Thursday, January 5, 2012

Five Legal Wrangles About Vermont Yankee

Everybody expects Judge Murtha to rule on the Vermont Yankee lawsuit this week. However, this week is almost over. Unless Murtha is planning to throw his ruling into the famous Black Hole of the Friday News Releases, I think he will not rule this week. I could be wrong.

So today is a good day for a retrospective blog post on all five legal wrangles about Vermont Yankee. In reverse order of importance.

5. Mark 1 Reactors and the NRC

What: Beyond Nuclear and other groups petitioned the NRC to shut down all Mark I reactors.
What happened: The NRC turned the petition down. The NRC also said it would review the emergency containment venting. Of course, the NRC was reviewing the venting anyway, as part of the ongoing Fukushima-inspired reviews.
What's amusing: Paul Gunter of Beyond Nuclear dislikes the idea that the Mark 1 vents exist at all. Gunter said he can't sleep at night (or maybe he meant that the NRC people shouldn't be able to sleep at night) because Oyster Creek isn't safe.

4. Vermont Joins New England Coalition in Suing the NRC about a Water Permit that Vermont Does Not Require

What: The New England Coalition (NEC), a long-time anti-nuclear group, is suing the NRC, saying that they shouldn't have granted a license renewal to Vermont Yankee because VY doesn't have an appropriate water quality permit. The Vermont Department of Public Service joined the lawsuit along with NEC.
What happened: As is the custom, the State extends water quality permits unless something has changed about the water discharges. For the state to require Vermont Yankee to get a new permit would cost the state time and money. Instead, the state sued the NRC for granting a license renewal to Vermont Yankee without Vermont Yankee having a new water permit. There has been no ruling on this to date.
What's amusing: As I said in my blog post about the water permit: Vermont is suing the NRC, claiming it was the NRC's obligation to make sure that Vermont Yankee had an up-to-date permit. Apparently, the state didn't care about the permit, except that the state wanted to be sure that the NRC cared.

3. State Passes an Illegal Law to Bill Entergy for the State's Costs in the Lawsuit

What: When Entergy sued the state of Vermont, Shumlin quickly had a law passed requiring Entergy to pay for the state's costs in the lawsuit.
What happened: The law was immoral, unconstitutional, and can't be enforced. That's why the state Attorney General is not attempting to enforce it. As the Attorney General admitted: the concept is shaky. He's not trying to collect from Entergy.
What's amusing: Attorney General Sorrell also said that he doesn't want to muddy the waters by attempting to bill Entergy while the judge is deciding the main case. I find this selective enforcement of laws quite upsetting (sarcasm alert!). However, non-sarcastically, I do wish Sorrell had attempted to collect the money. Entergy would have objected, and Sorrell could have found himself defending this unconstitutional law in the same court, and in front of the same judge, as the main lawsuit. Since the bill-Entergy law exists, I wish Sorrell had enforced it and "muddied the waters."

2. Reactor Operators Sue the State For Loss of Property Rights in Their License

What: Several licensed reactor operators brought suit against the State of Vermont. They claim Vermont has denied them their jobs and taken their property rights in their licenses, without due process.
What happened: The lawsuit is in front of Judge Murtha of the District Federal Court. He is the same judge who is hearing the main lawsuit between Vermont and Entergy. As I described in a blog post, the operators have recently asked Murtha to not dismiss their lawsuit.
What's amusing: The State wants to frame this lawsuit as a relatively frivolous suit by people who believe they have a perpetual right to their jobs. However, it is actually a suit about the lack of due process in Shumlin's attempts to shut down Vermont Yankee. Again, I do wish the Attorney General was enforcing the state law that says Entergy has to pay the State's costs in the lawsuit. If the pay-costs case ended up in front of the judge at the same time as the operator's case, the judge would have to take notice of the lack of due process and constitutionality in Vermont's dealings with Entergy. As the lawyers say: Res ispa loquitur. The Thing Speaks for Itself.

(Okay. I know that isn't what the lawyers would probably say in this case. I'm not a lawyer. However, I do think the passage of an unconstitutional Bill of Attainder against Entergy does Speak for Itself.)

1. The Big Kahuna Legal Case: The Lawsuit to Keep Vermont Yankee Operating

What: In April, Entergy sued the State of Vermont. Vermont was attempting to shut down Vermont Yankee through various legislative maneuvers, despite the fact that Vermont Yankee has a license from the NRC.
What happened: The case was heard in September, and most people assumed a ruling would come by the end of the year. It hasn't.
What's amusing: As I noted in a blog post, there are at least three legal issues in front of the judge:
  1. State pre-emption of Federal regulatory prerogatives of nuclear safety.
  2. State breach of contract by one-sided changes in a contract.
  3. The plant's position in interstate commerce and the commerce clause of the Constitution.
The lawsuit is far from amusing: Vermont Yankee matters to this state. Are we going to be able to keep a clean in-state source of power and jobs and revenue?

However, one thing is moderately amusing as we wait for the ruling: both parties have said they would appeal. Whatever Judge Murtha decides, another judge is sure to look at his decision. So..the amusing part..why are we all waiting with bated breath to hear from him? Of course we want to know his ruling and his reasoning, but his ruling is probably just one step in a process.

Picture of the Brattleboro District Courthouse on June 23, 2011. It is the morning of the injunction hearing. Robbie Leppzer is interviewing me, and Vermont Yankee opponents are in front of the courthouse. Howard Shaffer took this picture.


Joffan said...

It strikes me as just as immoral to have the bill-Entergy law whether Entergy wins or loses the case. So why does the AG think it makes any difference?

At no point has Judge Murtha implied that this is a trivial case; there is definitely a legal decision to be made which requires assessment. Given that there is a case, a legal challenge is entirely reasonable. Losing does not alter that. It is presumably in the State's power - if they win - to ask the court for Entergy to pay their costs, but until that decision is made I see no reason to stick the bill on Entergy.

Bill Young said...

It is clear that the main case will be appealed by the losing side. The $64 question is, will the judge grant a stay to permit the plant to operate during the appeals.

Engineer-Poet said...

Nit:  the phrase is "res ipsa loquitur".

Meredith Angwin said...

Thanks, Engineer-Poet! I fixed it.