Leas: Entergy’s case to keep operating Vermont Yankee falls of its own weight

Editor’s note: This op-ed is by James Marc Leas, a patent lawyer from South Burlington who served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island. It is a speech he delivered Sept. 10 in Brattleboro to a rally urging closure of Entergy Corp.’s Vermont Yankee nuclear power plant as scheduled next year.

Entergy Corp.’s lawsuit is not just an attempt to keep an ancient, leaking nuclear plant running for 20 more years. Entergy’s lawsuit is an attempt to strip all authority from our state government. It is an attack on the democratic right of the people of Vermont and our elected representatives to decide our future. It would give enormous power to Entergy, a corporation that cares only about profits and the gigantic pay it gives its top executives.

Now we could well think that our role as citizens is vastly diminished because all the action will be in the hands of lawyers and a judge at the federal court house here in Brattleboro when the trial starts on Monday (Sept. 12).

Certainly success of our case depends on the thoughtful presentation of facts and law by the state’s attorneys and their witnesses. But when big corporations are involved, I urge you to consider that something else is needed.

Entergy stands to take in $6 billion from operation of Vermont Yankee for 20 more years. Courts feel tremendous pressure when such large dollar figures are involved. Even more when a corporation hires high-priced lawyers and a public relations firm.

In school we learn that judges are required to base their decisions exclusively on facts and law. But we have a U.S. Supreme Court that has been making decisions vastly empowering corporations, even giving them power to spend unlimited sums to influence elections.

In Judge Murtha’s July 18 decision responding to Entergy’s motion for a preliminary injunction, to his great credit, facts and law did prevail over Entergy’s money arguments.

But other aspects of that decision are worrisome. The judge devoted 13 pages of the 18-page decision to detailed consideration of Entergy’s monetary concerns (though to his credit he rejected each of them as a basis for a preliminary injunction). I am concerned that the decision says that Entergy’s money concerns, Entergy’s preemption argument and Entergy’s request for a permanent injunction will all get serious consideration at the trial starting Monday, while the judge devoted not one word to defenses presented by Vermont and by the public-interest organizations that filed amicus briefs. In addition, 12 separate times the judge referred to the fact that this case is on an accelerated schedule for the purpose of meeting Entergy’s money concerns.

We have a situation in this case where a counterweight to Entergy’s money and power is desperately needed.

So what is the counterweight to Entergy’s corporate money? It is the persistent, determined, public participation of large numbers of people in events like this one today. We saw the power of that public participation at town meeting when 51 Vermont towns voted to ask the Legislature to “deny approval for the operation of Vermont Yankee after March of 2012.” In 2010, the Vermont Senate responded to those votes and to a long series of marches, rallies, meetings, letters and phone calls by voting down the 20-year extension Entergy requested.

Continuous public participation is needed to ensure that corporate power is balanced by people power. Large, visible, public events are crucial to change the atmosphere from preoccupation with Entergy’s money, so the court will be free to continue to base decisions exclusively on facts and law.

One such event is a vigil on Monday from 7:30 to 9 a.m. at the Federal Courthouse. Another is the Positively Charged Music Festival at The Amazing Planet farm in Newfane next Saturday, Sept. 17. Everyone should help build these events so the media, the public and the court knows that the people are watching and demanding justice.

I will now give you some interesting legal nuggets about this case:

Entergy claims that the Vermont laws requiring Vermont Yankee to shutdown next year are preempted by federal laws. That means trumped by federal law, so the court should issue an injunction preventing Vermont from enforcing its law.

But the federal law actually gives the Nuclear Regulatory Commission exclusive responsibility only for regulating radiological safety. Under that federal law, the states retain authority to decide about and regulate many other aspects of nuclear power plants. Take Act 160, one of the laws Entergy wants declared unconstitutional. Act 160 declares its purposes to include having the Legislature participate in determining the state’s need for power, the economics and environmental impacts of long-term storage of nuclear waste, and choice of power sources among various alternatives. All legitimate purposes not trumped by federal law.

Incredibly, Entergy will try to prove that all these stated purposes were false and that the real reason our reps voted for this law is the one thing prohibited to the states by federal preemption, radiological safety concerns.

