It's the Renewables, Stupid? Vermont Files a Brief

Attorney General Sorrell

Opponent Rhetoric in the Past

Long before the lawsuits, Howard Shaffer and I would attend various committee meetings, rallies, and so forth.  Opponents would always say: "We must shut down Vermont Yankee so we can build renewables!"  Or similar words to the same effect.

Howard and I would shake our heads in wonder.  These statements were the merest rhetoric.  In reality, the existence of any particular power plant does not prevent or encourage renewables.  As a matter of fact, Vermont Yankee contributions to the Clean Energy Development Fund paid for much renewable development in Vermont.  Still, VPIRG especially made a point of "We must close Vermont Yankee so we can build renewables!"

Sorrell Borrows the Rhetoric to File A Brief

Fast forward to the brief that the State of Vermont filed in appeals court on Monday of this week.  They have borrowed the old VPIRG rhetoric as the main basis for Vermont's appeal.

Starting on page 17, the brief shows that the state has had energy plans since the early 80s, all the plans encouraged renewable energy, renewable energy has always been important to Vermont, and...wait for it...Act 160 about Vermont Yankee was a mere sunset-provision procedural law about energy planning for the state (page 25):

Under this framework, Act 160 is not preempted because it is a process statute — as relevant here, a sunset provision — by which the Legislature granted itself a role in deciding whether Vermont Yankee would continue to operate past the date on which its existing licenses were set to expire. Act 160 sets forth the Legislature’s purposes for making this change to the CPG renewal process, and those purposes are consistent with decades of Vermont energy policy:

In other words, the state wants to shut down Vermont Yankee in order to build renewables.

There's more the 78 page brief than this, but this is the crux of it, in my opinion.    When I linked to the brief from the Save Vermont Yankee FB page, I wrote:

Direct link to the Vermont AG appeal of the pro-VY ruling. Appeal starts with statements that Vermont wants renewables, not fossil or nuclear, and it says so in the Vermont energy plans! So they can shut down any non-renewable plant they choose, maybe? That seems a very weak argument, but hey, I'm no lawyer.

Sarcasm alert:  I wonder how the general rejoicing at Gaz Metro/GMP purchase of electricity from Seabrook Nuclear power is going to play in court..  I have a blog post about that: Nimby and Nukes. Also, Shumlin applauded the Seabrook deal because "cheap power makes a real difference." They tried to shut down VY to build renewables? Really? Just askin'...

My photo:
base of turbine at Lempster wind farm

A Lawyer Mostly Agrees with My Assessment


Don Kreis of Vermont Law School has an excellent blog post, mostly agreeing with my assessment.  State to Court of Appeals: Act 160 Just a “Process Statute”.  I wrote my note about Vermont's brief on FB ('seems a very weak argument") on Tuesday, June 5, and Kreis posted on Wednesday June 6.  Great minds think alike!  I am always pleased when a knowledgeable lawyer agrees with my assessment of a court action.

Kreis's post is worth reading.  It covers a lot more ground than my comments do, including the fact that Attorney General Sorrell  has hired a high-powered D.C. law firm to assist Vermont in its case. However, the Vermont argument gets back to the same thing: the legislature now says they were just trying to get some renewables going, not anything pre-empted. They were shutting the plant to build renewables! They weren't regulating radiological safety, heavens no!

I quote part of Kreis concluding paragraph:

But this begs the ultimate question, which is:  If Act 160 was not an effort to regulate radiological safety, then what was its purpose?  The idea that it was merely a “process statute” and a “sunset provision” is somewhat difficult to accept, at least on first read

Kreis also says that further arguments may indeed reinforce the AGs view of Act 160.  I do not want to put words in his mouth....Kreis and I agree only partially. I recommend his post for a fuller explanation of his views.  Also, he starts with an amusing and sarcastic look at possible legal implications of the Seabrook purchase.

My Assessment of the Brief

Since the legislators were okay with buying nuclear power from Seabrook, and they talked (a lot) about tritium at Vermont Yankee...what were they regulating?  This was no mere "sunset provision." In my opinion, the Vermont legislators were regulating radiological safety and such regulation is pre-empted by the federal government.

Vermont can hire expensive lawyers with taxpayer money. However, in my opinion,  Act 160 and the vote were about radiological safety, not about renewables.  I am sure Entergy will make that case in its rebuttal. And the court cases go on....

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By the Way: Please "like" the Save Vermont Yankee Facebook Page.

Also: Act 160 was the act by which the legislature, not the Public Service Board, decided whether Vermont Yankee would get a Certificate of Public Good from the state of Vermont.