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-

A Court Case with a Deadline: The Black Start Diesels

Breaking News: 

Last night, the hearing officer for the diesel docket at the Public Service Board recommended granting a certificate to allow the diesels to be installed.  This is great news!  However, as Entergy notes in its response, the PSB has not yet ruled on this recommendation, so the situation remains uncertain.  Andrew Stein article at Vermont Digger includes a link to the hearing officer statement.

---------------
A Court Case with a Deadline

On June 4, in federal court in Brattleboro, there will be a hearing on Entergy's suit against Vermont's Public Service Board.  While many court cases drag on forever, this one is likely to be resolved quickly.  Entergy needs an answer from the court by mid-June.

Vermont Yankee needs a diesel generator.  The plant must begin pouring the concrete pad for it in mid-June.

Background

Vermont Yankee and Vernon Dam

In the summer of 2012, the New England System operator (ISO-NE) changed its black-start power plant requirements.  "Black Start" power plants are plants that can start quickly and re-energize the grid during a wide-spread outage. Until last summer, hydro plants were the black-start plants, but hydro plants tend to be small (Vernon Dam is 34 MW).  Gas-fired plants can also start quickly, and gas-fired plants tend to be bigger.  It would require fewer gas-fired plants to re-energize the grid.  Therefore, last summer,  ISO-NE said that small hydro plants such as Vernon Dam would no longer be black-start facilities.  That role would be assigned to larger gas-fired plants.

Vermont Yankee has a direct tie-line to Vernon Dam, and had always counted Vernon Dam as a source of emergency back-up power. When Vernon Dam was re-classified and would no longer be a black-start facility, the Nuclear Regulatory Commission required Vermont Yankee to replace it with another emergency diesel generator.

Supposedly, in Vermont, adding a diesel generator at a nuclear power plant requires a ruling from the Public Service Board.   That's the current Vermont requirement, and Entergy tried to comply.  In early August, Entergy announced it would ask the PSB for permission to add a diesel generator.  The Brattleboro Reformer reported on the request on August 7 (Entergy to ask for new diesel generator at VY), and I blogged about it on August 13 (Black Start, Black Out and Diesels, Some Clarity).

Trying to Shut the Plant Down

As soon as Entergy said it needed a new diesel generator,  intervenors got ready to try to stop them from acquiring one.  As Ray Shadis of NEC said in the Reformer article: "the state even today regulates certain aspects of existing emergency generators -- such as exhaust emissions, petroleum leaks and noise."  He clearly hoped that this diesel generator, a required piece of nuclear plant safety equipment, would be stopped on the basis that diesel generators are..well, they are diesels.

(sarcasm alert) We don't need no stinkin' diesels in Vermont. (end alert)

The Public Service Board Refuses to Act

Vermont Yankee began the process of asking for a new generator last August.  In general, such simple requests to the Public Service Board do not require complicated dockets, but are decided in two or three months. This type of request does not require not the same type of docket as a utility merger might require.  However, the PSB made it pretty clear that they were going to make this decision into a major issue. After months of hesitating, on December 27, they opened the investigation into the diesel with a PSB order that included these words:

As a preliminary matter, the Hearing Officer may request parties to examine the question of whether (i) the Board can and should grant permission for Entergy VY to install the generator when Entergy VY is not in compliance with existing Orders and CPGs and has not demonstrated that it is willing to comply with orders of this Board 

Orders and Implied Orders

The "orders of this Board" clause is not about something small.  It's huge. The question is whether Entergy has a right to keep operating Vermont Yankee after March 2012, when its original certificate of public good expired. In general, by Vermont law, plants can keep operating with an expired certificate, as long as they had applied for a new certificate in a timely fashion (as Entergy did).  But Senate votes and federal court cases (among other things) have muddied the waters on the certificate extension, at least in the opinion of the PSB.

I have not actually found any order from the PSB requiring the plant to shut down.  It seems to be more of an order-implied-by-the-question  that is quoted above. If someone can find such an actual PSB order, I hope they will tell me.  The last two years of PSB orders can be found on this page:  Recent Public Service Board Orders.

