Vermont Yankee Wins in Appeals Court

We have great news about Vermont Yankee: the appeals court ruled in their favor!

The fight has shifted to the Vermont Public Service Board. Your input to the Vermont Public Service Board is still needed and valuable.

The Appeals Court Ruling

On Wednesday, the federal appeals court in New York ruled in favor of Vermont Yankee.  They basically upheld Judge Murtha's decision that the Vermont legislature had attempted to shut down Vermont Yankee on illegal grounds.  The legislature was trying to regulate on the basis of nuclear safety, which is regulated by the NRC.

You can read a good summary of the case by Dave Gram of AP. To quote the first sentence of his article: "Vermont's attempts to close its lone nuclear power plant were deceptive and misleading, a federal appeals court ruled..." Andrew Stein at Vermont Digger also has a good article.  In addition, here's a link to the actual appeals court ruling.

My summary of the state's case against Vermont Yankee was written shortly after the appeals court hearing in January.  The state claimed that they wanted to shut down Vermont Yankee due to economics, not safety.

Economics? Really?  In appeals court, Vermont claimed it had a reason to shut down a plant for too low a price, and for sharing revenue with the Vermont utilities.  In other words, the legislature claimed to want to shut the plant down because it is an economic asset.

The appeals court judges noted the legislature's real reasons for trying to shut it down. They were trying to regulate nuclear safety.

Yes, they were regulating safety

The appeals court ruling includes a long history of court cases about Vermont Yankee. Here's an example.

Go to page 10 of the appeals court document to see a quote from a Vermont law passed in 2005 (Act 74). In this law, the state legislature requires Entergy to "configure the spent fuel pool so that high-decay heat assemblies are surrounded by low-decay heat assemblies."  (Sarcasm alert)  Gee, Entergy would NEVER have thought of doing that, without this legislation!  (End sarcasm alert.)

On to the Public Service Board

Governor Shumlin is not happy with the ruling, and he issued a press release including the following statement: While I disagree with the result the Second Circuit reached..., the process does not end today. Importantly, the Vermont Public Service Board's role in reviewing Entergy's request for a state Certificate of Public Good ...will continue.

In other words, the Public Service Board must still issue a Certificate of Public Good in order for Vermont Yankee to keep operating.  Shumlin clearly hopes they will not issue the certificate.

Cheryl Hanna

Pat Bradley of WAMC interviewed several people about this ruling, including me.  (I encourage you to listen to this four-minute segment.)

• I wondered whether the board will look at the economics of Vermont Yankee, or whether it will listen to the anti-Vermont Yankee charge being led by the Shumlin appointees at the state Department of Public Service. 
• Cheryl Hanna of Vermont Law School said the appeal court decision was no surprise. (Hanna had written an article predicting this outcome, right after the hearings in January.) She also said that whoever wins at the Public Service Board, the other side will almost undoubtedly appeal the decision to the Vermont courts.

 Still Time to Comment

I believe you can still comment to the Public Service Board, through the end of the month.  Here's a link to the docket:
http://psb.vermont.gov/docketsandprojects/public-comment?docket=7862

And here's a link to a recent post with some background material for comments.

Long, thoughtful comments are always very welcome, but one or two sentences in support of the plant are very helpful.  You can write a great letter, or you can write a short postcard.  Share your own reasons for supporting Vermont Yankee: the plant's community support, economic impact, and positive effects on the environment (compared to fossil fuels).

Law and Facts won this round!  Onwards!

Diesel Case in Federal Court

Yesterday, Vermont Yankee appeared in federal court in order to get permission to put in a safety diesel.  The Public Service Board has been delaying even considering the diesel docket.  They delayed for months and wrote all sorts of complex opinions about whether they would consider the diesel docket: "compliance with other orders" and so forth.

Yes, the whole court case is a bit ridiculous...as I said in my blog post yesterday:   In my opinion, these court cases could have been avoided if the Public Service Board just knew how to spell "pre-empted." Emergency diesels are clearly safety equipment, and adding safety equipment is clearly the business of the Nuclear Regulatory Commission, not the state.  The state cannot regulate nuclear safety: it's pre-empted.

Summary of the Arguments in Court

Vermont Yankee arguments: Vermont Yankee argued that the state had no business interfering with nuclear safety.

