It is time for Vermonters of goodwill, from Gov. Shumlin to the SAGE Alliance, to inure themselves to the reality that Vermont Yankee will not be shutting down on March 21, 2012.
The latest flurry of federal court pleadings from Vermont Yankee’s owners at Entergy suggest that, in a sense, the whole notion of civil society has become somewhat frayed in the wake of January’s decision by U.S. District Judge J. Garvan Murtha that federal law precludes the Vermont Legislature from ordering the nuclear plant closed on March 21. Attorney General Sorrell has appealed Judge Murtha’s decision to the U.S. Court of Appeals for the Second Circuit and, thus, by all rights the action should now shift to that New York City-based court.

Instead, Entergy has fired off a frantic pleading to Judge Murtha, asking him to amend his original judgment, along with a filing at the Court of Appeals that apparently raises the same issue. (For civil procedure buffs, note that the former submission is styled as a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure, and the latter takes the form of a notice of cross appeal.)

What appears to have Entergy freaked out is a memorandum issued on Feb. 22 by the Vermont Public Service Board. The PSB is in the limelight these days because, although Judge Murtha declared that the Legislature could not block the continued operation of Vermont Yankee, the PSB still has at least some authority to take such steps. The PSB’s free pass is grounded in the fact that when Entergy bought Vermont Yankee from a consortium of regulated utilities in 2002, it agreed to return to the PSB to seek further operating authority in the event Vermont Yankee wished to consider remaining in business beyond the original expiration date – that ominous date of March 21, 2012 – of the plant’s federal license. The feds have since extended the license by another 20 years.

The PSB has had a docket open for the purpose of considering the question since 2008, although the proceeding had been stayed from 2009 till Judge Murtha issued his decision. All the PSB did in its Feb. 22 memorandum is issue a perfectly innocent document asking, in effect: What now? In other words, deciding precisely nothing – and, indeed, betraying no inclination to decide anything in a particular manner – the state utility regulators simply asked the parties to state their positions, in writing, about what the PSB may and may not do under applicable Vermont law in light of the U.S. District Court’s decision. The parties, including Entergy and the Shumlin administration (through the Vermont Department of Public Service), have until Friday (March 2) to answer the PSB’s questions.

Entergy’s Rule 60(b) implies that by merely asking these questions, the U.S. District Court should assume that the PSB might just order Vermont Yankee to close on March 21. That’s ridiculous.

It’s ridiculous because it is perfectly obvious that shutting down the plant on March 21, under state law, would be inconsistent with Judge Murtha’s decision. And unless and until some higher court (i.e., the Court of Appeals and/or, perhaps eventually, the U.S. Supreme Court) tells Judge Murtha he was wrong, his decision is lawful and binding.

In a better world, alarmist pleadings like Entergy’s would be unnecessary because the owners of the nuclear plant would sit down with Attorney General Sorrell or his designees and agree that Vermont Yankee can continue to operate while the case is pending. Nuclear power plants, like every other kind of baseload generation facility that is designed to run more or less constantly, can not be turned off and on like an automobile or TV set. As was amply demonstrated last summer during Entergy’s unsuccessful effort to get Judge Murtha to issue a preliminary injunction – a request that he denied, by the way, based on an ultimately unfulfilled promise to resolve the case speedily on its merits – shutting down Vermont Yankee pending final resolution of its legal arguments would wreak irreparable harm. In other words, Vermont Yankee would lose even if it ultimately won in such circumstances.

So, instead of a common sense agreement to preserve the status quo, we have the unseemly spectacle of Entergy filing its latest pleading in U.S. District Court. The Entergy submission reads like an attempt to intimidate the three members of the Public Service Board, each of whom is a named defendant in the federal litigation. All of this threatens to do real harm to the integrity of the process by which the PSB exercises its quasi-judicial authority to regulate Vermont’s electric industry and other public utilities.

Contributing to the climate of incivility that now swirls around the Vermont Yankee litigation are the public pronouncements of a group calling itself the SAGE Alliance. If you check the group’s web page, it does not identify what groups or individuals comprise the alliance, nor does it even disclose the simple fact that SAGE stands for “safe and green energy.” More to the point, the SAGE Alliance has proclaimed itself the organizer of a campaign of unspecified “nonviolent direct action” aimed at making sure Vermont Yankee closes as decreed by the Legislature on March 21.

To which people of goodwill ought to inquire: Whither the rule of law?

On its website, the SAGE Alliance accuses Entergy of attempting to “undermine the will of the people,” “steal our vote away” and “subvert democracy” as the company “defies Vermont law.” Adopting these propositions requires one to conclude that we are all free to ignore judicial decisions with which we disagree.

