Defying the will of Vermonters, Entergy Nuclear has successfully won the first stage of its trial to allow it to break its word and to usurp the rights of the Vermont Legislature. Judge J. Garvin Murtha effectively delivered a slap in the face to the people of Vermont by saying that [contrary to prior Supreme Court judgements] the Legislature has no right to regulate the operation of the Vermont Yankee nuclear reactor. The Public Service Board is now the only state entity that has the power to decide Vermont Yankee’s future.

The judge also bought Entergy’s argument that he should base his judgement not upon the written legislation in question, but rather by retroactively reading the minds of the legislators to judge what they were thinking at the time.

This ruling goes hand in glove with current federal policies that enrich the 1% and keep power firmly in the hands of America’s largest corporations. It affirms that corporate profits trump the interests of the citizenry. It attempts to belittle the state Legislature and misrepresents their legislation while defending the laughable notion that only the federal government can be trusted to keep us safe from radiological accidents caused by corporate malfeasance and profit-driven lax practices.

More significantly, the ruling should serve as the catalyst to spark Vermonters who have been watching this struggle from the sidelines to join the citizen effort to shut down Vermont Yankee before an accident shuts it down for us.

The executives of Entergy have lied under oath repeatedly to the Vermont Legislature, tried to bribe the Legislature (in Louisiana talk, they called it a gift offer) and have run roughshod over every aspect of the state’s self governance, relying on their tight association with the Nuclear Regulatory Commission, which abets rather than regulates the industry, to ensure that their reprehensible actions are allowed to occur unchecked.

The State of Vermont can fight back, trying to rein in this corporate behemoth, but federal law and the courts are limiting the state’s possible responses.

A majority of Vermonters know that Vermont Yankee has run its course and needs to be shut down as originally licensed. Now people are turning to their neighbors to organize. Affinity groups are forming throughout the region. Sagealliance.net http://sagealliance.net/ is providing non-violence trainings to people who are willing to risk arrest.

March is going to be a month for taking action. Students at Greenfield Community College are organizing a walk from GCC to the reactor on March 3. On March 11, the anniversary of the ongoing Fukishima nuclear disaster in Japan, commemorations will be held at the reactor and various locations throughout the state. There will be a shut it down rally at the Statehouse with our state representatives on March 21. On April 1, a major rally (without a civil disobedience component) will be held in Brattleboro, where Vermonters will make clear our support for the state’s right to regulate our utilities. Civil disobedience and direct action will be doubtlessly be directed towards Entergy Nuclear if they continue to operate past the March 21 license expiration date.

Our state will continue to assert its right to control our energy generating future, but it needs our help. Only with a strong partnership of people power and government action will we be able to achieve victory over the entrenched interests of the money powered corporate oligarchy.

Vermonters are determined to thwart those who would put us at risk for the sake of their profits. The Arab Spring and the Occupy movement have shown us the potential power of the people. When we stand by and watch our leaders lead, we often find ourselves in peril. When we assert our own sovereign power we take the first step towards building a better future for us all.

VTDigger

Editor’s note: This op-ed is by Deb Katz, executive director of Vermont Citizens Action Network, an anti-nuclear group. http://www.vtcitizen.org/

How can a judge get it so wrong and the will of the people be so right?

On January 19 Judge Murtha issued his controversial decision to support a rogue corporation in its evisceration of state’s rights. When Murtha ruled that Entergy was no longer bound by contracts it signed with the state of Vermont in 2002, and until 2010 repeatedly sought state approval for its actions, it undermined Vermont’s authority. When the judge further ruled that the Vermont legislature could not determine its own energy future, he eviscerated the democratic process.

Act 160 passed unanimously by both houses of the Vermont legislature; Republicans and Democrats alike, and signed into law by Republican Gov. Jim Douglas. This law empowered the legislature to decide whether Vermont Yankee’s continued operation was in the public good not based on safety but on economics, reliability and the environment. Yet Murtha, by accepting Entergy’s cherry-picked record chose to determine what was in the hearts and minds of legislators based on comments of a few. He opted to second-guess 180 legislators rather than accepting the law as written. What is in the hearts of legislators is better left to confessionals and fortune tellers than to a federal court judges.

Catch-ww

Murtha stated that although legislators never mentioned safety in Act 160 that’s what they really meant; they really wanted to wrestle federal control — pre-emption of nuclear power out of the government’s hands. Entergy, with its endless leaks and lies, its systemic mismanagement at VY and its other plants, and duplicity is the poster child for what was wrong in the nuclear industry. Entergy’s failing record demonstrates the abdication by the federal government to actually address safety.

The NRC approved Vermont Yankee’s license for continued operation days before the core meltdowns at the Fukushima reactors, (sister plants to VY) and then reaffirmed days later that VY was “safe” to operate. Although the state had good reason to pre-empt the federal government in its blatant disregard for health and safety, it did not. Act 160 specifically addressed state’s rights and responsibilities upheld in a previous Supreme Court ruling.