State arguments: The state argued that Vermont Yankee could put in the diesel more quickly than they claimed they could put it in.  Therefore, there was no reason for them to be in court: they could  wait for the PSB to rule.

• The judge rejected this argument: what if the PSB rules the other way? We might as well hear the case now, actually. (from VPR report on the hearing)
• Cheryl Hanna (Vermont Law Professor) reported that the state spent two hours examining an Entergy witness about project scheduling for the diesel. She noted that this whole line of questioning was somewhat off the point. (from Vermont Digger report and WCAX video on the hearing)

Various intervenors: They now claim that Vermont Yankee is wasting court time, since the PSB is sure to rule in their favor anyway.  Of course, these intervenors themselves bring lawsuit after lawsuit against Vermont Yankee. (from VPR report on the hearing).


My Opinion:

Snark opinion: Funny how the PSB issued threatening statements and ambiguous statements ("not in compliance with other orders" and "this order is narrow" and so forth) until Vermont Yankee sued.

Sad opinion: Cheryl Hanna of Vermont Law School talks about how polarized and angry the entire situation is, and how there are five on-going law suits about Vermont Yankee. (WCAX video clip below).   It didn't have to be this way.  It really didn't.

Governor Peter Shumlin vowed to close Vermont Yankee. In my opinion, he did this in order to retain his support with the Progressive Party. His political ambitions led pretty directly to all this hatred.  Yes, there were people opposed to nuclear power and Vermont Yankee before Shumlin ran for office, but Shumlin made it much worse.  He marginalized the people at Vermont Yankee (for example, his deliberate and planned use of the term "Entergy Louisiana") and he aimed at costing them their jobs. They are fighting back. There's a lot of anger there, and it didn't have to be this way.  (I encourage you to watch the Cheryl Hanna video below and listen to what she says about polarization.)



  WCAX.COM Local Vermont News, Weather and Sports-

It Was Safety, Safety, Safety. Lawyers can't rescue a weak case

Op-Ed by Meredith Angwin

The state of Vermont was back in federal court in January, again claiming that the Senate vote of 2010 was a legally valid reason for the state to close Vermont Yankee. This was the second attempt by the state to make that case. A year ago, U.S. District Court Judge J. Garvan Murtha ruled for Entergy, Yankee’s owner. For the federal appeals court hearing in January, Vermont Attorney General William Sorrell switched gears a bit: He hired high-priced legal help — Washington, D.C., litigator David Frederick.

Attorney General Sorrell

After the Murtha ruling, some plant opponents claimed that the state had simply been “outlawyered” by Entergy. Sorrell took the reasonable next step of getting a more high-powered attorney for the appeal. However, a good lawyer can get you only so far if the facts aren’t on your side. The state’s real problem is that it has a weak case.

Federal Jurisdiction

Like airplane safety, nuclear safety is regulated by the federal government, not the states. Regulating nuclear and airline safety is a federal mandate partially because of the complexity of the regulated activities and partially to prevent wide variations in the degree of regulation among states.

The Vermont Yankee case hinges on a state Senate vote that denied Vermont Yankee the state-required certificate of public good. Murtha ruled that the Legislature had encroached on the federal mandate to regulate nuclear safety. Murtha based much of his ruling on quotes that referred to plant safety. In Murtha’s view, these quotes from the legislative debate revealed the motive for the senators’ votes.

To prevail in its appeal at the 2nd Circuit Court of Appeals, the state had to address this question: If safety concerns didn’t drive the Senate vote to reject Vermont Yankee’s application for a certificate of public good, what did? Citing a 1983 Supreme Court ruling that recognized the state of California’s right to regulate the economic aspects of a nuclear power plant, Vermont’s lawyer tried to make the case that his client had economic reasons to close the plant. It’s a tough case to make.

Economics and Timing

Graph from the Consensus Report

For starters, the timing of the Senate vote three years ago provides strong evidence that economics was hardly an overriding concern. The Legislature had commissioned a report on the economic impact of Vermont Yankee and of aggressive development of renewable energy sources. This report was to be jointly prepared by two separate economic firms and called the “consensus report.” The study was due to be completed in March 2010. Yet the Senate cast its vote on Vermont Yankee in February. It is also worth noting that the February vote came shortly after a tritium leak was discovered at the plant. Although the tritium posed no threat to public health, it did generate a huge outcry about the safety of plant operations.

