Back to the Public Service Board: Next Steps for Vermont Yankee

The court ruled in favor of Entergy in the recent court case. In consequence, Entergy applied to the Public Service Board for a Certificate of Public Good for Vermont Yankee.

Judge Murtha's ruling in the case is over 100 pages long. At one level, however, it can be summarized as follows:

The State of Vermont tried to alter a contract unilaterally. That is not allowed. The contract still stands. Just as it says in the contract, the Public Service Board will decide on the Certificate of Public good. The Public Service Board cannot consider radiological safety in granting this certificate, because that is the responsibility of the NRC, not the states. Also, the Board can't insist on below-market electric rates for in-state utilities, because that is against the Interstate Commerce Clause of the Constitution.

The Memorandum of Understanding

The contract that determines how Vermont Yankee applies for the Certificate is the Memorandum of Understanding. This is the contract between Entergy, the state and utilities, signed in 2002 when Entergy bought Vermont Yankee. It requires Entergy to obtain a Certificate of Public Good from the Public Service Board (PSB).

However, the fact that Energy actually applied for this certificate will be will be much discussed. During the trial, Entergy claimed that the PSB's neutrality had been seriously affected by the legislature's actions from 2006 to 2011. When the ruling was issued, it was not clear whether Entergy would appeal: the ruling put Entergy in the position of needing a PSB certificate in order to keep the plant operating. So far, Entergy has not appealed the ruling. It now seems that they have put the plant's fate into the hands of the PSB.

Both Entergy and the State have until mid-February to appeal, so it is not clear what happens next. Entergy could conceivably appeal while also applying to the PSB. The State could appeal and also request that the PSB not act until the court case is resolved.

It is all up in the air. As usual.

A Brief Guide to What They Are Saying

For a fuller review of the matter, I recommend these two articles. They are very different, and it is enlightening to read them and compare them.

Dave Gram of Associated Press reports that Entergy asked the PSB for a ruling. However, much of the article consists of a lengthy interview with one of AP's favorite nuclear opponents, Ray Shadis. Shadis worries that the PSB hasn't reviewed nuclear safety factors since Fukushima. Apparently, Shadis ignored the part of the judge's ruling which said that the PSB cannot consider radiological safety considerations. Shadis' comments make up most of the article.

Terri Hallenbeck of Burlington Free Press (BFP) provides a more complete report. She quotes plant opponents. However, she also quotes the Entergy CEO as he wonders whether the state will appeal. In this article, I learned that Entergy has until the end of this week to request legal fee reimbursement from the state. I also learned that PSB guidelines for a certificate do not require that a power plant provide service to Vermont. A very interesting article.

In my opinion, these two articles are an amazing compare-and-contrast, between mediocre reporting (AP) and excellent reporting (BFP). The AP article depends on the usual statements of the usual opponents. The BFP article obtains both sides of the story and includes a timeline about reimbursement.

A Final Note as We Await the State's Decision on Whether to Appeal the Ruling

Will the state appeal? Cheryl Hanna of Vermont Law School describes the bigger picture of federal prerogatives and attempted state pre-emptions. Her short, well-written interview is mostly about food safety, but definitely worth reading. Once there are federal laws regulating a subject, the role of the state is circumscribed. In other words, it is very unlikely that Vermont Attorney General Sorrell could win this case by appealing.

Facts and Fancies About Refueling Vermont Yankee: Try Try Again

Facts About Refueling

On Wednesday, July 20, Howard Shaffer spoke for a few moments on WCAX about Vermont Yankee refueling. He shared three minutes worth of facts. How long the current fuel will last. How fuel is delivered (on flatbed trucks). Is refueling dangerous? Simple questions and honest answers.

Fancies about Refueling

On Tuesday, July 20, two professors at Vermont Law School (VLS) discussed the court case and the injunction hearings. Donald Kreis and Pat Parentau of VLS were part of a panel sponsored by the anti-Vermont Yankee group, the Safe and Green Campaign. Olga Peters of the Commons reported on this meeting.

