Entergy Uses Decommissioning Fund: State Officials Are Very Upset

Entergy Keeps Its Promises

In terms of decommissioning, Entergy has kept every one of its promises to the state of Vermont, and even gone beyond its promises.  Here's a list:

1) PSDAR: Entergy said it would finish its PSDAR (Post Shutdown Decommissioning Activity Report) by the end of 2014, although the NRC allows two years (till December 2016) for the report.  Entergy completed and released the PSDAR on December 19, 2014.
2) Fund Payment: Entergy signed an agreement with the state for the last few months of the plant's operation. This agreement required Entergy to send various payments ($2 million for Windham Country economic activity, for example) to the state.  All such payments have been made promptly.
3) Spent Fuel Management Loan: Entergy took out a $143 million dollar loan for spent fuel management, because the state wanted the fuel removed from the fuel pool very promptly.  Strictly speaking, decommissioning funds are not supposed to be used for spent fuel management.  The federal government is legally required to manage the spent fuel.

(Short pause here.  Time to let people get off the ground after the laughing fit. No, this post is not about Harry Reid. Are you standing up now? Onwards.)

Senator Harry Reid
 image from his website

Obtaining spent-fuel management funds from the federal government can be slow.  The company has to sue the federal government, win the lawsuit, and finally obtain the money. Entergy said it would remove spent fuel from the fuel pool very promptly.The state wanted the spent fuel out of the fuel pool ASAP or sooner than ASAP.  Entergy doesn't need to comply with "ASAP" but it is doing so.

Amazingly, Entergy has arranged to borrow $143 million dollars for spent fuel management and moving the spent fuel into dry casks. This borrowed money will be repaid after Entergy sues the federal government.  Note that taking out this loan was not in any agreement that Entergy signed with the state.   Entergy decided to do this to speed up the process.  It is possible that Entergy (with NRC permission) might have been able to borrow this money from the decommissioning fund itself.   Of course, that would have depleted the fund and slowed the decommissioning.

Entergy needs some reimbursement

Entergy has done lots of planning, written reports, taken the fuel out of the reactor, arranged loans.  All activities concerned with decommissioning the plant.  So it requested permission from the NRC to obtain $18 million from the decommissioning fund.  The NRC is in charge of the fund, and of decommissioning, and of ensuring that fund moneys are properly expended.

The state objected.  No, really, it did!  Vermont wants decommissioning very quickly but Vermont believes it has approval rights to determine exactly what the decommissioning funds are used for. In short: Vermont thinks the NRC needs state permission to release decommissioning funds. 

(Short pause here. Vermont has challenged the NRC's authority over nuclear power plants before.  On this subject, how many lawsuits has Vermont won?)

The state is upset!

DPS Commissioner
Chris Recchia

The first thing that I noticed about the state's attitude toward the withdrawal was a Vermont Digger article by John Herrick: Entergy Makes First Withdrawal from Decommissioning Fund.  In this article, Vermont Department of Public Service Commissioner Chris Recchia is quoted: “I am probably more OK with the actual withdrawal than I am with the process….I don’t get to see it in advance.”

Indeed, the attorney general of Vermont and others in state government wrote the NRC to object to this withdrawal. Their letter claimed that the state has the right to review expenditures of decommissioning funds, and the funds should not be released, pending state review of the request.

The state letter is posted in the Document Library of Entergy's VY Decommissioning website. The Document Library is a great boon to anyone who wants to follow this process.

Though the state letter is quite long, the main basis of the letter seems to be the  Memorandum of Understanding under which Entergy purchased the plant in 2002.  A great deal of that memorandum is about decommissioning funds.  The agreement states that, AFTER decommissioning is complete, Entergy must share 50% of whatever decommissioning funds are left over with the state. However, in the recent PSDAR, Entergy does not claim that there will be enough decommissioning funds available until the near the end of sixty years of SAFSTOR.  The funds will grow, and full decommissioning will commence close to 2070, when the funds have grown enough to support it.

In other words, concern with sharing excess funds with the state is a bit early and a bit theoretical!  However, the Memorandum agreement that excess funds "will be shared" seems to have given the state the idea that the state has authority over how the funds are disbursed.

But the state doesn't have authority. Yes, the state does have some limited say over how the funds are disbursed. If you look at item 7 in the Memorandum, the state must approve IF the funds are used for anything other than "qualified expenses."  There is no reason to believe that Entergy's first request to NRC was for not-qualified expenses.

My Conclusion: The Bank of Entergy is Still Closed

Attorney General William Sorrell

Once again, the state is over-reaching.  The state hasn't figured out yet that harassing Entergy with letters to the NRC and so forth will do no good.  The decommissioning funds are the only funds available now for Vermont Yankee (except for the loan, of course). The NRC determines if the decommissioning funds are being used correctly.

To me, this whole thing has unpleasant echoes of the time when the Vermont legislature tried to shut Vermont Yankee. They held a legislative vote  that was basically all about safety. Entergy sued the state, and the legislature reacted swiftly to the lawsuit.  They passed a law that Entergy had to pay the State's expenses in defending against Entergy's lawsuit.

