Vermont AG William Sorrell, right, said his office lacked the evidence needed to bring criminal charges against Vermont Yankee Officials. At left is Asst. Attorney Gen. John Treadwell. VTD/Josh Larkin
Entergy Corp. filed a motion with the U.S. District Court on Friday to recover $4.6 million in legal fees for its lawsuit against the state.
The Louisiana company prevailed in federal court on Jan. 20 when Judge J. Garvan Murtha struck down two state laws that required Entergy to seek approval from the Legislature to continue operating Vermont Yankee Nuclear Power Plant past its 40-year anniversary and to store high level nuclear waste at the plant site.
The state has 30 days to appeal the decision.
Entergy says it is entitled to an award of attorneys’ fees because it also prevailed on its claim under the Commerce Clause.
Chanel Lagarde, spokesman for Entergy, said in a written statement that “the law allows for the prevailing party to seek recovery of attorney’s fees.”
“We believe this is the appropriate next step for our company in this case where we were compelled to challenge several Vermont state laws that we believed were unconstitutional and were in fact found to be unconstitutional,” Lagarde said.
Download the motion Entergy Attorney Claims 2-3-12.
Vermont Attorney General Bill Sorrell said he expected Entergy to request attorneys’ fees.
“I was certain it would be all of seven figures, I just didn’t know how far into seven figures it would be,” Sorrell said. “It’s a little higher than I thought.”
Sorrell said “they threw a lot of legal horsepower at us, they went into the record extensively and they charged New York City rates.”
Entergy hired Kathleen Sullivan, the dean of Stanford Law School, to litigate the case. Sullivan was on the short list of candidates for Obama’s recent Supreme Court appointment, and she has been described as “one of the most trusted advocates before the United States Supreme Court.” Sullivan unearthed a detailed record in which she said lawmakers made references to safety as justification for a decision to deny Entergy a permit to continue operating the 40-year-old nuclear plant for an additional 20 years. States can’t regulate the safety of a plant under federal law; safety is the purview of the Nuclear Regulatory Commission.
The state can challenge the amount of the fee, Sorrell said. “This is a long way from over,” he said.
Sorrell said his office can question whether the lawyers’ hourly rates and the amount of time they spent on the case was reasonable. Entergy can’t claim relief for any legal work related to the questions about the reliability of the nuclear plant, he said.
It’s not unusual for litigants to go through a mediation process and retain experts to review attorneys’ fees, according to Sorrell.
“It’s not that they get to say this is what you give us,” Sorrell said. “There’s a lot of lawyering to be done on a request of this magnitude.”
Sorrell pointed to the prescription datamining case as an example of how the state has negotiated with other litigants. The state lost the case against IMS, a drug datamining company last summer in proceedings before the U.S. Supreme Court. The attorney general said he couldn’t reveal how much IMS is requesting for attorneys’ fees, but he said the state is negotiating with the company to reach a settlement. The state has already settled with one of the litigants in the case, Pharma, an advocacy group affiliated with IMS for about $1.75 million.
Will Entergy’s $4.6 million request affect Sorrell’s decision to appeal? “Not really,” he said.
“Some have speculated that we would be intimidated by the amount not to go further with an appeal,” Sorrell said. “Others have said it reinforces the reasonableness of an appeal because if the decision is overturned we don’t pay a dime. We’ll look at the appeal on its own merits.”
Cheryl Hanna, a professor at Vermont Law School and an expert on constitutional law and the U.S. Supreme Court, said the judge ruled that the state of Vermont violated Entergy’s constitutional rights and that entitles Entergy to legal fees.
“As a general rule, we allow that,” Hanna said. “We want to give incentives to enforce constitutional rights even when there is no money involved.”
Vermont doesn’t have to pay damages, she said, but “we allow for requests for attorneys’ fees so that lawyers will take these (constitutional rights) cases.” Hanna said fees are requested for a wide range of cases whether the litigants are inmates or multi-million dollar corporations.
Hanna says it will be up to court to decide how much to award.
“Unless the state prevails on all counts, we will probably end up paying for Entergy’s lawyers,” she said. “We don’t get a discount rate because we’re in Vermont. The court will force us to pay New York rates.”
Last year, the Shumlin administration pushed for a “billback” provision that requires Entergy to pay the state’s legal fees. Sorrell advised the Legislature to move ahead with the change in statute, which would make Entergy Corp. liable for the state’s legal expenses, including responses to public records requests and the preparation of litigation in the case.
Whether the court would honor this provision, in light of the judge’s dismissal of the state’s authority in matters of pre-emption, is an open question.
Editor’s note: This story was updated 5:40 a.m. and again at 6:25 a.m. Feb. 4.
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entergy needs to be stopped. can you imagine them wanting money for out lawyering our state – even after the hurricane disaster bringing vermont to her knees. they are so evil and cannot be trusted to do the right thing ever.
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Murtha has placed an unconstitutional prior restraint on speech on the floor of every state’s legislature.
This not only should be appealed – it HAS to be appealed.
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Yes, but lest we forget they will give to a local charity or to our clean energy fund (which they were forced to do) in an attempt to make us think they are a good and charitable corporation.
During this time of giving they will be asking that they not have to look for cracks in the steam dryer every 18 months as they are required to do now. Instead they now want to do this examination every TEN YEARS. And, of course, they no longer want to incur the costs of testing for radioactive pollution that they will be leaving behind.
Yes, Entergy is a good, fair and kind corporation and we should allow them to be the good neighbor that we know they are for the next 20 years.
After all, they’d never lie to us, would they?
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Any Vermonters who still think Entergy is a good corporation and does a good job is living in a dream world. Entergy has one interest and only one interest. Making money! They do not care about anything else. The legislature cannot discuss safety, by law according to a judge. I on the other hand can and will ask questions about safety, truthfulness, and reliability or anything else I want to.
Why is it that safety is not considered when making laws?
Why is the NRC (I believe in bed with the nuclear industry) the only entity that can speak of safety?
Why can’t Vermont legislators deliberating bills talk about safety?
Why would a federal judge rule that the legislature in discussion of these (bills) laws mentioned safety (not allowed) but the law says nothing about safety?
How can this judge know what the legislature intended?
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“The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty.”
- Abraham Lincoln
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Translating Mr. Licata: We need a new Attorney General.
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Ross thanks,
We’ve needed one for a long time.
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No, Mr. Laffan, we need a new federal judge; one who examines the laws passed by our legislature (and signed by our governor). Not one who buys into a bogus conspiracy theory that a handful of legislators were able to manipulate not one, but two separately elected legislatures, a supportive Republican governor and the Representative from Vernon to do their bidding.
It should come as no surprise that Judge Murtha is one of the most overruled federal judges. This recently ruling clearly demonstrates why.
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Actually, we need a new federal judge; one who looks at the laws that were passed vs buying into a bogus conspiracy theory that a handful of legislators somehow manipulated two, separately elected legislatures, a supportive Republican governor and the Representative from Vernon.
This judge completely ignored the fact that Entergy’s own former employee testified that the overwhelming Senate vote was due to the fact that Entergy had lied under oath and was trying to duck responsibility by moving the VY plant into a shell LLC known as Enexus.
