Google Earth image of the Vermont Yankee plant in Vernon, Vt.
Editor’s note: This article first appeared in The Commons.
The Entergy v. Vermont trial in U.S. District Court concluded Wednesday in Brattleboro, and Judge J. Garvan Murtha has plenty to consider.
Did Vermont, as Entergy contends, improperly stray into the realm of federal regulation in seeking to shut down Vermont Yankee? Or is Entergy, as the state contends, going back on previous legal agreements that allowed Vermont to have a say in the plant’s future?
Murtha is expected to take up to two months to issue a decision in this lawsuit.
In her closing argument, Kathleen Sullivan, the lead attorney for Entergy Nuclear, the owners of the Vermont Yankee nuclear power plant in Vernon, continued to press the theme that the state has overstepped its bounds regarding the regulation of nuclear power.
Entergy has sued the state over its denial of a Certificate of Public Good to operate Vermont Yankee past the expiration of its current license in March 2012. Earlier this year, the U.S. Nuclear Regulatory Commission issued a 20-year license extension to Entergy.
Entergy attorneys have told the court that they hope Judge J. Garvan Murtha will overturn three Vermont statutes: Act 74, Act 160 and Act 189.
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Sullivan has been trying to show that nuclear safety concerns — which are the sole purview of the NRC — are what drove the Vermont Senate in 2010 to defeat a bill that would have allowed the Public Service Board to issue a CPG for Vermont Yankee.
Sullivan pushed Entergy’s closing statements over six hours, plus approximately 30 minutes of rebuttal, in response to the state’s closing arguments.
Sullivan contends that any other reasons that the state has given for closing the plant in 2012, like economic concerns, are merely pretexts for discussing nuclear safety issues, and she played several recordings of legislative sessions to bolster that point.
Rather than shut the plant down, if the state didn’t like us, then “don’t do business with us,” she said.
If you [Vermont] don’t like the deal the company offered in its purchase power agreement [PPA], is the remedy to shut the plant down?”
– Kathleen Sullivan
Entergy lead attorney
Citing the 1983 Pacific Gas & Electric v. California Supreme Court case, Sullivan maintained that the court needed to decide the case by considering legislative intent by way of Vermont’s legislative history.
Sullivan maintained that the state had no evidence supporting that the purposes stated in Act 74, Act 160 and Act 189 matched what the legislators were truly thinking.
Sullivan argued that the state gave “hypothetical” examples, and didn’t show what legislators “actually” did.
“A theoretical legislature might hypothetically try to promote” other, non-nuclear safety energy goals, she said.
The state offered no evidence of what “the actual Legislature had in mind,” Sullivan said in reference to Act 74.
Act 74, enacted in 2005, regulates the dry cask storage of spent nuclear fuel at VY and requires Entergy to seek permission from the state to store additional fuel past 2012.
Sullivan also argued that Vermont’s decision to shut down Vermont Yankee, through its 2010 Senate vote, violated the dormant commerce clause. The decision, she said, “discriminated” against the other New England states because it didn’t allow them to purchase power from Vermont Yankee after 2012.
“If you [Vermont] don’t like the deal the company offered in its purchase power agreement [PPA], is the remedy to shut the plant down?” she asked the court.
In her rebuttal, Sullivan painted a picture of a power plant forced to acquiesce to a state’s pre-empted, nuclear safety-related regulations “against its will.”
Sullivan said the state broke its commitment to Entergy “in a fundamental way” with Acts 74 and 160.
“This wasn’t a negotiation, it was a coercion,” she said of Entergy’s agreements to Vermont’s regulations.
In two hours of closing arguments, the Vermont attorney general’s counsel, Bridget Asay, asserted the state steered clear of the federal pre-emption laws regarding nuclear safety.
Assay said the state’s statutes that regulated Vermont Yankee fell within the “permissible” territory of concerns like economics and the state’s long-term energy goals.
Asay also cited the PG&E case, saying the Supreme Court focused on the text and stated purpose of California’s statutes.
Entergy’s route of using legislative history to determine a statute’s final intent “contradicted” the Supreme Court’s precedent, she said.
According to Asay, the Supreme Court chose to not consider legislative history because how could a court pinpoint the motivation of every lawmaker voting on a bill?
Statutes, she said, were the product of a process of deliberation.
Instead, Entergy’s approach of studying legislative history asked the court to find that Vermont’s 180-member citizen Legislature had conspired over multiple sessions to lie within its statutes.
Asay said by choosing to sue the state, Entergy had broken its commitments and signed contracts. She asked the court not to allow the company to “walk away” from its agreements.
