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.

Two Upcoming Events: VSNAP and ANS

The First Meeting: VSNAP Meeting on September 10 in Vernon

VSNAP is the Vermont State Nuclear Advisory Panel.

A few weeks ago, I wrote about the July 9 meeting of VSNAP: my post at ANS Nuclear Cafe describes the meeting. Vermont State Nuclear Advisory Panel: Safety Again!  The discussion was about safety, safety and safety.  The panel spoke as if the lawsuit hadn't happened.

The July meeting was in Montpelier, and poorly attended.  The next meeting will be at Vernon Elementary School at 6 p.m. on September 10.  I expect it to be well attended, because Vernon is near Massachusetts and many people come up from Massachusetts to protest the plant.  Many protesters live in Brattleboro, near Vernon, but even more seem to come from Massachusetts.

Liz Miller
DPS Commissioner

I suggest you come to this VSNAP meeting if you can, but remember that the opponents shout, carry signs, wear funny clothes and masks, and basically enjoy a good round of street theater.  As I wrote about the NRC meeting in Brattleboro, these meetings can be intimidating.  NRC Public Meeting In Brattleboro: The Politics of Intimidation. However, as Howard Shaffer has often said: "Nobody has ever actually hit me."

Also, the VSNAP panel is opposed to Vermont Yankee, and the crowd is opposed to Vermont Yankee.  Therefore, this meeting should be comparatively subdued.  It will be subdued compared to the behavior at an NRC meeting--that's what I mean by "comparatively subdued."

So I do encourage you to attend.

The Panel and The Plant

In June, Liz Miller lost a lawsuit against the NRC.  Miller is the chairperson of the VSNAP panel,  and she is Commissioner of the Department of Public Service (DPS). DPS had joined a local intervenor to sue  the NRC. In their lawsuit, DPS and the intervenor hoped to force the NRC to rescind Vermont Yankee's license. Their suit was based on a water quality permit issue. DPS and the intervenor lost in court.

More recently, Miller  asked the NRC to increase their scrutiny of Vermont Yankee until the NRC's work meets DPS standards for nuclear oversight.  The NRC has been reported as "cool" to her request.

Go to the meeting anyway

For nuclear supporters, this meeting will be fun if you're a masochist.

It turns out that I am invited to a reception that evening, and I won't be at the VSNAP meeting.  I will be devastated to miss it (not really!). Howard Shaffer plans to attend the VSNAP meting.

Why go?  Sheer masochism?  No.  There are reasons to go.

With any luck you might be able to convince the newspapers covering the meeting that the plant has supporters as well as ...um....detractors. Another reason  to attend is that some people from the plant are required to come to these meetings, and they like to see a friendly face in the crowd. You can be that friendly face. Also, Liz Miller is a dedicated plant opponent, but she is also a very nice person who tries to be fair to everyone who speaks.  Her behavior is another pleasant part of the meeting.

The Second Meeting: ANS Meeting in Connecticut on September 13

On the other hand, if you aren't a masochist you will enjoy attending the American Nuclear Society (ANS) Connecticut Region meeting on the evening of September 13.  As a matter of fact, I can guarantee you will enjoy the meeting, because Howard Shaffer and I will be speaking on "how to be a pro-nuclear activist."

This dinner meeting is a regularly scheduled meeting of the ANS, a professional society.  Such meetings are generally not announced to the public: they are only for society members. Guests are welcome, however, by pre-arrangement.  If you are interested in attending, please email me at mjangwin at gmail and I will put you in touch with the meeting organizers.

I hope you can come.  It will be a chance for Howard and me to come south from Vermont and see some of our supporters from Connecticut and other "points South."

Vermont Loses Lawsuit Against NRC about Water Quality Permit

The Intervenors (and Vermont) Sue the NRC and Lose

The New England Coalition (NEC) is an intervenor that has fought Vermont Yankee since before the plant opened.  About a year ago, NEC brought a lawsuit against the NRC.  NEC claimed  that the NRC should not have granted Vermont Yankee a license extension because the plant did not have an up-to-date water quality permit issued by the state. They claimed that Vermont Yankee's NRC license was invalid, and had to be rescinded.

