Vermont Attorney General appeals federal court decision favoring Entergy

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1. Jon Wharf February 18, 2012 at 12:33 pm
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   It might be interesting if the State could make a solid argument demonstrating how their discussions and considerations built a substantial case for some other form of non-preempted control over Vermont Yankee.

   And when I say “a solid argument”, I don’t just mean that they say “It was about reliability!” (for example) – I mean that the whole argument is actually assembled to show how they defined reliability, how they considered what impact an unreliable plant might have that was detrimental to Vermont, what the best ways to encouage reliability are, how this applies to other current and future power generation, and so on.

   Because although I’ve heard a lot of denial that radiological safety was the topic, I really haven’t seen any other motivation laid out there in a thorough fashion.

   1. Rod Adams February 18, 2012 at 3:53 pm
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      This talk about lack of reliability for Vermont Yankee continues to confuse the heck out of me.

      The plant has been operating with an average capacity factor in excess of 90% erver since Entergy purchased the plant.

      For those who do not understand what that means imagine the following – take your car out on the highway, put your foot to the floorboards and keep it there for about 8000 hours every year (out of a possible 8760).

      The litany of “problems” that the press and the professional antinuclear opposition keeps repeating are really minor issues when you consider the fact that the tiny little plant in a corner of the state generates about 79% of the electricity generated in the entire state each year. That electricity is produced without releasing anything to the environment – no CO2, no SOX, no NOX, no fly ash, no mercury.

      The total amount of tritium in the leaks that have received so much press was about 1/3 of a curie. If a single person had consumed the entire amount, they would not have gotten sick and would have only increased their chance of contracting cancer by about one percent.

      Not only does the plant have all of those beneficial qualities, but it also employs 600 people at salaries that are sufficient for raising families, buying homes and sending children to college. The plant has been selling about 1/3 of its output for a very reasonable price of 4.1 cents per kilowatt hour AND contributing several million dollars per year to various renewable energy programs.

      It is appalling to me that the governor keeps emphasizing the fact that Entergy is an out of state corporation; as a retired Naval officer I always thought that I lived in and defended the United States of America, not a place that seems to still be fighting a civil economic war.

      Rod Adams
      Publisher, Atomic Insights

      1. Bob Stannard February 19, 2012 at 7:53 am
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         Rod, you inadvertently left out the part about Entergy trying to divest itself of this plant by creating a shell corporation known as Enexus. They did so to rid themselves of any future liability that will be associated with this plant. That was a shifty move and everyone saw it for what it was; a shifty move.

         Add to that the fact that they lied to the PSB & legislature and it’s pretty easy for most people who have not bought into nuclear power as the panecea hook, line and sinker to come down against this company and its aged plant.

         You also forgot to mention that as of next month Vermonters will not be purchasing one kilowatt of power from this plant; thus there is virtually no benefit to the state to allow this plant to operate. Well, unless you consider heating the Ct. River with 105 degree water, fires, radiation leaks, etc., benefits.

         Oh, you also forgot to mention that Entergy HAD to buy surrounding property, because they were exceeding the allowable radiation limits at the fenceline.

         These are small things to folks like Meredith Angwin, Howard Shaffer and yourself, but they go a long ways towards making the rest of Vermont feel as though we can do better with our energy future.

         Yes, I am a paid lobbyist. Thank you for asking.

2. Sen. Joe Benning February 18, 2012 at 1:29 pm
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   This appeal is a grave mistake. Whether you agree or disagree with Yankee’s continued operation, this appeal cannot defeat two fundamental legal rules.

   First, the appellate court will give great deference to the trial court in its findings of fact. Judge Murtha’s findings now constitute the record below and new evidence cannot be introduced to change that. Like it or not, Judge Murtha found that the sheer weight of the evidence favors Yankee’s argument. That weight cannot be shifted on appeal based on the State’s speculation that there might have been other reasons senators voted the way they did.

   Second, the law is crystal clear: only the federal government has jurisdiction over the safety of nuclear power plants. The states delegated that authority over to the federal government with the passage of the Atomic Energy Act. That can only be reversed in Congress, not the courts.

   How many more millions are we going to spend on this issue just trying to make a point? No offense folks, but I’d rather see us spending the money to repave Route 5.

3. Rama Schneider February 18, 2012 at 2:18 pm
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   Senator Benning, Murtha’s decision was a frontal assault on both your free speech as a legislator as you explore ideas and the right of your constituents to address you in matters that concern them.

   There is probably not a piece of legislation that could survive the pre-vote discussion test that Murtha has championed.

   Funny how nowadays freedom of speech disappears at the corporate boardroom doors.

4. Josh Fitzhugh February 18, 2012 at 5:38 pm
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   I believe the money Don is referring to is the debt VT will owe to its lawyers as well as to Entergy for its fees should VT lose the appeal.

   As I have said before, had the legislature left it to the PSB to decide VY’s fate, then comments about safety by legislators would have been irrelevant, unless the safety concerns became part of statute. But once the legislature reserved to itself a role in the relicensing then I think the language of the solons becomes relevant. And if relevant, it will be difficult for the AG to overcome the trial judge’s fact finding.