It seems clear that the Senate didn’t wait a few weeks for the economic consensus report because their vote wasn’t about economics.

During his arguments before the three-judge panel, Frederick was forced to resort to a fair amount of speculation to make an “economics” case. He claimed that if Entergy were to go bankrupt and if the Nuclear Regulatory Commission didn’t do an adequate job of supervising the decommissioning fund, then the state might face financial liabilities in the future. This degree of hypothesizing about events that “could” happen is unlikely to prove convincing.

Economics Today: Vermont Yankee May Pay Vermont Utilities

In terms of present-day economics, Frederick was on even weaker ground. He said that the paid-off nuclear plant makes it hard for newer plants to be built. That statement implies Vermont has an economic incentive to shut down cost-effective power plants. Entergy’s attorney, Kathleen Sullivan, argued that no Vermont utility is under any obligation to buy Vermont Yankee’s power, whether it is expensive or cheap. She pointed out that different circumstances prevailed in California in 1983 when the Supreme Court allowed a state to regulate the economic aspects of nuclear power. The California plant sold power directly to customers at regulated rates. Vermont Yankee, however, sells its power to the grid. Frederick countered her by saying the utilities still have a “relationship” with Vermont Yankee — one worth $587 million.

Frederick was referring to a revenue-sharing arrangement that was part of the original sales agreement with Entergy. The provision, which kicked in last year, says that if Vermont Yankee sells power for more than 6.1 cents per kilowatt hour, it has to split the revenue above 6.1 cents with Vermont utilities.

That agreement is worth potentially hundreds of millions to the utilities and ratepayers of Vermont. Its value depends on the price at which Vermont Yankee sells its power. I don’t know where Frederick derived such a precise number ($587 million) for the revenue share. However, a half-billion dollar financial relationship will be very helpful for the utilities (and therefore the ratepayers) of Vermont. Utilities could use the money to improve infrastructure or avoid raising rates.

Hundreds of millions of dollars in potential revenue sharing is not a reason to shut the plant down. What, exactly, is the logic here: Shut it down before it shares money with us?

Professor Hanna

A Lawyer's Opinion

Frederick’s statements on revenue sharing went by in a flash, near the end of the hearing. The appeals hearing in New York City was very brief. The court had scheduled 15 minutes for arguments from each side. From opening gavel to “thank you” from the judges, it lasted 37 minutes, moving much like a rapid-fire tennis match. The good news is that it is possible to listen to an audio of the entire hearing in less time than it takes to eat a leisurely dinner. (The audio is available in my Jan. 15 blog post, at Yes Vermont Yankee.) The bad news is that statements that could easily have been refuted by the opposition lawyers or judges were not challenged.

Despite the brevity of the hearing, the judges are expected to take weeks or months to rule on the appeal.

In her recap of the hearing, Vermont Law School professor Cheryl Hanna wrote, “The state should be happy that the bench at least took seriously their argument that Judge Murtha should not have ruled as he did. Whether the gravitas and intellect of Frederick is enough to convince them in the face of overwhelming evidence that the legislature was (not) primarily motivated by safety is harder to call. The state still bears the burden, and the facts and (in my opinion) the law still favor Entergy. If the state loses, it won’t be because it was out-lawyered.”

No, it will be because the state can’t make a credible case that Vermont officials were thinking about economics when they voted to close the plant.


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This op-ed first appeared in the Valley News (my local paper) on February 10 and I put up a blog post with a link.   It was also published at Vermont Digger. It may well appear in other places around the state (I sent to several more newspapers), but I thought is was time to put it on my own blog, too.

Column: Lawyers Can’t Rescue a Weak Case | Valley News

Column: Lawyers Can’t Rescue a Weak Case | Valley News

My op-ed in the Valley News this morning. In appeals court, Vermont lawyers tried to make the case that Vermont has "economic" reasons to shut Vermont Yankee.

Actually, of course, Vermont Yankee is a major economic asset to the state of Vermont. Vermont has no economic reason to close it.

As the title says: "Lawyers can't rescue a weak case."

Post on Federal Hearing at ANS Nuclear Cafe (and more)

Graph from economic report
March 2010

State Turns Economic Facts Upside Down

Yesterday, ANS Nuclear Cafe published my blog post: In Federal Appeals Court, Vermont Presents Backwards Economic Arguments. In this post I go through the Appeals Court hearing, and especially Vermont's claims of why they say they want to shut down Vermont Yankee. With quotes and examples, I show that Vermont's arguments are..well...bogus.