It’s curious that the state’s act of defiance would go unrecognized by the federal government; the DOJ chose not to intervene in the case, and in fact NRC’s Chairman Jaczko stated that nothing Vermont was doing violated NRC rules or regulations. Instead of looking at the written law, Judge Murtha opted to buy into a conspiracy theory that a handful of legislators were able to manipulate not one, but two separately elected bodies in the legislature.

So did Murtha do anything right?

Murtha sent the case back to the Vermont Public Service Board, a quasi-judicial entity, to determine whether Entergy is entitled to a Certificate of Public Good to operate in the state after March 2012. Although he put some constraints on the state, he upheld the state’s ability to decide whether it was in the best interests of the state to have a rogue corporation operate and erect a high-level waste dump along the banks of the Connecticut River. The judge also issued a permanent injunction which permits Entergy to continue to operate until the CPG is granted or rejected.

What can citizens do to ensure that democracy prevails?

It is essential that the governor and the attorney general understand how important this issue is to all of us. We are asking Vermonters to contact Shumlin and Attorney General Bill Sorrell, and thank them for the good work they have done on our behalf and urge them to continue to fight this bad decision and this equally bad corporation.

It is essential that the legislators act to hold this slippery corporation accountable for its waste, its thermal pollution of the Connecticut River and it corporate irresponsibility. With Murtha’s ruling ,Entergy has grown bolder in its disregard for the state. Entergy is now refusing the state’s request to continue the testing of contaminated wells to determine the level of contamination. Entergy now is also requesting that instead of inspecting the ancient steam dryers for cracks every 18 months that they be allowed to do so only every 10 years!

We call upon the Vermont legislature to do what Judge Murtha refused to do, which is to hold Entergy accountable to its remaining commitments to rehabilitate the site to greenfield status and cease denigrating our environment.

VTDigger

Judge Murtha’s Vermont Yankee decision ignores basic principles of legal interpretation and effectively overturns the existing court precedent concerning regulation of nuclear power. It should be reversed.

The Atomic Energy Act clearly establishes a role for the states as well as for the federal government in regulating nuclear power plants, a point clearly articulated by the Nuclear Regulatory Commission in its regulations. In the Pacific Gas & Electric case, the Supreme Court, explicitly refusing to look at legislative history upheld California’s moratorium on nuclear plant construction. While declaring that the field of radiological safety is clearly preempted from state legislation, the unanimous PG&E court asked only “whether there is a nonsafety rationale,” and went on to find that: “it is clear that the States have been allowed to retain authority over the need for electrical generating facilities easily sufficient to permit a State so inclined to halt the construction of new nuclear plants by refusing, on economic grounds, to issue certificates of public convenience in individual proceedings.”

In stark contrast, rather than closely examining the text of the laws the Vermont Legislature actually wrote to discern their meaning and intent, Judge Murtha gathered random tidbits from a highly selective sampling of legislative history, and made no effort at all to relate them to the actual text of the law as passed. Many of these quotes might relate to passages of legislation that were never enacted. Indeed, quite a few might not relate to legislation at all. Assembling random quotes with no context gives us no way of knowing.

For example, quoting one legislator saying, “Let’s find another word for safety,” Judge Murtha concludes that the law which results is “motivated by safety.” But the judge simply assumes the answers to a whole series of questions. Was that legislator’s suggestion ever followed? What new words were chosen? Is the wording in question still in the law? If so, where do they appear? Does the context suggest, as the judge implicitly deems self-evident, that the intent is merely to use a different word to discuss a pre-empted topic, or has the text now evolved to something entirely different?

In undisputed fact, the actual language of the legislation Vermont passed contains nothing about nuclear or radiological safety, and no words which somehow mask any such intent. The very structure of Act 160, the vast bulk of which (Section 4) establishes a detailed set of studies and procedures necessary for legislators to determine whether the plant is in the “public good,” makes the Legislature’s intent quite clear. These studies specifically relate to the very issues the Atomic Energy Act leaves in state hands: need for power, economic impacts on the state, etc. Indeed, they closely mirror the very issues which would be raised in a CPG proceeding, and have, in fact, been entered as testimony in PSB Docket 7440.

By contrast, these same provisions are totally inconsistent with the notion that the Legislature was motivated by safety considerations to shut the plant down. The suggestion that the entire Legislature and a conservative Republican governor endorsed a vast conspiracy to spend hundreds of thousands of dollars in meetings and studies solely to mask their “real” safety-driven purpose strains credibility.

The judge’s conclusions cannot be reconciled with actual historical facts. Indeed strikingly, Act 160 passed unanimously and was signed into law by Jim Douglas, an ardent supporter of Vermont Yankee’s continued operations.

