Sept. 16, 2011, Cheryl Hanna: Agreeing with Pat (sort of, but don’t tell him that)

Thanks, Pat, for that post on the meaning of Judge Murtha’s questions.  Professor Cheryl HannaI have to agree with you that the judge’s interest at the end of the trial, particularly about Entergy’s possible waiver and estoppel claims, was both surprising given his seeming lack of interest in those arguments and heartening if you represent the state.  I didn’t find the state’s briefings on these claims particularly strong, but it’s now got a second chance to set forth a much stronger legal framework for the court to follow.

If I were Judge Murtha, getting rid of this case on some waiver or estoppel theory might seem particularly attractive now that the trial is over.  Anyone who has closely watched this case probably has come to a similar conclusion about the facts relative to legislative motive: that safety was arguably the strongest, but not the sole, concern of the Legislature.  Indeed, I thought the state did a good job of proving its argument that Vermont Yankee was not a good corporate citizen. The other concerns such as energy efficiency and economic stability were less persuasive but not complete pretext.  To that end,  Judge Murtha is now left with a set of facts over legislative intent that doesn’t fit so neatly into federal preemption law. Mixed motives.  Yuck. Kicking the case on grounds of fairness would be so much easier for him to do.

But Judge Murtha doesn’t strike me as the kind of judge who would look for the easy way out, and I am not sure that you could find VY is precluded from bringing the suit without also finding that state itself didn’t err in changing the process by which the Public Service Board issued the certificate of public good.  Judge Murtha didn’t seem comfortable with the process in his preliminary injunction ruling, and it is the process issue that may be most troubling to him going forward.

So what I am wondering, as is Pat, is whether the judge is trying to figure out a way to send this case back to the PSB in line with the original memorandum of understanding. The benefit of that, at least for the court, would be that the PSB would then apply the criteria in Act 248.  This would then give the court a far cleaner record on which to decide whether Vermont was regulating for permissible or impermissible reasons and would at least appear to immunize the decision-making from politics.

Entergy has argued that the PSB is tainted, but I am not sure that it convinced the court of that, which may be why the judge wants Entergy to be much clearer about what it seeks for a remedy.

Pat has noted previously that the relief Entergy is requesting is extraordinary.  I agree: It is essentially saying that federal law requires Vermont to host a nuclear power plant it doesn’t want. States rights advocates shutter at this outcome. But Vermont is also asking the court not to interfere with the extraordinary and unprecedented act of shutting down a nuclear power plant that has been approved by the NRC to continue operating.  Either outcome is extraordinary.  So perhaps the judge will want to send this back to the state under a more formal adjudicative process if for no other reason to ensure that the factual record is cleaner than it is now, thereby making it easier to rule on the preemption issue, which I still maintain ultimately can’t be avoided.  We are a long way from done, regardless of what Judge Murtha rules.

And I agree with Pat that the outcome is still in doubt and that our musings are really not much different from reading tea leaves.  Take them for what they are worth!

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