Yes, "bogus" is the word I used in the post, and I think it's the right word.  Though I am fond of the word meretricious, which Google defines as: "Apparently attractive but having in reality no value or integrity: "meretricious souvenirs for the tourist trade".

Let's look at these meretricious arguments.

First Vermont claimed they were interested in economics, not safety, when the Senate took their famous vote.  I point out that they voted in February. They had ordered an economic report on Vermont Yankee, but it was due to be issued a few weeks after their vote.  They voted anyway, not willing to wait for their own economic report on Vermont Yankee, which was issued in March.  Pretty hard to claim the vote was all about economics, under these circumstances!

Second, I quote their lawyer, who basically says that the state wants Vermont Yankee shut down because the paid-off plant makes it hard for new plants to compete.  The state has an interest in keeping electricity prices high?  That's a new one.

Third, in a last-minute salvo, the state lawyer said the revenue sharing agreement with Vermont Yankee is worth $587 million dollars (to Vermont utilities), and that agreement ties the utilities to Vermont Yankee, and that's a bad thing.  Again, a amazing statement.  True. Entergy may have to pay half a billion dollars to Vermont utilities, allowing them to upgrade infrastructure and/or lower rates to their customers.  How is that any evidence that the state should shut the plant down?

I end my ANS post with a quote from Cheryl Hanna of Vermont Law School   Hanna concludes that if the state loses the case (and she thinks it probably will), it is not going to be because the state was "out-lawyered." It will be because the facts and the law are mostly on the side of Entergy.

Please read my post about the hearing. I worked quite hard on it. I am pleased that it was chosen as Best of the Blogs at Nuclear Townhall yesterday.

Guy Page's Guest Post is Now at Energy Collective

Monday, I posted a guest post by Guy Page about the importance of the nuclear plants to the economy of New England.  He based his post on a New England Council report on energy and economics.  I am proud to say that his post has been picked up by The Energy Collective, a prestigious and widely-read blog about energy issues.  It's getting some good comments there, too. I am happy to see an important post on an important topic get more readership!  Energy Policy is Key to Vermont's Future.

Fun with Fuel Pools

XKCD is a scientist, cartoonist, and essayist.  On Tuesdays, he has a feature called "What  If?  Answering your hypothetical questions with physics, every Tuesday"  Yesterday he addressed the question: "What if I took a swim in a typical spent fuel pool?"   Great fun with beach balls!

For the geeky, I also recommend his comics. I love the one about energy density of uranium versus other fuels: Log scales are for quitters who can't find enough paper to make their point properly. 

Vermont Yankee: State Claims "Economic" Argument for Closing Plant

A few days ago, I described the three court hearings about Vermont Yankee that will occur this week. Three Vermont Yankee Hearings: The Week of Living Lawyerly. The first hearing, in the Federal Court of Appeals, happened yesterday.

In this three-minute clip, Fox News describes the court hearing in New York yesterday. FOX44 - Burlington / Plattsburgh News, Weather



Economics? The State Has Financial Interests? Huh?

In this hearing, the State made a case that it wasn't interested in nuclear safety, no, not at all.  It was interested in money!  Specifically, it had financial interests.

First, it feared that decommissioning of the plant might cost the state money. It is not clear to me what this has to do with when the plant is decommissioned, but still. It's their argument, not mine.

Second, the state claimed that the existence of the nuclear plant would slow down the growth of renewables.  Entergy Lawyer Kathleen Sullivan answered that one. She pointed out that state utilities are buying less than 3% of their power from Entergy. Therefore the existence or non-existence of the plant makes no difference to Vermont power contracts. Vermont utilities will continue to make purchase agreements with renewable or non-renewable power sources, as they do right now.

You can hear the audio of the entire court case, embedded at the bottom of this blog. It's about 40 minutes long.

The State's Argument is Backwards

Economics is the pro-Vermont Yankee argument. At the same time that the legislature was speaking about safety, I spoke to Rotaries and other clubs and groups and schools.  I always explained how Vermont Yankee provided jobs, taxes, economic benefits to the region, and low-cost power that enabled other jobs.

