Full opinion text
DECISION AND ORDER ON THE MERITS OF PLAINTIFFS’ COMPLAINT (Doc. 1) J. GARVAN MURTHA, District Judge. Plaintiffs Entergy Nuclear Vermont Yankee, LLC (ENVY) and Entergy Nuclear Operations, Inc. (ENOI) (collectively “Entergy”) own and operate the Vermont Yankee Nuclear Power Station (Vermont Yankee), a merchant plant in Vernon, Vermont that sells electrical power wholesale on the interstate market. Plaintiffs’ Complaint against Vermont’s governor, its attorney general, and members of the Vermont Public Service Board, asserts three claims. Count One seeks a permanent injunction and declaration that three Vermont enactments governing Vermont Yankee, title 10, section 6522 of the Vermont Statutes (added by Act 74), Act 160, and Act 189, are grounded in nuclear safety concerns and therefore invalid under the Supremacy Clause of the United States Constitution because they are preempted by the Atomic Energy Act. See U.S. Const, art. VI; Atomic Energy Act, 42 U.S.C. § 2011 et seq. According to Act 160’s provisions, when a nuclear plant petitions for continued operation, if the Vermont legislature declines to act, or is unable to pass, for any reason, affirmative legislation approving a certificate of public good (CPG) for continued operation, the plant’s petition will remain pending and its current certificate will expire. Here, Vermont Yankee’s current certificate expires March 21, 2012. By operation of a legislative pocket veto of legislation proposed in 2010, and if the legislature fails to take any further action before March 21, 2012, Vermont Yankee may be required to shut down after that date. Act 74 permitted Vermont Yankee to seek approval to construct spent nuclear fuel storage facilities from the Public Service Board (PSB or “the Board”) and created a Clean Energy Development Fund, funded by Entergy. Plaintiffs challenge only section 6522, which contains a provision requiring affirmative legislation to permit storage of spent fuel derived from operations after March 21, 2012. Act 189 called for a “Comprehensive Vertical Audit and Reliability Assessment” of the systems at Vermont Yankee, which resulted in an audit performed by Nuclear Safety Associates, independent consultants. Count Two seeks a permanent injunction and declaration stating the Federal Power Act, 16 U.S.C. § 791a et seq., preempts Vermont state actors from conditioning Vermont Yankee’s continued operation on the existence of a below-market power purchase agreement (PPA) between Vermont Yankee and Vermont’s retail utilities, on grounds the Federal Energy Regulatory Commission is vested with exclusive jurisdiction to regulate the transmission and sale of wholesale power sold in the interstate market, and neither Vermont’s Public Service Board, nor any other state actor, can dictate the wholesale rates, terms, or conditions of any sales between Vermont Yankee and a third party- Count Three seeks a permanent injunction and declaration that Vermont may not under color of state law condition continued operation upon the existence of a satisfactory below-market power purchase agreement with Vermont retail electric utilities, because to do so is coercive and places substantial burdens on interstate commerce, in violation of the Commerce Clause, U.S. Const, art. I, § 8, cl. 3, and 42 U.S.C. § 1983. This Court held a three-day bench trial on the merits of Plaintiffs’ Complaint from September 12 to 14, 2011. It has considered pre- and post-trial briefs filed by the parties, the evidence admitted at trial, and evidence from the preliminary injunction hearing of June 23 and 24, 2011, moved into the trial record. It has also reviewed and considered pre- and post-trial memoranda by amici curiae the Massachusetts Attorney General, New England Coalition, Inc., Vermont Natural Resources Council, and the Conservation Law Foundation together with the Vermont Public Interest Research Group, all in support of Defendants. This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices. The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here. For the reasons that follow, Act 160 and a single provision in Act 74 — requiring affirmative legislative approval for storage of spent nuclear fuel after March 21, 2012— are held to be preempted by the Atomic Energy Act. See infra Sections III.A-B. The challenge to Act 189 is moot. See infra Section III.C. Furthermore, Plaintiffs are entitled to injunctive relief on their Commerce Clause claim. See infra Section IV.B and Section VI (Conclusion). I. BACKGROUND The Vermont Yankee Nuclear Power Station, a boiling water reactor, began operating in 1972 under a federal forty-year Facility Operating License issued by the Atomic Energy Commission, the federal agency preceding the Nuclear Regulatory Commission (NRC). That current license extends to March 21, 2012, and the NRC in March 2011 renewed it through March 21, 2032. At its inception, Vermont Yankee was owned by Vermont Yankee Nuclear Power Corporation (VYNPC), a joint venture of eight New England retail utilities, including two Vermont utilities that held a combined stake of 55 percent. Since 1972, Vermont Yankee has produced approximately one-third of the electricity consumed by Vermont. This consumption today represents approximately 55 percent of the station’s output, with the remaining 45 percent purchased by utilities in neighboring states. In 1999, VYNPC contemplated selling Vermont Yankee. In February 2001, the Public Service Board rejected an attempted sale to AmerGen Energy Co., LLC. In the summer of 2001, VYNPC invited further bids at auction. Entergy successfully bid to acquire the plant and participated in ten-month-long proceedings before the Board, requesting a Certificate of Public Good to own and operate the plant. During the time preceding the contemplated sale, VYNPC held a state-issued CPG under the authority of title 30, sections 101-103 of the Vermont Statutes. See June 13, 2002 PSB Order in Dkt. No. 6545, at 12 (approving sale), Pis.’ Ex. 378 (Doc. 4-66). VYNPC presented the proposed Entergy transaction to the Board, which included a Memorandum of Understanding signed on March 4, 2002 (2002 MOU) by VYNPC, the two Vermont electric utilities with a controlling stake in VYNPC, ENVY and ENOI, and the Vermont Department of Public Service (DPS or “the Department”), a state executive agency representing the public interest of Vermonters in energy-related matters. See 2002 MOU, Pis.’ Ex. 361 (Doc. 4-49). The 2002 MOU provided its terms were subject to approval by the Public Service Board, provided for the Board’s jurisdiction over a possible CPG renewal for continued operation after 2012, allowed the Vermont nuclear engineer increased inspection access to Vermont Yankee by virtue of a separate memorandum of understanding, called for ENVY to share fifty percent of “excess revenue” with VYNPC for ten years should it operate beyond 2012, and offered Vermont utilities the first opportunity to negotiate contracts if Vermont Yankee increased its output or operated past 2012. Id.; see also June 13, 2002 PSB Order in Dkt. No. 6545, at 156, Pis.’ Ex. 378 (Doc. 4-66) (describing the 2002 MOU). Plaintiffs assert they were aware the Board had, on its own initiative, raised the possibility of ordering the immediate or future shutdown of Vermont Yankee, and therefore made substantial concessions regarding the power purchase price for Vermont utilities and commitments regarding future decommissioning, in exchange for the Department’s promise to recommend to the Board that it approve the sale and issue a CPG. Compl. ¶ 53. In the application proceedings for the sale, ENVY informed the Board that it intended to pursue three projects ENVY identified “as fundamentals in Entergy’s business model to make the power station a viable business,” namely, to secure an extended power uprate, construct a dry fuel storage facility, and renew the plant’s operating license through 2032. See Entergy Nuclear Vt. Yankee, LLC v. United States, 95 Fed.Cl. 160, 173 (2010) (citing testimony by ENVY executive Jay Thayer in that case); see also Defs.’ Ex. 1226 at JA 1035 (Thayer Test, before U.S. Court of Federal Claims (stating the three projects were identified to the Board in the proposed sale, and noting, “take away any one of those and the business case falls apart”)). In a paragraph entitled “Board Approval of Operating License Renewal,” the 2002 MOU provided that Entergy’s CPG pursuant to the sale would authorize operation only until March 21, 2012, and continued operation would be allowed “only if application for renewal ... is made and granted.” 2002 MOU ¶ 12. Furthermore, the signatories agreed as follows: (a) that the Board has jurisdiction under current law to grant or deny approval of operation of the VYNPS [Vermont Yankee Nuclear Power Station] beyond March 21, 2012 and (b) to waive any claim each may have that federal law preempts the jurisdiction of the Board to take the actions and impose the conditions agreed upon in this paragraph to renew, amend, or extend the ENVY CPG and ENO CPG to allow operation of the VYNPS after March 21, 2012, or to decline to so renew, amend or extend. Id. At the time the 2002 MOU was signed, the Public Service Board was the quasi-judicial entity bestowed with statutory authority to consider petitions and grant CPGs for all corporations and utilities subject to its jurisdiction. The Board has the power to accept petitions and hold hearings, is required to “make ... findings of fact,” to “state its rulings of law when they are excepted to,” and its decisions can be appealed to the Vermont Supreme Court, which is required to accord them deference. Vt. Stat. Ann. tit. 30, §§ 11, 12. Furthermore, Vermont law provides that a license subject to an agency’s notice and hearing requirements does not expire until a final determination on an application for renewal has been made. Id. tit. 3, § 814. Entergy filed its petition for a CPG pursuant to the sale, citing title 30, sections 102 and 231 of the Vermont Statutes as authority for the CPG. The Board approved the sale in a June 13, 2002 Decision and Final Order, with unilateral Board modifications excluding and amending portions of the parties’ 2002 MOU, none of which are at issue here. See June 13, 2002 PSB Order in Dkt. No. 6545, at 158 ¶3 & app. D., Pis.’ Ex. 378 (amending a provision to require that all, not just part, of excess decommissioning funds contributed by Entergy be given to ratepayers). In its decision and final order, the Board found: ENVY would be able, particularly with its parent company’s resources, to safely operate the plant; Vermont utilities had obtained a power purchase agreement through 2012 for approximately 55 percent of Vermont Yankee’s output, under a formula which ensured Vermonters rates lower than the estimated operating costs over the remaining license term, and capped in a way that shielded ratepayers from projected higher wholesale market prices, such that they were projected to pay significantly less than they would had utilities retained plant ownership; and finally, the sale transferred to ENVY significant financial risks associated with ownership, operation, and the decommissioning fund, which, without the sale, would have been shouldered by Vermont utilities and ratepayers. See id. at 3-5, 8. The decision noted the PSB had considered three options: continued ownership by VYNPC; sale to ENVY; and, on its own motion, the plant’s early closure. Id. at 6, 12-16. The Board concluded the sale was the best option for ratepayers. Id. at 6. The Final Order called for issuance of a CPG under title 30, section 231 of the Vermont Statutes, to expire on March 21, 2012. Id. at 159. The sale of Vermont Yankee to ENVY for $180 million closed on July 31, 2002. See July 17, 2009 DPS Br. in Dkt. No. 7440, at 5, Pis.’ Ex. 557. In 2002, ENVY received FERC’s authorization to sell power into the ISO-New England interstate market at market-based rates. See Compl. ¶ 42. This authorization has remained in effect to date. Id. ISO-New England is a non-profit independent system operator, regulated by FERC, that administers New England’s wholesale electricity markets. ISO-New England ISO-New England — An Overview of Markets, Planning and Vermont Issues at 4, 6 (Jan. 21, 2010), Pls.’ Ex. 344 (Doc. 4-35); Kee Decl. ¶16 (Doc. 4-11); Potkin Test., Tr. 95. Its three primary responsibilities are to ensure reliable operation of New England’s bulk electric power system; to administer New England’s wholesale electricity marketplace; and to manage the bulk system and markets’ planning processes to address future electricity needs. Compl. ¶ 40. The interstate transmission system “must meet mandatory reliability standards set by the North American Electric Reliability Corporation, the Northeast Power Coordinating Council, ISO-NE [ISO-New England], and the region’s transmission owners.” ISO-New England, Summary of Vermont/New Hampshire Transmission System 2010 Needs Assessment at 1 (Feb. 17, 2011), Pis.’ Ex. 343 (Doc. 4-34). At the time of the 2002 sale, a Vermont law first enacted in 1977 prohibited construction or establishment of a spent nuclear fuel facility unless the General Assembly, through either bill or joint resolution, first found that it promoted the “general good of the state” and approved a petition. Vt. Stat. Ann. tit. 10, § 6501. A later-enacted “Exemption” provision, however, carved out an exception to this requirement, without expressly repealing or abrogating section 6501, and provided subchapter 1 did “not apply to any temporary storage by Vermont Yankee Nuclear Power Corporation” of spent fuel. Id. § 6505 (added in 1979). In 2003, Entergy began to take steps to capture additional revenue with a twenty percent power uprate, increasing the plant’s output. See Entergy Nuclear Vt. Yankee, LLC v. United States, 95 Fed.Cl. 160, 173 (2010). It petitioned the Board for a certificate approving the uprate and physical modifications to the plant, and it sought uprate approval from the NRC. Id. at 174. In the fall of 2003, Entergy entered into a memorandum of understanding by which the Department agreed to support the power uprate, and in turn Entergy agreed to pay approximately $6 million, representing a portion of its uprate-related revenues, to State Benefit Funds, including environmental benefit, low-income, and economic benefit funds. Id.; accord Mar. 15, 2004 PSB Order in Dkt. No. 6812, at 3, available at www.state.vt.us/psb/orders/ 2004/mar.htm. The Board issued a CPG approving the uprate on March 24, 2004. Entergy Nuclear Vt. Yankee, 95 Fed.Cl. at 188. Because the uprate would exhaust Vermont Yankee’s existing spent fuel storage space approximately 18 months earlier than planned, i.e., sometime in 2008, Entergy began preparing to petition the Board to approve construction of a dry cask spent fuel storage facility, and the Board decided to consult with the legislature and the Attorney General’s Office. See Thayer Test., Tr. 375-76 (Doc. 168). Then-Senator Peter Welch wrote the Vermont Attorney General, William H. Sorrell, seeking an opinion regarding the General Assembly’s authority to address the storage of spent nuclear fuel, in light of Vermont Yankee’s new ownership, because the uprate meant on-site storage of spent fuel would reach the capacity limits of existing facilities sooner. See Letter from Vermont Attorney General’s Office to Peter Welch, Pres. Pro Tempore of the Vermont Senate, 2004 WL 1737093, at *1 (Apr. 30, 2004), Pis.’ Ex. 308. On April 30, 2004, the Vermont Attorney General’s Office responded with a legal opinion letter concluding that section 6505’s exemption from legislative approval for new storage construction was owner-specific, not site-specific, such that Vermont Yankee, now owned by ENVY, did not come within the exemption, and a court would more likely than not find any assignment of VYNPC’s rights under the exemption unenforceable. Id. at *4. This development concerned ENVY, because running out of storage capacity in 2008 would have forced it to cease operations. See Apr. 26, 2006 PSB Order in Dkt. No. 7082, at 4, 16, Pis.’ Ex. 362 (Doc. 4-50). The concrete dry cask storage system and pad Entergy anticipated constructing had been previously reviewed and approved by the NRC, id. at 18, and did not require further NRC permitting. Given the Attorney General’s opinion that Entergy was not exempt from sections 6501-03, Entergy proceeded to lobby for a new exemption. A. History of Act 7U, Dry Cask Storage Authorization of2005 (H.5I5) The Vermont General Assembly is comprised of citizen legislators, 150 in the House of Representatives and 30 in the Senate, serving terms of two years. The legislature generally is in session from early January through late April or May each year. Legislators have no personal staff. A small, professional non-partisan staff serves the entire assembly. See generally www.leg.state.vt.us. Late in the General Assembly’s 2004 session, Entergy proposed section 6505 be amended to change the name of the entity to which the exemption applied from “Vermont Yankee Nuclear Power Corporation” to “Vermont Yankee Nuclear Power Station,” but the proposal failed to obtain support. See Thayer Test., Tr. at 378 (Doc. 168). In February 2005, the House and Senate’s respective Natural Resources and Energy Committees held hearings and a joint meeting to discuss how the legislature would proceed. See List of Hearings and Debates for Act 74, Defs.’ Legis. Hist. App. to Pre-Trial Br. at 30 (Doc. 143-2); see also Pis.’ Exs. 2-9 (hearing recordings). On March 10, 2005, Entergy proposed legislation, entitled “Relating to the Temporary Storage of Radioactive Material,” that sought to place approval in the hands of the Public Service Board, subject to the criteria outlined in title 30, section 248. The proposal provided in relevant part: Notwithstanding the provisions of chapter 157 of title 10, a company may construct a dry fuel storage facility at the site of the Vermont Yankee nuclear power station subject to the following: 1. The Company shall load no more than twelve dry fuel storage containers unless the public service board finds after hearing that loading a different number of containers is necessary to operate the Vermont Yankee Nuclear Power Station through its existing license from the Nuclear Regulatory Commission and to off load the station’s fuel core. 2. The company shall not commence construction of any dry fuel storage facility before receiving a certificate of public good from the public service board pursuant to section 248 of title 30. Letter from John Hollar to Chairman Dostis (Mar. 10, 2005) (transmitting proposed legislation), Pis.’ Ex. 460 (Doc. 39-37). Entergy’s proposal, which appears in the legislature’s bill file for Act 74, was confined to requiring Board approval to construct a facility; it did not require Plaintiffs to seek legislative approval for storage of fuel after 2012. Between March 2005 and May 23, 2005, the House and Senate’s respective Natural Resources and Energy Committees held hearings, as did the House Ways and Means Committee. See List of Hearings & Debates for Act 74, Defs.’ Legis. Hist. App. to Pre-Trial Br. at 30 (Doc. 143-2); see also Pis.’ Exs. 10-90 (hearing recordings). During these committee hearings, legislators heard more than a dozen witnesses testify regarding their safety concerns surrounding spent fuel storage. See e.g., Pis.’ Leg. Hist.App. to Pre-Trial Br., Vol. I (listing excerpts identified as Pis.’ Exs. 27A, 27B, 27D, 27E, 27F, 27G, 27H, 28A, 28B, 28C, 45A, 46A, 46B, 46C, 46D, 47A, 82A). The committee legislators were advised by one expert witness hired by legislative counsel: “The problem that we’re dealing with here is that a lot of the concerns that citizens have are concerns that you can’t address directly the way they want them to be addressed.” Pis.’ Ex. 57A (Track 1 00:28:19). When one legislator explained that dry cask storage, “in my mind, it’s a safety issue,” the expert responded, “I don’t think you want to address this from the point of view of safety at all.” Pis.’ Ex. 31A (Track 1 00:09:00). Despite being told that safety was not in the legislature’s purview, legislators frequently raised safety considerations in addressing the spent fuel storage issue. See, e.g., Pis.’ Ex. 58A (Track 1 00:04:3 9) (“one of my big problems and why I want some money from somebody that if the federal government or Entergy doesn’t protect it, we’re going to have to do it because we are not going to let our citizens ... blow up”); Pis.’ Ex. 65A (Track 1 00:00:40-00:02:17) (legislator asking, “this one comes at a question of creative use of statute ... someone might have a safety issue in mind, but — their want to shield the physical impact — the visible impact of these casks from the river?” was told by a DPS witness such an issue could be addressed in terms of “aesthetics”); id. (Track 1 00:01:30) (another representative asking about radiation limits for cask perimeters). In a May 18, 2005, House Ways and Means Committee hearing, a representative expressed “it really bothers me that a private company is going to be able to have an uprate, which was questionable a year ago and there were issues of safety around that, ... and so why wouldn’t we charge them for at least making money and planting again dangerous material on our soil?” Pis.’ Ex. 80A (Track 1 00:55:14). Other references to safety by legislators and witnesses are too numerous to recount here. See Pis.’ Legis. HistApp. at 2-34 (excerpting statements from hearings and debates on H.545 recorded in Pis.’ Exs. 2-124). 1. H.54,5, As Introduced The bill, as introduced on May 23, 2005, contained the following provisions. The legislative findings in section 6521(a)(1) noted that the federal government “is in breach of contract for its failure” to provide for “disposal of spent nuclear fuel.” See H.545, Bill As Introduced, Defs.’ Ex. 1129. Absent this failure, Vermont Yankee “would not require dry cask storage” for “an unknown and indefinite period of time.” Id. § 6521(a)(3). Section 6521(a)(4) provided: “Payments made by Entergy Nuclear VY for the privilege of storing spent nuclear fuel in Vermont are incurred because of the failure of the DOE to accept title and delivery of the spent fuel as required by law, and should be subject to review and recovery in a court of law for damages for breach of contract.” Id. § 6521(a)(4). In section 6521(b), entitled “Intergenerational equity,” the bill articulated findings, of which three subsections stated: (3) It is necessary in the interests of intergenerational equity to help balance the burdens and benefits of nuclear power among succeeding generations of Vermont electricity consumers. (4) In that pursuit, the entity profiting from the continued operation of Vermont Yankee is required by this sub-chapter to provide a specified degree of offsetting benefit to Vermont’s future electricity consumers. (5) To make this equitable reallocation, this subchapter redirects a small part of the revenue stream generated near the end of the nuclear system operating life in order to provide succeeding generations of Vermonters with an offsetting benefit in the form of assistance for varied, reliable, economic, and sustainable sources of electricity for the future. Id. § 6521(b)(3)-(5). Subsection (c) of the legislative findings addressed Vermont Yankee’s power uprate and found that as an unregulated wholesale generator, the energy generated by ENVY’s 20 percent uprate would be sold, at competitive market prices, with additional revenues estimated at more than $35 million per year. These additional power sales are not subject to rate regulation by the public service board nor are they committed primarily to the benefit of Vermont utilities or ratepayers. Id. § 6521(c)(2). Furthermore, “[a]s a result of the uprate,” ENVY would be “creating additional spent fuel,” that needed to be stored in Vermont. Id. § 6521(c)(3). Subsection (c)(5) found: As a condition of granting the privilege to an independent power producer to store additional spent fuel assemblies and dry casks in Vermont, it is appropriate to impose a spent fuel storage charge for so long as spent nuclear fuel is stored in the state. Id. § 6521(c)(5). The legislative findings also called for the creation of a “clean energy development fund” dedicated to developing a diverse power supply by 2012. Id. § 6521(c)(8). Section 6522 set out the substantive provisions requiring Vermont Yankee to go before the Board for a CPG before they could commence “construction or establishment of any new facility.” Id. These substantive provisions included a statement, which remained in place until the final enactment, that compliance with the sub-chapter “shall not confer any expectation or entitlement to continued operation of Vermont Yankee” after March 21, 2012, however, they provided that for continued operation, or expansion of the spent fuel storage facility “beyond the capacity” authorized, Vermont Yankee “must first obtain the approval of the general assembly,” and then a “certificate of public good from the public service board.” Id. § 6522(c)(5). Section 6523 of the bill as initially introduced provided that a “Spent Nuclear Fuel Storage Charge” would fund the Clean Energy Development Fund. Id. § 6523. The charge was to be “at the rate of one mill per kilowatt hour,” “with a minimum annual charge of $4,000,000.00 per year,” to be “adjusted annually to reflect changes in the consumer price index,” and to be paid regardless of whether the plant was “generating, out of service, or decommissioned,” and the obligation would last “so long as spent nuclear fuel from the plant is stored within the state of Vermont.” Id. § 6523(a). The charge could be offset if ENVY invested in renewable energy resources. Id. § 6523(b). Section 6524 called for a “generation facility charge,” applicable to facilities generating in excess of 400 MW (and therefore applicable only to Vermont Yankee), of $25.00 per year for each kW of installed capacity at a facility in excess of 510 MW, which would also be paid into the Clean Energy Development Fund. Id. § 6524. Section 6525 called for financial review, and permitted amendment of the storage charges. Id. § 6525. Among the factors reviewed were ENVY’s ability to recover facility costs from other sources, sales in the competitive power market, cost-sharing from sources outside Vermont, and any damage recoveries from the federal government. Id. § 6525(b). Section 6526 created the Vermont Clean Energy Development Fund and provided it would be funded by the spent fuel charge and the generation facility charge assessed under the bill, and the revenue sharing contributions called for by the memorandum of understanding governing the uprate, and any other memorandum of understanding entered before July 1, 2005. Id. § 6526. 2. H.5Jp5, As Passed the House On May 31, 2005,- a representative for the Committee on Natural Resources recommended amendment by entirely replacing the proposed sections 6521 through 6526 with newly drafted sections 6521 through 6523. May 31, 2005 House J. at 1475-76 (also reflecting amendment of emergency management procedures). The section 6521 legislative findings were replaced in their entirety. Id. at 1476. The new amendment required legislative approval for fuel storage after 2012, and a CPG from the Board for continued operation. Id. The House passed this amended version of the bill on the same day. See H.545, As Passed the House. On June 2, 2005, the Senate Finance Committee held a hearing where a legislator repeatedly expressed the legislature’s desire to act on radiological safety concerns, despite being told this was not in the body’s purview, and where the benefits of having preempted concerns appear in the MOU were discussed. See Pis.’ Exs. 110D, 110 (Track 1 00:51:08-00:54:40); see also Pis.’ Exs. 111A, 112A. On June 3, 2005, the Senate Natural Resources and Energy Committee recommended the Senate insert a few words into section 6523, striking out a subdivision requiring reports on fund expenditures. June 3, 2005 Senate J. at 1321. During the Senate floor debate on H.545 on June 3, 2005, numerous senators made statements. One senator reported: “Our goal in Natural Resources and Energy was to review and provide the safest possible storage for spent fuel rods while they’re in Vermont.... [W]e have protected ourselves as best we can as Entergy goes forward and we will have dry cask in the State....” Pis.’ Ex. 124A (Track 1 00:20:34). Another stated: “In January when we began talking about this, it was quite obvious that the issue of public safety was going to be of paramount concern. We couldn’t compromise cash for safety, permits for safety, or any of the apprehensions people have. Safety is not, was not, is not for sale under no conditions.” Pis.’ Ex. 124C (Track 1 00:28:17). This same senator stated, of Senate Finance Committee colleagues, “we took very, very seriously this question of safety and the burden of responsibility on us, what was the right decision or what was the right recommendation to make to this General Assembly. ... But every time there has been a question about whether we could do anything that would increase the role of our safety oversight, I favored it.” Pis.’ Ex. 124D (Track 1 00:30:11). Furthermore, the senator stated: “[A]ll of us will have to make that independent judgment about what’s in the best interest of the State. But I, for one, want to state categorically and explicitly that safety is the prime concern, safety is not for sale, no amount of money is worth it to increase any risk of danger to Vermonters.” Pis.’ Ex. 124E (Track 1 00:40:41). See also Pis.’ Legis. Hist.App. at 24-34 (excerpting other safety-related statements from the Senate debate and committee hearings, too voluminous to recount here); Pis.’ Exs. 103-124 (full recordings of proceedings). Following the debate, the Senate passed the proposed amendments, and House and Senate Agreement took place on June 4, 2005. 3. H.5I5, As Enacted The final version of H.545, designated Act 74, added subchapter 2, comprised of sections 6521, 6522 and 6523, to Chapter 157 of title 10 of the Vermont Statutes. Act 74, 2005 Vt. Laws 74 (LexisNexis). Section 6521 states the General Assembly’s findings, noting that whether Vermont Yankee Station continues operating or is relicensed, a “large fraction of the state’s [power] supply will need to be replaced.” Vt. Stat. Ann. tit. 10, § 6521. The findings call for accelerated investment in economically and environmentally sound electricity resources, investment in renewable energy sources and energy efficiency, and states that in support of these objectives, the assembly and PSB created the “statewide energy efficiency fund,” and notes the need for a “clean energy development fund” to support investment in clean energy resources. Id. Section 6522 prohibits commencement of “construction or establishment of any new storage facility for spent nuclear fuel before receiving a certificate of public good” from the Board “pursuant to 30 V.S.A. § 248.” Id § 6522. Section 6522 calls for application of section 248’s criteria governing modification of facilities, and imposes additional criteria and limitations. Id. The following Board findings are prerequisites to construction: First, that “[a]dequate financial assurance exists for the management of spent fuel” for as long as it is located in Vermont; second, the applicant has committed to remove spent fuel from Vermont to a federal facility; third, the applicant will implement a spent fuel management plan to facilitate removal; and fourth, the applicant was “in substantial compliance with any memoranda of understanding” with the State. Id. § 6522(b). Section 6522 also imposed additional limitations to be included in the CPG. First, the CPG to provide permission to store spent fuel was limited to fuel from Vermont Yankee, not any other source; second, the CPG’s permission was limited to the “cumulative total amount” of fuel “derived from the operation of the facility up to, but not beyond, March 21, 2012.” Id. § 6522(c)(l)-(2). Subsection (4) noted that compliance with the subchapter “shall constitute compliance with the provisions of this chapter that require that approval be obtained from the general assembly before construction or establishment of a facility” for spent fuel, “but only to the extent specified in this subehapter.” Id. § 6522(c)(4). By these provisions, Act 74 essentially gave Entergy a dispensation in 2005 from other provisions in Chapter 157 requiring approval by the General Assembly for construction of a storage facility, channeling the petition to the Board instead. The Act also provided: “Storage of spent fuel derived from the operation of Vermont Yankee after March 21, 2012 shall require the approval of the general assembly under this chapter.” Id. § 6522(c)(4). Notably, there are no other provisions in Chapter 157 that require General Assembly approval for storage within already constructed facilities. Finally, section 6522 noted that compliance with sections 6522 and 6523 “shall not confer any expectation or entitlement to continued operation of Vermont Yankee following the expiration of its current operating license on March 21, 2012.” Id. § 6522(c)(5). “Before the owners of the generation facility may operate ... beyond that date, they must first obtain a certificate of public good from the public service board under Title 30.” Id. Section 6523 of the final enactment established a Clean Energy Development Fund, funded by payments made by Entergy under the memorandum of understanding in PSB Docket No. 6812 (revenue shares from the uprate), “together with the proceeds due” under any “subsequent memoranda of understanding entered before July 1, 2005.” Id. § 6523(a)(1). In Docket 6812, Entergy’s commitment to share revenue from the uprate was estimated, for shared revenue through 2012, to have a net present value of $6.1 million. See Mar. 14, 2004 PSB Order in Dkt. No. 6812, at 3. The anticipated June 21, 2005 memorandum of understanding (2005 MOU) in the dry cask storage docket would also require payments into the fund. Section 6523 provided the fund was to be used to promote “cost-effective and environmentally sustainable” power “for the long-term benefit of Vermont electric customers.” § 6523(c). Subsection (d) of section 6523 governs the administration and authorized expenditures from the fund, and has been substantially amended since 2005. § 6523(d). Entergy has not challenged those subsequent amendments and has abandoned its challenge to the Clean Energy Development Fund. In a June 6, 2005, email from Vermont Yankee’s then-site vice president Jay Thayer to Vermont Yankee employees, shortly after the Senate approved the House bill, Thayer explained that Entergy employees had testified at legislative hearings on Act 74 to urge the legislature to avoid what early draft legislation proposed, namely, imposing a yearly fee on storage that ended only when the fuel was transferred to the federal government, which “represented open-ended liability connected with” the dry fuel initiative. Email from Thayer to VY Employees (June 6, 2005), Defs.’ Ex. 1225. “The solution arranged between Entergy and the legislative leadership was therefore for Entergy to agree to a finite number of payments,” conditioned on revenue from the power uprate. Id. (describing State’s concessions as “good news”). Entergy reported that its anticipated obligation, under the forthcoming memorandum of understanding (the 2005 MOU), would be about $2.5 million per year, totaling $15 million over the seven years until 2012. Id. Entergy, to facilitate the assembly vote, had negotiated with the Department a memorandum of understanding governing the dry storage facility construction. Signed June 21, 2005, the day Act 74 was enacted, the 2005 MOU required Entergy to petition the Board for a CPG approving the construction. See 2005 MOU, Defs.’ Ex. 1007 (Doc. 46-19). The 2005 MOU provided for, inter alia, line-of-sight barriers, pad siting, cask spacing, access road siting and construction, cask temperature monitoring and radiation surveillance, and finally, a recognition the legislation was contingent upon the company’s agreements under the MOU, “to fund a Clean Energy Development Fund” with quarterly “payments calculated to total $15,625,000.” Id.; see also Apr. 26, 2006 PSB Order in Dkt. No. 7082, at 83, Pis.’ Ex. 362 (Doc. 4-50). The 2005 MOU also expressly waived any federal preemption claim to prevent enforcement of its obligations under the memorandum. 2005 MOU ¶ 12, Defs.’ Ex. 1007. According to Jay Thayer’s trial testimony in this case, the legislature provided the Board with certain technical requirements — which overlapped with NRC regulations — that appeared in the 2005 MOU, apparently to avoid their appearance in Act 74. See Tr. 384:1-3, 385:6-16; 10 C.F.R. §§ 72.122, 72.128; accord Pis.’ Legis. HistApp. Exs. 110B-C, 111A (senator noting health and safety issues were dealt with in the agreement), 112A (Department witness stating potentially preempted issues are “in an MOU instead of in the legislation”) (Doc. 144-1). On June 22, 2005, the day after Act 74 went into effect, Entergy filed its petition for dry fuel storage construction with the Board. Apr. 26, 2006 PSB Order at 5, Pis.’ Ex. 362. The construction involved a 76-by 132-foot concrete storage pad with capacity to hold up to thirty-six Holtec HI-STORM dry cask units. Id. at 19. The NRC had already pre-licensed and pre-approved the system. Id. at 18. Over the next eight months, the Board held conferences and a public hearing, considered testimony, briefs filed by the parties and intervenors, and held technical hearings. Id. at 5-7. The Board also received almost 500 public comments, of which, it noted, “[t]he vast majority ... highlighted public concerns about the power uprate that we previously approved, and the desire for an independent safety assessment, general nuclear safety concerns, and Vermont Yankee as a terrorist target.” Id. at 12. A minority “addressed dry fuel storage directly.” Id. The Board granted the petition for a CPG on grounds Entergy had shown the facility would not cause “undue harm to the natural environment,” could be constructed “without discernable increased safety risk,” and “without affecting the reliability of Vermont Yankee.” Id. at 3. The Board noted that “[t]he single most significant factor” in its decision was “the economic benefit of the facility,” because without it, Vermont Yankee would run out of storage before the end of its current license and “early shutdown could impose substantial costs on Vermont ratepayers,” who were receiving “favorably priced power,” under the Power Purchase Agreement, which from late 2008 until the expiration of the license reduced rates by “approximately $61 million,” reflecting the difference between the PPA and the anticipated wholesale spot price for that period. Id. at 3-4, 8, 34 (also noting economic benefits from the revenue-sharing arrangement under the uprate, state and local tax payments by Entergy, and Entergy’s presence as employer of what was then approximately 495 employees). The Board, however, imposed a few additional conditions requiring: financial assurances to ensure spent fuel could be managed through decommissioning; an amendment to the Spent Fuel Management Plan based on the assumption the DOE would not remove fuel as scheduled; assurance that Entergy would restore the site to greenfield condition; and submission of a study addressing the stability of adjacent banks. Id. at 4-5, 89-91. The Board’s order also expressly limited the total fuel that could be stored to amounts derived from operation through 2012, the end of the current operating license. Id. at 90. The Board’s order recognized Entergy’s position that “notwithstanding the provisions of 30 V.S.A. § 248 and 10 V.S.A. § 6522, the Board’s jurisdiction is ‘limited to assessing the state’s need for the power as well as siting and land-use criteria that do not interfere with the federal government’s exclusive authority over plant construction and operation, spent-fuel possession, handling and storage and the attendant issue of radiological safety.’” Id. at 14 (quoting Entergy’s brief to the Board). The Board, however, concluded that Entergy’s “characterization of the extent of federal preemption is overbroad,” id. at 15, and stated federal law “reserves substantial jurisdiction to the state of Vermont over nuclear facilities and the dry fuel storage facility, so long as we are not regulating radiological safety and are acting within the areas of traditional state concern.” Id. at 16. The Board’s Final Order authorizing a CPG for dry cask storage issued April 26, 2006. Entergy thereafter began constructing the dry cask storage facility. According to an exhibit submitted by Entergy in its suit for damages before the U.S. Court of Federal Claims, the newly constructed storage pad “was designed to hold 36 loaded casks, a number sufficient to allow the plant to operate through the end of the potentially renewed NRC license, or through 2032.” Entergy Nuclear Vt. Yankee, 95 Fed.Cl. at 189. On January 27, 2006, a few months before the PSB issued its order permitting dry cask storage, the NRC received ENVY and ENOI’s application for a twenty-year NRC license extension. The NRC initiated an extensive five-year review of Vermont Yankee, which entailed, among other things, auditing aging management programs and reviews to ensure it could operate without undue risk to public health and safety, an audit to ensure ENVY adequately reviews the plant’s systems for radiological health and safety risks, multiple site inspections to analyze safety risks, and multiple public meetings and hearings to address environmental and safety concerns regarding continued operation. Compl. ¶49 (with NRC link to extensive NRC procedures). B. History of Act 160 (S.12I) A few days after Entergy filed for the federal license extension, on February 1, 2006, the Senate Committee on Finance held the first hearing on a draft of Senate Bill 124, proposing Act 160, regarding a “Certificate of Public Good for Extending the Operating License of a Nuclear Power Plant.” See Act 160 Hr’gs and Floor Debates, Defs.’ Legis. Hist.App. at 149 (Doc. 143-2). The bill was introduced on the Senate Floor on February 24, and then referred to the Senate Committee on Finance. 1. S.124, As Introduced The first version of S.124, discussed at the February 1, 2006 Senate Finance Committee hearing, amended section 248 of title SO to add provisions prohibiting application to the NRC for federal re-licensing or re-licensing within the state absent a CPG from the Board. See S.124, As Introduced; see also Jan. 1, 2006 Senate Fin. Comm. Hr’g Excerpt, Pis.’ Ex. 398 (Doc. 46-21). A DPS witness advised such a provision would likely run afoul of preemption principles. Pis.’ Ex. 398 at 14. The bill also required the Board to obtain the General Assembly’s approval, determining that relicensing “will promote the general welfare,” before it could issue a CPG. S.124, As Introduced. At the February 1, 2006 hearing, Tim Nulty, of the Vermont State Nuclear Advisory Panel, advised the Committee that the issues of dry cask storage and continued operation were linked, as was the uprate in electricity output, because this would “dramatically” increase the amount of spent fuel Vermont Yankee would generate, and commented that “the PSB is not institutionally equipped to think of them all together. It’s not allowed to think about safety, as you know.... [A]t the very least the legislature would have jurisdiction to think about compensation.” Feb. 1, 2006 Senate Fin. Comm. Hr’g Excerpt, Pis.’ Ex. 399 (Doc. 46-22); Pis.’ Ex. 127A (Track 1 00: 10:25). Furthermore, Mr. Nulty commented that while the NRC may deem the plant safe, their view of safety is an on off situation .... [Tjhat doesn’t mean it is utterly safe. Even below that threshold there are degrees of risk.... [Tjhat doesn’t mean it’s absolutely safe and if there are measurable additional risks associated with let’s say an uprate, even though it was deemed to be safe, should some compensation be arranged for this? ... [A] safety problem has economic implications also. Pis.’ Ex. 399 at 3; Pis.’ Ex. 127A. Later in the discussion, a senator noted that the NRC’s assessment that a plant was safe turned on its assessment that “if something appears to be going wrong that the plant can be shut down and the electricity turned off and prevent anyone from being injured or hurt or radioactivized ... But once that happens, the electricity is gone.” Id. at 4; Pis.’ Ex. 127A. Also at the February 1, 2006 committee hearing, an Entergy lobbyist stated the company’s position briefly and concisely, “Entergy Vermont Yankee does not support S.124. We are committed to pursuing a certificate of public good before the Public Service Board.” Morris Test., Defs.’ Legis. Hist.App. at 171-72 (Doc. 143-2). A version of S.124 dated February 26, 2006, proposed amending title 30, section 231 to add a subsection (c), requiring a certificate of public good governed by the requirements of both 231 and 248, and adding words to the existing provisions of subsection 248(e) that would require, in addition to the existing requirement for legislative approval for new construction of a nuclear plant, legislative approval for operation. Feb. 26, 2006 Draft of S.124, Pis.’ Ex. 401 (Doc. 46-24). Proposed language regarding the objectives of a public engagement process called for “discussion of broader economic, environmental and safety issues relating to the operation of a nuclear facility.” Id. at 2-3. At a February 28, 2006 Senate Finance Committee Hearing, one senator stated: “We’re asking that studies be provided to legislators on health and safety and economics.” Pis.’ Ex. 130A (Track 1 00:25:35). A senator, explaining why the process should not let the Board decide the issue on its own, also stated: There’s the question of whether we believe the General Assembly should have some right to participate in looking at the evidence about health and safety, and economics, and energy policy, and there’s a second question, which is the same as you and dry cask, whether, on behalf of the people of the State, there’s some desire to have some bargaining leverage, frankly. Because what’s going to happen here is that Vermont Yankee gets relicensed and they have no obligation whatsoever to sell us a kilowatt of power. Pis.’ Ex. 130B (Track 1 00:27:28) (to which another senator suggested the Assembly’s purview could be broader). In the same hearing, the following exchange took place between a senator and a testifying Vermont Law School professor and former PSB chair, who had just advised the committee that “the State is preempted in its concerns about radiological safety”: Senator: “I understand that only the feds are allowed to think of safety issues, and we carefully don’t use that word here. But is this — ” Professor: “ — although I think I saw it somewhere in the draft, but go ahead.” Senator: “But even though these really are about safety issues, in a lot of cases. That won’t sort of mess things up that we’re asking the board to deal with those kinds of issues? Do you know what I’m — do you understand what I’m asking?” Pis.’ Ex. 130D (Track 2 00:12:22). In a Senate Finance Committee Hearing on March 2, 2006, during a discussion of a draft of S.124, regarding the public engagement section, Public Service Board Chairman Volz pointed out that “on the fourth line [of the public engagement section] you mention safety, safety issues, and ... you know, technically the state is preempted from engaging in those.” Mar. 2, 2006 Senate Fin. Comm. Hr’g Excerpt at 2, Pis.’ Ex. 403 (Doc. 46-26); Pis.’ Ex. 134A (Track 1 00:06:51). The Chair of the Committee asked whether they were “allowed to talk about environmental safety?” Id. Chairman Volz responded: “We’re allowed to talk about effect on the environment.” Id. Chairman Volz also advised: “If somebody suggests that the legislature’s decision was really based on that safety discussion that’s in this report and it’s not really based on other factors that are probably as well so.” Id. The Committee Chair responded: “Okay, let’s find another word for safety.” Id. Chairman Volz also pointed out: “Yes, and the same thing happens at the bottom of the page where you reference public health issues. That’s another ... potential problem.” Id. A senator asked: “We’re not supposed to talk about public health?” Volz responded: “Well, it depends on if it relates, to, you know, it depends on how broad it is. All right. If it’s radiological.” Id. A member of the Department of Public Service offered similar advice regarding the use of the words “safety” and “public health” in the statute. Hoffman Test., Mar. 2, 2006, Senate Fin. Comm. Hr’g, Pis.’ Ex. 134B (Track 1 00: 17:48). Later at that same March 2, 2006 hearing, a senator commented: “I also think that if we base our legislation on what we learn from our constituents most of that is gonna be about safety. That’s what most of the arguments are about. So does all of our work get overturned because — by the feds because it’s based on safety? That’s all it’s going to be based on.” Pis.’ Ex. 135A (Track 1 00:12:50). Also at that hearing, following a discussion that the committee would “strike references to safety,” one senator discussed the issues and information to be conveyed and considered by the Assembly: “So we want the General Assembly to have the information as developed through the process at the PSB because it’s relevant to their consideration, cost/benefit, their studies, and safety questions. We want to give latitude to the General Assembly.” Pis.’ Exs. 134D (Track 1 00:41:42), 134E (Track 1 00:54:28). Other Senators addressed whether the early version of the bill gave the legislature any ability to make re-certification contingent on a favorable contract with Vermont ratepayers to purchase electricity: Senator 1: “We can say contingent upon Entergy entering into a contract that is beneficial to the ratepayers of Vermont, you know, under the supervision of the Department of Public Service and the Public Service Board.” Senator 2: “Here’s the bottom line. 2012 comes. They seek re-licensing. They get re-licensing. Alright? Through the certificate process. There is absolutely no requirement that VY sell us a kilowatt of power.” Senator 3: “But can the board ask them to do that?” Senator 2: “No, it can — ” Senator 3: “I mean, can that be part of something that we put in the statute that we look at?” Senator 4: “The board could ask for that, couldn’t they, as part of the re-licensing. It’s a Certificate of Public Good. How good is it for us if we can’t buy any electricity?” Pis.’ Ex. 134F (Track 1 01:03:55). 2. S.12b, As Passed the Senate On March 14, 2006, a senator, speaking for the Committee on Finance, reported to the Senate floor, recommending a Senate amendment to the first version of the Bill as Introduced, and presenting the financial implications of the bill. See Defs.’ Legis. HistApp. at 159 (Doc. 143-2); Pis.’ Ex. 137 (Track 1 00:09:05). In introducing the bill, the senator stated: “this bill is not, and you will not find the word anywhere in the bill or anywhere else, this bill is not about the safety of nuclear fission or any entity that exists in the state. Safety is the pure duty of the NRC to determine.” Id. at 160. The senator summarized the bill, as amended, as one requiring Entergy to file a petition for re-licensing before the public service board four years prior to the expiration of its current license. Id. at 162-63. Under the amended bill, the Board was to conduct fact-finding, permit public comment, and perform analysis for two years, and then report back to the legislature no later than March 2010. Id. at 163. Then the legislature would consider whether to approve continued licensing. The same senator noted, “we have serious, serious problems in energy,” and thereafter, “how volatile [the energy] industry is,” and that it was “becoming more complicated.” Id. at 163-64. He informed the Senate that Vermont had two long-term contracts, one with “Hydro Quebec which ends in 2020 and the other with Entergy which ends in 2012” and that “it is highly doubtful that long-term contracts will be able to be met in either case.” Id. at 164. The senator continued: “[I]t puts the State in a much better position to — to have this — this bill — bill in place.... [W]hen people talk about the cheap energy we’re having and how long it will — how long it’s going to go on.... [0]nce the contract ends in 2012, it’s a whole new ball game.” Id. at 164-65. Furthermore, it was “going to be terribly important for — for the State to have every bit of leverage it possibly can as we go forward in the energy business .... And ... selling electricity to Vermont under the current contract I would be very surprised if that would be as profitable as — as Entergy would like it to be,” noting that the spot market price was “$75 a kilowatt hour.” Id. at 165. The legislature would be “derelict,” the senator suggested, “if the legislature did not maintain itself in the best possible position to take any action they felt necessary that this current crisis, and it’s looming greater, crisis goes on.” Id. at 166. Another senator commented that the bill preserved the authority of the PSB, but that it “also allows the legislature, people elected by the State of Vermont, to decide yes or no on the basis of whatever policy reasons that the legislature felt had to be a part of consideration to make its decision.” Id. at 168. The same senator continued, “the legislature is free in that consideration to take into account its perception of what this does for Vermont’s energy future, how it helps ratepayers, what the economic trade-offs are, whatever negotiations may occur between the administration and/or the legislature and the licensed applicant.” Id. at 168-69. The Senate voted on March 14, 2006, agreeing to the recommended amendment, and the next day passed the bill as amended. See Mar. 14, 2006 Senate J. at 325 (reporting recommended amendments and vote accepting them); Mar. 15, 2006 Senate J. at 331 (bill read third time). 3. S.12I, House Proposal of Amendment On March 16, 2006, the Bill As Passed by the Senate was read for the first time on the House Floor and referred to the House Natural Resources and Energy Committee. It remained in Committee from March 16 until April 27, 2006. See H. Natural Res. Comm. Hr’g Recordings, Pis.’ Exs. 141-156. While S.124 was with the House Committee, the Senate Committee held another hearing on March 22, 2006, regarding the bill and discussed its implications. A senator observed: So we need, as a Legislature, to say, okay, do we want another 40 years worth of radioactive materials sitting somewhere in this state? I think the people down in Windham County are getting a little concerned and obviously the closer you live to that radioactivity, the more concerned you are. Pis.’ Ex. 140A (Track 1 00:47:27). Testifying later that day before the House Natural Resources Committee, the same senator advised: When something goes wrong with a nuclear power plant, the possible negative results are a lot worse than if a windmill breaks a blade or kills some birds or throws some ice. You know, it’s just that there is a potential here, enough potential that the Legislature felt that it was a public policy decision that they needed to make. Pis.’ Ex. 140B (Track 2 00:01:39). A few minutes later, the same senator noted: I don’t think we want to make a premature decision at this point, driven either by the fact that we need this electric power to keep our rates reasonable or in five years we may find out we don’t need that power. I mean, if we get up enough wind farms or somebody discovers a new source of power. We don’t know that yet, but I think, but I think we’d like to be able to negotiate and negotiate with some bargaining leverage in there. Pis.’ Ex. 140C (Track 2 00:05:35). During House Committee Hearings, representatives also inquired regarding Vermont’s ability to secure a contract with Vermont Yankee after 2012 under the legislation: Representative: “In the 248 process and the CPG process, when you’re weighing out the — for the public good, do you take into consideration whether or not there is an agreement in place that Vermonters will get kilowatt hours from this plant and at a preferable — for a lack of a better term — price? If the CPG process can’t — if they were going to the CPG process and there was no — and they’re a merchant plant and there is no agreement on where this electricity is going to be sold to, is that taken into consideration?” Chairman Volz: ‘Tes, section 248 requires that there be an economic benefit to the state.” Mar. 29, 2006 House Natural Res. Comm. Hr’g, Pis.’ Ex. 144A (Track 1 00: 10:40). When one representative mentioned, regarding Act 74, “[i]f you just have the dry cask storage issue as the safety gap, as the only stopgap measure that you have — ,” another representative quickly interjected, “OK ‘cause we don’t say safety when we’re talking Vermont Yankee in this room.” Pis.’ Ex. 144D (Track 2 00:44:26). Another representative questioned a witness if wind power required the same “level of questioning,” suggesting some sources were “low probability, high impact in terms of risk to the public. You have to guard it. You have to insure it from terrorist attacks.” Pis.’ Ex. 146A (Track 1 00:47:18). S.124, As Passed the Senate, envisioned a two-step process whereby the PSB would begin CPG proceedings and a public engagement process first, and then transmit its findings in a report to be provided to the legislature no later than two years before approval should take effect. See S.124, As Passed the Senate. A Committee member questioned whether, with a process where the PSB may determine in the first step that a CPG for continued operation was in the economic benefit of the state, the legislature would be under a tremendous amount of political pressure to concur, or they may be obligated to give deference to the Board’s findings. Mar. 29, 2006 House Natural Res. Comm. Hr’g, Pis.’ Ex. 144 (Track 1 00: 12:00). On April 19, 2006, the House Natural Resources Committee considered the issues that would be within the Board’s purview and the legislature’s power to withhold approval through inaction. Rich Smith, Deputy Commissioner of the Department of Public Service, testified at the hearing and responded to questions as follows regarding the new directions taken in amendments, including the now singular public engagement process, a process by which Entergy would seek both dry cask storage and a renewed CPG, and finally, the fact that the legislature would make the first decision: Deputy Commissioner: “... Clearly that the legislature acts first, before the Board goes through the CPG process, we think that’s important. So those are the three principles we hope are in here, we think they’re heading