• Court grants state’s request for expedited hearing
     | October 05,2012

    A 2nd Circuit Court of Appeals judge has granted Vermont’s request for expedited oral arguments on the state’s appeal of the Vermont Yankee lawsuit.

    The state had requested the expedited hearing on the high-stakes appeal, saying that two Vermont statutes and the “potential future actions of the Vermont Public Service Board” were involved. Earlier this year, U.S. District Judge J. Garvan Murtha struck down two Vermont laws that dealt with the future operation of the Vermont Yankee nuclear plant, saying Vermont legislators overstepped their role in regulating Yankee.

    While Murtha upheld the role of the PSB in granting Entergy a certificate of public good, it was more defined.

    Circuit Judge Robert Katzmann, in a single-page decision issued Wednesday, said Vermont’s motion was granted. Entergy had opposed the expedited hearing.

    While no date was set for the oral arguments, it could occur as soon as Nov. 26, according to the request filed by David C. Frederick, the Washington, D.C., attorney hired by the state to assist the Vermont attorney general’s office in the case.

    Katzmann provided no explanation behind his decision, but simply granted the state’s motion.

    And the state’s motion noted that Yankee’s continued operation “creates potential uncertainty with pending administrative proceedings before the Board regarding Vermont Yankee.”

    The state’s motion also mentioned the continued storage of high-level radioactive waste at the plant.

    While the Nuclear Regulatory Commission has granted Entergy permission to operate the plant for another 20 years, the Vermont Public Service Board has not, and its pending case won’t be resolved until mid-2013.

    In seeking the expedited timetable, the state agreed to have all legal briefs filed by Nov. 2.

    Entergy had opposed the motion, claiming that the state’s energy policy “provides no basis for expediting” the oral argument.

    In contrast, Entergy’s lawyers said, the state’s legal team had taken all available time to file the appeal and associated paperwork.

    “At no point did the state seek a stay pending appeal or otherwise contend that it was suffering any injury that warranted expedited consideration,” wrote Kathleen Sullivan, Entergy’s lead attorney on the case.

    “Now, having taken all the time it needed, the state requests that this court deviate from its normal practices regarding the calendaring of oral argument,” Sullivan wrote. “These circumstances have existed for months.”

    But in the state’s answer to Entergy, Frederick argued that “a favorable decision for the state on appeal cannot undo the harm caused by the plant’s continued operation in the interim, and its continued build-up of additional spent nuclear fuel during this time.”

    “The pending proceeding at the Vermont Public Service Board provides an additional basis for expediting the scheduling of this appeal,” Frederick wrote.

    Plus, he said, the state took all the time it was allowed to prepare its brief, and now was ready to argue the case. “There has been no ‘dilatory’ conduct, as Entergy wrongly suggests, and no delay,” Frederick wrote.

    susan.smallheer @rutlandherald.com

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