The PSB did issue an order recently, however.  On April 24, the Public Service Board entered a Scheduling Order on the docket, re-iterating that it wanted answers to the questions  from the December 27 order.  To put the matter rather mildly, with this statement, the PSB gave Entergy absolutely no assurance of a timely decision.

Entergy Sues

On April 25, Entergy sued the Public Service Board in federal court, claiming the Board has no authority over safety equipment at a nuclear power plant.  It seems clear to me (and apparently, equally clear to Entergy) that the Public Service Board is willfully interfering with the purchase of  nuclear safety equipment. The Board is pre-empting and frustrating the federal role of ensuring safety at nuclear plants.  Andrew Stein at Vermont Digger has a good short article on the lawsuit. I have the Entergy complaint (document that outlined their suit) on federal-filings-page of the Energy Education Project website.

As the Entergy complaint notes, on page 25:   Vermont's refusal to authorize construction of the station blackout generator....is an aspect of the state's long-running campaign to force the VY Station to shut down by any means necessary because of radiological safety concerns....[Vermont] has no genuine, non-pre-empted state interest in preventing construction of the blackout generator.

A June 4 date has been set for the hearing.


Even Nuclear Opponents Wonder about the PSB's Choices

Pat Parentau

Pat Parentau is no friend of Vermont Yankee.  He is a professor at Vermont Law School and an advisor to the Vermont legislature on methods for shutting down the plant.  However, even Parentau appears puzzled by the Board's actions.  A recent article by John Dillon at VPR quoted Parentau:

Vermont Law School Professor Pat Parenteau said the suit puts state regulators in a difficult situation.

“The point is you have a federal law that mandates something to be done and the state seems to be frustrating that,” he said. “And that’s just not the position you want to be in.”...

“Once again, I’m concerned about how the state interacts with the federal court in this matter,” he said. “If they have a real basis to say, ‘no, we’re not going to let you do this.’ Then, okay, what is that basis? But they don’t seem to have that. Why didn’t the state just do something that would avoid this? I don’t know.”


The court date is coming soon.  It will be interesting to see how the state defends their position on the diesel generator.  I personally don't think they can defend it. "They don't seem to have that [a real basis for their statement]" as Parentau said.  So true, indeed.

The state is making arbitrary decisions on nuclear safety, and now they will be in court again.  However, every time a case is heard in court, it is a gamble.  I am not a lawyer. I  think the state does NOT have a good case, but I certainly don't think it is a slam-dunk that one side or the other will win.

I think Entergy is in the right on this, and I certainly hope for a good outcome in court.

-------

Note: You can link directly to the Entergy filing complaint filing pdf here.  It includes a timeline, including Entergy warning the PSB of the date that it would sue them, if the PSB didn't move.  The pdf is a longish document and will take time to download.

I have another document, also, about Vernon Dam.   I asked an  Entergy spokesman if VY had tried to pay Vernon Dam to continue to be available as a black-start facility.  In return, he sent me this filing that Entergy made to the Public Service Board on April 12.  Entergy had asked Vernon Dam (TransCanada) that question and been refused.  TransCanada was willing to be black-start if required by ISO-NE, but did not want to take on the liability of being contractually bound with a nuclear power plant.

All filings to the PSB are public documents, but this one does not appear on the PSB website.  I thank Entergy for sharing it with me.  Mark Potkin's testimony on negotiations with TransCanada--a relatively short pdf.

Earnings, Lawsuits, NRC Meeting: Playing Catch-up

So much action, so little time!  In the past few days or coming up soon:

• Entergy filed its first-quarter earnings report.
• Entergy sued about the state delaying permission for Vermont Yankee diesel generators.
• Yearly NRC meeting on Vermont Yankee is scheduled for Tuesday, April 30 in Brattleboro.  

Frankly, each of these could be its own blog post, but that is not going to happen very quickly.  So here's a little catch-up!

More catch-up soon on Howard Shaffer's presentation yesterday to the legislative committee, but that will be its own blog post. His presentation went very well.