It’s no wonder that this judge is one of the most overruled judges. Gov. Shumlin and AG Sorrell need to appeal this decision, which has a chilling effect on all legislatures in District 1. Murtha evicerated democracy and free speech with his rediculous decision.
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“Sorrell said “they threw a lot of legal horsepower at us…”
To bad we didn’t throw a lot of legal horsepower at them. As in the data mining appeal at the SCOTUS, Sorrell chose to fight the issue with a stable of pet ponies when war horses were needed. I support the closure of VT Yankee but given the actions of the legislature and the poor case put on by the AG’s office, Judge Murtha really had no choice.
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To Mr. Stannard, et al.:
“Does civil society consist of a set of institutions that help the government achieve its purposes as it defines them when their doing so might be more efficient or convenient than the state’s doing so itself, or does civil society consist of an assortment of efforts by citizens to band together in pursuit of mutual aims and goods as they understand them?
Is [civil society] an extension of the state or of the community?
In this arena, as in a great many others, [Vermont’s legislature & the Governor’s office are] clearly determined to see civil society as merely an extension of the state, and to clear out civil society—clearing out the mediating layers between the individual and the state—when it seems to stand in the way of achieving the [Legislature’s and Governor’s] agenda.
The idea is to leave as few non-individual players as possible in the private sphere, and to turn those few that are left into agents of the government.
This is the logic of [Vermont’s] approach to the private economy, not just to civil society.”
Yuval Levin
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An absurd exageration with no examples provided.
More data and less apocalyptic quotes.
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Mr. Schneider’s and Mr. Kerin’s comments demonstrate quite clearly that they don’t like the decision, which they are entitled to do, but that they have no understanding of our legal process.
A state cannot pass laws that violate federal law, and they cannot try to get around that principle by calling the law something other than what it really is. If you don’t like the fact that your elected representatives in Washington made the federal government the sole arbiter of nuclear safety, change the law. Don’t blame the judge for doing his job.
Thank god that our courts are not only authorized, but required to examine state laws, and not required to simply accept the name of the law as the truth of what it’s about. When racist state legislatures enacted poll taxes and literacy tests to keep black Americans from voting, do you think they named those laws, “An Act To Reduce Black Voter Turnout”? No. Does anyone here believe that the courts should not have examined the true motivation behind those laws, and found them unconstitutional?
You can’t argue for federal intervention when it comes to laws you don’t like, and argue for state’s rights when it comes to laws you do like.
As for Mr. Stannard’s intemperate and ridiculous comments about a highly respected federal judge, it’s hard to know where to begin. Judge Murtha was nominated by Senator Leahy and appointed by President Clinton, and has had a sterling judicial career since he took the bench in 1995. But I guess Mr. Stannard is a lawyer now, and much smarter than Judge Murtha and all of the many lawyers and Vermont Law School professors who predicted exactly this outcome. I’ll also point that Mr. Stannard gets paid to hate Vermont Yankee.
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Obviously you haven’t read the decision. Murtha’s outcome was predicated entirely on open debate in the legislature and what some (and nobody even claims most) said at various times of the debate.
This decision was an affront to any concept of free and open political debate.
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Not that facts matter much to you, but the Vt. legislature did not pass any laws that attempted to regulate radiological safety. The judge bought into a contrived conspiracy. That’s his perogative, but he’s wrong.
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Here’s what I think will happen:
Sorrell will appeal the decision. He will oppose the motion on fees. He will then seek to settle the dispute before a decision is rendered by the 2d circuit. The settlement will entail some (or perhaps no) money to Entergy for its legal fees and an agreement as to what evidence or argumenmts that the state will raise with the Public Service Board on Entergy’s application for the CPG. This agreement will give Entergy confidence that it will receive a CPG for another 20 years. (Perhaps settlement will even be contingent on Entergy getting the CPG on terms it can accept.) At the same time Entergy will agree that the state has some role in monitoring safety at the plant – perhaps continuation of the existing state engineer’s role – and standards regarding discharge of coolants into the Connecticut River. Bottom line, the plant will continue to operate, the state will get something to save face, and the NRC will be in charge of whether the plant can operate safely.
Perhaps the state will even get an agreement regarding favorable rates, but at this point I think that is doubtful.
The big mistake, as I see it, was the legislature injecting itself into the CPG process. This eliminated the due process rights existing in the CPG proceedings before the Board and opened the door for all the comments and opinions of the legislature to become relvant as to the motives behind the legislation.
The second mistake was arguing that the legislation was not about safety. Bottom line, at least to an outside observer, neither state officials nor the public trust the NRC or Entergy to operate the plant safely, and that is what has motivated this fight. But that is the exclusive jurisdiction of Uncle Sam. It would have been more consistent I think to have argued, as Arizona is arguing in the immigration dispute with the feds, that Uncle Sam has abrogated its exclusive jurisdictional rights because it has failed to do the job assigned to it leaving the state no alternative but to step in. That may not have been a successful argument, and would have entailed tons of evidence, but it might have led to some congressional action that could have benefited Vermont.
If the case is not settled, or perhaps even if it is, it will become an issue in Sorrell’s re-election campagn, should someone decide to run again him, which at this point I would have to assume seems likely.
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If Entergy spent about $4.6 million defending itself, the state must have spent at least half that, or $2 million; a true accounting will likely not become available.
Appealing the decision (Sorrell: “This is far from over”) will add to the state’s cost and to Entergy’s costs.
If that appeal is lost, Entergy may sue for at least $6 million in court costs, and on it goes.
At some point, enough is enough. A wiser, far less costly route is not confrontation, but some mode of cooperation.
The New England grid has nuclear energy on it, including Vermont Yankee’s. Anytime New Englanders use electricity, about 26.5% of it is nuclear.
http://www.iso-ne.com/nwsiss/grid_mkts/enrgy_srcs/index.html
It would take at least a decade and about $1.6 billion to build 10 Lowell Mountains for Vermont to produce 1,770 GWh/yr of its energy needs from wind.
Lowell Mountain, $160 million, will produce about 63 MW x 8,760 hr/yr x capacity factor 0.32 = 177 GWh/yr
It would take at least a decade and about 1,770/(8,760x 0.143) = 1,413 MW of solar panels at $5,000/kW, or $7.06 billion, to produce 1,770 GWh/yr.
Note: Wind and solar energy is useless to households and businesses, unless it is backed up by almost all the existing conventional sources (coal, oil, gas nuclear, hydro) because there will be numerous hours of the year with too little wind speed (less than 7.5 mph) to turn the rotors (at those times wind turbines draw energy FROM the grid), and there is no sun at night.
Vermont Yankee produces about 4,800 GWh/yr of steady, near-air-pollution-free, near-CO2-free, low-cost (5.5-6.0 c/kWh) energy, 24/7/365, regardless of the weather; Vermont uses about 5,600 GWh/yr.
Hydro-Quebec has plentiful steady, air-pollution-free, CO2-free, low-cost
(6c/kWh) energy, 24/7/365, regardless of the weather.
All of Vermont’s energy can be available at about 6c/kWh to Vermont at ZERO capital cost from the grid and Hydro Quebec.