   Finally, I find it instructive to read the last sentence of Sen. Sanders’ quote. Having just said that VT acted without considering safety issues, he then says the problem ridden plant must be closed. It sure seems to me he thinks it is in fact all about safety.

   1. Doug Hoffer February 18, 2012 at 7:07 pm
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      Entergy’s request for reimbursement is a just that; a request. It has to be litigated and, as some have suggested, it is by no means a certainty. Therefore, Mr. Eggleston’s comment is a projection, not a fact.

      As for Sen. Sanders’ remarks, he said “problem ridden.” You made the leap to safety.

      1. George Cross February 18, 2012 at 7:52 pm
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         This all gets a bit confusing. Can someone answer why Nevada has been able to keeep Yucca Mountain from operating, if safety can not be considered as a factor?

         1. Chris Williams February 18, 2012 at 10:21 pm
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            Yucca Mountain would have been a massive highly radioactive dump. Nevada has never had any nuclear power plants. The citizens of Nevada have had thousands of above and below ground nuclear weapons detonated in their state and don’t want anything to to do with nuclear waste from power plants across the US. It’s pretty straight forward.

5. dan phillips February 18, 2012 at 9:11 pm
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   Not confusing at all Mr. Cross, its called politics, ask Harry Reid about the holdup at Yucca mountain.

6. don eggleston February 18, 2012 at 9:46 pm
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   Mr Hoffer:

   You conveniently ignore the two million we owe to Pharma, thanks to an unconstitutional law passed by a defiant Legislature and the inability of the AG to successfully defend it in court. And if Entergy’s fee request is $4.6 million (so far), the final number will either be that or some significant portion of it. You know this. Not to mention what the additional fee request will be after a fruitless appeal to the Second Circuit.

   And in what lexicon is “problem-ridden” not a reference to safety? Was Bernie speaking some language other than English? Certainly, it’s not a reference to reliability, as reliability is irrelevant since Vermont is not buying any power from VY. I think you know darn well Bernie was talking about safety. You’re arguing for the sake of arguing, to defend Bernie. It seems mindless.

   To the main point, it’d be one thing for Shumlin and his gang to say they wish we didn’t have to have Vermont Yankee here. It’s quite another thing for these people to engineer a legislative vote not to allow the PSB to hear the CPG case, which vote everyone knows was about radiological safety but which Shumlin and Sorrell pretend was about something else even though Sorrell to this day has been unable to say exactly what. It seems the only or primary post hoc rationale the floundering AG has come up with is “reliability,” and: a) there’s no or scant evidence that reliability was the reason for the vote, and b) reliability is completely irrelevant anyway. So why would anyone insist on pretending that the emperor here is wearing clothes? Why would anyone have the desire to defend political dishonesty like this? Why would anyone want to be an apologist for a gang of politicians who are hemhorraging the taxpayers’ money for their own political purposes and who know full well they’ve violated federal law? Just because one doesn’t like VY?

7. John Greenberg February 18, 2012 at 10:50 pm
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   Jon Wharf asks for “a solid argument demonstrating how their discussions and considerations built a substantial case for some other form of non-preempted control over Vermont Yankee.”

   It’s a fair request. Here, in briefest terms, is what I think the argument looks like.

   When Entergy purchased VY from its previous owner, it received a CPG from the PSB which was valid until March 21, 2002, but NOT thereafter. The sale decision specifically required Entergy to seek a new CPG before continuing to operate after March, 2012.

   In 2005, the legislature passed Act 74, which does 3 things: 1) It allows VY to store fuel generated before 2012 in dry casks on its site, after the PSB grants a CPG. 2) It establishes the Clean Energy Development Fund; 3) For fuel generated AFTER March 2012, it requires a legislative vote before storing outside of the spent-fuel pool. Judge Murtha found that the 3rd provision is unconstitutionally preempted, but Act 74 says nothing at all about either safety or reliability, its supposed surrogate, and neither word appears in the text of the law.

   When you think about it, it is hard to see how a legislature concerned with the plant’s radiological safety would pass BOTH provisions 1 and 3. If safety were the concern, and shutdown the aim, the legislature’s easiest course would have been to do nothing at all. Without provision 1, VY would have been forced to close, probably BEFORE 2012, since its fuel pool was full and there was no place to put the fuel that would be contaminated. That’s why Entergy ASKED FOR the first provision in this bill and noted the passage of the bill contemporaneously in an in-house email as “GOOD NEWS!” It’s also worth noting that 2 of the 4 senators who voted FOR continuing operations in 2010 voted FOR this bill, and Governor Douglas, an ardent VY supporter, signed it.

   Act 160, passed the following year in the 2nd year of the biennium essentially seeks to broaden the discussion, removing what the legislature sees as the limitations of the existing PSB process. As finding a) puts it: “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…”

   Act 160 has 3 operative sections. In the first, the legislature requires a vote before a “final order” or CPG can be issued by the PSB. In the second, it requires the PSB to “evaluate the application under current assumptions and analyses and not an extension of the cost benefit assumptions and analyses forming the basis of the previous certificate of public good for the operation of the facility.” (Section 3)

   Finally, in the last section, the legislature mandates a detailed series of hearings and studies to be carried out by both the DPS and the PSB, whose purpose is “(A) to facilitate public discussion of long term economic and environmental issues relating to the operation of any nuclear facility in the state;
   (B) to identify and assess the potential need for the operation of the facility and its long term economic and environmental benefits, risks, and costs; and
   (C) to assess all practical alternatives to those set forth in the applicant’s petition that may be more cost effective or that otherwise may better promote the general welfare.” (Section b(1))

   Clearly, this bill redefines the legislature’s relationship to the PSB, at least as it pertains to the issue of VY’s continued operations. It’s not much of a stretch to suggest that the legislature saw the existing PSB processes as too narrow and as insufficient with regard to public input. The legislature therefore is VERY explicit on these points, specifying both issues and input processes (number of hearings, etc.)