First Quarter Earnings

In late March, I wrote a post about Vermont Yankee Financial Analysis: The Write-Down and More.  In this post, I noted that Entergy had taken a "write-down" (decreased the official valuation) on the Vermont Yankee power plant in April 2012, and that an analyst report said that the plant was quite likely to be closed by Entergy.  However, that same report considered the rise in natural gas prices to be "recent rally" caused by some kind of "perceived supply constraint."  The report claimed that this natural gas supply constraint would be easily remedied by FERC and ISO-NE actions. 

At the time, I wrote that I didn't see anything in the Entergy's reports or the analyst report that showed the merchant-generator nuclear plants to be operating at a loss.  Also, I said I didn't believe the rising price of natural gas was a "recent rally" that would be easily fixed. In other words, I believed that the merchant plants were running profitably 

Well, yeah.  I was right.  (Note. I am not in the stock-evaluation business. I just like to boast when I'm right.) 

 The Entergy press release on its first quarter earnings show that earnings went from  $0.44 a share first quarter last year to $0.94 cents a share first quarter this year.  The press release also mentions Vermont Yankee's breaker-to-breaker run.  

Lots more information is available in the earnings report and the earnings call transcript at Seeking Alpha.  The regulated utility business earned $0.69/share (as-reported figure) and the merchant plants earned $0.46/ share. In other words, the merchant plants made a very significant input to Entergy's profitability.

Basically, the rise in gas prices led to these increased profits. Nationwide, gas prices doubled this year: gas prices went from below $2 MMCF in April 2012 to above $4 MMCF in April 2013. Also, there were local supply constraints (very few pipelines). During the cold weather, pipeline constraints led to amazingly high local natural gas prices, and therefore to high grid prices and high earnings for the merchant plants.  No surprises there.  

Most of the earnings call ignored the merchant plants (except for discussing the tragic accident in Arkansas and its implications). The call focused on a planned merger or spin-off or something (I didn't follow it) of part of Entergy's regulated transmission business in the South.

New Lawsuit

Vermont Yankee and Vernon Dam

Also in March, I wrote about Vermont Yankee's need for a new diesel generator: Black start, Intervention and some links.  Vermont Yankee needs the generator in  order to meet the NRC's black start requirements when Vernon Dam is no longer considered a black start facility. (Black start facilities are charged with re-energizing the grid after a major regional power outage.) Vermont Yankee applied to the Vermont Public Service Board for permission (Certificate of Public Good) to install this generator.  I wrote that intervenors had been allowed on the docket, and were complicating and delaying the granting of this certificate.

Well, on Wednesday, the PSB issued a scheduling order which showed that the docket will not be resolved until considerably AFTER the date that Vermont Yankee needs to begin constructing the pad for the diesel. On Thursday (yesterday) Vermont Yankee sued the state in federal court. Entergy said that the PSB was interfering with nuclear safety, a federal mandate. Andrew Stein of Vermont Digger has a good article on this issue: Entergy files new lawsuit against Vermont, this time over diesel backup power permit. 

Update: The Digger article now has a link to the Entergy filing.  Interestingly, Entergy asked TransCanada to keep Vernon Dam as a blackstart facility.  That is, Entergy asked TransCanada to contract with Entergy to keep the dam blackstart-ready (Entergy would pay for this, no doubt). However, TransCanada refused to make this contract.  This info is on page 15 of the document linked above.

NRC Meeting

On April 30, at Brattleboro Union High School, the NRC will hold its annual meeting to discuss its Vermont Yankee safety assessment. The meeting will begin at 5:30 with an open house and follow with a question and answer period. Here's the NRC announcement.

Last year's NRC meeting was very unpleasant, in an atmosphere close to mob rule.  I wrote about it at ANS Nuclear Cafe, with the title NRC Meeting in Brattleboro: The Politics of Intimidation.

Yes.  I am going again this year.  I believe in showing up.