Asay also presented the court with documents and audio clips from Entergy management pointing out where the company acknowledged the state’s authority to regulate the plant.
The company engaged with Vermont’s legislative process and made commitments, she said, as long as everything worked to Entergy’s benefit.
Speaking outside the courtroom Wednesday, Vermont Attorney General William Sorrell said that nuclear safety was not the sole pretext for the state’s decision not to issue Vermont Yankee a certificate to operate the plant through 2032.
He cited the loss of trust in Entergy after the revelations of leaks of tritium-laced water from underground pipes that Entergy officials said did not exist at Vermont Yankee. He also cited the attempt by Entergy to spin off Vermont Yankee and five other plants into a new corporation, and the lack of a favorable power purchase agreement.
He said the burden is on Entergy to prove that Vermont was only focusing on safety in its policy making.
Ass’t AG, Bridget Asay, has it right. Entergy’s desperate attempt to show that three separately elected legislatures over a six year period conspired against Entergy, because they were solely concerned about the safety of the plant.
That’s a stretch and Entergy’s lawyer, Kathleen Sullivan, who is very good, knows this is the case. Playing audio clips, not just of random legislators, but of other witnesses saying the word “safety” and trying to use that as the Ah Hah moment is simply rediculous.
What she is saying is that the legislature does not have the authority to gather any, all or as much information as it needs to make a decision. She fails to comprehend (or show) how a legislature functions.
She attempted to use the word safety in the same way that Harry Potter uses the word Voldemort; “He who shall not be named”. Somehow saying the word safety is taboo.
As Ms. Asay so correctly pointed out if you want to see the legislative intent of the collective legislature, not simply those cherry picked for the purpose of dramatic court room proceedings, then one only needs to look at the law(s) that were passed.
Remember it was Entergy who came forward and asked for Act 74, which allowed them to uprate the plant and place highlevel nuclear waste in Vermont (a horrible decision I might add). Ms. Sullivan wined that the bill proposed by Entergy was modified and in exchange for an uprate they had to offer up money for the Clean Energy Dev. Fund.
She attempted to make this out to be the first time in history that Entergy has ever had to negotiate with any state to get what they want.
Ms. Sullivan knows perfectly well that attempting to prove the motive for 180 legislators at the moment of any given vote is an impossibility, which is why she declared this to be the burden of proof for the state. Nice try.
As Ms. Asay articulately stated this case is about nothing more than Entergy agreeing to abide by state law unless the time comes when they don’t want to.
Entergy signed a contract waiving its right to preemption, yet now they are in court arguing for preemption. Ms. Sullivan referred to Entergy’s signature on a legal document as a “notion that they would have waived their rights…”. A “NOTION”. It was not a notion. It was a legally binding contract and one that they now wished they had never signed.
The vote on Feb. 24, 2010 had nothing to do with safety and everything to do with reliability. Entergy had lied to us, under oath, and yet the legislature was being asked to force Vermont to do business with them for twenty more years. They have proven that they are not a reliable partner. They have demonstrated that they cannot be trusted. They have shown that they will say, do, sign anything as long as it’s to their advantage, but when the day comes when it is not, it is that day when we get to see the real Entergy.
Had we known then what we know now we would never have allowed this corporation in this state. Had we known 40 years ago, when this plant was approved by only one vote, what we know now we would have never allowed this plant to be built.
If we only knew….
“Playing audio clips, not just of random legislators, but of other witnesses saying the word “safety” and trying to use that as the Ah Hah moment is simply rediculous.”
Why? If your goal is to show that what motivated the vote of the 23 state senators was really safety — which is preempted by federal law and therefore illegal — then showing these people talking about safety is 100% logical.
“She attempted to use the word safety in the same way that Harry Potter uses the word Voldemort; “He who shall not be named”. Somehow saying the word safety is taboo.”
You don’t seem to get it. It is not VY’s lawyer, but the legislative leaders who orchestrated the senate vote who instructed their sheep not to use the word “safety.”
“Ms. Sullivan knows perfectly well that attempting to prove the motive for 180 legislators . . .”
It was not 180 legislators. 180 legislators didn’t vote. Only 30 of them did.
“Entergy signed a contract waiving its right to preemption, yet now they are in court arguing for preemption.”
It was the state of Vermont that broke the “contract” that you refer to. That “contract” (the 2002 Memorandum of Understanding) stated that VY agreed to let the Public Service Board of Vermont decide the relicensure issue. The Vermont senate voted last year not to allow the PSB to decide the issue.