At the meeting, Donald Kreis said: “I feel really bad, I love Brattleboro. I love what you folks are doing. I’d love it if Vermont Yankee was banished from the earth.”

(I think "you folks" meant the Safe and Green Campaign.)

Meanwhile, Parentau showed a certain level of confusion, as he had also shown about the sequence of events (Act 160, cooling tower collapse) at Vermont Yankee.

For Profit and Not For Profit

According to the Peters article about Pat Parentau: “We’ve all heard the rumors” that Entergy wants to build an escape hatch that would give the company the ability to say to shareholders, “We fought the good fight,” he said.

As far as I can tell, Mr. Parentau does not repudiate these rumors. However, for-profit companies don't say this sort of thing. They don't need "escape hatches." For-profits don't need to convince shareholders that they fought a good fight, they really tried to tilt at those windmills, but evil forces defeated them. For-profit CEOs simply say that a certain choice wasn't profitable. That's the only justification they need for their course of action.

In contrast, not-for-profits love the "we tried" line, because it can be followed by a line that says "please give us more money."

In a for-profit company, if the new product doesn't work out, or if the division loses money, it is gone. The world of profit-making companies follows Yoda's advice in Star Wars:

"Do or Do Not. There is no 'try'."

Parentau doesn't get the difference.

Parentau Suggests: Try Try Again In the Legislature

If they follow Parentaus advice, the Vermont Legislature will try again.

Cheryl Hanna pointed out that the judge was skeptical of the framing of Act 160, and you can also see Hanna say this in a video on one of my previous blog posts. Hanna also noted that judge thought the legislature was attempting to make laws concerning the federally pre-empted area of radiological safety.

Parentau basically agreed that the judge was skeptical of these things, but he had an idea for a cure. According to the Peters article, Parentau suggested that:

Shumlin should call an emergency legislative session in August to vote up or down on permitting the Public Service Board to decide whether to issue Vermont Yankee’s CPG, he said, and with that vote, “a real clear crisp statement of state policy about why we don’t want a nuclear power plant” should be included.

In other words, if your first law doesn't succeed in standing up to court scrutiny --try, try again.

Ex Post Facto, Anyone?

Now, states do occasionally choose to try to reframe a law that failed in court. But in general, any new law or legal amendment comes AFTER the court has ruled on the original law.

To me, there's a certain contempt-of-the-court attitude shown by Parentau's suggestion. Entergy filed a brief, the State filed a brief, the Court ruled on a preliminary matter (the injunction) and set a date for the full hearing.

Parentau suggests that the Vermont hurry up and pass a new law between now and the full hearing. What would happen? Entergy will have to file a new brief about the new law, the original hearing date will be put off, Entergy will undoubtedly ask for an injunction due to the new circumstances, the judge will have to look at all of this new material.

If I were the judge, I would look at Vermont and say: "Hey guys. What am I over here? Chopped liver? That my work is just tossed out and you are passing a new law, hurry-up? Come on. I think I will start by granting Entergy a permanent injunction, if these are your cute little tricks to prevent a hearing."

Vermont Tiger notes that passing a new law about Vermont Yankee is a bad idea. Geoffrey Norman of the Tiger blames the current heat wave for this suggestion.

It's not the first bad idea of this type that Vermont has had. When Entergy sued, Vermont, the legislature immediately passed a Ex Post Facto law which was also Bill Of Attainder, a law aimed directly at Entergy. This law forced Entergy to pay for the State's portion of the suit. Various people blogged about this blatantly illegal action:

Geoffrey Norman at Vermont Tiger

Cheryl Hanna at Vermont Law School

John McClaughry at Vermont Tiger

But the law still stands, and now Parentau suggests that the legislature passes another such law.