Opting for destroying more ridge lines to produce wind energy at about 2-3 times grid prices is economically irrational, to say the least.
http://theenergycollective.com/willem-post/71771/energy-efficiency-first-renewables-later
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Cooperation with Entergy Corporation and it’s captured regulators while it deceives and raids Vermont (just as it did Mississippi and other Southern states after Hurricane Katrina) is not in the Green Mountain Spirit. A government for the people must stand up to this bully, emboldened by the corrupt SCOTUS decision that corporations are people. If corporations are people, let them fight their own damn wars. Let them pay taxes. Let them be governed by the democratic laws of the the state in which they are privileged to do business. Let them go to jail for illegal dumping and groundwater pollution. Let them be prosecuted for breach of contract, for defaulting on their MOUS, for lying to public agencies. Let the people revoke their corporate charter when they fail, repeatedly, to behave as responsible “citizens”. I support Attorney General Sorrell and Governor Shumlin (the greatest governor the state has ever had) in appealing Judge Murtha’s cherry-picked decision. Murtha defied court precedent by ignoring the text and literal intent of the legislation Vermont passed to protect the state’s economic interests and cherry-picking the legally protected free speech of legislators doing the people’s work. This was a bad decision, based on the current trend to empower the Corporation and enslave the People. Vermont must stand up to this assault on her liberty.
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Let me guess ……… you don’t like corporations
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Please note that the main talking point of the pro-nuclear front-squad today is “cooperate.” Sort of like “say Uncle.” Intimidation by economic raiders by any other name still smells like the rotting carrion it is. The Entergy rat has been smoked out and is revealing its true colors.
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Mr. Fitzhugh has it right. The likely future scenario is not very appealing to the Vermont executive branch, nor to the Attorney General.
Both would be well advised not to appeal the case to the 2nd Circuit and incur yet more legal fees and probably lose again.
The AG may do better arguing for a reduction of the $4.6 million in legal fees requested by Entergy. He should try to salvage some taxpayer dollars for better purposes than unnecessary legal fees that were created by an ill-advised legislature which signed on to Peter Shumlin’s vendetta against VY.
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Sally,
We all like to do some emotional venting about issues we feel strongly about, but it usually yields no results, as judicial disputes are settled, after weighing pro and con arguments, according to the law in a democracy, not according to what one might wish, on a whim, personal bias, or whatever.
See above comments of Usher and Fitzhugh that advise a rational approach.
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Here’s a simple fact: Murtha never said the law as passed was an illegal or unconstitutional breach of federal law; instead Murtha stated that the DEBATE THAT PRECEDED THE VOTE for or against Act 160 (??) violated the tenets of federal preemption.
Murtha gives no indication other than if the debate had been framed in any other manner the law would have been upheld. So change the pre-law debate and the law stands.
You don’t have to believe me … all you have to do is read the decision.
I find it amazing that anybody can be supportive of this decision.
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When Progressives play stupid games, Vermonters win stupid prizes.
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“Obviously you haven’t read the decision. Murtha’s outcome was predicated entirely on open debate in the legislature and what some (and nobody even claims most) said at various times of the debate. This decision was an affront to any concept of free and open political debate.”
Attorney Schneider, I have read the decision. Cover to cover. Multiple times. So have many legal professionals and law school professors. Lots of lawyers and legal scholars believe it is totally legally correct. The laws at issue were motivated by safety concerns. Whether you like it or not, under law, the state has no role to play — none — in nuclear safety.
You are an attorney, right? I assume you are, since you are acting like you are one. You seem to speak in absolute and authoritative terms that the decision can’t be supported, so I have to assume you are a qualified legal scholar?
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Show me where Murtha states the letter of the law violated and precepts of federal preemption.
That should be simple enough.
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Where is Ethan Allen when you need him?
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Attorney Schneider, are you saying that courts must simply accept the text and title of laws, and not examine their motivatiom, intent, and purpose?
Howbout a state law entitled, “An Act To Preserve The Integrity Of Our Elections,” in which voters are required to show up with proof of citizenship and take literacy tests and pay a tax? Of course, the title and text of the law says nothing about keeping African Americans and legal immigrants and poor people away from the polls, but during the legislative debates there was quiet talk about such concerns. According to you, if a judge were to invalidate such a law, that would be against the “letter” of the law.
Congratulations on your legal scholarship.
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So many questionable statements:
1) Don Eggleston writes: “A state cannot pass laws that violate federal law, and they cannot try to get around that principle by calling the law something other than what it really is.”
That’s half-right. Under the Supremacy clause of the constitution, States may not write legislation that either conflicts with federal laws or, which interfere in fields designated as strictly federal by Congressional legislation, such as nuclear safety.
The question here is whether Vermont did that.
Ordinarily, judges, like ALL interpreters of ANY text, look FIRST to the text of the law (not simply its name) to determine its meaning and intent. The guiding principle of all interpretation is that ALL of the text is deemed to be relevant and to contribute to the meaning.
If we look at Act 160, there are 4 sections, including the legislative findings in section 1. Sections 2 and 3 are both attempts to frame the discussion of continued operations “addressed as a part of the larger societal discussion of broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits, risks, and costs; and in order to allow opportunity to assess alternatives that may be more cost effective or that otherwise may better promote the general welfare.,” in the words of section 1(d). The legislature wants this discussion to be conducted DIFFERENTLY from what it perceives as the Public Service Board’s usual more limited scope and process, and thus, in section 2, it inserts the legislature itself into the process, and in section 3, gives specific instructions to the PSB on what it should and should not do about cost-benefit analysis.
These two sections are TOTALLY consistent with the much longer portion of the law, Section 4, which provides for very specific timelines, procedures, and studies all clearly intended to inform the cost-benefit analysis. And all three of the sections of the law itself are consistent with the findings as stated in section 1. Neither Entergy nor Judge Murtha have suggested ANY ambiguity or lack of clarity about any of this, since, in fact, neither ever bothered to discuss it at all.
There is NOTHING here about nuclear safety or about any other matter preempted by federal legislation. Ordinarily, the interpretative process would end here, precisely as the State suggested in its briefs and oral arguments, and as the Supreme Court of the United States held in the PG&E decision. In point of fact, PRECISELY the same issues arose in the PG&E case, and were settled in a manner precisely opposite to Judge Murtha’s decision.
Instead of following the Supreme Court precedent, Judge Murtha, following Entergy’s lead, goes rummaging about in random samples of legislative history, emerging with a handful of samples of statements which he suggests somehow prove that the REAL intent of this law lies NOT in what it actually says, but PRECISELY IN WHAT IT DOES NOT SAY.
One would expect anyone offering such a radical conclusion to offer at least a few words showing with some specificity why such a bizarre interpretation should replace the far more obvious one: namely, that the law means what it says. But such an expectation is never gratified.
Instead, we have listings of random quotes, which may or may not be from legislators (many are unattributed) and which may or may not concern the text of actual legislation. Judge Murtha never bothers to tell us. When we read a legislator saying “Let’s find another word for safety,” for example, the Judge never bothers to inquire whether, as a matter of fact, the legislature followed that lead. Nor does he ask WHERE in the law that happened, or whether the passage in question ever emerged into the final law as enacted. These are pretty obvious questions to ask, one would think, especially when reaching so radical an interpretation of a text.