This is a disquieting notion for those who can recall the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, two federal statutes that decisively pre-empted the racism that was enshrined in state law across much of the U.S. Some may find it unseemly to compare Entergy – widely regarded as a bad corporate citizen by virtue of its mediocre stewardship of Vermont Yankee – to the oppressed racial minorities whom federal troops had to protect at notable junctures in the 1950s and ’60s. But the legal principles are precisely the same. Either all of us are bound by judicial decisions and, thus, by the rule of law or there is the possibility that none of us are.

Either the laws duly enacted by Congress are the “supreme law of the land” under Article VI, Section 2 of the U.S. Constitution or they are not. The result cannot vary according to whether we are talking about the Voting Rights Act or the Atomic Energy Act.

Judge Murtha’s decision is certainly open to incisive criticism, some of it appearing on this very blog. As others have pointed out, his ruling sets a troubling precedent about legislative debate, which might be stifled in the future because Judge Murtha attached so much importance to it here. As I have pointed out, there are good reasons to question Judge Murtha’s ruling that it would be unconstitutional (based on the Commerce Clause) to preclude Vermont from demanding low-cost power for Vermonters if Vermont Yankee is to stay in business. But the federal court has ruled and its judgment is worthy of respect – in the suites and in the streets.

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When vexatious public controversies arise, people often speak of battle lines being drawn. But in the case of utility-scale wind power in Vermont, there is literally a battle line –- and even a dispute over precisely where that line is.

The dateline is Lowell Mountain in the Northeast Kingdom community of Lowell. Drive north along Route 14 to Albany, bang a left on New Street, follow it to Bayley Hazen Road, and eventually you will come to the home of Donald and Shirley Nelson.

On a recent and chilly late Fall Friday, an intrepid writer and law school professor did precisely that.

He did not ring the Nelsons’ doorbell, however. And it is a good thing he did not, for any help they might have provided to such a visitor would have potentially subjected them to criminal prosecution for contempt of court.

It is the Nelsons’ fate to own the property that borders, to the east, the site of Kingdom Community Wind –- a 63-megawatt array of 21 wind turbines, each more than 400 feet tall, that is under construction along 3.2 miles of ridgeline. The project is a joint venture of two Vermont utilities –- Green Mountain Power (GMP) and the Vermont Electric Cooperative (VEC).

Without seeking the Nelsons’ permission –- their land is not posted — you can drive northward past the Nelson homestead, park after a few hundred feet, cross a field on the left side of the road, and walk along a trail that will take you up the side of Lowell Mountain. Eventually the trail leads uphill and, after a series of switchbacks, you come upon a birch tree with a couple of remarkable signs on them.

Instead of the familiar “Posted: no trespassing” warning you might expect in such a spot, there are two 8 ½ x 11 pieces of paper that are laminated and nailed to the tree. One recites, in big letters, “1000’ From Construction Property Line.” The other is a copy of an injunction issued in the above-referenced case by Judge Martin Maley of the Superior Court.

Judge Maley’s order starts off with an explicit finding that the Nelsons and “other persons acting in concert and participation” with them are “improperly interfering” with the construction of the wind turbines. According to the court, the interference consists of “intentionally occupying” the northwest corner of the Nelsons’ property, adjoining the site of Kingdom Community Wind and, indeed, in “close proximity” to the blasting on the site that construction crews are scurrying to complete before winter truly sets in.

“Close proximity,” it turns out, means anything short of 1,000 feet away from the blasting.

Courts issue injunctions in order to use their authority to order people to do things, or not to do them. In this instance, Judge Maley has ordered the Nelsons, and “those acting in concert and participation with them,” from being within 1,000 feet of the boundary line between the project site and the Nelsons’ land “for two hours before blasting and until the all-clear whistle is sounded.”

You could read this as just an expression of benign concern for public safety. Except that Judge Maley’s order explicitly determines that the Nelsons and their collaborators have been deliberately placing themselves within the blasting safety zone so as to impede the project. The Nelson sympathizers accuse GMP of deliberately timing the blasts so that, given the two-hour intervals, the encampment they have established near their property line is effectively out of business during daylight hours on weekdays. And, like the proverbial falling tree, if dissent takes place in the forest when nobody is around to hear it, who will hear it?

In any event, on a day when there is no blasting and thus sheriff or state trooper present at the 1,000 foot marker to enforce the injunction, walking onward along the trail means that before long you come upon the battlefront proper.

On one side, behind a line of blaze-orange tape strung along a series of trees, is the noisy construction site. Large earth-movers rumble, atop a wide swath of gravel, along a ridgeline that has been entirely cleared. The loud sounds of construction –- pounding, digging, trucking -– echo through the hillside, audible even hundreds of feet below.