“It was a legally binding contract and one that they now wished they had never signed.”
In that “legally binding contract,” the state agreed that they would allow Entergy to use the “safstor” method of decommissioning. You and your anti-nuke friends don’t agree with that, and new Governor Pete Shumlin has said he will never agree to that. So now who exactly broke that “contract”?
“The vote on Feb. 24, 2010 had nothing to do with safety and everything to do with reliability.”
Exactly wrong. It had 100% to do with safety and nothing to do with reliability. How could Vermont possibly care about “reliability” when none of the Vermont utilities have contracts with VY for any power after 2012?????
“They have shown that they will say, do, sign anything as long as it’s to their advantage . . .”
Just like Shumlin and the safstor decommissioning agreement.
“Had we known then what we know now we would never have allowed this corporation in this state. Had we known 40 years ago, when this plant was approved by only one vote, what we know now we would have never allowed this plant to be built.”
Who’s the “we” in your rhetorical statement? Not me, and not thousands of Vermonters.
Well Mr. Foerster, here’s the big difference between you and me. I was there. I was there in the State House and I was there in the courtroom.
You are entitled to your opinion, but your opinion is simply incorrect. But don’t take my word for it. Ask Entergy’s lawyers if they will let you watch the video deposition of Entergy’s former employee, and the man charged with turning around public opinion, Curt Hebert. His own words explained the vote better than you or I.
RE: The vote of 39 years ago; do you honestly believe if those legislators back then had been told that Vermont would be hosting high-level nuclear waste on the banks of the Ct. River, as well as in an unprotected fuel pool, that the vote would still have passed.
To refresh your memory, the vote to allow this plant to be built passed by only one vote. How you choose to answer this may very well demonstrate your knowledge of how the legislature works.
Mr. Stannard, in making your vitriolic and erroneous statements about VY on this blog, why don’t you disclose to the readers of this blog that you get PAID to oppose VY? That you are a paid anti-VY lobbyist? That you take money from anti-VY groups to spew your hateful words about VY?
I don’t find Mr. Stannard’s comments vitriolic and they can’t be erroneous if they’re his opinions (unless of course you alone know what is true).
And as for spewing hateful words, I’ve often viewed your posts that way.
Here it is: the list of all registered Vermont lobbyists, in alphabetical order.
http://www.vermont-elections.org/elections1/2011LobbyistBook.pdf
That is a great resource, thanks for posting it. A quick search shows no fewer than 9 lobbyists registered in Vermont to lobby on behalf of Entergy/VT Yankee.
Mr. Foerster is absolutely correct in stating that I am a paid lobbyist. He inadvertently left out the fact that my client(s) are all volunteer citizens. There is an executive director of VCAN who receives a stipend for expenses. That’s it.
This contrasts the no fewer than 9 paid lobbyists retained by Entergy. Regarding my “hateful comments”, I believe I am doing nothing more than expressing my opinions, which is exactly what you, Mr. Foerster, are doing as well. Feel free to tone it down a bit.
@ Hoffer: you say Stannard’s opinions can’t be erroneous if they’re his opinions, and yet he tells me in his latest post that my opinions are “simply incorrect.” Why don’t you chide him instead of me?
@ Hannan: a quick review of the lobbyist list will also show that VPIRG and NRDC and CLF and (the so-called) Vermonters for a Clean Environment and a dozen other organizations have far, far more lobbyists working AGAINST VY than VY has working for it.
“He inadvertently left out the fact that my client(s) are all volunteer citizens.”
Your clients may be volunteers, but you take money to publicly dis Vermont Yankee. Congratulations.
“This contrasts the no fewer than 9 paid lobbyists retained by Entergy.”
As compared to the literally DOZENS of paid lobbyists, including yourself, who oppose Entergy.
“Regarding my “hateful comments”, I believe I am doing nothing more than expressing my opinions,”
Fair enough. But when I express opinions that challenge yours, you attack mine as “simply incorrect.” So, you own the truth?
Mr. Foerster, You are correct. I am paid to do my job. All the money I receive comes from contributions from people; citizens. We are not a multi-billion dollar organization that can hire 9 lobbyists, along with a cadre of lawyers. There is a big difference.
It’s true that other environmental groups may not support VY, but of the groups you mentioned, only VPIRG has had one lobbyist dedicated to working with me solely on VY issues. There are not “dozens of paid lobbyists” working against VY. It’s actually just the opposite.
I’m not saying I own the truth. I’m simply disagreeing with your perceived reality.