There is no way to connect the laws passed to the intent that Judge Murtha tries to infer from the remarks he’s selected. But that’s precisely what one would expect when an interpreter fails to examine the text itself. In sum, as a matter of law, there is no violation of federal supremacy in the laws which Judge Murtha seeks to overturn, because there is no reference in them to the areas pre-empted by Congress.

Overturning legitimate legislation for specious reasons and allowing the plant to operate beyond its permitted time is bad enough, but this decision has nefarious and far-reaching unintended consequences as well.

Federal preemption laws do not abridge the free speech rights of legislators, who remain free to think and say whatever they like. The purpose of pre-emption is to prevent states from regulating areas declared to be solely within the purview of the federal government. But legislators do far more than regulate; they play a central role in the broad political dialogues – with constituents, with lobbyists, with administration officials, and even with federal agencies — which constitute our representative democracy.

When, for example, Yankee’s cooling towers collapsed, the NRC’s David Lew declared this to be a “very, very low significance issue.” Nonetheless, Vermonters, including legislators were concerned. Murtha’s decision absurdly suggests that giving any voice to that concern, especially if the word “safety” happens to be uttered, is somehow pre-empted under federal law, if it happens in a legislative committee and on tape. That conclusion doesn’t pass the straight-face test.

But the fallout from this decision will go well beyond that. In a citizen legislature, most elected representatives do not come to their jobs with legal, technical or any other expertise concerning the dozens of issues they must confront. With no staff beyond shared legislative counsel, they do not have the luxury of consulting in-house experts either. Instead, they are forced to learn on the job and on the record, by bringing in citizens, lobbyists, legal and technical experts, etc., to teach them what they need to know while drafting legislation.

In an area like nuclear power, where both legal and technical issues of considerable complexity abound, it is totally unsurprising to find legislators discussing issues about which they will, in the course of time, learn that they may not regulate. At the same time, some of the witnesses who offer testimony will be completely unaware of the legal niceties, and discussions of matters which cannot be regulated at the state level will ensue. As legislation moves forward, legislators hone their sense of what is and isn’t permitted. Illegal or wrong-headed provisions get re-crafted or dropped altogether. In the end, the only thing that matters is the result, that is: the law as enacted.

Judges must interpret laws to mean what they say, not what any of the witnesses or legislators who happened to be present in a committee room might have said. The Legislature does not enact and the governor does not sign legislative drafts, floor speeches, or committee discussions.

Just as Judge Murtha quotes the Second Circuit expressing the fear that legislatures could “nullify nearly all unwanted federal legislation by simply publishing a legislative committee report articulating some state interest or policy – other than frustration of the federal objective – that would be tangentially furthered by the proposed state law,” so too, if this ruling stands, legislators could nullify any state legislation merely by inserting terms pre-empted by federal legislation into the legislative history of otherwise perfectly permissible legislation. Even more absurdly, Judge Murtha’s methodology means that legislators don’t even have to succeed in introducing them into the law as passed.

If this ruling stands, no legislature could afford to be caught listening to any witnesses unschooled in the minute details of pre-emption law, when drafting legislation which could later be challenged. The legal chicanery feared by the Second Circuit is not a one-way street; but it is both a legislative and an interpretative cul-de-sac.

Finally, if the economic implications of safety issues and the rate implications of utility contracts are pre-empted, as Judge Murtha suggests, then the dual regulatory scheme established by Congress becomes a farce. This ruling makes it impossible to conduct the cost-benefits analysis needed to reach rational regulatory conclusions about the economic implications of housing a nuclear power plant in Vermont, ironically the very points Act 160 was intended to address.

Assume, for example, that the NRC is correct in assessing Vermont Yankee’s tritium leaks as having no safety consequence. That premise does not lead to the conclusion that the leaks are without economic impacts on tourism, on Vermont’s brand, and thus on a host of local businesses for whom the image of natural purity is crucial. Nor does it even relate to the fact that Entergy officials misled the state about the piping which could potentially carry tritium underground, thus creating an atmosphere of extreme distrust about a corporation attempting to do business in Vermont (while effectively poisoning the discussion of eventual decommissioning liabilities, which was the context in which the questions were raised in the first place). All of these matters are state responsibilities; the NRC has no authority over any of them.

Telling legislators and PSB regulators simply to ignore all this effectively instructs them to ignore the costs in cost-benefit analysis. That makes any regulating the state could possibly undertake a truly hollow enterprise. But without such regulation, we are left with a regulatory vacuum, which the PG&E declares was clearly not the intent of Congress. In other words, this decision subverts not only Vermont law, but federal law as well. It must be appealed.

