its workers, and the Nuclear Regulatory Commission has agreed to launch a financial evaluation of Vermont Yankee and two other Entergy nuclear plants.

“They’re laying off 30 workers, but they can afford lawsuits,” said Katz. “What’s the priority, safety or their bottom line?”

Hattie Nestel of Athol, who as recently as Aug. 6 has been arrested more than 30 times for protests at the plant, along with other members of a Shut it Down affinity group, sees the appeals court’s decision as another example of why it can’t be left to the state or federal government, including the courts, to force the closure of a 41-year-old nuclear reactor that she and other critics believe is unsafe.

“We can’t depend on the state, and we certainly can’t depend on the federal government,” she said. “History shows that when people get on the street, when they care enough, when they’re passionate, when they’re determined and are willing to sacrifice their time, energy and their lives, things change.”

Especially after the nuclear meltdown accident at Fukushima, Japan, she said, “I feel a great sense of urgency.”

You can reach Richie Davis at
or 413-772-0261, Ext. 269

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