   The words “safety,” “radiological,” and “reliability” never appear anywhere in Act 160, nor are there any “code words” as Entergy and the Judge have suggested. This bill passed unanimously in the House, and by an overwhelming bi-partisan majority in the Senate, again INCLUDING 2 of the 4 senators who later voted FOR continuing operations, and again it was signed by VY supporter Jim Douglas. Entergy’s only contemporaneous objection to the bill was that it was “redundant,” since Act 74 already required a legislative vote.

   The PG&E case, which is the precedent on which (all agree) we must rely, clearly states that Congress established a DUAL regulatory structure for nuclear power. While the federal government retains exclusive regulatory authority over radiological safety and the “nuclear aspects” of nuclear power, States retain their “traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns,” (p. 205) or as it puts it later “traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.” (p. 212) It is just these questions which are EXPLICITLY what both acts 74 and 160 seek to examine.

   It is a truism of all textual interpretation that one should start from the text itself, which is precisely what Judge Murtha did NOT do. Had he done so, it would be clear that these laws are about economic and environmental considerations of energy policy which fall well within the scope of a State’s purview, and in the case of Act 160, the law demonstrates a particular concern with broadening the grounds and processes for making the decision.

   Instead of this, Judge Murtha opted to begin and end his exegesis with legislative history, something the PG&E court specifically warned against: “inquiry into legislative motive is often an unsatisfactory venture… What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” (p. 216) Much worse, as the State pointed out to him, the judge had only a highly selected portion of the legislative history in front of him in the first place. And worse still, he never relates the comments he selects to ANYTHING in the laws that actually passed, making it impossible to know whether the comments quoted have any relationship at all to the final product.

   The Judge NEVER carefully examines the text of the laws themselves. So, in effect, his search for meaning and intent ends up substituting his (skewed) reading of (cherry-picked) legislative history for an actual reading of the text. Even if we accepted his (flawed) method of BEGINNING with the legislative history, he STILL should have shown HOW the final result actually reflects the meaning he purports to have discovered. That’s something neither he nor his supporters have ever done.

   That leaves us in a quandary. Thanks to miscellaneous quotes (from mostly unattributed sources), however numerous they may be, we are told to conclude that 2 laws which mention neither the words nor the concepts of “radiological safety” are, in fact, about nothing else. Entergy’s lawyers and others have suggested that the laws are full of “code” for these concepts, since even they admit their absence. Even if, for the sake of argument, we agree to take them at their word, such a case STILL requires SOMEONE to show where the code words in these bills actually are, so that we can see with specificity exactly how the legislature pulled off this remarkable feat of writing 2 laws which mean PRECISELY what they do not say, and do NOT mean PRECISELY what they DO say. Again, no one has ever bothered to do this.

   What we SHOULD be asking is HOW this feat is accomplished IN PARTICULAR. Without it, one could just as easily gather a bunch of quotes from legislators discussing football scores, and proclaim these laws to be code for them, rather than what the text actually says. Or perhaps they’re REALLY about the JFK assassination. With no tether to the text, this procedure can result in any “interpretation” at all; there are literally no limitations, except, apparently, the one obvious interpretative course: namely, that the laws are about what they say they’re about.

   Finally, it should be noted that no one has alleged much of any ambiguity about these bills. Their content, structure and meaning are all consistent, unambiguous, well-defined. There is, in fact, no reason to go beyond what they actually say and search the ether for “meaning” to be found somewhere out in the great beyond.

   Responding to Sen. Benning’s comments, Rama Schneider correctly calls Murtha’s process “a frontal assault on both your free speech as a legislator as you explore ideas and the right of your constituents to address you in matters that concern them.”

   Along the same lines, it is important to recognize that those of us who are citizens are not just Vermonters, we’re also Americans. This includes legislators and others. Federal preemption law does NOT preclude expressions of concern about safety; it prevents States from LEGISLATING or REGULATING about nuclear safety issues. Vermonters and Vermont legislators can and do interact with NRC officials on a regular basis, and safety issues are freely discussed – often quite vigorously – in these encounters. Bernie Sanders, in the course of his duties as a senator, has oversight responsibilities vis-à-vis the NRC. It would be a serious, presumably unintended, consequence of this misguided decision if these conversations were to be limited by the mistaken notion that they are somehow preempted.