The same issues arise in Vic Hudson’s comment: “Howbout a state law entitled, “An Act To Preserve The Integrity Of Our Elections,” in which voters are required to show up with proof of citizenship and take literacy tests and pay a tax? Of course, the title and text of the law says nothing about keeping African Americans and legal immigrants and poor people away from the polls, but during the legislative debates there was quiet talk about such concerns.”
The answer, I would argue, would be to START with the text of the law itself to see what it actually says it’s trying to do, and to assess its likely effect. Given the hypothetical evidence Hudson suggests, an interpreter might well look especially hard for passages of the law which suggest multiple possible interpretations or ambiguities. But if every part of the text of the law itself is clear, consistent, constitutionally permissible and without ambiguity, one would have to conclude that the concerns that were expressed might well have been on the minds of legislators, but that the law they actually passed did NOT reflect them. Otherwise, judges are not acting as trained interpreters of laws; they are just play acting as untrained psychoanalysts.
Let’s take Hudson’s example and Murtha’s process one step further. Let’s say that EVERY LEGISLATOR got up and said during the floor debate that they were passing this act, which in fact was all about elections, because they felt that Vermont Yankee is unsafe and would radiologically contaminate the surrounding area. Would THAT suggest that such a law should be preempted because it was really “about” nuclear safety?? What’s lacking in Hudson’s example and in Murtha’s method, of course, is any RELATIONSHIP between the supposed intent as expressed by these legislators, and the actual law they passed.
2) Willem Post avers: “If Entergy spent about $4.6 million defending itself, the state must have spent at least half that, or $2 million; a true accounting will likely not become available.” Actually, according to yesterday’s Rutland Herald: “Sorrell said his office spent about $180,000 on expert witnesses and contract counsel on the case, and that its in-house costs, including the time of the assistant attorneys general who worked on the case, was another $180,000.”
3) Chris Bates suggests: “When Progressives play stupid games, Vermonters win stupid prizes.” Act 160 passed unanimously. It was signed by Mr. Progressive: Jim Douglas, as was Act 74. The 2010 Senate vote consisted of 21 Democrats (one of whom is also a Progressive) and 5 Republicans, including Republican gubernatorial candidate Randy Brock, voting against continued operations. It’s really time to stop trying to rewrite the history of what actually happened as an ideological morality play.
Finally, 4) Vic Hudson asserts: “Lots of lawyers and legal scholars believe it is totally legally correct.” Please name a few. Do not confuse statements that the judge ruled as expected with the statement that he ruled correctly.
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“The question here is whether Vermont did that.”
Attorney Greenberg, the federal judge found that it did, in a well-supported decision that has been found sound by numerous lawyers and law professors.
Will the pre-eminent legal scholar John Greenberg be arguing the appeal? Because it sounds like you’ve got it all wrapped up.
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“a well-supported decision that has been found sound by numerous lawyers and law professors.”
I asked you to name them. I ask again. Name them.
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I think there’s room for a new $6 million fee, such as a uranium transportation fee. Or maybe a tritium release fee of $12 million. Then, let them pile up, one on top of another.
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Vic,
Your comment is a realistic response to some of the above emotional. less-than-rational lay comments.
Some months ago, I predicted Judge Murtha would rule for VY; only a biased entity, such as the leadership of the politically-motivated Vermont Legislature, would have (illegally) ruled against VY.
In general, judges dislike the shame of having their decisions reversed by higher courts. Therefore, they try to be as diligent and objective as possible and adhere to the law as closely as possible.
Nevertheless, mistakes are made, but likely not in this rather straightforward case, otherwise the state would have immediately jumped all over Judge Murtha.
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Judge Murtha’s decision that 26 out of 30 Vermont State Senators conspired to use code-words for safety (which only DC’s Nuclear Regulatory Commission can legally regulate) when denying Vermont Yankee a 20-year license extension is in no way a victory for Vermonters. It is a federal judge telling Vermonters that we can’t run the state we choose to, that we can’t govern ourselves, that we must bow down to DC and Wall Street. We deserve better than that. We deserve autonomy, self determination, and independence from DC. Surely, the people in Vermont know what’s good for Vermont more than the politicians, lawyers, and investors in DC and NYC do.
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Replying to Lance Hagen, I do run a bookshop, and I am not a law professor.
I have, however, read deeply into nuclear law for 25 years, and have spent a considerable amount of time discussing these issues with lawyers who specialize in this area. In addition, I have closely followed and actively participated in Vermont Yankee issues at many levels during that same period, and I have taken the time to listen to virtually all of the legislative testimony in the last few years, to talk to almost every legislator, and to read virtually all of Docket 7440. And just to complete the record Mr. Hagen, VLS thought enough of my defense of VT’s low-level radioactive waste law (which I helped to write) to publish it in its law review back when the dinosaurs roamed. Still, I do not make and have never made any claim to expertise of any kind.
Vic Hudson (finally) cites 2 lawyers in defense of the Murtha decision. One of them, Don Kreis, specifically disagrees with part of the Murtha decision in his 2nd January 20 column (partially retracting the one cited by Mr. Hudson, after, I might add, a comment I wrote on his first column about the precise point he is retracting: “This renders my blog post of earlier today fatally flawed in one key respect.” http://vtyankeelawsuit.vermontlaw.edu/january-20-2012-don-kreis-count-iii-reconsidered/ This is not a small issue, since it will have substantial impact on the PSB’s consideration of VY matters going forward.
As to whether Professor Kreis actually thinks the case was well-decided, after corresponding with him I’m a whole lot less certain of that than Mr. Hudson appears to be, but Professor Kreis can speak for himself.
Hudson writes: ‘I have yet to see any analysis by a legal scholar saying that this decision is fundamentally legally flawed….” Perhaps he hasn’t looked.
Here, for example, is Pat Parenteau, another professor at VLS: “Parenteau believes Murtha “cherry-picked” the legislative history to focus on statements related to radiological health and safety.
“In some cases the statements were made by witnesses and not even legislators,” said Parenteau. “To me, that’s a potentially reversible error.”
In his opinion, the Legislature’s actions in no way interfered with the NRC’s duties and obligations. He also said it’s unrealistic to separate safety from reliability.
“You can’t deal with reliability and the economics of nuclear power if you don’t take into account the special requirements of safety,” said Parenteau. “That’s not the same as interfering (in a federal decision).”
Murtha has created “a trap,” said Parenteau.
“Anybody who comes into the Legislature and starts testifying about nuclear safety issues taints the record. That’s absurd.”
Murtha parsed through legislative history to dig out statements that supported his decision, said Parenteau.
“There are hundreds of people in the Legislature and people who gave testimony. He picked 16. It’s the kind of thing federal courts almost never do. It shows no respect for the state Legislature.” http://www.reformer.com/news/ci_19879902
VLS dean and professor Michael Dworkin expressed similar thoughts and far more extensive ones as well on VPR’s VT edition: http://www.vpr.net/episode/52856/state-considers-next-move-after-judge-rules-in-fav/
But the real point is this: legal matters, like all intellectual issues, are best decided by examining who has the more compelling argument, not by counting experts. (Many, if not most, of Vermont’s leading legal practitioners in these matters were witnesses, defendants, or attorneys in this case and therefore cannot be considered “objective.” Nonetheless, I believe it’s fair to at least note that they uniformly believe that the case was wrongly decided.)