On the other side of the orange tape, Occupy Wall Street meets the woods of the Northeast Kingdom. There is a small tent city, a fire pit, and lots of signs. “Save the Lowell Mountain Range” is one that hangs in several places; among its 23 bullet points is: “Your Federal tax dollars lining the pockets of a foreign owned company,” referring to GMP’s Canadian parent company, Gaz Metro.

One particularly inscrutable sign reads, simply: “Unless.” The reference may be familiar to fans of the Dr. Seuss classic The Lorax, in which a perfectly fine forest of Truffula trees is razed for profit, notwithstanding the protestations of the fuzzy Lorax who purports to speak for the otherwise-silent flora. In defeat, the Lorax disappears, leaving behind just a “small pile of rocks,” bearing the word “unless.” The message, explains Dr. Seuss, is that “unless someone like you cares a whole awful lot . . . nothing’s going to get better. It’s not.”

So, the faceoff along that orange-tape battle line is a clash of cultures. It is also, quite literally, a boundary dispute. The Nelsons contend that the wind turbine project is actually encroaching on their land by more than 150 feet. This claim –- at the heart of the lawsuit that produced the injunction -– was the subject of dueling testimony from each side’s surveyors when the court heard each side’s request for an injunction booting the other off its land. The turbines won; the Nelsons lost.

Though the case technically remains unresolved –- the injunction being a preliminary one – the court made clear its view that, one way or another, the project will be completed as planned. Even if the project is encroaching on the Nelsons’ land, it is all but inevitable that the utility-owners of the turbines can take whatever land they need by eminent domain. Meanwhile, all of the frantic blasting prior to winter arises out of the fact that if the facility does not go on line by the end of 2012, the owners lose some $47 million in production tax credits from the IRS. Conversely, determined the court, any harm occasioned by booting the Nelsons and their allies off land the Nelsons may ultimately prove they own is just “temporary in nature.”

The squabbling over the injunction masks other, more troubling, issues in the litigation.

Judge Maley determined that GMP is likely to succeed on its claim of “nuisance” against the Nelsons. This does not turn on whether anyone is literally a nuisance but, rather, on the question of whether the defendants are interfering with GMP’s use of its land. The Court also determined that GMP is likely to prevail on its claim against the Nelsons of “intentional interference with contract.” The contract here is the one between GMP and its blasting company.

“Nuisance” and “intentional interference with contract” are time-honored concepts in civil tort law, but they typically arise in the context of commercial disputes and/or land-use schemes that are permanently noxious to neighbors. To apply these concepts in the context of social protest, especially in a state like Vermont with a long and honorable history of dissent, is chilling. How dispiriting that the debate over wind power in Vermont has come to this! The law already makes trespassing a crime without setting precedents that would encourage future claims of monetary damages against protest movements. Those potential ill effects of such precedents, unless superseded by the Legislature, will linger long after the blasting on Lowell Mountain is done, just weeks if not days from now.

What got a professor from Vermont Law School invited to visit the battlefront on Lowell Mountain was not any expertise in tort law but his recent Vermont Public Radio commentary praising large wind turbines, even when placed on ridgelines, as beautiful industrial objects. There are no wind turbines yet on Lowell Mountain and, thus, no way to evaluate how beautiful they will be once built. But this much is clear: The signs, the orange tape, the rival camps on opposite sides of a battlefront, and the creative application of tort law by utilities so as to thwart protest? Those things are ugly.

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Waitsfield residence. Photo courtesy of Maclay Architects

Don’t call William Maclay, the venerable Waitsfield architect who came to the Green Mountain State more than 40 years ago from the University of Pennsylvania, and whose firm just won two awards for excellence in Vermont architecture, a dinosaur. Call him a dimetrodon.

Well, okay — a dimetrodon is a dinosaur — or, more precisely, a pelycosaur, which actually preceded the dinosaur by a few million years. But the issue is not just paleontology but also beauty and efficiency – or, more precisely, energy efficiency.

Dimetrodons each had a big, spiny sail-like fin on their backs that some experts think were used for heating and cooling. Maclay does not resemble such a creature, but wouldn’t it be grand if a Vermont building looked and worked like that? If Maclay’s firm designed such a building, wouldn’t you want it to get an award for excellence in architecture from the Vermont chapter of the American Institute of Architects?

Well, that’s what happened. Sort of.

The 2010 edition of the Vermont AIA awards was just concluded and Maclay Architects bagged two of the three honor awards. In both instances, the jurors (a panel of disinterested architects from Massachusetts) looked with favor on so-called “net zero” buildings – projects that are not just sustainable and energy efficient but literally produce at least as much energy as they consume.

