Commentary

Leas: Entergy’s position inconsistent with Supreme Court decision

Editor’s note: This op-ed is by James Marc Leas, a patent lawyer in private practice in South Burlington. He served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island. This is the third in a series of commentaries about Entergy’s case against Vermont Yankee. Read the first commentary. Read the second commentary.

Preemption

Entergy’s complaint states:

The AEA [Atomic Energy Act] vests in the NRC exclusive jurisdiction over the licensing and operation of nuclear facilities. State laws and regulations requiring a state license for plant operation or otherwise having a direct and substantial effect on plant operation are preempted under the Supremacy Clause, U. S. Const. Art. VI.

Entergy provides no authority for this assertion.

However, in a unanimous decision, the US Supreme Court addressed the preemption issue in a 1983 case affirming that “the Atomic Energy Act constituted authorization for States to regulate nuclear power plants for purposes other than protection against radiation hazards.” The Supreme Court held:

(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear powered electricity generation: the Federal Government maintains complete control of the safety and “nuclear” aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California’s avowed economic, rather than safety, purpose as the rationale for enacting § 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 461 U. S. 205-216.

Entergy’s position is inconsistent with this unanimous Supreme Court decision.

Bad Acts

Entergy’s bad acts include making an inaccurate statement under oath to the Vermont Public Service Board in the proceeding concerning Entergy’s petition for a CPG to operate for 20 years after March 21, 2012. The inaccuracy was that there were no underground pipes that could leak tritium. The PSB issued an order that levied a fine on Entergy for making the inaccurate statements in June 2010. The fine is to be paid to intervening public interest groups for the costs those groups incurred in addressing Entergy’s inaccurate statements. The company removed Executive Vice President Curt Herbert and several other company officials, including site Vice President Jay Thayer.

In the part of its order responding to a request by the public interest organizations to dismiss Entergy’s petition for authority to continue operation after 2012 because of the inaccurate statement the PSB noted that “Entergy VY maintains that dismissal with prejudice would amount to a final order on the relicensing petition, and as such is barred by 30 V.SA. § 248(e)(2) [the 2006 law, Act 160] until the General Assembly has itself made a decision on the relicensing question.”

In CEO Wayne Leonard’s letter and in Entergy’s lawsuit against Vermont, the corporation asserts that the 2006 law prevented the Public Service Board from approving its petition to operate after 2012. However, Entergy should get down on its knees and thank the legislature for passing Act 160 in 2006 since the record of the Board proceeding shows, to the contrary, that Entergy actually successfully relied on the 2006 law, Act 160, to avoid having its petition dismissed by the PSB because of its false statement to the Board.

Bad acts in the proceeding may disqualify the company from being considered for such equitable relief as an injunction. Guidance on this issue was supplied by the US Supreme Court that affirmed a lower court dismissal of a complaint by a company that had made false statements to the patent office to obtain the patent it was seeking to enforce. The Supreme Court said:

The guiding doctrine in this case is the equitable maxim that “he who comes into equity must come with clean hands.” This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be “the abetter of iniquity.”

[o]ne’s misconduct need not necessarily have been of such a nature as to be punishable as a crime or as to justify legal proceedings of any character. Any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the maxim [that “he who comes into equity must come with clean hands.”] . . .

Moreover, where a suit in equity concerns the public interest, as well as the private interests of the litigants, this doctrine assumes even wider and more significant proportions. For if an equity court properly uses the maxim to withhold its assistance in such a case, it not only prevents a wrongdoer from enjoying the fruits of his transgression, but averts an injury to the public. The determination of when the maxim should be applied to bar this type of suit thus becomes of vital significance. [9] US Supreme Court decision: Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (1945)

When testifying on this issue of vital public interest to the PSB in the proceeding to extend operation for twenty years after 2012, Entergy officials knew or should have known that its plant had the underground piping. Entergy only got caught in its false statement when that piping began to leak tritium and other radioactive nucleides into Vermont groundwater.