Judge Murtha’s underlying explanation is glaringly incompatible with the most basic facts of this case. It totally fails to provide any explanation as to why, if the legislature was motivated by nuclear safety to enact Act 160, only 5 senators out of the entire legislature opposed final passage, (the House voted for it unanimously), while many of those voting for the bill were Vermont Yankee supporters and it was signed into law by Jim Douglas, an ardent VY proponent. Or why a legislature supposedly so motivated did not choose to simply ignore VY’s request and do nothing at all rather than pass Act 74, which gave Entergy the right to store “spent” fuel in dry casks. Non-action, in 2005, would have effectively closed the plant even earlier 2012, as Entergy’s request made clear.
One needs no expertise to see why this decision is wrong: its errors of fact, logic and law speak loudly and clearly for themselves.
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“We deserve autonomy, self determination, and independence from DC. Surely, the people in Vermont know what’s good for Vermont more than the politicians, lawyers, and investors in DC and NYC do.”
Yeah, that’s right! F the US Constitution! F federal supremacy! We should be able to do anything we want, without meddling or scrutiny from the feds! We should be able to pass discriminatory laws in Vermont! We should be able to impose prayer in public schools in Vermont! We should be able to ban abortion in Vermont! We should be able to restrict speech in Vermont! We should be able to not allow out-of-state companies to do business in Vermont if we don’t like them!
Think, Sir. Jefferson Davis, Ross Barnett, Bull Connor, George Wallace, and a handful of other luminaries made the exact same argument you are making. In fact, I think if you substitute the words Alabama, Mississippi, or Georgia for the word Vermont, they all said EXACTLY what you said.
Congratulations. You put yourself in great company.
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Thanks to John Greenberg for alerting me to the fact that my name has come up in the discussion here. Although I don’t really want to become embroiled in this conversation, I offer a quick summary of my current thinking in the event someone somewhere thinks it relevant:
1. Judge Murtha reached the correct result (on the preemption question) but for the wrong reasons. He should not have relied on all that legislative history. In fact, he should never have let Entergy put on the show to begin with. His reliance on legislative history makes his decision vulnerable on appeal.
2. The question of whether the state statutes in question are preempted by the Atomic Energy Act should have been answered purely with reference to the language of the state statutes themselves.
3. As of 2008, the Vermont Legislature had effectively divested Vermont Yankee of any state-law authority to continue to operate after March 21, 2012. References to the possibility that a subsequent legislature might deem safety risks to be outweighed by other benefits, and restore VY’s operating authority, are meaningless. Subsequent legislatures are always free to undo the acts of prior legislatures.
4. There was no plausible reason for the Legislature to decide in 2008 to shut VY down four years hence other than radiological safety. You can say that the state was concerned about economic benefits post-2012 but the reality is that those benefits were unknown in 2008 and thus incapable of forming the basis for what the Legislature did.
5. The Commerce Clause claim (Count III) was wrongly decided and should be reversed on appeal, for reasons I have set forth elsewhere.
Hope that helps!
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Well, Vic Hudson, now we can plainly see YOUR modus operandi. So just for yucks, let’s play this by YOUR rules:
1) Don Kreis writes: “Judge Murtha … should not have relied on all that legislative history. In fact, he should never have let Entergy put on the show to begin with. His reliance on legislative history makes his decision vulnerable on appeal.”
2) “The Commerce Clause claim (Count III) was wrongly decided and should be reversed on appeal, for reasons I have set forth elsewhere.”
Therefore, 3) Kreis does NOT believe that this is a “well-supported decision,” in your words above.
What I have just done here is perfectly fair to you — since like Judge Murtha, you’ve obviously decided to hear only what you want to hear, ignoring all context and subtlety, but I want to make it quite clear that it is profoundly UNFAIR to Professor Kreis’s statements above, which are more nuanced than either your caricature OR MINE. My caricature is offered NOT as an interpretation of Professor Kreis’s statements, but SOLELY as a parody of your simple-minded explanation.
********************
The core point on which Professor Kreis and I disagree concerns this statement: “As of 2008, the Vermont Legislature had effectively divested Vermont Yankee of any state-law authority to continue to operate after March 21, 2012.” (He means 2006 since he is referring to Act 160.)
The first problem is quite obvious: VY never had any “state-law authority to continue…,” so clearly none could be divested. As a matter of simple fact, the premise on which he relies is false.
In 2002, in the now infamous MOU, the PSB spelled this out quite clearly: “The signatories to this MOU agree that any order issued by the Board granting approval of the sale of VYNPS to ENVY and any Certificate of Public Good (“CPG”) issued by the Board to ENVY and ENO will authorize operation of the VYNPS ONLY UNTIL March 21, 2012 and thereafter will authorize ENVY and ENO ONLY to decommission the VYNPS. Any such Board order approving the sale shall be so conditioned, and any Board order issuing a CPG to ENVY and ENO shall provide that operation of VYNPS beyond March 21, 2012 shall be allowed only if application for renewal of authority under the CPG to operate the VYNPS is made AND GRANTED.” (Paragraph 12, MOU; emphasis added)
In other words, Entergy knew at the time it completed its purchase of VY that it would require another CPG to continue to operate beyond March 21, 2012, that is, that it would NOT be able to operate without a CPG after that date. Act 160 did not change this.
Instead, it changed the PROCESS by which a CPG would be granted, requiring a future legislature to vote before the PSB could issue a final order. Put in Kreis’s terms, the bill divested the authority of the PSB, but it took no authority away from Entergy or VY, since no such authority ever existed.
Moreover, reducing Act 160 to just this one provision is an unacceptably crabbed, reductionist reading, which fails to consider the vast bulk of what the law actually says and does. Textual analysis requires that the interpreter read the WHOLE text, giving meaning to all of it, rather than simply cherry picking just the parts of it they prefer to use, as Vic Hudson (and I in caricature) have done above.
There is no plausible way to read ALL of Act 160 as being primarily a law about a legislative vote. Doing so renders all of sections 3 and 4 gibberish, or worse, a flagrant waste of tens or even hundreds of thousands of dollars of state funds in pursuit of some hypothesized but never articulated motive, which, according to Kreis, Hudson and Murtha must be radiological safety. (Hudson and Murtha get to that motive through legislative history, which a method Kreis abjures. It’s not clear how Kreis gets there).
The only reason this reading even SOUNDS plausible NOW is that we are examining Act 160 from the perspective of 20/20 hindsight: the studies it mandated are now written and submitted, the specified processes completed, and in 2010, we were left with one important remaining provision, which was spotlighted and dramatized with the Senate vote, and now that too is in the past.
The fact of the matter, however, is that the 2010 senate was able to base its vote on a body of knowledge which was NOT available in 2006, and which therefore could NOT have been the basis for the 2006 legislature’s actions. In fact, Kreis agrees: “You can say that the state was concerned about economic benefits post-2012 but the reality is that those benefits were unknown in 2008 [2006] and thus incapable of forming the basis for what the Legislature did.” But this ASSUMES that “what the [2006] Legislature did” was to REACH A CONCLUSION based on its ignorance. Instead, here’s what the legislature actually DID do: it acknowledged what it did not know, and established a process by which a future legislature WOULD know it.
