Editor’s note: Jon Margolis is VTDigger.org’s political columnist.
In the week since Entergy Corp. announced it was suing Vermont in federal court, challenging the legitimacy of the state’s role in extending the Vermont Yankee nuclear plant’s license, “the smart money” seems to have decided that the company is likely to win, keeping Yankee on line until 2032.
“And then all the people who’ve spent the last 20 years trying to shut down Vermont Yankee will have another 20 years trying to do the same thing,” said one irreverent state legislator.
And quite possibly crying all the way to the bank in the process. Nothing is better for an advocacy group’s bottom line than defeat. Should Yankee prevail, expect contributions to outfits such as the Vermont Public Interest Research Group and the Conservation Law Foundation to soar.
Like its cousin, “conventional wisdom,” “the smart money” has neither an official spokesperson nor a governing board, so confirming its sentiments is difficult. But most of the chatter among lawyers, and in the state capitol, seems to assume Entergy’s eventual success.
Both conventional wisdom and the smart money are sometimes wrong — but not as often as they are right. That’s why the wisdom gets considered conventional and the money earns the “smart” label. Right now, someone intent on betting on the lawsuit should bet on Entergy, but not bet next month’s rent.
One reason many expect Entergy to prevail is simply that it is a large, profitable, powerful corporation. In this country, they usually win, in court and elsewhere.
Not always. In 2007, the conservative U.S. Supreme Court pleased environmentalists and shocked big business by declaring that greenhouse gases were air pollutants under the Clean Air Act, giving the Environmental Protection Agency the authority to regulate auto emissions. Usually, though, large, powerful interests get their way. That’s one reason they remain large and powerful.
Even observers who think the state will win the case acknowledge that it will be very difficult for Judge J. Garvan Murtha to deny Entergy its motion for an injunction to prevent Vermont from shutting down Vermont Yankee while the lawsuit proceeds.
Or perhaps “drags on” would be more accurate, considering the frequent delays in federal lawsuits. While the lawyers prepare their briefs, Vermont Yankee would continue to produce electricity, which even some of its critics acknowledge it does rather well. After a while, the dispute might become moot — politically if not legally. The power plant and the company that owns it may be unpopular in Vermont right now, but few people object to a steady supply of power that isn’t too expensive and doesn’t produce greenhouse gases.
The governor insisted Thursday that New England has “more power than we can use,” an assessment shared by many electric utility experts, and that replacing Yankee’s output would not be difficult.”
The reason most observers expect Murtha to grant the injunction is that even those who think Entergy’s case is weak do not argue that it is frivolous. Suits seeking remedies based on “federal pre-emption,” from the Constitutional assertion that federal law is “the supreme law of the land” are often successful. Entergy also claims that, by insisting that a state agency has the power to grant or deny the plant a “certificate of public good,” Vermont might be interfering with federal authority to regulate the wholesale power market, in violation of Congress’ exclusive power to regulate interstate commerce.
The federal government, through the Nuclear Regulatory Commission, has approved Vermont Yankee’s relicensing for another 20 years. Entergy argues that the state lacks the power to interfere with that decision.
As Gov. Peter Shumlin pointed out Thursday, here Entergy might have a problem. When it bought the plant, Shumlin said, it “signed a legally binding memorandum of understanding saying it would not go to court arguing that federal law pre-empts” the state’s authority to grant or withhold the certificate of public good.
Entergy does not deny that. But it claims that in 2006 the Legislature “passed a law that invalidated” the memorandum. The law, Act 160 (bill S.124), states that “a nuclear generating plant may be operated in Vermont only with the explicit approval of the General Assembly.”
Entergy’s suit claims that this law transferred the power to grant a certificate of public good from the quasi-judicial Public Service Board to the political Legislature.
That’s one interpretation. Another is that under the law, the Public Service Board retains the power to grant the certificate, but in the case of nuclear power plants (Yankee is the only one in the state), the board cannot consider an application without approval of the Legislature, Last year, the Senate voted against that approval.
Besides, the Public Service Board is a creature of the Legislature, which could abolish it next week if it chose. (It won’t).
On the other hand, Entergy claims that the earlier memorandum of understanding assumed that the certificate of public good would be granted under the processes of “current law,” which then did not include requiring the Legislature’s approval.
But Entergy has another problem here: By several accounts, it supported passage of Act 160. In the Capitol Thursday, present and former lawmakers said they recalled that Gerald Morris, Vermont Yankee’s lobbyist, testified in favor of the bill.
Morris said that under his agreement with Vermont Yankee, he does not talk to reporters, and referred all questions to Yankee spokesman Larry Smith. Smith said he “can’t talk about it,” and neither can anyone else at the company. “We’re in a federal lawsuit and we can’t say anything,” he said.
As Smith subsequently acknowledged, “can’t” here means neither “incapable” nor “forbidden.” It means that the company has chosen not to discuss the case.
But it does seem very likely that Yankee approved S.124, or at least did not oppose it. When the House sent the bill to third reading on April 27, 2006, the vote was 130-0. Among those voting for the measure was Rep. Patricia O’Donnell, the Republican from Vernon (where the plant is located), and Yankee’s most stalwart defender in the Legislature during her tenure (she retired from office last year).
But while all this may worsen Yankee’s already-tattered reputation for lack of consistency and transparency, it may not have any legal consequences.
In the final analysis, all this back-and-forth about who said what, when, and the parsing of the legal documents may influence the outcome less than the judges and their preferences. It seems likely that both sides will have decent arguments and that a jurist may come down on whichever side he or she prefers.
Judges often do that. The quasi-official interpretation of American law is that judges put aside their personal preferences to decide cases on the merits and the objective meaning of the law. In reality, the objective meaning of the law is whatever a politically-appointed judge says it is, often based on the judge’s attitude toward the parties involved, and whether the judge prefers or deplores the consequences of the ruling.
In American legal history, perhaps no collection of jurists has acted on this impulse more than today’s majority on the U.S. Supreme Court. It is essentially the same majority which, having previously paid little attention to the Constitution’s Equal Protection Clause, decided in 2000 that George W. Bush’s equal protection rights were violated because Florida counties did not all count their votes in exactly the same manner.
That majority included the late Chief Justice William Rehnquist and Justice Sandra Day O’Connor, who have been replaced by Chief Justice John Roberts and Justice Samuel Alito. Both are more conservative than their predecessors. The likelihood that this majority would come down on the side of environmentalists, liberal Democratic Vermont and its liberal Democratic governor in their fight against a large corporation would be small even if Entergy’s case were weaker than it is.
Such was some of the political gossip in the Capitol this week. But there was more, including speculation that Shumlin would welcome losing the case because he wouldn’t have to worry about how to replace the power that will disappear if Yankee has to shut down next March 21.
Maybe. But the governor insisted Thursday that New England has “more power than we can use,” an assessment shared by many electric utility experts, and that replacing Yankee’s output would not be difficult.
At any rate, it doesn’t seem likely that Shumlin wants to lose this lawsuit. Whatever else he may be, Vermont’s new governor is bold. At his press conference on Thursday, he bragged that Vermont is taking steps “not being done anywhere else in the country.” He mentioned his proposals, now working their way through the Legislature, to extend high-speed Internet service statewide, and to begin planning for a single-payer health care system. He wants them. There’s no reason to think he doesn’t want to shut down Vermont Yankee, too.