   1. Jon Wharf February 22, 2012 at 1:08 am
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      Thanks for the detailed response. I’m interested to see that you don’t see reliability as central to this legislation, and I will investigate the definition of “economic and environmental issues”. However it seems to me that a business operating with good tax returns and strong employment and services requirements should not really have to face additional legislative hurdles on their economic justification, and there are really no significant non-radiological implications for the environment. There is the relatively brief use of water leaving it with a slightly raised temperature, and a few other entirely ordinary consequences of operating an industrial business (traffic etc).

      So we are still left with the question of why this one business – or one business sector, if we naively ignore the fact that VY is the only nuclear plant affected – is being picked out for special hostile-bureaucratic treatment by the legislature. And if indeed we are to believe that it is the general nature of nuclear generation that these laws are aimed at, rather than being an unquestionably illegal bill of attainder, why do people keep talking about things that are so specific to Entergy and VY?

      I do not feel that the redefinition of the parties involved in approving a CPG can be lightly dismissed. The MOU at the sale of VY gave that process to the PSB alone. Has the process of obtaining a CPG been redefined for all such applicants? I didn’t think so.

      Finally the requirement for a PSB pre-application to “assess all practical alternatives” is unreasonable to a high degree in this case. Are these options actually available? Is there a line of entrepreneurs all looking to set up replacement infrastructure at essentially zero cost? Of course not.

8. Mike Kerin February 19, 2012 at 7:29 am
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   Hopefully the next court will not have any bias either way.
   Just sanity.

9. Mike Kerin February 19, 2012 at 8:50 am
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   I do not think the freedom of speech should be taken away from legislators or the public. That is what the judge has done. Everyone who cares about the freedoms we have should be angry at this “holier than thou” judge for saying that because some legislators may have mentioned “safety” in the discussion of act 160 he strikes it down.

   If the NRC is not going to do its job and enforce safety of the nuclear industry then we the people do have the right to speak up about safety issues.

   The legislation does not mention “safety”. Judge Murtha , you went looking into the discussion and found that “safety” was mentioned.
   On the basis of the FREEDOM of SPEECH this ruling should be reversed.

10. John Greenberg February 19, 2012 at 11:06 am
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    Don Eggleston suggests that I “do not explain (despite your long-winded attempt) what Act 160 is actually about.” So again: it is about re-defining the role of the PSB and the legislature in VY deliberations (sections 2 &3), and also about a series of studies to be undertaken by DPS and presented to both the PSB and the legislature after a specifically articulated public input process (section 4).

    Eggleston asserts: “Vague references to conducting studies on “economic and environmental considerations” of energy policy, with no explanation or elaboration of what those terms mean and what the state should do with or about the results of any such studies, doesn’t cut it.” I did not recite all of the specifics of these studies and will refrain from doing so here. Anyone interested can find them spelled out in detail in the bill (Section 254(b) and (c)).

    Even granting, for the sake of argument, Eggleston’s assertion that the meaning of the terms in the law is unclear, the simplest solution to the problem is straightforward: look at the studies. They have all been completed and submitted, so any doubt as to what DPS thought the terms of Act 160 meant has been resolved. It is worth noting that these studies were to be undertaken “with the review of the joint energy committee,” (section 254 (a)(2), so presumably if there had been any question as to whether DPS were properly interpreting the law, the legislative committee would have set the record straight. There is no record of that happening. Nor is there any other evidence of any kind that the legislature believed that DPS had misconstrued its task.

    There is thus no need whatever for “the court [or anyone else] to consider what the legislators thought they were actually voting on,” since the results are clear beyond any reasonable doubt. An attempted fishing expedition into legislative psychology is a poor substitute for examining the text of the law and what actually transpired as a result. Attempting to infer legislative intent from random selected remarks of a few legislators must never substitute for probing the law as written and implemented.

    It is worth adding that Entergy repeatedly cited these studies in court, NEVER suggesting that there was anything in them about prohibited issues like radiological safety. Nor has anyone else made that suggestion to my knowledge.

    Act 160 leaves no doubt either as to what “the state should do with or about the results:” the legislature is to vote on continued operations, and, if the vote is affirmative, the PSB has to reach a “final order” on the matter. The Senate’s vote in 2010 was the direct result, leaving no doubt that the legislature knew what it “should do with … the results.”

    The remainder of Eggleston’s comments confuses Act 160, discussed above, with Act 189, which is ALL about reliability, but which Judge Murtha declared to be “moot” since all of the studies in the act have been completed and submitted. Given that this act plays no further role in the Judge’s decision, I did not discuss it.

    I have no idea why Bill Sorrell said that the State’s case was all about reliability concerns, but I don’t speak for Mr. Sorrell nor he for me. To be crystal clear: I do NOT agree with this characterization AT ALL. The closest I can come to explaining Mr. Sorrell’s statement is that, during the trial, Act 189 looked like a major issue, and that both sides spent an enormous amount of trial time focused on it. The real answer, however, is that you should ask him, not me, for an explanation.

    It is important not to read historical events based on 20/20 hindsight. In 2011-2, we all know that VT utilities will not be purchasing power from VY after next month, but when Acts 74 and 160 were passed, NO ONE was predicting that result, and Entergy spent considerable time and money advertising the benefits of its low rate contracts to Vermonters. Given that, it is unsurprising that there would be some concern about the ongoing reliability of such a major, but aging, power source. (cf. section 6521, subsections 1-5 in Act 74).