In fact, Act 160 is a law ENTIRELY about a deliberative PROCESS which the legislature intends to follow and have followed by other agencies. It provides detailed instructions to the PSB in all 3 operative sections (2-4), and to DPS as well in section 4. It repeatedly shows the legislature’s concern with its perceptions that PSB decisions are made too narrowly and without sufficient public input, which is crystal clear from the text of section 3, as well as from the specific processes detailed in section 4. The legislature’s perception of the PSB may be entirely wrong, but there is nothing federally preempted about it.
As to one legislature binding another, Kreis is correct. Legally, one legislature cannot bind another. Here, no attempt was made to do so. What one legislature CAN do is provide information for another, and the Vermont legislature does this quite frequently, by establishing commissions and study committees, by ordering the executive to produce reports, etc. In a part-time citizen legislature with minimal staff, there’s no mystery about this. Clearly, a later legislature can ignore the results of these studies entirely if it so chooses., so there is no unconstitutional binding going on.
Since Professor Kreis is wrong about his presumption that Act 160 divested VY of authority and also wrong about the reasons the legislature chose to interpose itself in what would have been a PSB decision, it is fair to ask WHY the legislature DID act as it did.
Reading section 2 of Act 160 in the light of sections 3 and 4 provides a coherent and consistent answer. The legislature, rightly or wrongly, worried that the PSB’s decision would be too narrowly based, and saw itself as the body capable of making public policy decisions with a wider angle of vision. The question as to whether the legislature is right or wrong is NOT for a federal judge to decide, since there is literally nothing here about radiological safety.
Lest there be any doubt whatsoever about the answer I just provided, Section 1 of the law articulates all this with total clarity: “(a) It remains the policy of the state that a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly expressed in law after full, open, and informed public deliberation and discussion with respect to pertinent factors, including 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.
(b) It is the purpose of this act to establish a statutory process to implement this policy….
(d) It is appropriate that the spent fuel storage issue be framed and addressed as a part of the larger societal discussion of broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits, risks, and costs; and in order to allow opportunity to assess alternatives that may be more cost effective or that otherwise may better promote the general welfare.”
In sum, Professor Kreis has not one problem to resolve, but three. The first, noted above, is that his argument assumes an authority which clearly never existed. Second, as just demonstrated, his argument invalidly reduces a bill which is all about establishing the rules for a public decision-making process on a particular issue to a bill which has the legislature ASSUME in 2006 what it would not KNOW until 2010: namely, the results of the very process which the text of the bill spells out. And finally, third, the argument assumes that the only reason the legislature would seek specific, detailed information about economic cost-benefit matters was to hide some completely unrelated, unstated and preempted reason, which the legislature had been repeatedly told was not within its purview: namely, radiological safety.
Kreis and Hudson share a common flaw, along with Judge Murtha. When you interpret a text to mean what you WANT it to mean or what you think it OUGHT to mean, rather than beginning (and, in most instances, ending) by looking at what it actually SAYS, you’ve launched a process which can take you anywhere you want to go. But since that result is no longer tethered in any way to the text, it cannot possibly purport to interpret it. Indeed, the result makes a mockery of textual analysis.
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A few points to ponder in reply to the John Greenberg/Vic Hudson argument.
1. I’m not interested in ad hominem argumentation. John quite forthrightly admits he is not a lawyer. I AM a lawyer – and, as such, I attest to the fact that on these questions John’s analysis is equal to or better than what the lawyers are producing. Possibly even including me. His commentary is a testament to the reality that if you are smart enough, and you do enough leg-work, you don’t need law school (or a law license) to work a difficult legal problem. This is is certainly difficult.
2. Thanks to Jon for correcting the year I gave for the key legislative action (2006 not 2006). I was in New Hampshire back in 2006, and I tend to get a bit casual about the chronology of Vermont events that antedated my arrival here.
3. Here is where I think John’s analysis might be wrong. He asserts that, by virtue of the 2002 MOU (and the adoption of its terms by the Public Service Board), by the time the Legislature acted in 2006 Vermont Yankee had ALREADY been divested of its state-law authority to continue to operate after 3/21/2012 – and, thus, the bill adopted in 2006 could not have had that effect as I have maintained.
4. On the date the PSB approved the sale of Vermont Yankee to Entergy in 2002, the statutes in Title 30 governing certificates of public good required only that a utility acquire a CPG to build or to transfer a generation plant like VY. The approval reflected in a CPG was, in effect, good forever. So, when the PSB issued Entergy a CPG of limited duration – admittedly because Entergy explicitly agreed to this limitation in the MOU – it was actually imposing a limitation and taking an action that was beyond the authority that had been delegated to the PSB by the Legislature as of 2002. Only subsequently did the Legislature amend 30 VSA section 248 to authorize this limitation on VY’s state-law operating authority. Curing the PSB’s lack of authority in this manner strikes me as too ex post facto to be kosher.
5. Judge Murtha did not explain why, despite these infirmities, Entergy should still be required to seek a new CPG from the Public Service Board now. I think it’s because Entergy is equitably estopped from challenging this particular exercise of state authority given that Entergy agreed not to press this argument when it signed the MOU. But this still does not undermine the contention I am making here, which is that Vermont Yankee enjoyed permanent authority under state law to operate a nuclear plant (assuming federal license renewal) until the state revoked that authority by legislative fiat in 2006, in Act 160.
6. When the Court of Appeals takes a look at Act 160 – and I am confident that Attorney General Sorrell will seek appellate review – I think the judges there will step back and consider what effect Act 160 actually had. John quite correctly points out that Act 160 by its terms purports to mandate an elaborate process whereby a bunch of (admittedly useful) information is gathered to help a subsequent legislature decide whether to restore VY’s state-law operating authority. I think this language is surplusage because, as John and I have agreed, the 2006 Legislature had no authority to bind succeeding legislatures.
7. I see two plausible theories about the intent and purpose of revoking VY’s state-law operating authority in Act 160. One view – the one I think the Court of Appeals is likely to take – is that Act 160 is so overwhelmingly, if not totally, addressed to nuclear safety that Act 160 is plainly inconsistent with the Atomic Energy Act and thus preempted. The other plausible theory is that the Legislature had really conducted a cost-benefit analysis – with the cost (the amount of radiological risk imposed by Vermont Yankee) already fixed under federal law – and found VY wanting on that basis because the owners had not come forward with sufficient benefits (chiefly economic) to Vermont and its electric customers. I would be comfortable making the latter argument before the Court of Appeals but I think it’s a bit strained given the way the statute is written. Basically, I think the Legislature in adopting Act 160 was being too clever by half – regulating radiological safety while seeking to inoculate itself from a preemption challenge by noting that a subsequent legislature could reach a different result by considering economic benefits.
8. Informing my whole approach to this case is my sense, based on years of experience working for judicial and quasi-judicial decisionmakers, that the Court of Appeals is going to reach its conclusion by looking at the effects of these legislative actions at 30,000 feet. John is down there at ground level, parsing every word in the bill and every salient fact in the saga. He makes some really good arguments at that level and – by gosh – his views might just prevail when this case is finally reduced to final judgment. I hope so!
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First, thanks to Don Kreis for his very kind words. They are much appreciated.