NRC leaving meeting, 2012
Police protecting them from protestors
that had surrounded their seats at the
front of the room

The opponents will show up also, I am sure.  Or not.  I am not so sure. A letter by Nancy Braus in The Commons (Brattleboro newspaper) claims the NRC doesn't listen and is "not our voice."   It claims we have wasted our time preparing questions and sharing our education with  the NRC. The letter is described as follows: This letter is written on behalf of the Safe and Green Campaign, an antinuclear organization comprised of people who live in the evacuation zone around Vermont Yankee.

Personally, I can assure you that the NRC listens to everyone--the letter-writer here seems to think that "listen to us" means "obey us." Oh well.  

Anyhow, the fact that the letter was written "on behalf of" the major local anti-nuclear campaign makes me wonder whether some of them will boycott the meeting, and maybe there will be less intimidation this year.    I hope so.

Update: Whoops. I was wrong. It's the opposite of a boycott.  I just looked at my home-town paper, and the campaign is running a carpool from White River Junction to Brattleboro for the meeting.  So I expect a big opponent presence at the meeting. There may have been carpools other years, but if so, the carpools weren't announced in my local paper. 

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.


----------

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.

Hot Potato and the New Request: Entergy Asks for Injunction against PSB and Shumlin in Federal Court

The DPS and Public Service Board Don't Join NEC

Public Service Board members David Coen, Commissioner
John Volz and John Burke (left to right in picture)
At November 7 PSB hearing

A few days ago,  the New England Coalition against Nuclear Pollution (known as NEC) sued in Vermont Supreme Court.  NEC asked the Vermont court to shut down Vermont Yankee, although there are two other jurisdictions hearing aspects of the Vermont Yankee case. In an earlier post, Vermont DPS Not Joining Opponent Lawsuit,  I wrote that the Vermont Department of Public Service (DPS) asked the Vermont Supreme Court to deny this NEC suit.

In that post, I wrote that the DPS probably asked the Supreme Court to deny the suit because if the Supreme Court undertook hearing the NEC lawsuit, that lawsuit would invalidate the Public Service Board process.  The DPS charter is to appear before the Public Service Board and take part in the Board process. Naturally, the DPS would want that process respected.

So, I was not surprised to learn that the Public Service Board itself had asked the Supreme Court to deny the NEC petition.  After all, the Public Service Board doesn't want its own process invalidated.

Hot Potato

However, there were still surprises in store for me.  I read last night in Vermont Digger that  Entergy filed a new motion in Federal Court in the against Shumlin, et al (in their official roles) and against the Public Service Board (PSB).


What? A request for a new injunction?

Yet, when I read the  Entergy motion for injunction, their request makes sense.  Not something I would have predicted, but it makes sense.  The Public Service Board has to stop  treating this Certificate of Public Good as a hot potato. "Somebody else take this, pretty please!"

Entergy notes the PSB rulings have been ambiguous. The PSB November 29 ruling pretty much invited third parties to challenge the operation of Vermont Yankee.  On page 5 of the Entergy filing, Entergy quotes the November 29, 2012 PSB ruling: it invites other parties to use the PSB ruling as a basis to bring actions against Vermont Yankee.

Aside: See Entergy quote about the ruling at the bottom of this post. Also, I wrote extensively about this recent ruling which was "strongly worded" against Entergy but also "narrow" and issued on an obsolete docket.  You can also read the ruling here. End Aside.

In other words, in that ruling, the PSB basically says: "The PSB is not going to take action, but you can. Let's you and him fight, and leave us (the PSB) out of it."

I don't understand the points of law, but I do understand that the Public Service Board has written ambiguous statements. The Public Service Board is supposed to hold hearings and issue rulings, and  I think the Public Service Board may be playing "hot potato" instead.  They have written an opinion that encouraged someone like NEC to take the docket off their hands. The Certificate of Public Good is a hot potato...quick, throw it to someone else!

Due Process

The purpose of the March ruling by Judge Murtha was to allow court cases and PSB dockets to continue in a logical and legal fashion, without the constant threat of the state attempting to shut down Vermont Yankee while the legal process is on-going.

