BRATTLEBORO — Entergy Nuclear wants another $790,000 in attorney’s fees on top of its earlier claim of $4.6 million from the state of Vermont over the energy’s company fight with the state over the future operation of the Vermont Yankee nuclear plant.
In filings last Thursday, attorneys for Entergy claimed that because it had largely prevailed in the U.S. 2nd Circuit Court of Appeals in August over its challenge regarding Act 160 and 74, it was entitled to its legal fees.
The trigger for the fee recovery, Entergy said, is its claim that the state had demanded a favorable power contract for the state’s utilities as a condition of getting a state permit to continue operating, a so-called dormant commerce clause violation.
But the Vermont attorney general’s office, in its response to the Entergy filing, pointed out that the 2nd Circuit decision had found that the so-called dormant commerce clause challenge was not “ripe” for challenge, and reversed a January 2012 decision by U.S. District Judge J. Garvan Murtha.
The commerce clause comes into effect on issues of interstate commerce.
Vermont Attorney General William Sorrell said Monday that his office had also asked for a 60-day extension, which was granted, on whether to petition the U.S. Supreme Court for permission to file an appeal on the 2nd Circuit decision.
Sorrell said that the state now had until Jan. 11, 2014, to file such a petition. “We just wanted some more time. There are a lot of balls in the air regarding Entergy right now,” he said.
He said issues that are currently pending include the Public Service Board’s decision on whether to grant Entergy a license to operate Yankee through 2014, the decommissioning timetable, both of which are being discussed in private talks with Entergy officials and the Shumlin administration.
“We just thought another 60 days would make sense,” Sorrell said.
Entergy lost in the 2nd Circuit decision on the commerce clause, he said, which in essence blocked its claim for legal fees based on the claim regarding favorable power contracts. Now Entergy is filing for another reason, he said.
“They lost and now they have filed for a totally different reason,” said Sorrell. “They are being ambitiously creative ... We are happy to fight that fight.”
Entergy officials declined to comment on the latest filings in the federal lawsuit, with spokesman James Sinclair saying the company would have no comment beyond what it wrote in its filing.
The Vermont attorney general’s office filing also noted that the total of $5.4 million Entergy is seeking from the state of Vermont would place an undue burden on Vermont.“There is no doubt that such a substantial fee, if awarded, would ‘impose enormous fiscal burdens’ on a small state like Vermont and ‘interfere with the budgeting process.’”
The attorney general’s response said Entergy’s motion “should be denied as a matter of law.”
But if the court rules against the state, the state requested at least 90 days to conduct legal investigation into Entergy’s claim of hours and rates.
Sorrell said his office had not made a decision on whether to petition the U.S. Supreme Court to review the decision, which found that the Vermont Legislature overstepped its bounds in trying to control Vermont Yankee’s operation.
Calling the 2nd Circuit decision “not very respectful” of the Vermont Legislature, Sorrell said that Entergy had focused on the comments of a few legislators regarding safety issues at Vermont Yankee, and attributed their comments to the entire Legislature.
Such a decision could have a chilling effect, he said, on legislative debate and also strikes at the separation between legislative and judicial branches.
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