Don makes 2 important arguments. The first concerns the 2002 grant of a conditioned and limited CPG by the PSB. Don suggests that such limitations might have been beyond the Board’s authority under the legislation which existed at the time. I simply do not know enough Vermont utility law to answer this question, but the fact that it is being raised only now, and was NOT raised by Entergy’s lawyers or anyone else during the voluminous proceedings we’ve just been through suggests to me that this thesis may simply be incorrect. In any case, I’ll leave this matter to others more informed than I.
But even if we assume that Professor Kreis is correct on this point, this argument resolves nothing regarding Judge Murtha’s decision. First, as he notes, Entergy agreed to the conditioned permit. Second, they did not and have not contested it on the grounds he raises. And third, if they were to do so, unless I’m very mistaken, the issue would have to be resolved in State court, not in federal court. Finally, the issue has NOTHING whatever to do with federal preemption.
I would suggest that, given all I’ve just said, the notion that Entergy really DID have “permanent authority” to operate and that Act 160 was written to reverse this is more than a bit of a stretch. Certainly, there is not one scintilla of evidence that I’m aware of that anyone before 2011, when Don first raised the issue, even considered the possibility that this might be an issue. I understand Don’s argument that Act 160 might IMPLICITLY be interpreted as reversing this supposed earlier error, but were that interpretation correct, one would expect to find something about the issue in the findings Section of the law, where, in fact, there is nothing whatsoever.
In sum, this is a creative and interesting suggestion, but at this late date I do NOT believe that anyone is likely to find it a convincing interpretation of what Act 160 actually does or why it was passed. As noted previously, VY supporters voted overwhelmingly for this bill, INCLUDING Senator Mazza, one of the 4 “no” votes in 2010. It’s a safe bet that he didn’t buy Kreis’s theory.
One last point. Given Don’s repeated (and clearly correct) argument that “the 2006 Legislature had no authority to bind succeeding legislatures,” if Kreis’s theory of legislative intent is also correct, then why didn’t the 2006 legislature simply vote then and there NOT to allow the Board to issue a CPG? A later legislature could always change this decision, after all. So if the 2006 legislature was convinced as Kreis suggests that VY should be closed in 2012, why didn’t they just say so? Why defer the decision? And why write the rest of the bill? If this theory is to have any credibility at all, these questions cry out for an answer.
This leads us to the 2nd and more important issue: namely, whether “Act 160 is so overwhelmingly, if not totally, addressed to nuclear safety that Act 160 is plainly inconsistent with the Atomic Energy Act and thus preempted.” Surely, if a bill is “overwhelmingly, if not totally” addressed to ANY issue, then it should be a simple matter indeed to use its actual text to demonstrate the point. So my question is simply this: if that’s the point of this bill, then where precisely does it make it?
Surely, it’s more than a bit odd that a bill which we are supposing to be all about nuclear safety never uses the word “safety,” or the word “radiological.” The word “nuclear,” which is used repeatedly, is most frequently used to modify the words “facility,” “plant” or “station.” In other words, it uses the term nuclear as a generic descriptor of Vermont Yankee.
The word “nuclear” also modifies “fuel” once, in the phrase “the general assembly shall consider concurrently the issue of storage of spent nuclear fuel derived from the operation of Vermont Yankee nuclear power station after March 21, 2012 as set forth in No. 74….” And it also modifies the word “waste” 3 times. First, it appears in section 1a, where it calls for “full, open, and informed public deliberation and discussion” of “the economics and environmental impacts of long term storage of nuclear waste,” among other issues. Then it appears in section 2(b)(2) twice: specifically, in A1 and B where it is used to specify some of the studies the Act requires.
In sum, the words we’d expect to find never appear in the bill or are used in a context which clearly has nothing whatever to do with the issue being raised. Nor are there any “code” words that I can see, but perhaps the proponents of this interpretation will enlighten us.
It’s all well and good to assert that the bill is “overwhelmingly, if not totally, addressed to nuclear safety,” but there should be SOME evidence of this somewhere shouldn’t there? If not, why isn’t the “interpretation” that the bill is overwhelmingly, if not totally, about baseball scores equally plausible? Or fishing? Or anything else you’d like to substitute.
As I’ve pointed out repeatedly, once you’re no longer bound in ANY way by the text, you can “interpret” a law to mean anything you want. All you have to do is say so. If THAT is acceptable judicial interpretation, God help us all.
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John and Don,
By getting into legalistic hair-spitting, it is easy to loose sight of the big picture which is to minimize environmental impact of energy production AND consumption.
The Vermont Yankee saga is the direct result of certain groups of people wanting their views to prevail regarding the mix of future energy production.
They want to exclude nuclear (not safe enough), exclude hydro (not renewable enough) and exclude fossil (not clean enough).
By scare tactics and media support (hot issues sell papers), they were able to rouse the legislature into relatively hasty actions that were later found to be unconstitutional.
The same type of scare tactics are used regarding climate change and global warming (Rep. Klein parading McKibben for his RPS) which lead to heavily-subsidized renewables projects (benefitting a few richer people) that produce energy at 3-5 times grid prices (harmful to the other 99% of households and businesses).
If CO2 reduction is indeed the objective, then renewables subsidies should include a requirement that CO2 emissions must be reduced at the lowest cost/ lb of CO2. The Netherlands recently revamped its renewables set up by prioritizing renewables with solar and wind (due to bad outcomes from both) near the bottom.
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Having reflected more about Don Kreis’s arguments, I find them considerably less compelling than I suggested above.
Don argues that the temporal limitation in Entergy’s 2002 CPG is legally flawed because the Board did not have the legal authority in 2002 to limit a CPG in time and that, in Act 160, the legislature “effectively divested Vermont Yankee of any state-law authority” to continue operating.
I’ve already pointed out that, to my knowledge, the only person to have ever spoken about this supposed flaw is Don, more than 5 years after Act 160 was signed into law. In particular, no one brought this matter to the attention either of the PSB or of any court. I believe that an examination of the evidence in the Board’s subsequent dockets would suggest that all parties, including the Board itself, assumed that the CPG time limitation is valid.
So the first problem that arises is this: even if Don is correct that the Board lacked authority, wouldn’t either the Board itself or a court need to make that determination legally to change it? Put differently, in the absence of a successful legal challenge to the proper authority, the CPG – with or without a flaw – remains in effect as written. And that means that the basic assumption in Don’s argument is not supportable: the CPG explicitly states that VY has no authority to operate after March 21, 2012 (unless it receives another CPG) and, until Judge Murtha’s decision, nothing else has intervened to give it that authority.
But, in fact, the situation is actually worse than that for Don’s assumption. Act 74 DID intervene in 2005, and it says, in pertinent part: “Any certificate of public good issued by the board shall limit the cumulative total amount of spent fuel stored at Vermont Yankee to the amount derived from the operation of the facility up to, but not beyond, March 21, 2012, the end of the current operating license.” (Section 6522(c) (2). Then, a bit further down in subsection c (4), Act 74 states: “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.”
In other words, by the time Act 160 came along a year later, it was clearly the case that the plant lacked legal authority to continue to operate after March 21, 2012. On the one hand, the 2002 CPG (which was upheld by the Vermont Supreme Court in 2003) explicitly denied continuing operations past that date; on the other, Act 74 denied the plant authority to store fuel generated after March 21, 2012 without “approval of the general assembly.”
