Saturday, December 8, 2012

The Very Latest Lawsuit: Opponents Will Probably Lose

The Short Version--Radio Interview

On Wednesday, I was interviewed by Pat Bradley of WAMC about the latest lawsuit related to Vermont Yankee. An intervenor filed suit in Vermont Supreme Court to shut down Vermont Yankee. The suit won't get anywhere, in my opinion.

You can listen to the three minute radio clip here.  The clip includes:
  • Ray Shadis of New England Coalition saying why they filed suit in Vermont Supreme Court. 
  • My interview saying why the suit won't get anywhere.
  • Pat Parentau of Vermont Law School saying why the suit won't get anywhere.  
Bradley packs a lot of information into a short segment! It is well worth listening IMO.

Note: Shadis is also the man who debated Howard Shaffer on Thursday, as reported in this blog.

The Long Version -- Including Federal and State Legal Cases and Time Line

Still, it's a short radio segment, so here's the background. Sorry it is so lengthy, but it just is.  Legal cases, you know.  They go on for years.

Spring--Federal Court--Judge Murtha: In January and March of this year, Judge Murtha of the Federal Court in Brattleboro issued two rulings about Vermont Yankee.  I have both of the rulings (and a lot of other briefs) posted on my Energy Education Project page Dockets in Entergy Appeal. The significant one for this new court case is the March ruling, which contains this ruling as the final words:

The Attorney General has represented to the Court, however, that its position is that “Entergy may continue to operate under the terms of its current CPGs while its CPG petition remains pending at the Board” and does not take the position Vermont Yankee must close after March 21, 2012, while its petition for a renewed CPG remains pending before the Public Service Board. (Doc. 202 at 11, 15.) Given this representation, the Court does not see the need to consider at this time Entergy’s request for an injunction pending appeal barring the enforcement of subsection 6522(c)(5).

Therefore, Defendants are enjoined, pending the appeal of the Court’s final judgment and Merits Decision to the Second Circuit, from addressing the storage of spent fuel under the authority of Vermont Statutes Annotated, title 10, subsection 6522(c)(2) and from bringing an enforcement action, or taking other action, to enforce subsection 6522(c)(2) to compel Vermont Yankee to shut down because the “cumulative total amount of spent fuel stored at Vermont Yankee” exceeds “the amount derived from the operation of the facility up to, but not beyond, March 21, 2012.”

In other words:

  • The state Attorney General (AG) has stated that the state is not planning to shut down Vermont Yankee while appeals in court are pending.  Since the AG made this statement, the federal court will not rule on the issue.
  • The federal court ruled that the state cannot shut down Vermont Yankee based on spent fuel storage--while appeals in court are pending. 

These words are legalese, but they are pretty clear.  Business continues while the court cases go on.  This is the way lawsuits are usually handled, because shutting the plant down would be the same as deciding the court case without a hearing. It wouldn't be due process.

November--Public Service Board--statement:  I also have relevant rulings from the Public Service Board on my Energy Education Project page PSB Docket 7862 filings. This page also contains a link to the PSB docket itself, now up at the PSB site.

Docket 7862 is the new docket under which the PSB will issue its ruling on the Certificate of Public Good for Vermont Yankee. The new PSB docket includes a complete timeline for their process, ending with "Reply briefs due" in late August, 2013.

(Why did the PSB need this new docket? Older dockets on the issue, such as docket 7440, were contaminated with radiological safety testimony.  So the PSB opened a new docket 7862. You can read about the PSB decision for a new docket on a previous blog post.)

Meanwhile, this spring, shortly after the Murtha ruling, Entergy asked the Public Service Board to take some things out their consideration.  Entergy said that these issues were impacted by the court cases.

On November 29, the Public Service Board issued a "strongly worded" statement that it was leaving this material in the record for consideration.  You can link to the complete PSB Statement on the Energy Education Project website. (And here's the Vermont Digger article about the statement.