It doesn't seem as if the concept of legal due process should be so difficult. You would think due process would be what the Public Service Board wants.  I would think the Board would want their own process to be respected. On the other hand, after a meeting this March in which the Board behaved in an unprofessional and crabby fashion (at least in my opinion), I am not sure what they want.

This Entergy docket for a Certificate of Public Good is a hot potato, politically.  But from the point of view of the law, it's a legal docket, and should be treated as one.

Ultimately, I think that is what the Entergy request is about.  The PSB should handle its dockets professionally. Instead, they issued an odd order on an old docket, and that order looks like an open-invitation to third party lawsuits.  By issuing that order, I think that the PSB hoped that someone will rescue the them from the necessity of making hard choices.

However, Judges and Boards are given the status, authority, and ability to make the hard choices.  That's why they hold the positions they hold.  I hope the PSB  realizes this.

-----
Longish quote from the Entergy filing:

The PSB did not affirmatively state that it would take action to shut down the VY Station for failure to obtain a new CPG from the Board before March 21, 2012, but the PSB did expressly invite others (such as NEC) to do so: “Entergy VY entered into a binding contract with the Department [of Public Service] and other parties not to operate after March 21 absent Board authorization. Entergy VY has not challenged the validity of this commitment in its  federal litigation.[1] Thus, any of those parties could seek specific performance ... at any time which, if granted, would bar operation after March 21, 2012.” Id. at 19.  

Non-party (to this action) NEC has now accepted the PSB’s invitation, asserting that the PSB’s March 19 and November 29 Orders require an immediate shutdown during the Interim Period despite this Court’s prior rulings.

Also note you can see many relevant filings at the Energy Education Project website, by following links from this page: Dockets for Public Service Board and Courts.
------

This is the updated post.  I took the word "Update" out of the title, because it has been updated for several days already.

The correction for the update was  the following:

Entergy brought this request for injunction in Federal Court,  on the same docket as the main lawsuit in federal court.  It was not a new suit, and it was not brought in Vermont Supreme Court.  In my original post, I said this was a new suit in Vermont Supreme Court.  The post has been changed to show that correction.  

Very Latest Lawsuit Updated: Vermont DPS not joining opponent

The Ruling and the Lawsuit

In my blog post a few days ago,  The Very Latest Lawsuit,   I described an order that the Public Service Board filed, which was strongly-worded against Entergy, but was not a summary judgment against the plant.

In response to that order, an opponent group, New England Coalition Against Nuclear Pollution (commonly called NEC), filed a suit in Vermont Supreme Court to have the Vermont Court take action and shut down the plant.

On the radio, Pat Bradley of WAMC had interviewed me and Pat Parentau of Vermont Law School.  I am a plant supporter: Parentau is an opponent.  We both agreed that this suit was not likely to get anywhere.

However, NEC hoped to have the Vermont Department of Public Service (DPS) join them in the suit, as DPS had joined them in other suits to attempt to shut down Vermont Yankee.

DPS will not join NEC in this one.

The Department of Public Service Steps Away from NEC

Yesterday, to my surprise, the DPS filed a brief asking the Vermont Supreme Court to deny the NEC appeal. Here's the Burlington Free Press article on the DPS filing  I also link to the DPS filing itself  posted at the Energy Education Project website.  The introduction to that filing:

While the Department appreciates the dedicated work of NEC and other parties over years of litigation with Entergy, the Department nonetheless respectfully requests that the Court refuse the relief requested under 30 V.S.A. $ 15. NEC's complaint does not encompass proper grounds for Section 15 relief; and other reasonable relief is available in pending proceedings before both the Board and the Second Circuit Court of Appeals.

Well, okay, DPS isn't really stepping away from NEC: they mention "dedicated work" and all that. But DPS realizes that there is no reason to open a docket in a new court for a case that is under active review in two other courts, federal and state.

The DPS decision somewhat confirms my belief that the NEC filing in Supreme Court was more for NEC publicity than to win the case.  Indeed, looking at the DPS filing, I realize that if DPS had joined NEC in this filing, DPS would have been undercutting the authority of the Public Service Board to make a ruling on the new docket for the Certificate of Public Good.  In retrospect, I realize...of course DPS wouldn't join NEC in this one.