A Good Idea

Well, I'm for it. I think Parentau's idea is great--for my side. Passing a new law would be a clear admission that the legislature messed up with the law it passed to shut down Vermont Yankee. Also, passing a new law insults the judge. Also, passing a new law after a lawsuit is filed is probably ex post facto and therefore illegal.

Just the idea that the state is discussing such a move should provide Entergy with a shot at a permanent injunction against state activity during the lawsuit. I mean, the lawsuit could go on forever, if the legislature changes the law at every break in the court hearings!

Thank you Mr. Parentau. I hope the legislature takes your advice. I'm glad to see you helping Entergy.

Update: DARN IT

Shumlin won't call a special legislative session. Shame on you, Shumlin! It was another chance for an ex post facto attack on Entergy! You should have taken it!!

Video Views about the Vermont Yankee Injunction Ruling

Some recent local news videos explain a lot about the injunction ruling in a short time-frame.

Jobs

The first is a two-minute clip from WMUR in Hinsdale, New Hampshire, across the Connecticut River from the power plant at Vernon. The video gives a neighbor's view of the potential Vermont Yankee closing.

Potential VT Yankee Shutdown Raises Jobs Anxiety - Project Economy News Story - WMUR New Hampshire

Legal Implications

The second is a five minute clip of Cheryl Hanna of Vermont Law School, sharing her view of Judge Murtha's ruling. In summary, Hanna says that Entergy has lost this battle, but not lost the war. She also recommends that people read the footnotes in Murtha's ruling.

No injunction: Will Vermont Yankee keep operating? - WCAX.COM Local Vermont News, Weather and Sports-

The Vermont Attorney General Will Soon Announce Something Or Other About Entergy

In a previous post, Vermont Yankee, the Vermont Attorney General, and the Completely Political Timing of Lawsuits, I pointed out how the Vermont Attorney General, William Sorrell was planning to "release the results of his investigation" soon. Sorrell has now announced that he will release these results tomorrow. The timing of this release seems to be so important that Sorrell has to chosen to make an announcement of the day that he will make the announcement.

For William Sorrell, the timing is crucial. He is making his announcement while Judge Murtha is deliberating on whether to grant Entergy's request for an injunction. If granted, the injunction would assure Entergy that the state will not shut them down while legal actions are pending. (The injunction is discussed in my post Did Vermont Yankee Bring the Suit at the Right Time?)

What Can Sorrell Accomplish?

The actions "under investigation" happened two years ago. Last year, three separate groups investigated whether Entergy had deliberately mislead its regulators. Three separate groups said: Entergy did not lie to its regulators. Entergy did answer some questions incorrectly. However, these answers showed no intention to mislead.

The three reports on this subject were published last summer, between April and July. They are referenced below:

• NRC assessment of Entergy information as part of a Demand For Information issued by the NRC
• Vermont Public Service Board-mandated review, performed by the law firm Morgan, Lewis & Brockius LLP
• Vermont Legislature-mandated review, performed by the Public Oversight Panel

These links are to the original documents, though I have many blog posts on the subject too. You can read the reports for yourself -- right here, right now.

The bottom line is: Entergy said some things that were incorrect, but Entergy did not intend to mislead by these statements.

What is Sorrell going to prove? The facts are well known, after all.

• The statements Entergy made are well documented.
• Many investigations have determined "who knew what and who said what."
• Further digging can reveal little or nothing.

Perhaps Sorrell will come up with interesting hypotheses on Imperfect Management Styles. What will this prove? It's a long way from Imperfect Management Styles to Criminal Liability and Perjury. Sorrell will find Entergy managers were imperfect, but not dishonest.

Imperfect Management Styles of William Sorrell

Sorrell is playing this game as if Judge Murtha is a fool who can be swayed by well-timed banging on the table. I think that is an assumption Sorrell will lose.

Recently, John McClaughry of the Ethan Allen Institute shared two letters with me, letters that he had written to William Sorrell this spring. They show Sorrell's own imperfect management style.