Now, Act 160 passed unanimously in the House and by a large majority in the Senate. It was signed into law by Gov. Douglas.

So Entergy will try to prove that all our Vermont state reps and our former governor were all involved in falsification. In short, Entergy wants the court to rule that nearly all of our state elected officials are liars.

Now, let’s think about this. Entergy is the company that testified under oath that there was no underground piping. And whose testimony under oath was shown to be false when the underground piping that Entergy said did not exist leaked. This is the company that did not do the preventive maintenance to prevent such leaks from happening in the first place. Is this a company with enough integrity to even question the truthfulness of Vermont’s elected representatives?

Well, long ago, the U.S. Supreme Court set rules for cases seeking injunctions, including the permanent injunction Entergy is seeking in this case. Under those rules, Entergy is not entitled to even be considered for an injunction. Here is why: in the leading case, which happens to be in my area of law, a company got a patent by making false statements to the U.S. Patent Office. The U.S. Supreme Court said, and I quote:

“The guiding doctrine in this case is the equitable maxim that ‘he who comes into equity must come with clean hands.’. . . [this doctrine] . . . closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.”

Entergy is not coming with clean hands. They testified falsely under oath to the Public Service Board (PSB). The federal court should therefore close the doors and say no to Entergy’s request for a permanent injunction, based on these grounds alone.

When a corporation testifies falsely under oath, that could be a reason to lose trust and never do business with them again, including denying their request for a 20-year extension. And lack of trust has nothing to do with the forbidden topic of radiological safety.

There’s another reason its false testimony could lose Entergy its case in Federal Court. Entergy actually relied on Act 160 to save its case for the 20- year extension before the PSB. The PSB was considering dismissing Entergy’s petition because of Entergy’s misleading statements to the board under oath about the underground piping. So what did Entergy do? Entergy told the board that it could not deny its petition because of Act 160, which requires legislative approval before any final decision, including a denial.

Here is an analogy: we all know that we cannot both talk to the cops and retain our right to remain silent. We can’t talk and then ask the court to throw out what we said because we have the constitutional right to remain silent. If we talked, we gave up that right. In this case Entergy not only acquiesced to Act 160, it relied on Act 160. Entergy cannot both rely on a law to keep its case alive and retain the right to ask the court to declare the law unconstitutional.

Finally, Entergy could lose because they worked really hard to sell Vermont Yankee, first to a spinoff and then to any other nuclear plant operator. It could find no buyer. If Entergy wants to unload, and if no other nuclear plant operator will buy, isn’t the free market saying Vermont Yankee is not such a good thing to own? If even its current owner doesn’t want it, and tried to get rid of it, and couldn’t, isn’t that a good reason, based on free-market economics–not safety–for our state to say no to a 20-year extension?

You’ve got to feel sorry for Vermont Yankee. It’s old, leaking, obsolete, the same design as Fukushima, and owned by a company with a sorry record of falsification. And even they don’t want it. And no other company wants it. Time to say a prayer and shut it down.

Entergy’s lawsuit is entirely without factual or legal basis. Its arguments are about as leak-tight as its tritium-spewing Vernon nuclear plant. Its public relations campaign is as honest as its testimony to the Public Service Board. The strongest element in Entergy’s case is that it is a multi-billion dollar corporation, and the courts have been carving out inordinate rights for corporations that demolish the rights of ordinary people.

But we the people of Vermont can counter even this unfair advantage using the methods handed down to us by those who founded this state and this country and those who helped expand democracy and equal rights: pulling together, building a visible grassroots campaign, attending the trial and the demonstrations outside the courthouse, continuing our public campaigning while awaiting the court decision, and using our unlimited resource of love, compassion, faith and courage to demand that the court dismiss Entergy’s bogus law suit.

Comments

  1. Thanks Jimmy for another lucid and penetrating analysis.

    The question I have been wondering about – if the argument is that all causes can be traced to issues of safety – doesn’t the law define specifically WHICH safety issues are reserved to the NRC? You seem to be saying that only radiological safety issues are reserved to the NRC. Does that mean that all other “safety” issues are reserved to the state, anyway? Hence blowing out Entergy’s argument?