I am talking about 20-20 hindsight here.  A few days ago, I thought DPS would join NEC in the Supreme Court filing, since that has been DPS's reaction in the recent past: "NEC is suing--let's join!"

Pat Parentau and I agreed with each other on the radio show a week ago: this filing will almost certainly be dismissed by the Vermont Supreme Court.  Looks like DPS came to a similar conclusion.

Howard Shaffer Post at ANS Nuclear Cafe:

Howard Shaffer has a great post  ANS Nuclear Cafe today: politics, lawsuits, and trials. Vermont Weather Gets Colder.  Vermont Yankee Politics Continue Hot.  I encourage you to read it.

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.

Sigh.

Taking Time Off

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

Happy Hanukkah!

Hanukiah, from Wikipedia

Federal Court Dismisses Vermont Yankee Tax Case

The Generation Tax

I have a wind turbine illustration for this post because the underlying issue in the Vermont Yankee tax case is about wind turbines.  Well, actually, it is about the Clean Energy Development Fund (CEDF), which was funded by Vermont Yankee, and paid for many wind turbines and other renewable projects.

Vermont Yankee's obligation to fund the CEDF ended in March 2012, and the people in Montpelier have been trying to do something about this ever since. "Doing something" consisted of finding a way to keep VY paying into the fund.  They levied an extra $7 million dollar generation tax on Vermont Yankee...rather, the tax applied to any power plant, larger than 200 MW, which was built after 1965.  There just happened to be only one power plant that met this description.

Was this a targeted, non-constitutional tax on one business, or just tax business as usual? Entergy thought it was not constitutional. I thought the same.

I blogged about the resulting lawsuit in  The Latest Lawsuit: Is It a Constitutional Case in Vermont?

Another reason for the wind turbine illustration, however, is that the new tax rate on VY became the same tax per kWh for Entergy and for (highly-subsidized) wind turbines.  This allowed the state to make the case that these taxes were simply state business.  Same tax for wind and nuclear, less for other electricity sources.  The argument was "that's just how Vermont wants to do it, and no business of the federal courts."

The Ruling

Yesterday, in federal court, the judge moved to dismiss the lawsuit.   The question hinged on whether this was a state "tax" on a business (and therefore, state business) or a "levy" against a single business (and therefore, a constitutional issue).  Judge Christina Reiss ruled that it was a tax and dismissed the federal case.

This is clearly and certainly a set-back for Entergy, but it has been reported as "case dismissed" when really the ruling is more like "case redirected."  To quote Andrew Stein's Vermont Digger article on the outcome:  Judge Christina Reiss ruled that the generating tax was indeed a “tax” under the Tax Injunction Act, and Entergy does have a “plain, speedy and efficient” avenue through the state court system.

Will Entergy move the case to the Vermont courts?  I don't know.

Quotes Without Comment

Tony Klein is the chairman of the Vermont House Natural Resources and Energy Committee; he was quoted in an article about this tax lawsuit.  The article is by Dave Gram, and appeared on September 11 in Boston.com.  I saved a copy to my hard disk, but I can't find the article on the web right now.  Note: this was an article about the lawsuit.

Rep. Tony Klein, D-East Montpelier and chairman of the House Natural Resources and Energy Committee, said Tuesday the state's intent was for Vermont Yankee to shut down.

In a September 13 article about the tax, on Vermont Digger, Mr, Klein was quoted as follows:

But Rep. Tony Klein, D-East Montpelier, who chairs the House Natural Resources and Energy Committee, and Rep. Dave Sharpe, D-Bristol, who is on the House Ways and Means Committee that designed the tax, steadfastly deny that the Legislature’s intent was to create a tax aimed at inhibiting the plant’s operation.

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.

Win-Win for the Governor: Win the Election and Lose the Lawsuit.

In my opinion, Governor Shumlin doesn't want to shut down Vermont Yankee.  He just wants to look as if he wants to shut down Vermont Yankee.

My reasoning is below.

