Second Circuit demands an impossible standard in siding with Entergy Louisiana over the interests of Vermonters
The Second Circuit Court of Appeals dealt a blow to open government and rational decision making today when it issued a decision siding with Entergy Louisiana in its fight to continue operating the troubled Vermont Yankee nuclear plant.
The decision relied heavily on the one-sided record of legislative events that Judge Garvan Murtha incorporated into his initial decision favoring Entergy Louisiana. That record includes statements made by legislators, regulators and witnesses testifying in legislative committees that reference, in one way or another, radiological issues associated with the nuclear plant. Radiological safety matters cannot be regulated by the state, but instead fall under the sole purview of the federal government.
“We knew that this would be a tough case to win on appeal given that the District Court had swallowed hook, line and sinker Entergy’s version of legislative events,” said VPIRG Executive Director, Paul Burns. “But this decision by the Second Circuit amounts to a dollop of whipped cream on the District Court’s cherry picked record of facts.”
“It’s not merely difficult for an entire legislative body to discuss various proposals related to the problem-plagued Vermont Yankee plant without a thought about safety ever escaping the lips of a single legislator, but that is essentially what the Court is demanding,” said Burns. “It’s an impossible standard and it’s completely unnecessary based on existing legal precedents.”
The Second Circuit even parroted Judge Murtha in finding the cautions of some witnesses testifying before legislative committees to be evidence of impermissible consideration of nuclear safety matters.
“If a witness helps legislators to understand what is within and outside the scope of their authority, how can that be impermissible?” asked Burns. “The standard required by the Second Circuit is frankly absurd and this decision will have a further chilling effect on public participation in government and transparent decision-making.”
In considering legislation related to Vermont Yankee, state legislators said they relied specifically on matters over which they have authority, including economic, environmental and aesthetic grounds. The State presented evidence of this at trial and indeed, this is exactly how the legislation itself is written.
But Judge Murtha and now the judges of the Second Circuit felt that they could effectively look into the hearts of these legislators and divine what really caused them to pass the laws in question. And according to the courts, the motivation was radiological safety.
“We’re not suggesting that the Court cannot look into the legislative record when considering matters such as these,” said Burns. “But in this case the Court seems to have strayed beyond trying to determine whether the Legislature’s actions were ‘grounded in [radiological] safety concerns’ and instead slipped into tarot card territory.”
“The only good news is that this decision relies so heavily on the flawed record from the District Court that its application will be fairly limited,” said Burns. “This is not a major win for the proponents of nuclear power generally.”
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