    I certainly hope that when the Supreme Court hears these arguments, they are legally honest. To protect the equity of Entergy over the rule of law would be another blow for that hollowed principle of democracy, equality under the law.

  2. Alex Barnham :

    What is really mind-boggling to me is that Vermont Yankee is allowed to operate even though it is leaking radiological water, and it isn’t being monitored sufficiently for discharges into the atmosphere. These plants have vents that release excessive pressures to prevent the build-up of hydrogen…the original design did not have vents because the plant was supposed to run sealed up. Not only that, the aged, leaking plant is being allowed to run %20 over it’s rated capacity even at the end of its life expectancy and even beyond. How stupid do these corporate criminals think we are? This is REVOLTING!!!

  3. Edd Foerster :

    “Entergy’s lawsuit is an attempt to strip all authority from our state government. It is an attack on the democratic right of the people of Vermont and our elected representatives to decide our future.”

    This is ridiculous exaggeration. The lawsuit merely expresses VY’s belief that the state is acting in excess of its legal authority.

    “Certainly success of our case depends on the thoughtful presentation of facts and law by the state’s attorneys and their witnesses.”

    “Our case”? It is not my case. I disagree with the state’s position. As do, according to polls, approximately half of Vermonters.

    “Courts feel tremendous pressure when such large dollar figures are involved.”

    What’s your evidence for this? Are you saying that federal Judge Murtha is swayed by anything other than his understanding of the law and the facts as he finds them? Why would you say that?

    “In school we learn that judges are required to base their decisions exclusively on facts and law. But we have a U.S. Supreme Court that has been making decisions vastly empowering corporations,”

    Whether the US Supreme Court is right or wrong, how do you know that they are not making their decisions in good faith on the facts and the law as they understand it?

    “So what is the counterweight to Entergy’s corporate money? It is the persistent, determined, public participation of large numbers of people in events like this one today.”

    No. Courts are not legislatures. They are not supposed to be effected by protests and sit-ins, etc., outside the courthouse. That is mob rule, not the rule of law.

    “Incredibly, Entergy will try to prove that all these stated purposes were false and that the real reason our reps voted for this law is the one thing prohibited to the states by federal preemption, radiological safety concerns.”

    Why is that “incredible”? Why is it “incredible” for VY to attempt to prove that when the state senate voted not to allow the PSB to proceed with the relicensing docket, they were secretly or not-so-secretly voting on safety, which is a federally pre-empted issue? I and a lot of other people believe that that’s exactly what they were voting on. There’s nothing “incredible” in VY’s attempting to prove that.

    “In short, Entergy wants the court to rule that nearly all of our state elected officials are liars.”

    Some of them are.

    “Entergy is not coming with clean hands. They testified falsely under oath to the Public Service Board (PSB). The federal court should therefore close the doors and say no to Entergy’s request for a permanent injunction, based on these grounds alone.”

    I find this a ridiculous statement, for two reasons. First, the Vermont Attorney General did not find that there was evidence that anyone at VY intentionally lied. Second, the testimony about underground pipes and the current lawsuit over preemption are two completely different matters. A court cannot say that because Person A may have been untruthful in some other courtroom at some other time, means that they can never seek justice on some other issue in a different courtroom at a different time.

    “Entergy’s lawsuit is entirely without factual or legal basis.”

    That is your opinion. Many, many people disagree. Strenuously. I happen to think that VY’s preemption lawsuit is well founded.

  4. James Marc Leas :

    As to Stephen Marshall’s question, the only matter that is the exclusive province of the NRC is radiological safety. They have expertise in this one area and only in this one area. And they have the mandate from Congress exclusively in this one area.

    But one could certainly worry about the recent article in the NY Times: “Nuclear Agency Is Criticized as Too Close to Its Industry”
    http://www.nytimes.com/2011/05/08/business/energy-environment/08nrc.html?_r=2&pagewanted=all
    The article describes how the NRC is not even doing anything like the thorough regulation it is legally mandated to do. And the article describes how the NRC is close to the very nuclear industry in the one area, radiological safety, they are designated by law to regulate. One could worry that federal pre-emption of radiological safety amounts to something closer to nuclear industry pre-emption. This is consistent with the remarks by Alex Barnham.