VTDigger

FOR IMMEDIATE RELEASE

NEC FILES OPPOSITION TO ENTERGY MOTION SEEKING A FINAL ORDER IN PUBLIC SERVICE BOARD VY LICENSE RENEWAL CASE
NEC’s MOTION is available at” http://www.necnp.org/files/docs/2012-02-02__NEC_Opposition(Docket_7440).pdf .

February 2 2012 — Brattleboro , Vermont. New England Coalition today issued a strongly-worded opposition to Entergy’s recently filed motion before the Vermont Public Service Board for a prompt final decision on Entergy’s application for a Vermont Yankee Certificate of Public Good.

The Certificate would enable 20 years of added operation of Vermont Yankee Nuclear Power Station.

Entergy’s January 31st motion follows a Federal District Court decision ( January 19th) which allows the Public Service Board to move forward on the Entergy Vermont Yankee application absent issues of nuclear safety and wholesale electricity rates which the court ruled federally preempted, and thus beyond the reach of the state.

New England Coalition’s attorney, Jared Margolis of Jericho, Vermont wrote that because the evidentiary and legal argument portions of the license extension docket ended more than two years ago [Last briefs were filed August 7,2009], much of the testimony and evidence has now grown stale or has been rendered obsolete by industry events and changing markets. Margolis cited numerous unresolved issues in the docket including the damaging effects of Entergy’s false testimony regarding the presence underground piping which can be a significant factor in the cost of decommissioning.

“Entergy has moved this Board for a decision based on the record that has already been created in Docket 7440. Entergy makes this motion even though it argued before the Vermont Federal District Court that the appropriate course of action would be to begin anew before the Board, free of the taint of legislative influence and preempted content (see below). Entergy’s Motion for a decision based on the existing record is therefore both frivolous and disingenuous.”

Attorney Jared Margolis

“Further,” Margolis wrote, “the record is thoroughly tainted with information and references to what the Federal Court has now explained to be potentially preempted concerns. NEC therefore submits that a renewed application and additional hearings are necessary before the Board can appropriately rule on Entergy’s application for a CPG.

Using examples from the transcript of the federal proceeding, NEC pointed out that, in contrast to Entergy’s newly filed motion for a PSB decision based on the completed [but flawed] evidentiary record, Entergy asked Federal Judge Gavan Murtha .to remand the matter of state permission for Entergy VY to keep operating past March 21, 2012 to the Vermont Public Service as an entirely new proceeding:

Entergy Attorney Kathleen Sullivan,

But our concern, Your Honor, is of course, especially since members of the Public Service Board were part of who helped the Legislature craft the other words for safety, we’re not confident that we can go back to a Public Service Board that’s in some sense tainted by these statutes. We think we would have to go back to the Public Service Board with a fresh docket and a fresh start, not the docket that has been created under the shadow of these unconstitutional statutes. And if we have to go back to the Public Service Board with these statutes eliminated, we would want a chance to make a fresh docket and confine the proceedings to non-nuclear safety issues…. We do have a Federal constitutional issue with the proceedings [before the Board] as they’ve happened to date. We think that the activity of the Board to date in its interactions with the Legislature means that we should have a fresh start in front of the PSB, a fresh start which we could be sure there won’t be any consideration of public health under Act 160. So, if Act 74 and Act 160 are removed from the picture, we think we should have a chance at a fresh docket.
Case No. 11-cv-99, Sep. 14, 2011 (morning session) Tr. at 674-675.

Entergy Attorney Kathleen Sullivan,

But there is one more formal reason why we think the current docket is tainted, that is the Act 189 Study… Act 189 was all about safety, was preempted, and therefore, created a study, the NSA study approved by the Public Oversight Panel that was all about safety, and the Act 189 study is part of the record that is before the current PSB. So… what we argue to Your Honor is you would have to enjoin the PSB from withholding a Certificate of Public Good on grounds of nuclear safety and whether you do that within the current docket, telling them they have to in a sense scrub that docket of any tainted part, including the 189 report, or whether it’s simpler for you to simply say start over on a clean slate, we think that’s within Your Honor’s discretion. … And if you think they can, in a sense, close their eyes and ears to the tainted portions of existing record and clean it up, that would be acceptable as long as you think it’s doable. We think the safer course would be to start over.
Id. at 678-679.

The PSB is currently considering a request from the Department of Public Service to hold a conference among the parties to the relicensing docket “not before February 24th:” a date presumably tied to the expiration of the period of appeal for the federal decision.

Also today, the VPSB set March 12th as the date by which parties wishing to reply or comment on Entergy’s Motion for Issuance of a Final Decision may file.

NEC’s Motion is attached.
##30##

Link to this release: http://www.necnp.org/files/docs/2012_02_02_NEC_Files_Opposition_(Docket_7440)_PR.pdf

VTDigger

Vermont AG William Sorrell, right, said his office lacked the evidence needed to bring criminal charges against Vermont Yankee Officials. At left is Asst. Attorney Gen. John Treadwell. VTD/Josh Larkin

Entergy Corp. filed a motion with the U.S. District Court on Friday to recover $4.6 million in legal fees for its lawsuit against the state.