The inaccurate statements under oath in the relevant proceeding could well be sufficient to bar Entergy from getting the injunction it needs to continue operation after March 21, 2012, without Vermont state approval.

But in this case it was more than a matter of inaccurate statements. Entergy knew that many other nuclear plants had leaked tritium from underground pipes. The issue was identified as an item for investigation in a 2008 Vermont statute, as Entergy acknowledges in its complaint (paragraph 71), and Entergy had dug several wells to monitor for leaks from underground piping. Yet, Entergy did not take action to inspect its underground piping and replace defective or damaged sections before they leaked. Instead Entergy relied on monitoring for leaks, and only after a leak was found did it search for and repair just those leaky sections. Thus, Entergy did not just make false statements to state officials to improve its position with regard to the certificate of public good it sought for extending operation of the plant for 20 more years. Entergy is continuing to leave Vermont vulnerable to more leaks into its land and groundwater.

A good case could be made that Entergy’s bad acts disqualify it from having the equitable relief of an injunction against the state of Vermont approved by a court. As the US Supreme Court said, the doors of the court should be closed against them.

Laches and Acquiescence

An explanation of the law regarding the equitable defense that applies when a party demonstrates a lack of diligence in enforcing a right and the party asserting the right is harmed by the delay is provided in US Supreme Court cases from 1929 and 1904 and in a Court of Appeals for the Second Circuit case from 1976.

Entergy now claims that it has the right to operate Vermont Yankee after 2012 based on federal preemption and Entergy seeks an injunction to prevent operation of Vermont law and to stop Vermont officials from acting to close the plant on March 21, 2012. However, not only did Entergy fail to assert its alleged right to federal preemption for the past ten years, and not only did Entergy acquiesce to the alleged wrong for all that time, Entergy actively engaged from 2001 (before it even bought the plant) until now with the Vermont Department of Public Service and the Vermont Public Service Board and got vast benefit from its engagement. Its undue delay in asserting its alleged right to claim federal preemption could mean that Entergy gave up on its right, if indeed it ever had one.

Furthermore, five years ago the legislature adopted Act 160 which Entergy now says revoked its obligations under the MOU. At the time Entergy did not oppose the legislation, it passed the House 130-0, and Governor Jim Douglas signed. Entergy made no announcement that the legislation repudiated the MOU. Entergy took no legal action to secure its alleged right to be free of the conditions in the MOU from 2006 until now. During this time Entergy continued to participate in PSB and legislative hearings.

Also during this time the legislature, voters in Vermont towns, agencies, such as the PSB, and public interest organizations and civic minded individuals spent countless hours working to close Vermont Yankee in reliance on the enforceability of the MOU, in reliance on the enforceability of the 2006 statute, and in reliance on the state of Vermont having a say in all but safety matters.

In view of its inaction to assert and defend both its supposed right to federal preemption and its supposed claim that the state had repudiated the MOU in 2006, and in view of the reliance on the MOU and the 2006 statute by state officials and members of the public that the state has authority over non-health related matters at Vermont Yankee nuclear plant, Entergy may have a difficult time explaining why it did not give up its right to claim that the state has no authority when it waited so long to assert this claim.

Conclusion

Entergy’s lawsuit is entirely without factual or legal basis. Its arguments are about as leak-tight as its tritium-spewing Vernon nuclear plant. Its public relations campaign is as honest as its testimony to the Public Service Board about the existence of underground piping. The strongest element in Entergy’s case is that it is a multi-billion dollar corporation, and the courts have been carving out inordinate rights for corporations that demolish the rights of ordinary people. But we the people of Vermont can counter even this unfair advantage using the methods handed down to us by those who founded this state and this country and those who helped expand democracy and equal rights: pulling together, building a visible grassroots campaign, and using our unlimited resource of love, compassion, faith, and courage to demand that the court dismiss Entergy’s bogus law suit and to support the excellent legal work we expect from the attorneys defending our state in the Vermont Attorney General’s office.


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