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Does Vt have grounds for appeal in Yankee ruling? - WCAX.COM Local Vermont News, Weather and Sports-

Does Vt have grounds for appeal in Yankee ruling?

January 20, 2012

Judge Garvin Murtha ruled Thursday that Vermont Yankee can remain open beyond its originally scheduled shutdown date this year. So what went wrong for the state and are there grounds for an appeal?

"Vermont Yankee had the law on its side and I think Vermont Yankee had the facts on its side as well," said Cheryl Hanna, a professor at the Vermont Law School.

Hanna has long predicted a win for Entergy, the Louisiana company that owns Vermont Yankee. Simply put, she says Entergy did a better job arguing the facts of the case.

"What we saw in the difference of lawyering was the ability of Vermont Yankee's lawyers to harness both the law and the facts in such a way that it was convincing to the court," Hanna said.

"The attorney general's office was saddled with a very bad legislative record where individual legislators were constantly talking about radiation safety issues," said Pat Parenteau, a professor at the Vermont Law School.

The Nuclear Regulatory Commission, a federal authority, regulates plant safety. The state has no jurisdiction there. Hanna disagrees that the safety concerns of lawmakers cost Vermont the case. She says a lack of specificity and clarity about issues other than safety ultimately doomed the state.

"They could never clearly and concisely articulate the environmental impact would be X, the economic impact would be X," Hanna said.

"Most courts, when they interpret statutes, stick to the text of the statute," Parenteau said.

Parenteau criticized the judge for considering the motives of the lawmakers. He says that gives the attorney general a basis for appeal.

"If he were to take a narrow appeal challenging the way that Judge Murtha applied this precedent from the Supreme Court, I think it argues in favor of taking an appeal." Parenteau said.

Hanna is not nearly as optimistic.

"I think if there was a chance for the state to win anywhere, in front of any court, it was in front of Judge Murtha's court," Hanna said.

Historically, Judge Murtha has come down on the side of the state. But Hanna says Entergy's legal team repeatedly directed the judge back to the legislative record, leaving little choice for a different outcome.

"It's an extremely meticulous decision and so I have a hard time seeing the Second Circuit second guess what the judge did here," Hanna said.

Attorney General Bill Sorrell, D-Vermont, is out of state until Sunday. But his deputy Scott Klein says the state is comfortable with the case it presented and respectfully disagrees with the judge's decision. The AG's office is now weighing the costs of an appeal and reviewing the ruling for appealable issues. But as of right now, no decision has been made. The state has 30 days to file an appeal.

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