The Louisiana company prevailed in federal court on Jan. 20 when Judge J. Garvan Murtha struck down two state laws that required Entergy to seek approval from the Legislature to continue operating Vermont Yankee Nuclear Power Plant past its 40-year anniversary and to store high level nuclear waste at the plant site.

The state has 30 days to appeal the decision.

Entergy says it is entitled to an award of attorneys’ fees because it also prevailed on its claim under the Commerce Clause.

Chanel Lagarde, spokesman for Entergy, said in a written statement that “the law allows for the prevailing party to seek recovery of attorney’s fees.”

“We believe this is the appropriate next step for our company in this case where we were compelled to challenge several Vermont state laws that we believed were unconstitutional and were in fact found to be unconstitutional,” Lagarde said.

Download the motion Entergy Attorney Claims 2-3-12.

Vermont Attorney General Bill Sorrell said he expected Entergy to request attorneys’ fees.

“I was certain it would be all of seven figures, I just didn’t know how far into seven figures it would be,” Sorrell said. “It’s a little higher than I thought.”

Sorrell said “they threw a lot of legal horsepower at us, they went into the record extensively and they charged New York City rates.”

Entergy hired Kathleen Sullivan, the dean of Stanford Law School, to litigate the case. Sullivan was on the short list of candidates for Obama’s recent Supreme Court appointment, and she has been described as “one of the most trusted advocates before the United States Supreme Court.” Sullivan unearthed a detailed record in which she said lawmakers made references to safety as justification for a decision to deny Entergy a permit to continue operating the 40-year-old nuclear plant for an additional 20 years. States can’t regulate the safety of a plant under federal law; safety is the purview of the Nuclear Regulatory Commission.

The state can challenge the amount of the fee, Sorrell said. “This is a long way from over,” he said.

Sorrell said his office can question whether the lawyers’ hourly rates and the amount of time they spent on the case was reasonable. Entergy can’t claim relief for any legal work related to the questions about the reliability of the nuclear plant, he said.

It’s not unusual for litigants to go through a mediation process and retain experts to review attorneys’ fees, according to Sorrell.

“It’s not that they get to say this is what you give us,” Sorrell said. “There’s a lot of lawyering to be done on a request of this magnitude.”

Sorrell pointed to the prescription datamining case as an example of how the state has negotiated with other litigants. The state lost the case against IMS, a drug datamining company last summer in proceedings before the U.S. Supreme Court. The attorney general said he couldn’t reveal how much IMS is requesting for attorneys’ fees, but he said the state is negotiating with the company to reach a settlement. The state has already settled with one of the litigants in the case, Pharma, an advocacy group affiliated with IMS for about $1.75 million.

Will Entergy’s $4.6 million request affect Sorrell’s decision to appeal? “Not really,” he said.

“Some have speculated that we would be intimidated by the amount not to go further with an appeal,” Sorrell said. “Others have said it reinforces the reasonableness of an appeal because if the decision is overturned we don’t pay a dime. We’ll look at the appeal on its own merits.”

Cheryl Hanna, a professor at Vermont Law School and an expert on constitutional law and the U.S. Supreme Court, said the judge ruled that the state of Vermont violated Entergy’s constitutional rights and that entitles Entergy to legal fees.

“As a general rule, we allow that,” Hanna said. “We want to give incentives to enforce constitutional rights even when there is no money involved.”

Vermont doesn’t have to pay damages, she said, but “we allow for requests for attorneys’ fees so that lawyers will take these (constitutional rights) cases.” Hanna said fees are requested for a wide range of cases whether the litigants are inmates or multi-million dollar corporations.

Hanna says it will be up to court to decide how much to award.

“Unless the state prevails on all counts, we will probably end up paying for Entergy’s lawyers,” she said. “We don’t get a discount rate because we’re in Vermont. The court will force us to pay New York rates.”

Last year, the Shumlin administration pushed for a “billback” provision that requires Entergy to pay the state’s legal fees. Sorrell advised the Legislature to move ahead with the change in statute, which would make Entergy Corp. liable for the state’s legal expenses, including responses to public records requests and the preparation of litigation in the case.

Whether the court would honor this provision, in light of the judge’s dismissal of the state’s authority in matters of pre-emption, is an open question.

Editor’s note: This story was updated 5:40 a.m. and again at 6:25 a.m. Feb. 4.

VTDigger

The four-page motion asks for an amended or renewed certificate of public good to allow the plant to continue operating beyond March 21, when its 40-year license is set to expire.

