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