Without overturning both of these provisions legally, it is clear that Don’s assumption is simply wrong. Moreover, the same legislature that passed Act 74 also wrote Act 160 AND made explicit reference to the provision of Act 74 just cited in doing so.
Indeed, the legislature made no secret of ITS understanding of the status quo ante; they spelled it out quite clearly in Section 1(c): “Pursuant to No. 74 of the Acts of the 2005 session, the owner of the Vermont Yankee nuclear power station:
(1) is required to obtain the approval of the general assembly before storage of spent fuel derived from the operation of Vermont Yankee nuclear power station after March 21, 2012, and also
(2) is required to obtain a section 248 certificate of public good from the public service board before operation beyond that date.”
Legally, the plant lacked authority for continuing after 2012, and as a matter of stated fact, the legislature took cognizance of that fact in writing Act 160. Additionally, for what it’s worth, Judge Murtha effectively does as well, as Don acknowledges: “Judge Murtha did not explain why, despite these infirmities, Entergy should still be required to seek a new CPG from the Public Service Board now.”
Its false underpinning is not the only reason Don’s argument fails, however. This whole issue arises in the first place because Don is arguing that the purpose of Act 160 is to divest VY of its authority to operate. In doing so, Don reduces the whole bill to section 2, declaring that Sections 3 and 4 (the bulk of the bill) are “surplusage.” In doing so, however, Don fails the basic principle of interpretation: ALL of a text is to be considered meaningful.
Indeed, Don’s argument is a textbook case for why this principle cannot be ignored. By declaring most of the law “surplusage,” there is no further need to examine what it does: which, as argued in previous comments, is to establish a process for cost-benefit analysis. Only by virtue of overlooking this point and grounding himself in his clearly erroneous assumption, can Don arrive at the notion that “There was no plausible reason for the Legislature to decide in 2008 to shut VY down four years hence other than radiological safety. You can say that the state was concerned about economic benefits post-2012 but the reality is that those benefits were unknown in 2008 and thus incapable of forming the basis for what the Legislature did.” By simply eliminating precisely the parts of the law in which the legislature effectively acknowledges that “those benefits were unknown” and establishes a process to find elucidate them, Don removes the only natural reading of the text.
But even that still leaves an unanswered question. Even if we follow Don in simply ignoring sections 3 and 4 of the law, there is still absolutely nothing on which to base the conclusion that “There was no plausible reason … OTHER THAN RADIOLOGICAL SAFETY.” (emphasis added) Where did radiological safety come from??
Act 160 itself says nothing whatever about radiological safety. Don is clearly on record as arguing that courts cannot rely on legislative history to interpret the law, and that Judge Murtha should never have allowed the history to be introduced. So where does Don find radiological safety considerations?
This is not a small problem for his argument. Even if we grant Don his false assumption and follow him in ignoring most of the bill, the only conclusion which would follow would be the first part of his sentence: “There is no plausible reason.” But even if that WERE the case, there would be no constitutional flaw, because there would nothing to suggest that the State was legislating in a federally preempted field. So it’s absolutely crucial to his argument that there be some basis for introducing radiological safety; yet the law itself doesn’t provide any either in its effective sections (2-4) or in its statement of purpose. Without falling back on legislative history, then, Don’s house of cards gets him nowhere.
In the end, Don is quite correct when he writes: “I see two … theories about the intent and purpose of revoking VY’s state-law operating authority in Act 160. One view – the one I think the Court of Appeals is likely to take – is that Act 160 is so overwhelmingly, if not totally, addressed to nuclear safety that Act 160 is plainly inconsistent with the Atomic Energy Act and thus preempted. The other plausible theory is that the Legislature had really conducted a cost-benefit analysis ….”
Let’s examine the properties of each in reverse order. The second theory makes NO assumptions about legislative intent, beyond what can be found in a natural reading of what the law says and does. It considers ALL of the law, as well as each of its parts, finding that it is internally consistent, and consistent with the stated legislative purpose: namely, “… that a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly expressed in law after full, open, and informed public deliberation and discussion with respect to pertinent factors, including 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.” (Section 1(a))
This theory uncovers no ambiguity, no lack of clarity, and no references to radiological safety either hidden or explicit. It is also completely consistent with the events as they unfolded: studies were ordered and conducted; processes, established and followed. A subsequent legislature, albeit unbound by the legislature of 2006, took its cue from Act 160 and held a vote after years of deliberation. No appeal to legislative history is required or useful in maintaining this interpretation, though a less cherry-picked, less selective reading than Murtha’s of what actually transpired would, in fact, support it. In short, the interpretation is fully consistent with the law itself and with all of the known facts.
Now turn to the other hypothesis. As we’ve already shown, it requires that we simply ignore the legislature’s stated view of the status quo ante: namely that further operations ALREADY required both a legislative vote AND a CPG. It ignores the fact that the Act 160 legislature actually AGREED with Kreis that the “benefits were unknown in 2008 [2006] and thus incapable of forming the basis for what the Legislature did.” That’s precisely why the legislature established a process to discover what was unknown, which is precisely the intent of sections 3 and 4 of the bill under any straightforward reading, the very provisions which Don gratuitously dismisses as mere “surplusage.” It also requires us to totally ignore the legislature’s stated intent (section 1). Finally, it introduces, out of nowhere, the notion of “radiological safety.” Not only does neither word occur in the law, as noted in previous comments, but there is nothing in the text which would suggest them. For example, pace Bill Sorrell, the word “reliability” does not occur either, except as part of the name of a piece of legislation.
Moreover, this second interpretation is completely inconsistent with virtually EVERY known historical facts. It suggests that legislators who supported Vermont Yankee actually voted for 2 laws, one PROPOSED by Entergy, and that these were then signed by a governor who vigorously pushed for continued operations. It fails to explain why 2 of the 4 senators who voted FOR continuing operations in 2010 also voted FOR these bills in 2005-6 (Peg Flory, then a member of the House, and Richard Mazza).
In other words, one interpretation, which has the benefit of being completely straightforward holds water; the other, despite a series of verbal gymnastics and verbal pyrotechnics collapses of its own weight. Is this REALLY a tough choice?
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Vic Hudson writes: “Having rejected his last ally, Greenberg is now alone in his exalted position of wisdom.”
Well, not quite. I am joined, first and foremost, by the 148 legislators from all parties who voted for the bill, a group which notably included those 2 noted critics of VY safety Richard Mazza and Peg Flory (who were 2 of the 4 no votes in 2010). And, of course, by that other noted VY safety critic Jim Douglas. (But not, as George Coppenrath would surely want me to note, by the stalwart 5 who opposed the bill)
Assisting them on preemption issues, of course, were the lawyers at legislative counsel, the testimony of 3 Public Service Board chairmen, and the professionals and lawyers at DPS. At the trial, this group was joined by Peter Bradford, former chair of 2 state PUCS and former NRC member. Not to mention, of course, the devoted team at the AG’s office.
We’ve been joined recently by VLS professor Pat Parenteau: http://vtyankeelawsuit.vermontlaw.edu/february-10-2012-pat-parenteau-why-the-state-must-appeal/
And since Vic Hudson seems to think that only lawyers matter, I should point out that a large number of these folks are attorneys.
Oddly, Vic, I’m not feeling at all lonely.