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Entergy Nuclear Vermont Yankee, LLC v. Shumlin

United States Court of Appeals, Second Circuit

December 10, 2013

ENTERGY NUCLEAR VERMONT YANKEE, LLC; Entergy Nuclear Operations, Inc., Plaintiffs-Appellants,
v.
Peter SHUMLIN, in his official capacity as Governor of the State of Vermont; William Sorrell, in his official capacity as the Attorney General of the State of Vermont; Mary N. Peterson, in her official capacity as the Commissioner of the Department of Taxes of the State of Vermont, Defendants-Appellees.[*]

Argued: Aug. 27, 2013.

Page 229

Charles Alan Rothfeld, Esq. (Hollis L. Hyans, Esq., Robert A. Salerno, Esq., on

Page 230

the brief), Morrison & Foerster LLP, Washington, D.C., for the Plaintiffs-Appellants.

Lawrence S. Robbins (Mark T. Stancil, Joshua S. Bolian, on the brief), Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C., for Jonathan T. Rose, Danforth Cardozo, III, Assistant Attorneys General, Office of the Attorney General, Montpelier, VT, for the Defendants-Appellees.

Before: NEWMAN, RAGGI, and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge.

This case requires us to decide whether the Tax Injunction Act, 28 U.S.C. § 1341 (the " TIA" ), denies the federal courts jurisdiction to review plaintiffs' challenges to Vermont's Electrical Energy Generating Tax, Vt. Stat. Ann. tit. 32, § 8661 (the " Generating Tax" ). We conclude that the TIA applies to the Generating Tax, and that Vermont provides a " plain, speedy and efficient" mechanism for raising the plaintiffs' objections to the validity of the tax. We therefore affirm the district court's dismissal of plaintiffs' challenge to the tax for lack of subject matter jurisdiction.

BACKGROUND

Plaintiffs Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively " Entergy" ) own and operate a nuclear power plant (the " Plant" ) in Vermont, which is the largest generator of electricity in the state. Entergy purchased the Plant in 2001, and undertook expansions of the Plant's output and facilities in 2003 and 2005. In exchange for Vermont's regulatory approval of these modifications, Entergy entered various Memoranda of Understanding (the " MOUs" ) with the state, agreeing to make certain payments into designated state funds serving specific policy purposes. In the context of a broader dispute regarding Vermont's refusal to extend regulatory approval for the Plant's continuing operation, Entergy ceased making payments under the MOUs in March 2012.

In May 2012, following a January 2012 district court decision denying Vermont's attempt to shut down the Plant, the Vermont state legislature amended Vt. Stat. Ann. tit. 32, § 8661 to impose a Generating Tax of $0.0025 per kilowatt-hour on electricity produced by plants which have a " name plate generating capacity of 200,000 kilowatts, or more." The Plant is the only facility in Vermont with this characteristic, and thus Entergy is the only entity affected by the Generating Tax.

On September 11, 2012, Entergy brought suit in the United States District Court for the District of Vermont (Christina Reiss, Chief Judge ) against Vermont governor Peter Shumlin, Vermont attorney general William Sorrell, and Vermont tax commissioner Mary N. Peterson in their respective official capacities (collectively " Vermont" ), seeking a declaratory judgment that the Generating Tax is unconstitutional under the Supremacy, Equal Protection, and Contract Clauses of the United States Constitution, and requesting injunctive relief to prevent its enforcement. Vermont moved to dismiss for lack of subject matter jurisdiction under the TIA. ...


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