The motion comes on the heels of a federal district court decision issued Jan. 19 in which Judge J. Garvan Murtha invalidated Vermont Act 160, which mandated legislative approval before the Public Service Board could issue a certificate of public good for the company to continue operating.

The board put the docket on hold when the state Senate denied Entergy permission to seek a certificate of public good in February 2010.

After the recent court decision, all eyes have been on the Public Service Board, awaiting the next step in the ongoing game of chess between the state and Entergy.

The filing comes as the state mulls whether it will appeal Judge Murtha’s decision to the Second Circuit Court of Appeals.

The case, Entergy’s attorneys argue, has been fully litigated before the Public Service Board with final briefs filed in the docket in 2009.

Also Tuesday, during the Entergy Corporation Fourth Quarter 2011 Earnings Release Conference Call, Entergy CEO J. Wayne Leonard addressed the Vermont proceedings.

Leonard said that over the last few years, the company has seen “nearly constant Entergy bashing in Vermont” attacking the company’s integrity and trustworthiness.

The company has chosen not to engage those attacks in the media, Leonard said.

Leonard announced that Entergy believes it can continue operating based on Judge Murtha’s decision.

“With the judge finding there’s no nuclear safety or power contract issues that can be the basis for the denial, we believe there is nothing standing in the way of issuing the CPG,” Leonard said. “We believe the evidence is complete and supports the decision to allow continued operation.”

Entergy also filed a notice of appearance for attorney Kathleen Sullivan, former dean of Stanford Law School, who represented the company in its successful lawsuit against the state in district court.

Elizabeth Miller, commissioner of the Vermont Department of Public Service, said the department is reviewing Entergy’s filing but was not definite about timing for filing a response.

On Jan. 25, the department requested that the Public Service Board schedule a prehearing conference after Feb. 24 when the state will have made a decision regarding an appeal to the Second Circuit.

The department’s filing notes that Murtha’s opinion “expressly does not prohibit the Board from determining the question of renewal of the Certificate of Public Good held by Entergy Nuclear Vermont Yankee in a manner consistent with the decision.”

The board has broad discretion to determine whether to issue a certificate of public good to a business that operates under its jurisdiction. According to board precedent, it may consider things like business reputation and “tailor conditions appropriate to the planned activities of the petitioner.”

The filing spawned quick criticism from those who want to see the plant shuttered.

The New England Coalition issued a press release claiming a decision to allow Entergy to continue operating would not be based on new evidence that has emerged since 2009. The coalition states that too many things have changed since the previous filings that the board needs to take a fresh look.

“The entire case, including Entergy’s false testimony about underground piping, needs to be reconstituted before a legally-supportable decision can be cast,” the release states.

Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont, called the motion “premature.”

In an e-mail to VTDigger.org, Levine wrote that the motion “is contrary to the court’s order and ignores facts that are important for the Board to hear.”

Most notable, Levine points out, is the false information Entergy provided to regulators regarding a tritium leak at the Vermont Yankee facility.

“Entergy’s lack of trustworthiness cannot be ignored,” Levine says. “It is an important matter that has bearing on whether Entergy should be allowed to continue to operate Vermont Yankee.”

VTDigger

The three members of the Vermont Public Service Board are about to get more free advice than all the Boston Red Sox managers combined. That’s because the best case the opponents of the Vermont Yankee nuclear power plant have to shut the plant down is to convince the PSB that it is no longer worthy of a certificate of public good.

As state auditor, it is my duty to evaluate the performance of state government. I would be remiss if I didn’t point out that state government has wasted a lot of taxpayer money trying to destroy a flawed but valuable asset.

Vermont’s legislation to close the plant in 2010 was carefully worded to forbid the PSB from considering the plant’s application for a certificate of public good. Why? The PSB’s mission is, in part, “to ensure the provision of high quality public utility services in Vermont at minimum reasonable costs, consistent with the long-term public good of the state.” Then-Sen. Peter Shumlin and his allies were afraid the Public Service Board would make a decision based on its mission.

Vermont Yankee produces baseload electricity at about 4 cents per kilowatt hour and has offered to renew contracts at about 6 cents. Wind turbines produce it intermittently at closer to 20 cents/kwh as mandated by the Legislature. Despite some serious transgressions over the years by Entergy, the plant’s owner, the PSB could not ignore the cost factor, the near zero greenhouse gas emissions, taxes paid to the state and the impact of more than 1,000 jobs. When the cost of electricity is factored into the current economic climate for other Vermont businesses, it is easy to see why Vermont Yankee’s opponents would be worried.

Now that Vermont’s defense of that law has been rejected in federal court at great expense to taxpayers, we’re back to square one at the Public Service Board.

The other portion of the PSB’s mission statement says: “The Board strives to achieve this mission by providing an independent, fair and efficient means of resolving public utility disputes; and by guiding the development of state utility policies and rules for public services to best serve the long-term interest of Vermont and its residents.”