This PSB statement was both strongly-worded and against Entergy.  However, it was also "narrow."  (That's the PSB word.)  The statement was part of the process, not a summary judgment.  On the top of page 3, introducing the rest of the 27-page document, the PSB wrote as follows:

We want to make clear — this Order is narrow. We address only Entergy VY's request for relief under Rule 60(b). Because we do not accept Entergy's arguments concerning foreseeability, which were the basis for its motion, we deny the request and do not reach any conclusions concerning the merits of modifying or extending Entergy VY's obligations under existing Orders and CPGs.
Entergy VY filed its motion in Dockets 6545 and 7082. However, in many respects, Entergy VY's motion implicitly challenges the Board's March 19 Order in Docket 7440. Because this Order of necessity responds to those challenges, the Board is also issuing this Order in Docket 7440.

In other words, the Board even issued this strong statement on the old docket, Docket 7440 (see docket listing on the first page of the statement).  However, the Board had opened a new docket, docket 7862, to decide on the Certificate of Public Good.  Issuing this statement on an old docket certainly seems pretty "narrow" to me.

Actually, let's be honest here. I don't understand why the PSB issued this statement on the old docket, 7440. They will issue the CPG on the new docket, 7862. (Yes. I am not a lawyer.)

However, it is clear to even a non-lawyer that this PSB statement is part of the process, not a direct decision by the Board about the Certificate of Public Good. Such a decision will be issued on the new docket, Docket 7862, according to the PSB timeline published on that docket.

Latest Lawsuit

Newspaper press
The New England Coalition (NEC)  is a party to both PSB dockets.  That is, they are on the docket as intervenors in the cases.

However, NEC recently chose to bring suit in Vermont Supreme Court to ask the Supreme Court to close down Vermont Yankee, based on parts of the PSB statement of November 29. As usual, the Vermont Department of Public Service is thinking of joining NEC in the suit.  Here's the Vermont Digger article on the lawsuit and the Department of Public Service.

In June, the Department of Public Service joined a NEC lawsuit against the Nuclear Regulatory Commission: they sued to require the NRC to rescind Vermont Yankee's license.  NEC and the Department lost that case.  They lost on the grounds that the lawsuit was not timely and in the wrong jurisdiction.

Guess what?  I expect the same outcome with this NEC lawsuit, whether or not the Department joins them.  NEC is expecting the state Supreme Court to hop in to the case-- at the same time that both the Public Service Board and the federal appeals court are considering various aspects of the case.  The New England Coalition expects the Vermont Supreme Court to say: "Step aside, you other courts!  This is MY business!"

Courts rarely work that way.  They don't step into other courts' process, though they do hear appeals, of course.

You would think that by now, the Coalition and the Department of Public Service would have figured out that this case is very unlikely to succeed.  Parentau and I said virtually the same thing on the radio segment.  In other words, thoughtful people on both sides of the controversy have concluded that it is not worth bringing this case to the Vermont Supreme Court at this time.

You would think the intervenor and Department of Public Service would understand how courts work and not waste money on this sort of thing.

Reporters or Courts?

My personal opinion is that that the people bringing the suit aren't dumb.  They don't care if they win, and they don't expect to win.  They want the publicity, and they are getting it.

Even this blog post is de facto part of their publicity.


Taking Time Off

I'm taking a few days off, dear readers!

Happy Hanukkah!

Hanukiah, from Wikipedia

1 comment:

jim said...

Good Show!!

I wish some case can be made that the opponent's issues are more anti-nuclear philosophical (based on fear, green advocacy, and anti-corporate grudges) than technical based on the preponderance of global nuclear operations safety and mortality rate/public damage records. Even if one had to bring up the issue of willful bias by hammering nuclear plants on safety and pollution points which slide for oil and gas and chemical industries who are saddled with far more damaging and deadly histories.

James Greenidge
Queens NY