Late last month, NEC lost the lawsuit.  The U.S Court of Appeals in Washington D.C. ruled against NEC and for the NRC.  You can read the ruling here.

Liz Miller
DPS Commissioner

Oops!  Did I say NEC lost the suit?  What I meant was that the Vermont Department of Public Service  (DPS) and NEC lost the suit, because Vermont joined the suit.  DPS joined the suit big-time.  Liz Miller, the DPS Commissioner, argued the case before the Court.

The State's Case and My Opinion

I found the state's case quite odd. I wrote an blog post last year -- A State of Confusion: The Suit about the Water Quality Permit.  As I said at the time: the state is the one that issues water quality permits.  If the plant's water quality permit was not up to the state's requirements, the state should have insisted that the plant do something about this.  Instead, the state sued the NRC, saying the NRC should not have issued the license extension.

In other words, Vermont claimed that Vermont hadn't cared about the water quality permit status, but the NRC should have cared.  My guess was this argument wouldn't convince a court.

It didn't.

The Court's Opinion

The court ruling was related to what I had expected, but different.  The appeals court ruled that the state had an obligation to bring up this contention before the NRC during the hearing, not wait until the license was granted and come in with an "oh, by the way" lawsuit.  To quote the ruling:

“.. petitioners here were required under agency regulations to afford the full Commission an opportunity to pass on the section 401 issue before seeking judicial review. And they had repeated opportunities to do so...[they] sat silent for two and one-half years thereafter, raising their... objection only after the Commission issued the license renewal in March 2011.”

The Opponents' Opinions

Many of the opponents cried bitter tears that the NRC had escaped on a procedural technicality.

According to VPR, a NEC spokesman, Chris Killen, said: "The New England Coalition, and all Vermonters, have now been deprived of the right that was guaranteed to them by Congress, to have a say in how this plant affects clean water." According to the same article, Shumlin's spokesman  John Being said "We're disappointed that the court declined to address our substantive water quality argument and instead ruled, based upon kind of a technical issue, a procedural issue,"

Pat Parentau
Vermont Law School

However, in the same VPR article, Pat Parentau of Vermont Law School said the court ruled on a fundamental point of administrative law.

"Where there's a clear process to raise an issue, before the commission - that‘s the key - before the commission itself - that you can't miss that opportunity and expect the circuit court to hear your argument," he said.

Pat Parentau would like to see Vermont Yankee shut down, but he knows this ruling was not procedural nit-picking.

The Next Step

Of course, Vermont claims it is considering an appeal to the Supreme Court.  Vermont always wants to take it all the way to the Supreme Court. (Take It To the Limit.)  However, most people admit that this ruling is the final ruling. The Supreme Court won't hear the case. The Supreme Court rarely reviews rulings that are made on the basis of administrative law.  So the next step is---this ruling will stand.

It's funny how often Vermont gets tripped up by the Constitution or by customary administrative law requirements, or other stuff like that. It's almost as if our administration doesn't think things through. (sarcasm alert)

Oh By The Way

Let's talk "substantive issues" here for a moment.

First issue.  Vermont Water Quality Reviews are On-Going: The Agency of Natural Resources (ANR)  has been working on a water quality permit with Vermont Yankee since 2006.  To quote a Brattleboro Reformer article on the lawsuit: ANR is still in the process of determining whether Yankee should receive a permit to discharge non-radioactive cooling water -- at up to 100 degrees -- into the Connecticut River. That process has been going on since 2006 and is not expected to be resolved anytime too soon.  In other words, what the heck was this Vermont lawsuit about?

Second issue. Why Is the Department of Public Service doing this?  The Department of Public Service is supposed to be protecting the rate-payer in hearings before the Public Service Board, not running down to Washington to join intervenor lawsuits.  However, as I said in my blog post: Gaz Metro Deal Goes Forward. Ratepayers Stiffed. the DPS is not defending the ratepayer.  The DPS is just another one of the ducks that Governor Shumlin gets in order.