On March 30 of this year, McClaughry wrote:

Over a year ago, according to media reports, you announced a criminal investigation of Entergy, related to allegedly false statements made to the Public Service Board regarding tritium leakage at Vermont Yankee.

Now that over a year has passed since your initiation of this investigation, have you made public your findings and/or initiated prosecution?

If not, has your investigation been slowed by a shortage of qualified lawyers on your staff, and if so, what additional legal resources will be necessary to bring this investigation to a speedy conclusion?

Or have you quietly concluded your investigation without any public announcement?

On June 21, McClaughry wrote again:

I learned from Assistant AG Treadwell, replying on April 25 to my inquiry of March 30, that your industrious staff will complete “this spring” your now 15-month old criminal investigation into whether an official of Entergy may have made a false statement in testimony before the Public Service Board several years ago.

“Spring” has now passed into history, and I continue to wait expectantly for what will no doubt be startling revelations from your office, extracted from the two million (!) pages of documentation produced by Entergy in response to your requests. Will I and the anxious public soon learn of the results of these labors?

I would also like to request an accounting for the expenditure of your office’s funds in perusing and evaluating the two million (!) pages of documents said to be relevant to the allegedly false statement, on top of the report resulting from the investigation by the independent law firm hired by Entergy to examine the allegation.

The story so far shows Sorrell to be a poor manager (promising to complete an investigation this spring). But is he a good lawyer?

Arguing Before the Supreme Court

In his June letter, McClaughry makes polite requests about the investigation, quoted above. Then McClaughry does a little needling:

On a related matter, it appears that Entergy Nuclear v. Shumlin, Sorrell et al..... will eventually be argued before the Supreme Court of the United States. I want to urge you, as Vermont’s attorney general, to personally argue this case before the Supreme Court. I’m sure the Court will give as great weight to your arguments as it did in your prior appearance there.

What was this remark about? How is McClaughry needling Sorrell? Well, In mid-June, Vermont lost a major lawsuit before the Supreme Court.

Vermont brought a lawsuit about physician confidentiality, and argued it all the way to the Supreme Court. This was a multi-year, expensive lawsuit. In June, the Supreme Court ruled against Vermont 6-3. Here's Vermont Law School professor Cheryl Hanna on the ruling:

"What the (Vermont) law did, the Court said, was suppress speech that was “too persuasive” and contrary to the state’s own policy goals of promoting generic drug use. In essence, the Court said Vermont had engaged in censorship for political reasons. The state may not like pharmaceutical companies, but it doesn’t have the right to keep them quiet. .....

The consequence of that, the Court held, is to withhold otherwise true and accurate information from consumers. If state tries to do so, it must have, in plain English, a really, really good reason. But Vermont couldn’t come up with a really, really good reason. The law didn’t protect physician privacy, it didn’t lower the cost of medical services and it didn’t promote public health...

In both the 2006 Randall campaign finance case and today’s Sorrell decision, Vermont compromised constitutional precision in favor of political popularity, positioning the state as David and financially powerful voices as Goliath. In both cases, the Court saw it the other way around."

In June, the Supreme Court decided the pharmaceutical case on the basis of freedom of speech. Sorrell was unsuccessful in trying to show that the Vermont law protected somebody, and didn't violate free speech. Since many the Supreme Court decisions nowadays are 5-4, losing 6-3 is losing big.

As a Taxpayer Myself

Perhaps someone should investigate why Sorrell wastes Vermont's money this way. (Hopefully, this group will announce the results of their investigation while a judge is deliberating on one of Sorrell's cases.) If someone gathered 2 million documents, I am sure there might be something to say, if only something like:

The current Vermont Attorney General might benefit from some refresher courses in the law. Merely knowing how to pound on the table isn't enough.

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Legal aphorism: "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."

Photos of Khrushchev pounding the table (probably a fake picture) and the Supreme Court building (a real picture) from Wikipedia.