Sept. 12, 2011, LIVE POST FROM TRIAL: Day I Recap, Part II:VT to VY: You Lie

The day finished with the State putting on two witnesses, one real, one virtual.  As we posted earlier, its first witness, Bill Steinhurst, ultimately added very little to the case.  He did make the claim that it would possibly make it harder for the state to meet its long term energy goals with Yankee on-line.  But his testimony was largely hypothetical and undeveloped (state missed an opportunity here to really make the case with concrete examples.)  His cross didn’t do much damage, either, also missing an opportunity to show that the closure of the plant wouldn’t necessarily enhance the state’s goals of efficiency and sustainability.  I think that Steinhurst’s testimony left the state about where it started this morning with still needing to prove to the Court a reason other than safety for its regulation,  Professor Parenteau thinks that the state might have gained a bit with this testimony – at least giving the Court some alternative plausible reasons for the regulation.  I am not so sure, but either way, the state isn’t home yet.

The last witness was Mr. Curt Herbert, a lobbyist for Entergy and former FERC commissioner, who worked the statehouse for VY during 2010, handling the tritium fallout.  Curt Herbert wasn’t actually there, so they played his previous deposition.  For the state, his testimony was helpful in confirming that Entergy had made some serious mistakes compounded by lack of transparency.  To that end, he confirmed that Entergy had lost the confidence of many supporters, Governor Douglas among them.  This was the first time all day that the state provided actual concrete proof that the legislature was motivated by concerns over Entergy’s candor, management, competence, and corporate citizenship.  This bolstered the state’s case that not only does it not have to buy VY’s power, but it also doesn’t have to re-license a company that is untrustworthy.  Herbert also confirmed that he asked Speaker Shap Smith not to take a similar vote to that of the Senate’s bill 289 in the House, responding to Judge Murtha’s earlier concerns about why the House never voted,

Tomorrow the state will call its remaining witnesses, including Peter Bradford.

Watching a trial is a lot like watching a play.  Some acts are great (Sullivan’s opening argument), some real sleepers (direct of Steinhurst), but in the end, you are just left with a feeling about what it all meant.  To that end, it struck us both that this case still is largely one of law and not fact, despite all the testimony.  It remains unclear how Judge Murtha is going to make sense of the legislature’s motives.

Sullivan started the day framing the legal questions quite clearly.  Why did the legislature regulate if not for safety?  Were those other reasons plausible, or merely pretext? And even if there are legitimate motives mixed with safety concerns, can the state prevail?  It is that last question that is perhaps the most legally important one.  Sullivan made the argument that if there are mixed motives, then the state bears the burden of showing that it would have passed the same legislation had it not been concerned with the impermissible criteria, in this case, safety.  She analogized to similar problems involving the First Amendment and Equal Protection cases, where the burden shifts to the state to show it still would have done the same thing had it not acted badly.  It is a brilliant argument, and one that is novel.  The cases she cited are not pre-emption cases about states’ rights, but ones that invoke individual rights.  The analogy is compelling but not that is based on precedent in the energy regulation context. Should a court treat legislative actions the same way for pre-emption purposes as for fundamental rights?  Grea question with no clear answer. And it may be the question that ends up being the focal point of the Court’s decision if Judge Murtha splits the difference on the facts, believing some of what Entergy says is true and some of what the state says is true.  Then the case, once again, becomes a question of law – Constitutional Law and the issues of federal and state power.







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