The two projects in question are a new field house at the Putney School and a private residence on the Mad River in Moretown, known as the River House. Each is not just sustainable but graceful – even beautiful.

As Wordsworth said, whither is fled the visionary gleam? Or, to paraphrase Danny Sagan, whatever happened to buildings that take us to a place we have never been before?

But – dang. Neither is unprecedented; neither attempts to change the people who live or work within it, and neither sports anything sufficiently outrageous as to merit comparison to that big fin that heats and cools.

For that you have to check out a sprawling and startling structure that Maclay began 40 years ago in Warren along with fellow architects Jim Sanford and Richard Travers, later joined by Sucosh Norton, Ellen Strauss and Hito Coleman. It was called – not surprisingly – Dimetrodon.

You can read all about Dimetrodon in Architectural Improvisation: A History of Vermont’s Design/Build Movement 1964-1977, published by the University of Vermont Press in 2008 to commemorate the exhibition of the same name at the university’s Fleming Museum. As described by the exhibit’s curator, Danny Sagan, Dimetrodon was “designed as a series of giant parallel box-beam trusses” and was “organized around the concept that residents would receive services such as sewer, water, electricity, and heat, and construct their own dwelling in the space between the box beams.” It thus was, as Sagan notes, an early experiment in cohousing – an idea that did not take off in the United States until fully a decade and a half after Maclay, Sanford and Travers started building those giant trusses in Warren.

At least as of the date of Sagan’s essay about this and other Vermont projects of that era, Dimetrodon is still there. It is still home to five co-dwelling households, though the small wind turbine at the spire is long gone.

The point in mentioning it here is not so much to celebrate this achievement in 1970s design, or the fact that it arose out of a genuine and distinctively Vermont architectural movement that was started by the outlandish designer David Sellers, came to be housed at the non-residential Goddard College, and which endures today at the Yestermorrow Design-Build School in Warren. The point is not to suggest there was, and is, something ineffably noble and right about design-build architecture – the notion that the designers actually help build the thing rather than staying in a cubicle somewhere issuing directives to people who actually know how to construct things.

Rather, the point is more simple. As Wordsworth said, whither is fled the visionary gleam? Or, to paraphrase Danny Sagan, whatever happened to buildings that take us to a place we have never been before?

Vermont has long had distinctive architecture, in contrast to New Hampshire where the closest thing to cutting-edge design would be a bas relief by Augustus Saint Gaudens (who died in 1907, though you can still visit his place in Cornish). The design builders who invaded the Mad River Valley in the 1970s were really just following the Vermont tradition of innovation and adaptation that gave the Vermont landscape such archetypal structures as the monitor barn and the connected farm house.

The Putney School’s field house is an endearing physical presence, but so is an old-fashioned bowling alley, which it resembles. Memo to Maclay and his client: Don’t write me to complain about this.

Putney field house. Photo courtesy of Bill Maclay

The Putney School’s field house is an endearing physical presence, but so is an old-fashioned bowling alley, which it resembles. Memo to Maclay and his client: Don’t write me to complain about this. Let’s stipulate that the architects have done a fine job of fitting the bowling alley archetype into the unique setting of the Putney School, which was originally just a farm and is now a farm and private secondary school. Let’s also stipulate that by commissioning its award-winning new field house the Putney School perpetuates a deserved reputation as, dollar-for-dollar, the most enlightened institutional client in Vermont. The school’s Currier Center for the Performing Arts, designed by the renowned Boston-area architect Charles Rose, is the best non-residential building in Vermont so far this century. Completed in 2004, it went unnoticed by the Vermont AIA awards because it is the work of an out-of-state architect.

Let’s also stipulate that a truly beautiful aspect of the Field House project was on vivid display in the latest issue of the school’s magazine for alumni and friends. It is a negative energy bill – i.e., a net payment, since Vermont law allows such things – that the Putney School received in connection with the building. That the Putney School is able to pull off stuff like this without wrecking the stark and distinctive character of its farm-centered campus is worthy of an architectural lifetime achievement award.

Residential projects are harder to assess because they are, by definition, private. But from the pictures available on the Maclay Architects web site one can readily ascertain that the River House is money well-spent by its owners. Stone that came directly from the site is the dominant material, the roof is covered in sedum (a flowering plant), and inside there is timber framing of lavish (but decidedly un-Vermont) Douglas fir. An array of photovoltaics is separate from the house itself – a choice that presumably made the home more comfortably beautiful (by avoiding the siting constraints solar panels impose) but also an approach that suggests a small bit of cheating on the net-zero claim insofar as much of the energy production is technically not coming from the house itself.

This is not a historicist dwelling but neither is it unfamiliar in its overall form and look to those who read architectural magazines and know about famous non-Vermont designers like James Cutler or, indeed, the aforementioned Charles Rose. Familiarity should not necessarily breed awards.