    Similarly, we now know that Act 189 played little role in Judge Murtha’s decision, but neither side knew that during the trial, where the issue loomed large.

11. Willem Post February 19, 2012 at 11:21 am
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    John and Don,
    Most of the issues you raise will be examined by the lawyers of the appeals court. Statements made here will have no influence on deliberations by the court’s lawyers.
    The main issue is Vermont’s renewables oligarchy, with help of legislators, financial types, lobbyists, PR firms, etc., demonizing VY to eliminate a low-cost competitor of renewables.
    For a while it looked like Hydro-Quebec was to undergo a similar treatment until it bought GMP and was billed by Shumlin, etc., as being in a friendly nation, and that its hydro energy is renewable enough even for Vermont.
    The oligarchy is also trying to demonize low-cost natural gas (currently $2.55/MBtu) that, if used in 60% efficient CCGTs, would emit 1/3 the CO2/kWh of a coal fired plant at a price/kWh that is competitive with coal.
    New England and Vermont households and businesses need low-cost energy to prosper. Vermont Yankee supplies about 4,800 GWh/yr of energy that is low-cost (sold at about 5.5 c/kWh, the annual average NE grid price), steady, near-CO2-free, has near-100% dispatch value and is available 24/7/365.
    Such energy completely outcompetes heavily-subsidized wind and solar energy that is high-cost (3 to 5 times annual average NE grid prices), variable (requires inefficiently-operated balancing plants), somewhat-CO2-free, and has zero dispatch value, because it lacks availability (wind energy is unavailable 10 to 15 percent of the hours of a year when wind speeds are too low, less than 7.5 mph, to turn the rotors or too high for safety; solar energy is unavailable about 65-70% of the hours of the year)

12. John McClaughry February 19, 2012 at 11:50 am
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    I think Don Eggleston has by far the better of this argument. Shumlin and Sorrell, aware that reliance on safety would doom their legal position, constantly recited “This isn’t about safety!” That is, to put it mildly, highly disingenuous. Of course it was about safety, and Judge Murtha was right to dispel their disingenuous argument with evidence adduced by the plaintiff.
    What really disgusts me is Shumlin’s deliberate use of Entergy “Louisiana” as a political whipping boy for his own advancement, regardless of the consequences for the state’s economy. There are rational concerns about the plant’s operation – not many, but some – but this decade long Shumlin vendetta to exorcize Demon Entergy will look fairly disgraceful to disinterested historians some years from now.

13. Avram Patt February 19, 2012 at 1:11 pm
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    (Willem Post: Hydro Quebec is not the owner of GMP.)

    See: http://vtdigger.org/2011/07/07/gaz-metro-green-mountain-power/

14. Rama Schneider February 19, 2012 at 1:26 pm
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    It seems to me there is a really strange assertion being made regarding Murtha’s ruling, and that assertion is that the motivation behind a particular lawmaker’s vote is relevant to the enforceability of a law that passed with that lawmaker’s assent.

    If the laws are only directed to legitimate purposes, as was the case with Louisiana Entergy, then why is the decision making process an issue?

    Are we now to believe we can overturn abortion resticting laws because at least some lawmakers expressed virulently anti-abortion views?

    Are you getting my drift?

    This is indeed very, very strange assertion.

15. Coleman Dunnar February 19, 2012 at 1:37 pm
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    Certainly looks like Sorrel is looking to keep intact his perfect record in the higher courts. What I glean from the press is that in part the grounds for the state’s appeal are based on the erroneous assumption that the court can only review the final product of the legislative process and not visit the genesis of the legislation.
    While the comments in response to this article are focused on Act 160, I suggest Sorrel and company read further in Judge Murtha’s discussion concerning the preemption issue. He concludes nicely with the discussion of the final product; Act – No. 189. An Act Relating to a Comprehensive Vertical Audit and Reliability Assessment of the Vermont Yankee Nuclear Facility. (originally introduced as S. 269 – An Act Relating to An Independent Safety Assessment Of The Vermont Yankee Nuclear Facility). Murtha concludes on page 48 with “The Reliability Assessment is notable, however, for what it did not review: the turbine and generator, and their subsystems. The turbine and the generator produce the plant’s power by converting steam into electricity”
    The “Reliability Assessment” main focus was on reactor and ancillary equipment necessary for the safe operation of the nuclear side of the plant without any consideration of actual power generation components. Not necessarily economical viable but the steam source can always be replaced with a combustion source.
    Congratulations to the D.C., law firm Kellogg, Huber, Hansen, Todd, Evans, and Figel for finding the ideal client; arrogant, wrong and with deep pockets. Unfortunately those pocket are your’s and mine.

    1. Doug Hoffer February 19, 2012 at 2:31 pm
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       “Congratulations to the D.C., law firm Kellogg, Huber, Hansen, Todd, Evans, and Figel for finding the ideal client; arrogant, wrong and with deep pockets. Unfortunately those pocket are your’s and mine.”

       According to the AG’s estimate of the cost of the case and the appeal, it will cost each Vermont taxpayer about $1.35.