The state is arguing that Vermont Yankee should be closed for economic reasons. That is simply incomprehensible.  I would talk to groups about economics, but the opponents would talk about safety.  As a matter of fact, this was a problem for me.  The opponent's safety arguments were bogus, but they were emotionally compelling.  Talking about economics had far less emotional content.

The Tritium, the Waste Dump, the Fish, and the S-word

I find this whole thing so topsy-turvey!  I sat in those hearings, when the legislators said "We can't use the s-word (safety) but we can use the r-word (reliability)" and then proceeded to discuss safety.  That is what I heard.  I was there.

Opponents (including Governor Shumlin) gave press conferences about strontium attacking the teeth of children. They spoke of how it was a no-brainer to close the aged, leaking plant.  They spoke of the "radioactive waste dump" on the banks of the Connecticut. Shumlin stated that you shouldn't eat the fish in the river--even as the head of the Department of Health publicly disagreed with him.  It was "we really care about safety" all the way with the opponents.

The opponents never effectively countered the economics argument.  They just ignored it.  Now the state claims an economic argument for closing the plant?

Here's a blog post about economics from two years, ago, with links to reports  Economics and Vermont Yankee. The grid price of electricity is temporarily lower now, but the other economic benefits remain exactly as stated.

State's Argument Does Not Work

Any way you cut it, economics is a pro-Vermont Yankee argument. Even the opponent lawyer had to go into elaborate "what-if" scenarios  to try to make an economic argument for the state. IF Entergy goes bankrupt AND the NRC fails to regulate the decommissioning funds etc.

 Expensive lawyers (hired with my tax dollars) can't give the state a credible economic reason to close Vermont Yankee.

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References, including an Audio of the Hearing

There are many news stories on this hearing. Most of the viewers conclude that the State did far better this time by hiring an outside attorney.  Cheryl Hanna said she didn't know how the ruling would go, but the state did better this time. WCAX also has a good three-minue video clip.

Cheryl Hanna of Vermont Law School just posted an analysis: the law is still probably on Entergy's side, but the State made a far better case this time.

 The Vermont Digger article by Andrew Stein is complete, and includes a recording of the actual testimony.

Here's the embedding of the recording from the Digger article: about 40 minutes.

Update: I embedded the Vermont Digger audio above, but it is not appearing on some computers. I don't know why it doesn't appear.  If you do not have the audio on your computer, you can hear it at Vermont Digger.

The Latest Law Suit: Is It a Constitutional Case in Vermont?

Bill of Attainder or Just a Regular Old Tax?

When is a tax unconstitutional? And when is it-- just a tax?

As usual in issues concerning the state of Vermont and Vermont Yankee, this question will be hammered out in court.  As a matter of fact, the question before the court right now is...which court? Federal court or state court?

It's a question of jurisdiction, but the issue is a bigger question than jurisdiction.

The question is whether a single, law-abiding business can be targeted by a state for a very special and onerous tax.  Is it legal for the state of Vermont to write a tax bill that increases taxes on one entity (Vermont Yankee) by about $7 million dollars a year, and increases no other taxes?

We will see how this case develops, but I suspect businesses all over the country are a bit frightened by this one.  If Vermont can write a special tax that applies to one  business, so can Ohio.  So can Cook County, Illinois. There will be no end to it, in my opinion.

Background: The Clean Energy Development Fund Needs Money

Once upon a time, and not so long ago, either, Vermont Yankee agreed to contribute a great deal of money to something called the Clean Energy Development Fund (CEDF).  The amount varied with the price of power on the grid, but was often several million dollars, sometimes as much as $7 million. This tax funded wind and solar development, and some efficiency projects.

In my opinion, the CEDF contribution requirements were the result of a shakedown.  "Nice little power plant you got there.  Be a shame if something happened to your ability to store fuel rods on site."  Well.  That's just my opinion.

However it happened, (by negotiation, by shakedown)  Entergy agreed to contribute to the Clean Energy Development fund, up until March 21, 2012, when Entergy's first NRC license ended.  After March 2012, a great many legal obligations changed.  Entergy was no longer obliged to sell power to Vermont utilities at a fixed rate, and Vermont utilities were no longer obliged to buy power from Vermont Yankee.  Entergy's obligation to the Clean Energy Development Fund ended.  And so forth.

If you visit the Clean Energy Development Fund website, you can see that the grant and loan programs are now closed.  No money from Entergy, no money for grants or loans. (Note: CEDF did not get all its money from Entergy.  It also received money from the ARRA stimulus funds. That money is not available for the future.)