Union Square, Gossens Bachman Architects

That excellence was equated almost entirely with virtue by the Vermont AIA jury this time around is confirmed by the third honor award, to Gossens Bachman Architects for its Union Square project, a renovation of what was once known as the NAMCO Block, in Windsor. This iconic early 1920s structure and its undulating brick façade were something of a notorious icon in the former mill town, where it had become (not to put too fine a point on it) a giant (as in 85,000 square foot) slum. Originally built as worker housing, the place was rehabbed in 1989 as a low-income housing project known as Armory Square. Now the place is beautiful again as well as energy efficient. The 72 units have been pared to 58.

With apologies to Gossens Bachman, if there is truly excellence here (as distinct from a deft and competent redesign and rehabilitation of a 90-year-old building) the award should go to Senator Patrick Leahy.

With apologies to Gossens Bachman, if there is truly excellence here (as distinct from a deft and competent redesign and rehabilitation of a 90-year-old building) the award should go to Senator Patrick Leahy (who procured a federal grant for the project), NeighborWorks America (which provided below-market financing through a Vermont affiliate, the Rockingham Area Community Land Trust), Housing Vermont (a participating developer of low-income housing), all of the state’s electric customers (who helped pay for weatherization and other energy efficiency measures through Efficiency Vermont), and perhaps others whose contributions cannot be readily ascertained.

The award to Union Square raises the question of what would truly be design excellence in this context. At least a tentative answer would be: A project that manages to persuade not just low-income Vermonters (through economic necessity) but Vermonters from all non-agricultural walks of life that apartment living in village or urban settings is far more responsible, and far more likely to preserve the Vermont rural character we all say we want to preserve, than hiring Maclay Architects or Gossens Bachman to design a sumptuous residence on many acres of land, however well those two firms can execute such projects.

In other words, Vermont, those who design its buildings, and those who bestow awards on those designs, need to reach back to rediscover the time, epitomized by projects like the Dimetrodon, when the task of architecture, as Alain de Botton suggested in The Architecture of Happiness, was “to render vivid to us who we might ideally be.” Otherwise, we risk just honoring dinosaurs.

Donald M. Kries is an associate director of the Institute of Energy and the Environment at the Vermont Law School.

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Over the course of the last year, VTDigger.org has published hundreds of stories, most of which would fit in the straight news category. Once in a while though, we like to get beyond politics and public policy and tap our stable of essay writers for insight into issues, like Facebook fandom, McHouses, global warming, Vermontee nostalgia, a snowbird’s perilous trip down Florida’s I-95 and life under the Golden Bubble. Some are serious, others are zany satires. Here are 10 of our most thought-provoking pieces from 2010. Enjoy, and Happy New Year from all the writers at VTDigger.org.
~Anne Galloway, editor

Vermont architecture: The get-lost effect gets recognized
By Donald M. Kreis on April 17, 2010
What’s modest about a house that, with its adjoining and newly built barn, has almost 10,000 square feet of space and occupies a 210-acre parcel of land? Continue reading

Exile from Facebook Nation
By Barbara Ann Curcio on August 10, 2010
I don’t want you to know my whereabouts every minute of the day (“Status”), or the most boring, inane details of my life (mucking the horses now–I’m in deep doo-doo!). Don’t need to play FarmVille; I live there in real life. And I actually LIKE my privacy. Continue reading

The global volcanic feedback loop
By Terry J. Allen on May 25, 2010
If researchers are right about the impact of glacier melt and rising seas, volcanic and earthquake activity will accelerate. We are in for a hell of a ride. Continue reading

Personal essay: A contrarian view of the Tunbridge World’s Fair
By Donald M. Kreis on September 24, 2010 | Edit
The point here is not to idealize the 1939 New York fair.The point is that a forward-looking orientation is an infinitely more satisfying, inspiring and, frankly, honest source of pleasure than the false nostalgia served up every September in Tunbridge. Continue reading

Image from Orgasm Inc.