16. Coleman Dunnar February 19, 2012 at 2:32 pm
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    In response to Mr. Stannard’s comment “You also forgot to mention that as of next month Vermonters will not be purchasing one kilowatt of power from this plant; thus there is virtually no benefit to the state to allow this plant to operate.”
    Bob, what about the revenue sharing agreement that’s often left out of the conversation? Part of the sales agreement to Entergy was to share 50% with former owners of all energy sales over $61 MWh dollars. The hedge didn’t cost rate payers a cent and if the market price goes to $200 MWh which is what solar currently needs to be self-sustaining economically sounds like $139/MWh in Vermonter’s pocket . Not to mention 600 jobs etc.

17. Jed Guertin February 19, 2012 at 3:52 pm
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    Think about it: A.G Sorrell managed to squeeze out a case for a mere $400,000, yet Entergy is now requesting reimbursement of its legal expenses to the tune of $4.6 million. Makes you wonder.

    Entergy and its compatriots spend millions on lobbyists to promote their economic interests over the safety of the public. Given the revolving door at the NRC, it is legitimate to question whether the NRC is giving adequate attention to our safety concerns.

    Article 7 of the Vermont State Constitution states that “the government is, or ought to be, instituted for the common benefit, protection and security of the people….” It appears, therefore, that the Legislature has a Constitional responsibility to consider and discuss any issue, including safety, in its deliberations regarding Vermont Yankee. In fact, let’s face it – it is impossible to consider anything about Vermont Yankee without including a discussion of safety.

    However, the Legislature’s discussions are not to be considered in a challenge to any ensuing decision. Article 14 of the State Constitution is clear: “The freedom of deliberation, speech and debate in the Legislature is so essential to the rights of the people that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.” The Legislature did exactly what it was mandated to do, Entergy’s $4.6 million threat is toothless, and Judge Murtha overstepped his authority.

18. Alex Barnham February 19, 2012 at 6:25 pm
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    Well, 30 comments on this hotly debated topic of Vermont vs US dictatorship. I never dreamt that the hotly contested nuclear power plant would litigate the state of Vermont and then ask for full payment for the litigation. If Vermonters knew the depth to which these monsters would reach, not one shovelful of Vermont soil would have been wasted.

19. Jed Guertin February 19, 2012 at 6:47 pm
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    John McClaurghry,

    You’re the same guy who coined the phrase “uninformed belief” to describe a well paid, supposedly knowledgeable, Entergy executive’s lying to the State Legislature about the underground pipes at VT Yankee.

    I think most Vermonters are unimpressed by either your rhetoric or personal disgust.

20. John Greenberg February 19, 2012 at 7:07 pm
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    1) Don Eggleston begins by taking one of my statements out of context, and then misinterpreting it. Perhaps my remarks were unclear, so let me restate my point a bit differently. Section 4 of Act 160 required a set of studies to be conducted and submitted. These submitted reports ARE the result of that portion of the law, as it was carried into action, and which I previously called “clear beyond a reasonable doubt.” No one alleges that these studies have anything to do with safety. Since there is no evidence of anyone in the legislature (or elsewhere) suggesting that the studies’ authors misconstrued the legislature’s intent, and since no additional studies are contemplated, if there were any remaining question about the legislative intent of this section, it would now be moot. I explained the remaining 2 operative sections previously.

    Mr. Eggleston waxes hyperbolic about how unclear the statute supposedly is. Perhaps he’ll be so kind as to show us all exactly WHICH words in the statute are unclear and precisely what it is that might require further resolution. Or perhaps he could point to any passage in Judge Murtha’s decision that does this.

    Absent that, I continue to assert that the meaning of the law is not problematic, that each section of it is comprehensible and unambiguous, that the parts all fit nicely with one another, and that all of the operative sections are also completely consistent with its findings section which is the legislature’s articulation of its intent. I would add that the State made precisely this case to the judge during the trial.

    2) While Bill Sorrell is certainly “the state’s top lawyer,” it was NOT he “who attempted to defend the statutes in court.” He sat in the audience for 2 of the 3 days of hearings, but never spoke in court. More to the point, Mr. Eggleston takes a press report of Sorrell’s remarks concerning two pieces of testimony (there were DAYS of testimony and dozens, if not hundreds of exhibits) and then characterizes these as the whole case the State made to the court.

    I urge Mr. Eggleston to read the trial transcripts and the briefs and then decide whether he still believes that to be a fair characterization. Having sat through all of both the trial and the preliminary injunction hearings and read all of the testimony and briefs on both sides, I can say without hesitation that this does NOT fairly characterize the case the State put before the judge. One of the most salient things about the judge’s decision, in fact, is that he NEVER even bothers to discuss the case the state made, except in the “equitable defenses” portion of his ruling.

    3) Similarly, Coleman Dunnar recommends that we read Judge Murtha’s conclusion about Act 189. It’s exceedingly brief, so I’ll quote it: “the Court holds the challenge to Act 189 is moot, and any prospective injunctive relief is unnecessary.” (p. 82) That’s precisely why I did not discuss this question any further.

    4) Mr. Dunnar also brings up the RSA, which he then goes on to misconstrue in a variety of ways. First, it’s far from clear that “The hedge didn’t cost rate payers a cent,” since it was, in fact, part of the whole deal in which VY was transferred to Entergy. To the extent Entergy assigned value to the RSA, they are likely to have accounted for that amount in the purchase price they negotiated. Entergy presented testimony to the PSB that the value of the RSA would be in the hundreds of millions of dollars (or more). It therefore seems incredibly improbable that Entergy decided on the sales price and then simply handed the sellers the RSA as a gift as Mr. Dunnar suggests.