    One could also wonder whether Vermont’s requirement that Vermont Yankee close when its 40 year CPG is finished on March 21, 2012 has anything to do with “regulation.” Vermont’s action concerns whether the plant operates at all. Vermont is not regulating any aspect at all concerning how it operates. Including regulating radiological safety.

  5. edd foerster :

    “One could also wonder whether Vermont’s requirement that Vermont Yankee close when its 40 year CPG is finished on March 21, 2012 has anything to do with “regulation.” Vermont’s action concerns whether the plant operates at all. Vermont is not regulating any aspect at all concerning how it operates. Including regulating radiological safety.”

    That argument is the very definition of sophistry. It seems you’ll say anything.

  6. James Marc Leas :

    Edd Foerster disparages not just my remarks. Also those of US Supreme Court Justices Blackmun and Stevens who wrote the following in concurring with the unanimous Supreme Court decision in the 1983 PG&E case http://supreme.justia.com/us/461/190/case.html#223

    “Congress has occupied not the broad field of ‘nuclear safety concerns,’ but only the narrower area of how a nuclear plant should be constructed and operated to protect against radiation hazards.”

    The two Supreme Court justices go on to say:

    “States traditionally have possessed the authority to choose which technologies to rely on in meeting their energy needs. Nothing in the Atomic Energy Act limits this authority, or intimates that a State, in exercising this authority, may not consider the features that distinguish nuclear plants from other power sources. On the contrary, § 271 of the Act, 68 Stat. 960, as amended, 42 U.S.C. § 2018, indicates that States may continue, with respect to nuclear
    power, to exercise their traditional police power over the manner in which they meet their energy needs. There is, in short, no evidence that Congress had a “clear and manifest purpose,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947), to force States to be blind to whatever special dangers are posed by nuclear plants.

    “Federal preemption of the States’ authority to decide against nuclear power would create a regulatory vacuum. See Wiggins, Federalism Balancing and the Burger Court: California’s Nuclear Law as a Preemption Case Study, 13 U.C.D.L.Rev. 3, 64 (1979). In making its traditional policy choices about what kinds of power are best suited to its needs, a State would be forced to ignore the undeniable fact that nuclear power entails certain risks. While the NRC does evaluate the dangers of generating nuclear power, it does not balance those dangers against the risks, costs, and benefits of other choices available to the State or consider the State’s standards of public convenience and necessity.

    “As Professor Wiggins noted:

    “‘If a state utility regulatory agency like California’s Energy Commission is prevented from making a general evaluation of feasibility, on broad grounds of social, economic and ideological policy, then the decision whether to build a nuclear facility in a state will ultimately be made only by the public utility seeking its construction. . . . It would be ironic if public energy utilities, granted a jurisdictional monopoly in large part because of their heavy regulation by the state, were freed from regulatory oversight of the one decision which promises to affect the greatest number of persons over the greatest possible time.’

    “In short, there is an important distinction between the threshold determination whether to permit the construction of new nuclear plants and, if the decision is to permit construction, the subsequent determinations of how to construct and operate those plants. The threshold decision belongs to the State; the latter decisions are for the NRC.”

    So it is not just me. Justices Blackmun and Stevens think states have the right to consider safety in their determination of whether a nuclear plant operates so long as the states keep out of regulating how a nuclear plant is constructed and how to protect against radiation hazards when in operates. Under the reasoning of these justices states can consider the special dangers of nuclear plants in deciding whether to allow a plant to be built in the first place. Or whether to allow or reject providing a twenty year extension to a 40 year old nuclear plant. As they said, “the threshold decision belongs to the State.”

  7. Edd Foerster :

    Mr. Leas, you are a lawyer. You yourself admit at the beginning of your posting that Blackmun’s and Steven’s opinions in the PG&E case are “concurring” opinions. You know that that means that their separate opinions did not form ANY PART of the majority opinion. Nothing they wrote in their concurring opinions is the law, and you know it. Concurring opinions express the individual views of the concurring justices only, and they have no force and ultimately no more meaning than your individual opinion or mine. The PG&E case does not stand for whatever these two justices may have stated in their concurring opinions.

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