Safety Regulation

In January, in federal court, Judge Murtha ruled that Vermont was attempting to shut down Vermont Yankee on the grounds of nuclear safety, and regulating nuclear safety is a federal prerogative.  Entergy had argued its case by showing many situations in which the state legislators spoke about nuclear safety, sometimes with the ironic comment that they couldn't say the "s-word" so they would have to call it "reliability."

Cavan Stone wrote a blog post on this "s-word" business The Control-H Defense. You use control-H to substitute one word for another. Do the substitution, and you aren't regulating safety at all. You changed the word.

(You can read Judge Murtha's decision and related material on this page of the Energy Education Project. )

Cherry-picking safety statements

In the Vermont brief that appealed Murtha's ruling, Vermont claimed that the judge had cherry-picked a few things a couple of legislators had said.  From those few statements, Murtha had decided Vermont was attempting to regulate nuclear safety. Vermont claimed it wasn't interested in regulating nuclear safety.  A few legislators were out of hand...said things they shouldn't have said, maybe...no big deal.  Vermont wasn't attempting to regulate nuclear safety. Nothing could be further from the truth.

Governor Peter Shumlin

Vermont claims that it wants to shut down Vermont Yankee in order to build renewables (yes, you read that right).  The desire to shut down Vermont Yankee is all about renewables, and nothing about safety. That is the main message in Vermont's appeal brief. I discuss this in my post: It's the Renewables, Stupid. Vermont Files a Brief.

Clearly, with the federal appeal coming up, Vermont is being extra-careful.  The state wants to be sure that nothing it does could give the impression that that the state is trying to regulate on the basis of nuclear safety.  Right?

Nothing could be further from the truth.

After all, the election is coming up faster than the court case, and the election is more important to Governor Shumlin.

The Department of Public Service and the NRC

Vermont is trying its hardest to look as if it is regulating nuclear safety.

Liz Miller, the Shumlin-appointed head of the Department of Public Service (DPS), recently joined a lawsuit by an intervenor.  The DPS and the intervenor sued the NRC, claiming that NRC had granted Vermont Yankee's license extension improperly, because of a water quality permit issue.  DPS and the intervenor lost the suit.

After they lost the suit, Miller asked the NRC to increase their oversight of Vermont Yankee until the NRC begins to regulate nuclear safety to DPS standards.  DPS thinks Vermont Yankee needs more oversight.

The NRC turned her down, though someone from NRC came to Vermont to explain to her how the NRC does business. You can read about this in my blog post about VSNAP, in the section on the Panel and the Plant, and in the Brattleboro Reformer article: NRC says Vermont Yankee doesn't need increased oversight.


I really tried.  I did.  I tried.  Now, vote for me.

A victory for Vermont in court will depend on Vermont proving that it had no intention of regulating nuclear safety.  It seems absurd to me that Vermont would join lawsuits against the NRC, insist the NRC isn't doing enough oversight, and so forth...while simultaneously trying to prove in court that the state has no interest in controlling or regulating nuclear safety.  If they want to win in court, the state's actions can most simply be described as "counter-productive."

In my opinion, however, Shumlin is going for his own kind of win-win.  Win the election by appealing to the part of his party that wants Vermont Yankee shut down.  Win the election by keeping the Progressive Party on his side, by showing how hard he is trying to shut down Vermont Yankee.  Every time you look around, there is his DPS, trying to protect everyone from the inadequate federal regulation of nuclear safety.

At the same time, the DPS is taking actions that will probably assure the state will lose in court, or at least, these actions will increase the probability it will lose.

 So Shumlin will have his cake and eat it too.  Win-win.  He wins the election.  He convinces everyone he is trying to shut down Vermont Yankee. But Vermont Yankee keeps operating!  Not his fault, he tried, but in the meantime, it stays as a source of tax revenue for the state, and a source of employment in Windham County and neighboring regions.  Win-win for Shumlin.

He tried.  He may succeed. Win the election, lose the court case. Win-win for Shumlin. In my opinion, at least.