    As to its actual value, however, it now looks much more likely to be what I predicted 4 years ago: namely, zero. More precisely, I argued that its only value is as an insurance policy. The RSA is based on Vermont Yankee’s total revenues for the year, which have nothing to do with the price of solar and everything to do with the wholesale price of electricity in the ISO New England power market.

    As Mr. Dunnar notes, the strike price for the year beginning next month is set at $61. Current New England wholesale prices are in the $40-45 range, meaning that, for the coming year at least, there is likely to be no excess revenue to share. In March 2013, the strike price will rise with an inflation escalator, whereas the futures market suggests that the price of electricity will not rise commensurately. Rinse and repeat. The RSA lasts for 10 years, starting next month.

21. timothy k price February 20, 2012 at 8:15 am
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    VERMONT DEPT. OF PUBLIC SERVICE
    VY is Vermont’s single largest supply source. It is a nominal 540 megawatt boiling water reactor, one of five operating nuclear plants in New England. In 2003, VY suppled almost 35 percent of Vermont’s energy requirements and almost 28 percent of peak load.”

    Rod Adams wrote:
    “when you consider the fact that the tiny little plant in a corner of the state generates about 79% of the electricity generated in the entire state each year..”

    I have large array of solar panels and live off-grid most of the time. So where, in your statement that Yankee generates 79% of the power produced in the state, do you fallow for independent power producers like myself and all the others who are moving to independence from the grid? The sun belongs to everyone, the best things in life are free.

22. John Greenberg February 20, 2012 at 11:58 am
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    Sorry, Don Eggleston, but your analogies don’t work

    Southern laws restricting blacks probably did not specify that they were intended to discriminate against blacks, but they DID specify the restrictions they imposed: e.g. poll taxes, literacy tests, etc. These preconditions were NOT a secret; they were right there in the language of the law. Courts then had to wrestle with the question as to whether these taxes, tests, or other restrictions passed constitutional muster.

    Without having read these cases, my guess is that courts did that by turning from the language of the law to the law’s actual impact. Courts could presumably establish an evidentiary record showing that, thanks to literacy tests for example, all whites were able to vote, and few if any blacks could do so. That, at least, constitutes a prima facie case for discrimination based on the actual impact of the law. (Presumably, in order to declare the law, rather than its execution unconstitutional, one would also need to establish that the laws were carried out AS INTENDED; that is, that it was not just a case of rogue voting officials).

    Similarly, States requiring women to jump through certain hoops before obtaining an abortion did not write these hoops in secret code. They required, for example, that a woman do or refrain from doing things specified IN THE LANGUAGE OF THE LAW: (e.g. wait for X number of hours, receive counseling with specified text, etc.). The courts then had to decide whether the specified language did or did not conflict with the Constitution and with existing precedents.

    So in both sets of cases you’re citing, courts had real language to consider and real evidence about impacts.

    In the case of the 2 acts which Judge Murtha found unconstitutional, there is NO language that he points to as being questionable, which is the point I’ve hammered at again and again, and which is what I asked you to provide. If the law is really in “code” as Entergy suggests, then they should be able to show code words and decode them.

    Reading the bills what we find is plain English about the PSB’s role, language about the legislature’s role, and mandated studies and processes for the DPS and PSB to follow (in the case of Act 160). But none of these things conflicts with federal law. Indeed, none of them is remotely related to safety concerns. Similarly, in the case of Section 4, the EFFECTS of the bill as actually carried out are fully apparent and on the record. No one has suggested that they are tainted by any unconstitutional concerns. (Full disclosure: I DID suggest in several instances that their methodology and assumptions are flawed and that their conclusions are therefore incorrect, but that’s a POLICY question that I put before the PSB and the legislature, not a legal one to be considered by a court).

    Given that there is nothing remotely unconstitutional either in the language of the laws or in their effect, a normal court would have stopped there.

    Instead, you and Judge Murtha prefer to root around in statements made by unidentified legislators, picked out of hundreds or thousands of hours of legislative history looking for what you declare to be the “real motive” for the bills. Even were this procedure legitimate, however, there still needs to be some “hook” somewhere in the language of the bill on which to hang this “real motive.” Otherwise, why choose these particular bills? Why not declare the appropriations bill passed by that legislature to be unconstitutional because some legislators at some point in some process made statements concerning nuclear safety in front of a microphone which recorded their comments?

    In short, even if you don’t START by examining the text of the laws, you MUST return to it and show some nexus between the text and the supposed “intent.” THAT is what no one has done in this instance.

23. Willem Post February 20, 2012 at 4:56 pm
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    Lay people are spending a lot of hours “discussing” court cases. If all these hours were added up at $25/hour it would quickly reach many millions of dollars.
    Such wasteful activity should be redirected to something more useful, such as insulating and sealing of existing housing. Too boring? It will not be in a few years when fuel oil will be around $5/gallon. The best antidote to global warming is preparation.

