Tuesday, February 23, 2010

The Day After the Vote

It's the day before the vote, of course, but many of the Anti-VY screeds start "The day after Vermont Yankee is shut down." They go on to say that "nothing will happen, your lights won't go out" etc etc etc. Okay. Here we go.

The Day After The Vote against Vermont Yankee, nothing will happen. The PSB will have the same instructions (none) that it had the day before the vote. Vermont Yankee will continue to make power and track down the tritium leak. Nothing will change. Don't worry about it. There will be some parties in the anti-VY camp, of course.

Temporary parties, I hope. He who laughs last, laughs best.

A few days from now, I expect the whole business will move to the courts. I am not a lawyer, nobody has talked to me about this, and this is just my opinion. But I see three routes for challenges.

1) Even states can't break contracts

Two hundred years ago, the State of Georgia legislature decided that it had made a mistake in selling some land. Actually, the legislators had been bribed and let the land be sold for peanuts, even by 1800 standards. Well, no problem, they thought. No problem whatsoever. We'll just pass a law which wipes out that little mistake, and says the land was never sold. However, in 1810, the Supreme Court ruled they couldn't do that. A state legislature that makes a contract is obligated to stick to the contract. A later legislature can't wipe it out by a new law. The Fletcher Versus Peck case of the Marshall court is one of the cornerstones of American law.

Which brings us to Vermont Yankee. The sale of Vermont Yankee to Entergy, and the rules under which Vermont Yankee had to operate and sell power, were set out in a contract called the Memorandum of Understanding. It was a contract with the state, signed in 2002 by the Public Service Board of the State. It says nothing about legislative approval being necessary for continued operation of the plant.

In 2006, however, the state passed a law, Act 160, saying the Public Service Board could not approve nuclear plant operation without a confirming vote from the legislature. As I read it (and I am not a lawyer) this ex post facto changing of a contract could be challenged in court according to a precedent that has stood for 200 years. This is a precedent that stood because it deserves to stand. Who would buy or sell with a state if the next legislative session could declare the contract null and void, or put new, onerous terms into the contract?

2) The State may declare, but the NRC rules

In general, the NRC, not the state, decides whether a nuclear plant can continue operation. The state legislature may declare that it has authority, but the federal courts may not approve. Whether people like this or not, I think it is necessary. The FERC has some types of regulatory powers over hydro plants, and the NRC has powers over nuclear plants. There are cases where actual expertise is more important than local politics.

After Vermont Act 160 was passed, nothing happened, so there were no NRC or court challenges to this act. Now it will almost certainly be challenged, and we will see what happens.

And it wouldn't be the first time somebody wasted their money trying to regulate Vermont Yankee in inappropriate ways. As I said before, I am not a lawyer, but the Vermont Yankee versus Natural Resources Defense Council case of 1978 may well be relevant. The Supreme Court settled that case in Vermont Yankee's favor.

3) The Department of Public Service and the Public Service Board might just ignore Act 160

The legislature passed Act 160, but I don't see any Public Service Board signatures anywhere on the document.

The Department of Public Service and the Public Service Board may choose to continue with their charters as originally defined, and issue (or not issue) a Certificate of Public Good to VY according to their own rules and procedures. After all, these agencies are set up to be different from the legislature precisely because they are supposed to make judgments based on safety and economics and all that good stuff, not on politics. If they decide to just follow their charters, this would obviously throw the whole matter into the court system.

A little personal note here, with some history. There used to be a group, chaired by the PSB Commissioner O'Brien, called VSNAP, Vermont State Nuclear Advisory Panel. I went to several of the hearings VSNAP held about VY.

Some of the senators and representatives on that panel were not exactly polite to Mr. O'Brien. In one memorable hearing, a representative wrestled the microphone out of his hands several times. In another hearing, a senator prevented O'Brien from starting the published agenda, basically by out-shouting O'Brien. My impression was that these legislators were trying to make it clear that they had no respect for O'Brien or for the PSB.

That is just my opinion. I know, I know. You hadda have been there. VSNAP stopped meeting because the meetings were such an unmanageable circus. Everyone, even the shouting senator, will acknowledge that. As he said to me recently: "I guess I was a bad boy." (Time to re-read the book Mau-Mauing the Flak Catchers?)

I don't think this was the best way for the legislators to win friends and influence people.

The worm may (or may not) turn at this point. The Public Service Board may just decide to ignore the legislature, just as the legislators disrespected the PSB. After all, PSB has a charter, and that is all it needs to issue a certificate.

Conclusion and an Appeal for Help

The day after the vote, nothing will happen.

This is my best guess, and I think the future will be interesting.

My appeal for help? I am not a lawyer, and I hope some lawyers will weigh in, comment, and make this a stronger post.


Jason Ribeiro said...

Great post Meredith. You're doing a great job of staying on top of this struggle. I will certainly be reading as new developments unfold.

Anonymous said...


An excellent post. One idea: VY might consider taking an extended maintenance outage (e.g., to do a really thorough tritium hunt) while the legal challenge is going on.

A few weeks of high electricity prices in Vermont might open some eyes!

dave (katana0182) said...

I second the comment about an unplanned outage. An unplanned outage right before it's time to set rates for the next 6 months, or so, to ensure that tritium leaks are repaired, thoroughly, perhaps lasting until the next rate-making period. Watch what happens.

As for legal options, if the Legislature denies a permit, I would definitely sue for the breach of contract issue, which would probably result in a win just on the face of the matter. The shutdown could be enjoined until the merits are tried.

Second, even beyond that, I would argue that the failure to allow someone to continue in what they have done for a long time, without a showing of real, manifest, and continuing evils, constitutes a trespass to private property and destruction thereof. A lawsuit should be brought.

Third, I would argue that shutting down Vermont Yankee would be expropriating the plant by using the power of eminent domain, and Entergy should be compensated for the full replacement value thereof, along with damages such as for interruption to tenure, interruption of peaceful and quiet enjoyment, etc.

Fourth, I would raise the Federal pre-emption issue, and which forum - the NRC or the states - is it appropriate for nuclear power to be regulated at. After all, Vermont Yankee is engaged in interstate commerce.

Fifth, I would encourage the town of Vernon to secede from the State of Vermont, to Massachusetts, for instance, or New Hampshire.

Sixth, I would seek legislative relief, by asking the Congress to pass legislation requiring that nuclear power be regulated at the Federal level, rather than both the Federal and the state level.

John Wheeler said...

I am not a lawyer either, but the concept of a state legislature overruling a federal agency's authority is troubling at best, and could have disastrous consequences.

What if the Vermont legislature decided to define their own food safety laws? Would the USDA allow it and would food distributors stand for it? What if they decided maximum speeds on interstate highways in Vermont should be 40 MPH? Would the NTSA allow it and do you think the interstate trucking industry sit idly by?

If the nuclear plant owner chooses not to sue the state on the ground of pre-emption of Federal Authority, then the Federal Government should sue to prevent legal precedence from being set.

If the Federal Government does not sue, then the nuclear industry should. Heck, if I had a source of funds then I would do it myself! Are they any "angel investors" out there who would like to help?

Robert Hargraves said...

Vermont "only" gets 1/3 of its energy from nuclear power. New Jersey gets 51 percent.