When it comes to independence and fairness, the PSB is under the microscope in a big way. The Green Mountain Care Board was supposed to be independent, too. But this facade of independence was torched by Gov. Peter Shumlin when he demanded that members of the GMCB cancel plans to hire some communication help and they actually did.

PSB Chairman Jim Volz and members David Coen and John Burke have the duty to remain objective in the face of shrill, arrogant anti-nuclear zealots who could care less about the practical issues involving energy policy. Just as importantly, there is a great opportunity.

This is the opening for our state’s majority of pragmatic, reasonable Vermonters to insist on a practical, affordable plan for our energy future. Realistic Vermonters understand that the threat of global warming far outweighs any perceived threat to safety from nuclear power. Vermonters can demand that this source of inexpensive, virtually carbon-free baseload electricity be kept on-line to serve us rather than out-of-state utilities. They can also demand that Entergy clean up its act and run the plant properly or sell it to a firm that can. Gov. Shumlin’s plan to power the state with 90 percent renewable electricity by 2050 ignores the mission of “minimum reasonable cost” and the fact that renewables only produce power intermittently. Vermonters who understand this should say so before they are priced out of existence.

VTDigger

Judging by Indian Point, the Nuclear Regulatory Commission may be forcing us to base Vermont Yankee’s geologic risk analysis on antiquated data:

“Much new seismological information is available since their initial approvals (of Indian Point) in 1973 and 1975. Nevertheless the US NRC, so far has not permitted any new information to be used or old information on which the original licenses were granted to be contested in considering extension of licenses,” according to a 2008 study by researcher Lynn Sykes.

The Indian Point nuclear plant in Peekskill, N.Y., is about the same age and design and going through the same relicensing at the same time as Vermont Yankee. They have the same operator, Entergy, and of course, the same watchdog — the NRC. However, Indian Point is closer to more people (21 million within potential risk) than any other nuclear plant, and thus gets much more scrutiny for analysis of risk. It is geologically next door to Lamont Doherty Earth Observatory, Columbia University — a world-class seismic research center. The long-term lead researcher at Lamont Doherty, Lynn Sykes, has made his last research effort, both before and after retirement, an in-depth analysis of that risk (currently America’s highest-risk nuclear plant.)

The following points are taken from the summary paragraph in Sykes’ study, “Observations and Tectonic Setting of Historic and Instrumentally Located Earthquakes in the Greater New York City — Philadelphia Areas,” in the Bulletin of the Seismological Society of America.

The Sykes study integrates all know modern instrument-based seismic as well as historic data to that date. Its major finding is that Indian Point is located at the intersection of the two most seismically active linear features (faults) brought to light by the new data. Their concluding sentence: “This (Indian Point) is clearly one of the least favorable sites in our study area (roughly 13,000 square miles) from an earthquake hazard and risk perspective.” The earthquake, near Washington, Indian Point seismicity, and Vermont Yankee are in similar settings — each at the termination of a Triassic Basin. They may have similar seismic risk.

The NRC disallows this new data to be presented, in conjunction with the 20-year extension permit. Thus the data and analysis available for licensing of Indian Point, and presumably Vermont Yankee, and Judge Murtha’s decision, appears to have been very incomplete. It predates the quake that cracked the Washington Monument and led to extended shutdown of the nearest nuclear plant. It even predates Fukushima and Chernobyl, as well as the modern seismic array deployed since 1974. This is like basing the whole of earth’s history on the book of Genesis — data, knowledge and concern have exploded exponentially since 1974. The NRC appears to be inhibiting objective science and, that our highest-risked plant also puts the highest population in harm’s way, lets us know where the NRC stands — not the neutral watchdog we appointed.

With demise of Yucca Mountain, a new concern for Vermont is that there is a thrust toward “bury your own trash permanently locally.” Half the world’s N-waste repositories are in granite, and eastern Vermont has the world’s best granite. Why, there’s a good granite pluton just northwest of Brattleboro and less than 20 miles from Vermont Yankee — that’s coming down the pike! Ironically the N-waste will now increase by one third and Vermont will get no power from that third.

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Gov. Peter Shumlin’s efforts to challenge the safety of the Vermont Yankee nuclear power plant does not mark the first time that a Vermont governor went toe to toe with the plant. In 1985, when I was governor, I learned that the plant had falsified inspection reports for years and that thousands of unchecked parts may have been installed.

The plant had an unplanned shutdown for eight months to replace the entire recirculation piping unit. Both plant officials and the Nuclear Regulatory Commission had kept me in the dark. The state’s nuclear engineer concluded that probably violations had occurred in the “storage and handling program for safety related materials.” Plant officials issued denials. Who was right? How could I assure Vermonters that the plant was safe? That is the same question that is being asked today.

