The Current State of Affairs

For a fleeting moment, the end was in clear sight…

On the afternoon of July 12, Dr. Ross Jones, the last of CRWC’s expert witnesses, took the stand in the Newfane courtroom to offer his testimony relating to Entergy Vermont Yankee’s request for an additional one degree fahrenheit increase to its existing summer discharge limits.  Dr. Jones’s primary concern, that Entergy had not conducted sufficient studies to show that its thermal discharage was not at least a contributing factor to the significant decline in American shad in the Connecticut River, was significantly bolstered when the Judge Wright made a ruling under Vermont Rule of Evidence 703 which allowed Dr. Jones to rely on the contents of a letter from the U.S. Department of the Interior in forming his opinion for the Court. The letter, received by CRWC on July 2, and authored by fish biologists at the Silvio O. Conte Anadromous Fish Laboratory in Turner’s Falls, MA, substantially corroborated CRWC’s contention that the passage facilities at Turner’s Falls Dam could not be the only cause of dramatic decline in shad in the Vernon reach of the River.  In particular, the letter also highlighted the importance of studying the extent of the downstream effect of Vermont Yankee’s thermal influence and outlined several studies, not previously conducted by Entergy, that would assess the extent of the effect of temperature increase on the upstream and downstream migration of shad.

Upon completion of Dr. Jones’s live direct testimony, and after a surprisingly brief cross-examination by Entergy, the live testimony portion of trial concluded. Taking what seemed only to be a brief moment to reflect on all that had happened during the nine days in Newfane, the team’s focus then quickly shifted to wrapping things up. First came revisions to pre-filed testimony, then drafting of rebuttal testimony by our expert witnesses, and finally making motions to strike portions of any testimony offered (pre-filed, live, or rebuttal).  Everything appeared to be on schedule for brief submission by August 9th; well, that was until Entergy filed 196 individual objections to CRWC testimony and requested five additional court days to cross CRWC experts and offer additional live testimony from Entergy experts. 

In response to Entergy’s motions and request, Judge Wright held a hearing at the Environmental Court in Berlin yesterday (July 26), a day originally set for any cross-examination on rebuttal. Each of the parties offered oral argument relating to the motions to strike and also settled on a revised court and briefing schedule that tentatively calls for complete submission of briefs and responses by September 10. It is safe to say that this date is by no means set in stone.

More to come on Judge Wright’s upcoming rulings on the motions to strike and any new developments that arise in the weeks to come…

The Most Contested Issue

The Vermont Legislature has endowed Vermont’s Environmental Court with an unusual power. By law, the court must invoke a de novo standard of review when it hears an appeal of a state administrative agency decision. In other words, when an environmental court judge presides over an agency appeal, she need not and must not give any weight to the agency’s deliberative process, expertise, or final decision. This contrasts starkly with the federal system, where courts invoke a much narrower review of challenged agency decisions and will generally only reverse an agency decision that is “arbitrary and capricious,” “an abuse of discretion,” or “not in accordance with law.”

As unorthodox as the Vermont statute might be, most would still agree that the language is plain – 10 V.S.A. 8504(h) says that the environmental court should apply “the substantive standards that were applicable before the tribunal appealed from, [and] shall hold a de novo hearing on those issues which have been appealed…” Environmental Court Judge Wright has grounded her decision to hear the appeal de novo in this “clear and unambiguous” language repeatedly.

Next issue, please. You lose this one, Entergy.  Can we talk about the Clean Water Act, now? How about the BIP, the RIS, Atlantic Salmon, and American Shad? How about 40 C.F.R. 125.73? The Vermont Water Quality Standards? You know, all the stuff this case is really about?

NO! Instead, the environmental court’s de novo standard has been the most contested issue in this case. Even though it would amount to a clear violation of the court’s statutory obligations, Entergy argues that Judge Wright should provide deference to ANR’s decision to allow the Vermont Yankee plant to increase the temperature of the Connecticut River by one-degree F with summer thermal discharges. By my count, Entergy has raised and re-raised this issue three or four separate times. They even took an interlocutory appeal to the Supreme Court of Vermont last month, in a last ditch effort to overturn the environmental court’s four decisions on the question. We’re still awaiting the fifth denial.

Make no mistake, the standard of review for the proceeding is an important consideration for all the parties. But after repeated adverse rulings, Entergy still won’t let it go. That’s very telling to me.

Do it for the Shad!

-WCB

Better Late Than Never

It might seem counterintuitive to begin posting updates on a trial once the thing is practically over. But such is the reality of working in a small, public interest law firm that challenges Goliath-esque opponents in court. Resources and workers are limited. Time rushes by. Workdays get longer, sleep gets shorter. You prioritize the urgent-needed-it-yesterday tasks, and put off the slightly-less-urgent-need-it-tonight ones. This has been the lifestyle for several of us in the Environmental and Natural Resources Law Clinic (ENRLC) for the last month or so.

Yesterday, July 12, 2007, marked the end of the presentation of evidence in the case of In re Entergy Nuclear Vermont Yankee. Although the matter has not been completely submitted for the Judge’s consideration and much remains to be done, most of us feel that the minute-by-minute pressure has broken. So over the coming days and weeks, the Student Clinicians assigned to the case – James Garrett, Nate Jenkins, and Conor Brockett – will spend some time recapping the trial, discussing some of the procedural and substantive issues, and sharing favorite moments from the case and the Vermont Environmental Court. Better late than never, right? And who knows -perhaps we’ll even get a post or two out of Pat Parenteau (the lead attorney on the case and ENRLC Director), David Mears (ENRLC Assistant Director), and Justin Kolber (the Clinic Fellow). So stay tuned for more from the ENRLC’s “Summer ’07 Vermont Yankee team.”

Do it for the Shad!

-WCB

Case Overview

Vermont Law School’s Environmental and Natural Resources Law Clinic (ENRLC) is representing the Connecticut River Watershed Council (CRWC), Trout Unlimited (Deerfield/Millers 349 Chapter), and the Citzens Awareness Network (Massachusetts Chapter) in an appeal of a discharge permit granted by the Vermont Agency of Natural Resources (ANR) in March, 2006 to Entergy Nuclear Vermont Yankee, LLC (Entergy). The permit amendment allows Entergy to increase the temperature of the Connecticut River in the summer by an additional 1?F. This is the third in a series of permit amendments beginning in 1978 that ANR has granted allowing Vermont Yankee to bypass its cooling towers and discharge super-heated water to the river. Appellants are concerned about the impact of this cumulative warming on the Atlantic salmon and American shad, two species of anadromous fish that are the subject of a major federal-state restoration effort in the Connecticut River Basin. Of particular concern is the dramatic decline in the number of shad  returning to the river above Vernon, VT, where the powerplant is located, that has occurred since Vermont Yankee received its last thermal variance in 1991. In that year, over 37,000 shad ascended the fish ladder at Vernon Dam; this year less than 100 fish made it above Vernon. There are a number of potential causes for this decline, including dam passage and predation by striped bass, but several resource agencies including the Connecticut River Atlantic Salmon Commission and the U.S Department of the Interior, are concerned that the Vermont Yankee discharge may be a contributing cause.

The case is being heard by Vermont Environmental Court Judge Merideth Wright in the Windham County Courthouse in Newfane VT. Trial started June 26 and is scheduled to last until July 27. Over a dozen expert witnesses will be called. The case poses a classic ecological detective story, and it will be interesting to see how it unfolds in the courtroom.

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