Monday, December 23, 2013

The Second Lingering Lawsuit: The Attorney Fees

Attorney's Fees: The Second Lingering Lawsuit

What it is: Will the state of Vermont have to pay Entergy's legal fees in the major recent lawsuit?

History:  The state of Vermont passed laws by which the state legislature could shut down Vermont Yankee.  Then the legislature spent a lot of time and energy discussing nuclear safety, which is an area that is regulated only at the federal level. A federal judge reviewed the record, and decided in Vermont Yankee's favor: the state was indeed, attempting to pre-empt a federal prerogative.  The judge also ruled that the state of Vermont also had to pay Entergy's legal fees.  

The state appealed this ruling, and the appeals court also ruled in Vermont Yankee's favor, on the same basis of pre-emption.  However, the appeals court ruled that Vermont did not have to pay Vermont Yankee's legal fees.  So the ruling on nuclear safety was the same in both courts, but the ruling on legal fees was different.  The legal fees at issue are over $4 million dollars.

What happened recently:  Entergy filed a brief claiming that it had other bases on which to claim the legal fees: you can see the brief here at Entergy Fees Memo, filed October 31. The state filed a brief the same day claiming that Entergy should not be allowed to appeal to other reasons to claim the legal fees: you can see that brief at State Fees Memo

What is next:  It's not really clear.

About the legal fees:  the state and Entergy are keeping their options open, I believe.  However, they haven't actually started an appeal process. An appeal would be a filing to the United States Supreme Court, and I see no such filing.

Pre-emption is a separate issue, and it was the main issue of state versus federal jurisdiction on nuclear safety. At this point, two courts have ruled against the state on this major issue. The state can appeal those rulings to the Supreme Court.  However, with such a consensus from the lower courts, and the plant shutting down, such a state appeal seems a fantastic waste of taxpayer money. (I am not claiming the state won't press this appeal, you understand.  I just think it isn't very likely.)

Notes: Yesterday I blogged about another lingering lawsuit: the generation tax.  I plan a sporadic series of such blogs to keep up with the legal issues. 

1 comment:

Mitch said...

Since Vermont chose to cut its own clean energy throat I can't see why it shouldn't pay for the knife.