Facts and Fancies About Refueling Vermont Yankee: Try Try Again

Facts About Refueling

On Wednesday, July 20, Howard Shaffer spoke for a few moments on WCAX about Vermont Yankee refueling. He shared three minutes worth of facts. How long the current fuel will last. How fuel is delivered (on flatbed trucks). Is refueling dangerous? Simple questions and honest answers.

Fancies about Refueling

On Tuesday, July 20, two professors at Vermont Law School (VLS) discussed the court case and the injunction hearings. Donald Kreis and Pat Parentau of VLS were part of a panel sponsored by the anti-Vermont Yankee group, the Safe and Green Campaign. Olga Peters of the Commons reported on this meeting.

At the meeting, Donald Kreis said: “I feel really bad, I love Brattleboro. I love what you folks are doing. I’d love it if Vermont Yankee was banished from the earth.”

(I think "you folks" meant the Safe and Green Campaign.)

Meanwhile, Parentau showed a certain level of confusion, as he had also shown about the sequence of events (Act 160, cooling tower collapse) at Vermont Yankee.

For Profit and Not For Profit

According to the Peters article about Pat Parentau: “We’ve all heard the rumors” that Entergy wants to build an escape hatch that would give the company the ability to say to shareholders, “We fought the good fight,” he said.

As far as I can tell, Mr. Parentau does not repudiate these rumors. However, for-profit companies don't say this sort of thing. They don't need "escape hatches." For-profits don't need to convince shareholders that they fought a good fight, they really tried to tilt at those windmills, but evil forces defeated them. For-profit CEOs simply say that a certain choice wasn't profitable. That's the only justification they need for their course of action.

In contrast, not-for-profits love the "we tried" line, because it can be followed by a line that says "please give us more money."

In a for-profit company, if the new product doesn't work out, or if the division loses money, it is gone. The world of profit-making companies follows Yoda's advice in Star Wars:

"Do or Do Not. There is no 'try'."

Parentau doesn't get the difference.

Parentau Suggests: Try Try Again In the Legislature

If they follow Parentaus advice, the Vermont Legislature will try again.

Cheryl Hanna pointed out that the judge was skeptical of the framing of Act 160, and you can also see Hanna say this in a video on one of my previous blog posts. Hanna also noted that judge thought the legislature was attempting to make laws concerning the federally pre-empted area of radiological safety.

Parentau basically agreed that the judge was skeptical of these things, but he had an idea for a cure. According to the Peters article, Parentau suggested that:

Shumlin should call an emergency legislative session in August to vote up or down on permitting the Public Service Board to decide whether to issue Vermont Yankee’s CPG, he said, and with that vote, “a real clear crisp statement of state policy about why we don’t want a nuclear power plant” should be included.

In other words, if your first law doesn't succeed in standing up to court scrutiny --try, try again.

Ex Post Facto, Anyone?

Now, states do occasionally choose to try to reframe a law that failed in court. But in general, any new law or legal amendment comes AFTER the court has ruled on the original law.

To me, there's a certain contempt-of-the-court attitude shown by Parentau's suggestion. Entergy filed a brief, the State filed a brief, the Court ruled on a preliminary matter (the injunction) and set a date for the full hearing.

Parentau suggests that the Vermont hurry up and pass a new law between now and the full hearing. What would happen? Entergy will have to file a new brief about the new law, the original hearing date will be put off, Entergy will undoubtedly ask for an injunction due to the new circumstances, the judge will have to look at all of this new material.

If I were the judge, I would look at Vermont and say: "Hey guys. What am I over here? Chopped liver? That my work is just tossed out and you are passing a new law, hurry-up? Come on. I think I will start by granting Entergy a permanent injunction, if these are your cute little tricks to prevent a hearing."

Vermont Tiger notes that passing a new law about Vermont Yankee is a bad idea. Geoffrey Norman of the Tiger blames the current heat wave for this suggestion.

It's not the first bad idea of this type that Vermont has had. When Entergy sued, Vermont, the legislature immediately passed a Ex Post Facto law which was also Bill Of Attainder, a law aimed directly at Entergy. This law forced Entergy to pay for the State's portion of the suit. Various people blogged about this blatantly illegal action:

Geoffrey Norman at Vermont Tiger

Cheryl Hanna at Vermont Law School

John McClaughry at Vermont Tiger

But the law still stands, and now Parentau suggests that the legislature passes another such law.

A Good Idea

Well, I'm for it. I think Parentau's idea is great--for my side. Passing a new law would be a clear admission that the legislature messed up with the law it passed to shut down Vermont Yankee. Also, passing a new law insults the judge. Also, passing a new law after a lawsuit is filed is probably ex post facto and therefore illegal.

Just the idea that the state is discussing such a move should provide Entergy with a shot at a permanent injunction against state activity during the lawsuit. I mean, the lawsuit could go on forever, if the legislature changes the law at every break in the court hearings!

Thank you Mr. Parentau. I hope the legislature takes your advice. I'm glad to see you helping Entergy.

Update: DARN IT

Shumlin won't call a special legislative session. Shame on you, Shumlin! It was another chance for an ex post facto attack on Entergy! You should have taken it!!