BigPharma, the Orgasmatron and restless vagina syndrome
By Terry J. Allen on March 2, 2010
By promoting the idea that “normal” women have explosive sex all the time, BigPharma helped launch “female sexual dysfunction.” Continue reading

Antibiotic ban leaves farmers in a tough spot
By Terry J. Allen on August 10, 2010 | Edit
Many farmers and organic proponents recognize the USDA’s 100 percent ban on antibiotics needs to be re-examined in light of a growing concerns about animal welfare. Continue reading

I-95, Fort Lauderdale

Interstate 95: Drive it if you can
By Barbara Ann Curcio on June 30, 2010
Snowbirds from Vermont need a tank–make that a whole squadron of them–to feel secure negotiating the fearsome traffic and speed of the Florida Interstate. Continue reading

Death raises questions about U.S. conflict in Afghanistan
By Anne Galloway on July 4, 2010
How do we honor the war dead and those who have returned from the battlefield suicidal or permanently maimed? We use the euphemism “ultimate sacrifice” to describe soldiers killed in conflict, but have we lost a shared sense of that sacrifice? Continue reading

Food stamps, soda and the sweet nanny state
By Terry J. Allen on November 24, 2010
Mayor Bloomberg asked the Department of Agriculture to allow a two-year pilot program that adds soda to the list of items that the city’s food stamp recipients cannot buy with benefits. Continue reading

Digger Dirt: Farewell to the Golden Bubble, for now
By Anne Galloway on May 13, 2010
Though the Statehouse can seem like high school on steroids, in committee legislators plod through painstaking legal minutiae and wade through technical testimony like pros. Continue reading

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Left turn sign

Government agencies can demand all kinds of personal information in the course of deciding whether to grant licenses, permits and the like. But they’re only supposed to extract information they actually need – as opposed to asking questions that are merely designed to test how honest you are.

Unless, apparently, the agency is the Vermont Department of Liquor Control.

Consider, for example, that on September 17, 1985 – a quarter century ago – I made an illegal left turn while visiting my aunt and her family in Virginia. She had given me some driving directions, which I somehow misunderstood. When I made that left, I was a block away from where I was supposed to be – and, since I was focusing on the directions, I didn’t notice the “no left turn” sign. I did, however, notice the police officer who pulled me over.

Guilty as charged, I paid a small fine in due course. To this day, my aunt doesn’t know I got the ticket – but now the Vermont Department of Liquor Control (DLC) does.

I had to disgorge this information to the DLC earlier this year when a food co-op on whose board I serve decided to seek a license to sell beer and wine in Vermont. My board colleagues and I were instructed to provide complete lists of any criminal convictions (of which I have none) as well as any traffic violations.

Not wanting to hold up my co-op’s license application, I disgorged everything I know about my driving record. But, as someone who teaches administrative law, and who is an endemic curmudgeon when it comes to coughing up personal information just because someone demands it, I got to wondering why the DLC could possibly care about illegal left turns and speeding tickets in the course of evaluating liquor license applications.

Happily, section 806 of the Vermont Administrative Procedure Act provides a mechanism for finding out. This provision allows citizens to make formal requests of agencies for changes in their rules or policies. Within 30 days, an agency is obliged to respond by either granting the request (or at least starting the process of doing so) or explaining why it will not.

I sent such a request to DLC Commissioner Michael Hogan in July. And, 36 days later, I had my reply – not from the commissioner himself but from his lawyer, Assistant Attorney General Jacob Humbert.

Liquor licensees, Humbert wrote, “are charged with understanding and enforcing oftentimes complex statutes and regulations designed to protect the welfare of the people of Vermont.” In that light, according to the VLC’s lawyer, “criminal and motor vehicle offense information, together with the person’s level of candor concerning such offenses, provide a more complete picture of each responsible person’s capacity to conduct their affairs within the boundaries of the law.” (Emphasis added.)

These comments, though written in sensible government lawyer-ese, become worrisome when deconstructed.

Do Vermont’s liquor authorities really think it possible that people who commit traffic infractions do so because they don’t understand what “no left turn” or “speed limit 55” mean – and, thus, might not be able to grasp what “don’t sell beer to people under age 18” means as well? That would be ridiculous, even if one accepts Humbert’s characterization of Vermont liquor law as “oftentimes complex.”

That leaves only the rest of Humbert’s explanation – that the information is relevant when deciding if an applicant generally has the capacity to conduct her or his affairs “within the boundaries of the law.”

One issue is that the DLC lawyer conflates two distinct things – criminal convictions and traffic violations. The former obviously do have a bearing on whether someone has the moral compass to obey the law. But there is a reason why Vermont doesn’t define minor traffic violations as crimes (unless committed habitually). These civil infractions simply lack the same moral dimension as thievery, violence and other more heinous varieties of criminal conduct.

The other issue — and the one where the DLC’s position seems especially inconsistent with the values one associates with Vermont – concerns the department’s professed interest in using this information to evaluate applicants’ “level of candor.” In other words, it’s a trap – the DLC can do its own research about your minor traffic tickets and test how honest you’ve been on your application. Call it a virtual polygraph test.

The idea that a government agency would create such a lie detector mechanism is so at variance with basic notions of fairness that one is tempted to conclude that Assistant Attorney General Humbert misspoke, perhaps out of zest to justify his client agency’s practice. Alas, the agency itself uses the same explanation.