Governors have the responsibility to protect the safety of their citizens. If the plant accidentally releases radiation, the governor takes immediate action, ordering an evacuation, issuing iodine pills. But the governor had no power to prevent an accident in the first place.

My first step was to obtain an impartial evaluation of the plant. It was not so easy to get the safety question answered because “experts” were divided into two camps, either anti-nuclear or pro-nuclear scientists.

After many insistent phone calls to the Nuclear Regulatory Commission, I reached the New England regional director. We toured the plant together and as a result, he ordered a complete inspection of Vermont Yankee. He was as concerned as I was, and recommended major safety changes in the plant which were implemented. I established a new position — an on-site nuclear inspector to act as liaison between the NRC and the state.

I went a step further. I brought a resolution to the National Governors Association, which stated that governors should have more authority over the safety of their nuclear power plants. Gov. John Sununu was not pleased. He saw this as a direct attract on the approval of New Hampshire’s Seabrook plant, which had been beset by demonstrations. In one outburst, he told my staff person, “I’m going to raise a million dollars to defeat your governor.”

When Chernobyl occurred in 1986, calls for a shutdown of Vermont Yankee began. The question remains: How can the public know whether a nuclear power plant is safe to operate? What was underscored in the recent Vermont court case is that safety questions are decided by the federal government. The state can, however, make an economic argument — a more difficult task.

The best solution would be for a more safety-oriented Nuclear Regulatory Commission to work with Vermont and decide whether Vermont Yankee’s lifespan is safe to extend.
To succeed, the NRC would have to change course from being a nuclear energy salesman to being a nuclear cop.

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For serious open-minded environmentalists, there’s a lot to dislike about Vermont’s new Comprehensive Energy Plan.

The plan admits somewhat shamefacedly that, despite good intentions, Vermont won’t have enough renewable power anytime soon, so difficult decisions must be made. So, basically, the plan is saying: out with Vermont Yankee, in with burning more natural gas and coal.

Only to the most zealous anti-nuclear ideologue does this decision make environmental sense. The historical record of fossil-fuel power generation is replete with emissions-related fatalities. In a press release last July, the U.S. EPA states that cross-border air pollution costs 32,000 early deaths, 1.5 million non-fatal heart attacks, 1.8 million lost work days and $280 billion in medical costs every year. That’s one reason Congress chose nuclear power to replace coal.

By contrast Vermont Yankee, and indeed the entire U.S. nuclear power generating industry, has zero emissions and has never had a radiation-related fatality.

Some opponents of Vermont Yankee mention Fukushima and expect everyone to hate Vermont Yankee. Fact check: according to the Japan Times newspaper, no one has died from radiation as a result of the disaster. And a disaster it was, on a scale virtually unreproducible at Vermont Yankee, both inside and outside the plant. In the real world in which we live, the record shows there is no safer large producer of power than nuclear. I respect people’s right to their own emotions and fears, but I regret when they hold sway in public discourse. Almost everyone drives, even though one in 77 people die from car accidents. Opponents of any technology compare it to perfection. In the real world, alternatives are compared to each other.

Like the experts at the Vermont Department of Health and the U.S. Nuclear Regulatory Commission, I regard tritium as essentially harmless, indeed less so than eating a banana.
This is a finding based on comprehensive study of nuclear science.

The Comprehensive Energy Plan calls for more solar power but says little or nothing about how to dispose of panels that have outlived their 20 to 30-year lifespan. Talk about a waste storage problem! As currently constructed, these panels contain multiple hazardous, non-disposable chemical compounds. At least Vermont Yankee has an onsite storage plan, and not one but two doable, industry-wide potential solutions (Yucca Mountain storage and fuel reprocessing, which was operational but abandoned by presidential order in the late 1970s). Does anyone know or care where these tens of thousands of solar panels will be tossed by mid-century? Certainly not investors in the solar industry, but what about our media, environmental groups and elected officials?

Here’s another major drawback with the state plan: Very few instate renewable power generators actually exist. Permits must be acquired, highly visible land bought and cleared, and roads built up the mountainsides for wind turbines. It is one thing to develop renewable power in a measured, orderly way that is at peace with permitting and cultural norms. It is another to toss the Vermont way of life under the solar and wind bus because renewables are, in the words of the governor, “a moral imperative.” Yet such an imperative is significantly diminished by the very act of ignoring wise standards and values.

Vermont Yankee, however, exists. It operates quite reliably. Experience with large steam electric plants going back to the 19th century proves that they operate for much longer than 40 years. No new roads or power lines are needed, no mountain ridge lines obliterated. As the major financial source of the Vermont Clean Energy Development Fund, Vermont Yankee has been a godsend to renewable power. It also gives energy planners something they need even more than money: time. Instead Vermont’s rush to alternatives, with questions still turning up, may make our environment an unintended casualty.

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