The lack of money for the CEDF has been very irritating to the groups in Montpelier that support wind turbines, etc.  They want that Entergy money to come back, and pronto!

Of course, the same people also want Vermont Yankee to shut down, and pronto! Logical consistency is not their strong suit.

This year, the legislature passed a law adding $7 million dollars to the $5 million dollar generation tax that Entergy pays already.  The idea was that CEDF would once again be funded by Entergy, and everyone will be happy.  At least, that is what the legislators hope.

State Legal Team Issues a Warning to Legislature

In April, when the legislature was considering this tax, two state lawyers issued a warning.  Vermont Assistant Attorney General Scot Kline  and legislative lawyer Peter Griffin were quoted in an article in the Burlington Free Press:

Although two lawyers told them it would be a risky move, legislators are poised to approve a tax increase on the Vermont Yankee nuclear power plant.

“There is some legal risk associated with increasing the generating tax,” Assistant Attorney General Scot Kline told the Senate Finance Committee this week.

Kline said the tax change could be challenged in court...Kline said the Attorney General’s Office decided lawmakers should be told of the risk. Peter Griffin, a legislative lawyer, told the committee he agreed with Kline’s assessment.

The legislature passed the bill anyway, of course.  To some extent, I gotta smile at this.  It reminds me of when Entergy sued in Federal Court in the main case about shutting the plant down.  At that point, the legislature quickly passed a law saying Entergy had to pay the state costs and lawyers to defend the case.  They passed the law, but the State Attorney General had to admit that the law was on "shaky ground" and never tried to enforce it.  Plus ça change, as they say...The Vermont legislature never seems to learn.

Oh yeah.  I have an earlier post on this attempt to get money. In January:  Taxing Fuel Rods, Vermont Legislature Plans Another Law Which Will End Up in Court.

The Warning Comes Home: Entergy Sues

Clearly, Entergy had an incentive to avoid being targeted this way, and brought suit against the state.  It brought this suit in federal court, on constitutional grounds. Andrew Stein at Vermont Digger has a comprehensive article on the lawsuit, including the four constitutional issues Entergy named in its suit, and an interview with Cheryl Hanna of Vermont Law School.  A quote from the article below:

Hanna thinks the equal protection argument might be Entergy’s strongest.

“Where the Legislature runs the greatest risk is that they targeted Vermont Yankee,” she said.

To see the actual wording of the law, follow this link to the omnibus tax bill, and read the words on page 47:

(a) There is hereby assessed each year upon electric generating plants constructed in the state subsequent to July 1, 1965, and having a name plate generating capacity of 200,000 kilowatts, or more, a state tax in accordance with the following table: at the rate of $0.0025 per kWh of electrical energy produced.

There's only one such plant.  It would have been easier to just name "Vermont Yankee."

The Empire Under the Dome Fights Back

The state asked the federal judge to dismiss the Entergy lawsuit, claiming it was merely a matter of a state tax, not a federal or constitutional issue.  Susan Smallheer of the Rutland Herald reports on the Entergy counter-argument that this is a levy, not a tax.

This is clearly an on-going dispute which will be going on for quite a while.  I will continue to cover it as more information is available.

Meanwhile, let's hope that Cook County doesn't get any bright ideas on how to raise money for Chicago city government, by targeting the richest businesses in town!  I used to live in Chicago, and I wouldn't put it past the city government to do that.

Of course, now I live in the clean green state of Vermont.

Law School Professor Explains Why the State Never Really Had a Case Against Vermont Yankee

Cheryl Hanna of Vermont Law School spoke on WCAX about the court case about Vermont Yankee. The state of Vermont never had much of a case to start with.

I have tried to embed the clip of her interview. If I have not succeeded, here's the link to the three minute video on WCAX.

Meanwhile, Tony Klein, head of the Vermont House Natural Resources and Energy Committee, has always been committed to the fight against Vermont Yankee. But....in a Vermont Digger article, Klein speaks about the court case:

“Was there disappointment? Yes. There was disappointment. Was there surprise? No. There was no surprise that the federal courts would rule in our favor. I never entertained real hope that that was going to occur.”

Klein didn't have hope that the Vermont law was constitutionally valid and would stand up in court? And he admits this? (It's worth reading the comments on that article.)