Weeks before I sent my letter to Commissioner Hogan, I complained about the practice in question to my state legislators, one of whom made inquiry of the DLC’s licensing bureau. A staff member from the bureau replied, in part: “We go back to the beginning when we do record checks so I always tell perspective [sic] licensees to be honest and if they can’t remember to state that they can’t remember. We are basically looking for honesty and integrity in our licensees.”

There’s nothing inherently wrong with a licensing agency concerning itself with the honesty and integrity of licensees (nor, obviously, with an agency employee trying to be helpful to a legislator with a constituent request). But that doesn’t mean that a government agency should be allowed, in effect, to demand irrelevant personal information so that it can give an honesty quiz to license applicants.

What makes this practice truly scary is that no formal rule or regulation of the DLC requires, justifies, or even explains it. Demanding such information from applicants is purely a matter of the agency’s discretion. Theoretically, nothing rules out a future commissioner demanding that applicants “friend” him so she can check out the veracity of their Facebook pages. After all, if you list your status as “single” when you really aren’t, this would clearly be probative of your honesty and integrity.

I assume that some will react to this concern unsympathetically, given that liquor is dangerous stuff and those given the privilege of selling it in Vermont ought to expect exacting scrutiny from state officials. But it doesn’t mean that license applicants should expect the Spanish Inquisition.

Principles aren’t really principles when they apply in the easy situations and are sacrificed when the stakes are high, as with liquor licenses. The principle here is one of limited government that doesn’t try to trick citizens or eviscerate their privacy. The DLC would do well to re-read the 1989 admonition from Justice John Dooley of the Vermont Supreme Court, who noted that it is not liquor regulators’ job to be “attempting generally to regulate public morals.” (For the record, the citation is In re Club 107, 152 Vt. 320, 324 (1989)).

As an administrative law professor and fan of strong government, I try to impress upon my students that having vigorous state and federal agencies is a good thing. When an agency reserves the right to ask applicants any questions regulators please, this can only undermine public confidence in the noble purposes of the public sector.

Donald M. Kreis is assistant professor and associate director of the Institute for Energy and the Environment at Vermont Law School.

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Plagiarism is in the eye of the beholder.

Take, for example, my former employer – the venerable newsgathering cooperative Associated Press. Well before I was there from 1981 to 1986, and certainly thereafter, central to AP’s business model was what we euphemistically called “rewrite” – the practice of taking original reporting out of the pages of an AP member newspaper and “turning it around” for dissemination on the AP news wires.

This is not, in fact, plagiarism – but it does give rise to a certain irony in Associated Press using that word in connection with a pleading submitted to the Vermont Public Service Board by Sarah Hofmann, the chief lawyer at the Department of Public Service. Hofmann, according to an AP story that appeared in the Barre Times Argus, is “under fire for apparently plagiarizing long passages from a utility lawyer’s writing in a case in which both the department and utilities are fighting a proposal to give low-income residents a break on their electric bills.”

AP reported that “more than two of six pages are word-for-word identical to a filing made in January by David Mullett, a lawyer for the Vermont Electric Cooperative and municipal electric departments.”

At the risk of plagiarizing someone else’s famous phrase: Read my lips – Hofmann did absolutely nothing wrong.

Public Service Board proceedings typically involve multiple parties, including the Public Service Department (which is the executive branch agency charged with representing utility customers in proceedings before the quasi-judicial board). More often than not, some of those parties find themselves agreeing with each other on some or all issues in a case. They adopt each other’s arguments as a matter of routine in these circumstances.

Briefs like the ones Mullett filed on behalf of the electric cooperative are not created as protected intellectual property. They are substantive positions on contested legal and factual issues. If anything, it was good news for the co-op that Hofmann was adopting its arguments in her filing. Calling what she did plagiarism is unfair and reflects a worrisome willingness on the part of AP to be manipulated by parties who are opposing the Public Service Department before the Public Service Board.

In this instance Hofmann’s accuser is apparently the AARP, which is the group proposing rate reductions for low-income members of the electric co-op and other utilities. But, at least in the AP story, the AARP did not use the highly charged “P” word. Rather, the organization’s Vermont advocacy director, Philene Taormina, posed this rhetorical question when interviewed by AP:
“Are you really zealously representing your client, the public, when you’re taking an argument from a regulated utility?”

The short answer to this cheap shot of a question is: Yes.

A longer answer, from the standpoint of legal ethics, is that Hofmann’s “client” is not technically the public but, rather, the political appointee whose job includes developing a policy agenda that, in his judgment (and presumably that of his boss, the governor) is in the best interests of the utility-using public. This is an established principle with respect to lawyers who represent government agencies.