24. John Greenberg February 21, 2012 at 2:57 pm
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    Don Eggleston writes: “In the legal issues I cited (and there are more, such as laws that discriminate in the workplace based on gender or race), the courts looked not only to the impacts of the challenged enactments, but also to the motivations of the legislatures in enacting them.”

    Actually, Don, you haven’t cited ANY cases. You’ve made some vague blanket generalizations about dozens of cases concerning broad social issues (discrimination, abortion, etc.), which isn’t helpful. Please give us a few citations of cases where courts behaved as you describe.

    Don then writes: “If you had a winning argument you would already have won.” I guess Rama (whom I don’t know) and I forgot: trial judges are always right. So what do we need appellate courts for anyway?

25. Rebecca Picard February 22, 2012 at 6:02 pm
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    The idea that we shouldn’t question legislative intent, and take everything they do at face value, seems like a step backward to me. I personally want to know what my representatives are saying, and how they reach the conclusions that they do.

26. don eggleston February 23, 2012 at 5:33 am
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    Yes.

    Unless one hates Vermont Yankee. Then it is outrageous for a court to even consider legislative intent.

27. John Greenberg February 23, 2012 at 9:22 am
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    “I personally want to know what my representatives are saying, and how they reach the conclusions that they do.”

    Then ASK THEM!

    But if you want to know the meaning of the laws they pass, READ THEM.

28. don eggleston February 23, 2012 at 11:44 am
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    Well, here’s one: “An Act to Preserve the Integrity of the State’s Voting System.” What neither the title nor the text of the law tells you is that it’s about keeping poor people away from the voting booth.

    Or, “An Act To Provide Information to Pregnant Women.” What neither the title nor the text of the law tells you is that it is designed to shame and embarass women into not getting an abortion.

    That’s why legislative motivation is RELEVANT. That’s why Greenberg’s simplistic response is flawed.

29. John Greenberg February 24, 2012 at 12:11 am
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    “Well, here’s one: “An Act to Preserve the Integrity of the State’s Voting System.” What neither the title nor the text of the law tells you is that it’s about keeping poor people away from the voting booth.”

    That’s supposed to be a citation???

    Show us the law, Don. Then show us the court case.

    My “simplistic” responses all provide specific citations of texts, of cases, etc. I’m asking you to do the same, and it’s a reasonable request.

    I’m more than happy to look at aspecific case, look at its language, and how a court decided it was impermissible. So, for the third or fourth time, how about a bill number, and a court case citation? Real ones, that we can actually look up and read, rather than taking your word for it.

    One other point. “That’s why legislative motivation is RELEVANT.” The question is not whether one should consider legislative MOTIVATION or intent. It’s HOW to consider it, and specifically, whether using legislative HISTORY, and even more to the point in this particular case, free-floating quotes, many from unidentified sources, and none of which have any specific reference to anything in the legislative text, is acceptable. Like the Supreme Court of the US in the Pacific Gas & Electric case quoted above, I contend that it is NOT an acceptable method.

30. Doug Hoffer February 18, 2012 at 3:03 pm
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    “yet more millions”

    the AG said $400,000 has been spent and he anticipates another $300,000 to $400,000

    so what millions are you referring to?

31. Rod Adams February 18, 2012 at 3:56 pm
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    Perhaps the comment is referring to the millions in legal fee liabilities that the state is incurring as the loser in the suit.

    Here is the relevant quote from the article:

    “Earlier this month, Entergy filed a request to the court asking the state to pay for $4.6 million in legal fees the corporation incurred in pursuing the litigation against the named parties: Gov. Peter Shumlin, Sorrell and the three members of the Vermont Public Service Board — James Volz, John Burke and David Coen.”

    That bill will not drop as more and more billable hours are wasted during an appeal process.

32. Rama Schneider February 19, 2012 at 9:29 am
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    How about you show us exactly where “safety” is discussed in the legislation?

33. Rama Schneider February 20, 2012 at 4:12 am
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    I’m sure you will now follow up with some factual evidence – such as where in 160 or 189 does the law regulate nuclear safety.

34. Rama Schneider February 20, 2012 at 8:34 am
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    Okay, obviously you can’t provide anything in the contested statutes that dealt with nuclear safety.

    As to your other arguments (such as they are): laws can be overturned because the way they are worded and enforced encroached upon a protected right.

    So when a legislature, for example, writes a law mandating a woman undergo an internal sonigram prior to having an abortion, that law is directly encroaching on protected rights such as personal privacy, right not to have one’s body invaded and such along those lines.

    Voting laws that have the effect of disenfranchising protected classes of voters will be overturned not because of the pre-law discussions (never happened), but because enforcement of the law itself has the effect of disenfranchising those voters.

    You can’t show me where the two contested statutes do anything of the sort relating to nuclear safety.

35. Rama Schneider February 21, 2012 at 4:19 am
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    You didn’t cite any legal issues – you threw out some generalities. On the other hand with Louisiana Entergy and Vermont we’ve been discussing a very specific case.

    And, eggleston, you still haven’t shown anywhere in the text of the Vermont laws in question where nuclear safety is addressed. For that matter you don’t show where the direct effect of the Vermont laws would have that effect.

    You have a losing argument that you refuse to support with facts.

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