Tax Revenue

This will another blog post.  Vermont Yankee recently sued the state again, this time because the state increased its generation tax by about seven million dollars a year.  I will cover this later, it's another subject.  But I couldn't write "a source of tax revenue for the state" without mentioning this.  Vermont Digger has an excellent article on the tax and the lawsuit.

Catching Up: The River, Lawsuits and Some Anniversaries

September 12, 2011
In front of courthouse in Brattleboro

It's time for a little catching-up.

Shaffer at ANS Nuclear Cafe on Plant Cooling

At  Vermont Yankee, as at other plants, heat rejection includes the river. (At VY, I say "includes the river" because there are also cooling towers.) Opponents use the thermal discharge as a way to attempt to shut down the plant, or alternately, to harass the plant into unnecessary and expensive use of its cooling towers in all weather.  Howard Shaffer has an excellent post on water issues at Vermont Yankee, and how they are distorted by the plant opponents. His post was published at ANS Nuclear Cafe Tuesday: Plant cooling a stumbling block?

Lawsuits: The Present

Lawsuit about discriminatory taxes: New Lawsuit

Yesterday, Vermont Yankee filed a lawsuit against the state of Vermont in federal court  Vermont Yankee had been paying $5 million a year in a generation tax to the state of Vermont. It had also been paying another assessment, calculated by a formula, to the Clean Energy Development Fund (CEDF).  Entergy agreed to this when it moved some of its fuel rods into dry cask storage.

Vermont Yankee paid around $7 million to the CEDF some years.  However, the agreement to pay into the CEDF ended on March 21, 2012.

 In January of 2012, the Vermont Legislature passed a bill requiring Entergy to pay more than $12 million in a generation tax. In other words, as the CEDF agreement with Entergy ended, the state just added that $7 million to the generation tax. The state didn't want the revenue stream to end when the agreement ended. You'd think that an agreement is an agreement, with a date on it.  Not in the Vermont legislature, apparently.

Yesterday, Entergy sued the state in federal court against this discriminatory taxation.

I will blog about this more in the future.  Meanwhile, this AP article gives a good description of the grounds of the lawsuit: Vermont Nuke Plant Sues Over New State Tax.  You might also enjoy reading the comments on this short WCAX article on the lawsuit.

And oh, I can't resist.  A link to my January blog post:  Taxing Fuel Rods: The Vermont Legislature Plans Another Law Which Will End Up in Court.

I was right.  It ended up in court.

Lawsuit about Federal Pre-Emption: New Briefs in Old Suit

Vermont Yankee won its case in Federal Court, and Attorney General Sorrell filed his brief for the appeal. I blogged about his brief in June: It's the Renewables, Stupid? Vermont Files a Brief.

Since then, Entergy has filed its brief, and Amicus Curiae briefs have been filed.  I am not  on the opponent mailing lists, but I am on Entergy's mailing list for plant information.  Therefore,  I received copies of Entergy's brief and the plant supporters Amicus Curiae briefs. (These documents are all part of the public record as soon as they are filed.)

The Vermont Attorney General's Office has a webpage for Vermont Yankee filings, but alas, it is out of date at this point.  But I fixed that!  I didn't fix the AG's website, but I put up a web page on the Energy Education Project Website.  Here it is:

Filings in Entergy Appeal.

This page includes Judge Murtha's ruling, the State brief, the Entergy brief, and five pro-Entergy Amicus Curiae filings.

Anniversaries: The Past and the Pictures

I thought about September 11, and I will always think about it. I didn't blog about it this year, but here's a link to my blog post of last year: The Tenth Anniversary and Conspiracy Theories

More cheerfully, a year ago September 12 was the first day of the court hearing in Brattleboro on the Vermont Yankee federal lawsuit. Anti-Vermont Yankee people, mostly dressed in black, held a vigil in front of the federal courthouse. Vermont Yankee supporters, many with white t-shirts, held a rally.

 I decided to illustrate this post with some pictures from that day.  The picture at the top shows plant supporters on the right, plant protesters on the left, and a documentary film-maker taking a movie of it all. You can read more about the rally at my blog post: Rally Retrospective: On the Sidewalks for Vermont Yankee.