Chiming in on the AP’s unfounded plagiarism allegation against Hofmann is my Vermont Law School colleague, Brian Porto, who teaches in the legal writing program at VLS.
According to Porto, as quoted by AP, “If you’re taking someone else’s idea and not citing the person, and you’re falsely suggesting that those ideas are your own, certainly within the definition of plagiarism that comes within it.”

Porto is correct that if a law student did as he described, submitting such work as her own to a VLS professor, the student would be guilty of plagiarism as defined in the VLS academic regulations. But, to state the obvious, VLS’s rules do not apply to pleadings submitted to the Vermont Public Service Board. Nor do they apply to AP – which, in light of “rewrite,” would be guilty of such plagiarism hundreds of times a day.

The AP story also quoted attorney Sandra Levine of the Conservation Law Foundation – another advocacy group with frequent business before the Public Service Board and one that typically disagrees with the Public Service Department. According to AP, Levine said it is “very unusual to have identical language from two different lawyers submitted in the same case without attribution to the original source.” She’s entitled to her opinion, and also to her much more relevant observation that Hofmann’s wholesale adoption of the electric cooperative’s argument would be worrisome if it is “indicative of a lack of independence from the department in its analysis or evaluation of this issue.”

Those questions – which involve examining the merits of the position the Public Service Department is taking with respect to efforts to use utility bills to require utility customers generally to subsidize the needs of low-income customers particularly – are the ones AP should be writing about. But facile and unfounded allegations of plagiarism are much easier to produce, unfortunately.

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VTDigger

CONTACT: John Cramer, Associate Director of Media Relations, 802-831-1106, jcramer@vermontlaw.edu

SOUTH ROYALTON, VT –– The Environmental Law Society’s Advocacy Group will host a panel on the Vermont Yankee nuclear power plant at 5:30 p.m., Tues., Feb. 9 in the Chase Community Center at Vermont Law School. The event is free and open to the public.

VLS students will start the program with an overview of the controversial Vermont Yankee facility, which supplies about 30 percent of Vermont ’s energy and 2 percent of the total energy on the New England power grid.

“Energy cooperatives throughout the state are already seeking alternatives to Vermont Yankee and looking to safer, cleaner alternatives,” said student Meredith Crafton. “Vermonters currently have a unique opportunity to influence their representatives on this decision. Vermont ’s energy future is being decided now.”

Vermont Yankee, the state’s lone nuclear reactor, is seeking a 20-year renewal of its operating license, which expires in 2012. Utility regulators, state legislators and the state Public Service Board recently criticized Vermont Yankee’s management for making misleading statements about radioactive tritium that was found in a groundwater monitoring well at the plant and underground pipes near the Connecticut River. Plant officials said the elevated tritium levels present no risk to public health or safety.

Gov. Jim Douglas wants lawmakers to delay a vote on the plant’s relicensing request and its owners, New Orleans-based Entergy Corp., to replace the plant’s top managers in an effort to restore public confidence. Douglas also wants the Public Service Board to delay a decision on Entergy’s plan to sell Vermont Yankee and five other nuclear reactors to a newly created company called Enexus because of concerns the new firm couldn’t afford to dismantle Vermont Yankee when the plant has to be decommissioned. Vermont is the only state in which the legislature has approval over relicensing nuclear plants.

The VLS panel will include James Moore of the Vermont Public Interest Research Group, who will discuss Vermont Yankee’s role in the state’s power structure and how the plant can be replaced, and Vermont Law School Assistant Professor Don Kreis, who will speak on the Entergy/Enexus corporate spinoff proposal.

Arnie and Maggie Gundersen will discuss nuclear safety, oversight and the role of the law and the Vermont legislature. Maggie Gundersen is a paralegal specializing in environmental, nuclear safety and energy litigation in federal and state administrative law hearings. Arnie Gundersen is a nuclear engineer and has coordinated projects at 70 nuclear power plants nationwide. He is a consultant to the Vermont legislature on Vermont Yankee, serving on the independent oversight panel that reviewed the plant’s reliability last year. The Gundersens’ analyses of the shortfall in Vermont Yankee’s decommissioning fund resulted in a national review of gaps in decommissioning funds at many nuclear power reactors around the country.

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Vermont Law School, a private, independent institution, is the nation’s top- ranked environmental law school, according to U.S. News & World Report. VLS offers a Juris Doctor (JD) curriculum that emphasizes public service, a Master of Environmental Law and Policy (MELP) degree for lawyers and nonlawyers, and two post-JD degrees, the Master of Laws (LLM) in Environmental Law and the LLM in American Legal Studies (for international students). The school also features innovative experiential programs and is home to the Environmental Law Center and the South Royalton Legal Clinic. For more information, visit www.vermontlaw.edu.

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