Of course, that law was illegal and nobody in the Attorney General's office would even try to enforce it.  I wrote a blog post about this: Attorney General of Vermont Acknowledges "Shaky Concept" in Charging Entergy for Vermont's Expenses  The Attorney General acknowledged that the the law was unenforceable.  The Bank of Entergy was closed to the state.

It's time for the state to acknowledge that that Bank of Entergy is still closed. I hope they acknowledge this before taxpayers (like me) once again fund a hopeless exercise in which Vermont attempts to change the role of the federal government and the NRC.

These state-sponsored exercises are expensive.

Issues and Re-Issues on the way to a CPG for Vermont Yankee

The agreement

In December, Entergy and various state agencies signed an agreement about the final year of Vermont Yankee's operation, lawsuits, payments, and several issues concerning decommissioning.

If the Public Service Board (PSB) acts in favor of this agreement, Vermont Yankee will receive a Certificate of Public Good to operate to the end of this fuel cycle.  You can read more about this agreement in Guy Page's guest post: Reasons the Public Service Board Should Grant an CPG to Vermont Yankee, and my post The Proposed Entergy Settlement is Good for Vermont.

I hope this agreement will be ratified by the Public Service Board.

But the story is always longer and more complex than it first appears.

Issues and Re-Issues

1) Issue: The Ruling and the Timing
According to Section 2 of the Settlement Agreement, there's a March 31 deadline. If the Board does not grant Vermont Yankee a CPG that approves the continued operation of the plant through the end of the fuel cycle, and in accordance with the agreement terms, the agreement may terminate at the discretion of either party.   So we can expect to hear something from the PSB by Monday, March 31.

Re-Issue: BrinksmanshipLast year, when the Board had a deadline about a CPG for emergency diesels for Vermont Yankee, they waited till the last minute to issue the ruling. They played a game of brinksmanship, as I described in A Court Case with a Deadline: The Black Start Diesels.  Are they still playing this game, or will they rule?  We will know by March 31.

2) Issue: The Decommissioning Timing
When the agreement was announced, both sides stated that they had made an agreement on what they could agree upon, but other issues were not resolved. One particular issue is that the state wants fuel moved from the fuel pools as soon as possible, but the state also wants the "real decommissioning" to begin as soon as possible.

So the state wants the fuel to be moved, but no decommissioning funds are to be expended to move it. As I noted in The Fuel Pools: Opponents Say the Darndest Things Attorney General Bill Sorrell plans to "take legal action" if Entergy removes money from the fund in order to move the fuel rods.

Re-Issue: Pre-Emption Sorrell says the state wants a "legal opportunity to be heard on those requests."  In this case, "those requests" are Vermont Yankee requests to the NRC for permission to use decommissioning funds for fuel management. Of course, this is a traditional use of decommissioning funds.   

Does the state truly want to get into a court battle about regulating nuclear operations and safety? Didn't they learn something by losing two court cases?

3) Issue: Will the State Obey the Law?
Okay, let's assume the issues above are resolved nicely.  Let's say that the PSB rules on time, and they rule in substantial agreement with the Settlement Agreement.  Let's say that Attorney General Sorrell finally understands the term "federal jurisdiction over nuclear safety" and decides not to sue if Entergy uses decommissioning funds for decommissioning.  In other words, everything is great.

The question becomes: Will it matter? Will the state live up to its side of the bargain?

Re-Issue: The Shumlin Administration Regularly Breaks Its Own Laws

Earlier this year, John McClaughry wrote comments to the PSB: "Can Entergy Trust the State?" McClaughry explained that when the state passed a law giving the legislature a vote about Vermont Yankee's continued operation, this law was a clear breach of contract with Entergy. The law was a major and one-sided modification of the Memorandum of Understanding that Entergy had signed.  

In my opinion, the state is quite happy to break any law that inconveniences it.  This is not just about Entergy.  Governor Shumlin has been eager to pass a law for single-payer health care, and the law was passed. According to that law, the government had to propose a plan for financing the system, and the plan had to be presented to the legislature by January 15, 2013. It has still not been presented.  Estimates for the cost of the single-payer system range from $1.5 billion to $2.2 billion per year.  There are about 600,000 people in Vermont.  If the cost is $1.8 billion, that is $3000 per citizen.  A rather massive payroll tax has been proposed, and of course, everyone hates that idea.   

When Governor Shumlin was recently asked: "What else can we tax (besides a payroll tax  to finance this)?" Shumlin answered: "bubble gum and lollipops."  I encourage you to read Representative Tom Koch's Op Ed on this subject: A Governor Who is Above the Law.  I

 also recommend Rob Roper's commentary: Irreconcilable Differences in Single Payer Promises.  

Note for those who do not live in Vermont: this is not about the Affordable Care Act.  This is about a single-payer system that the state of Vermont, all by itself, plans to implement.
I don't want to get deep into the weeds of this controversy, but I just want to say that if Shumlin does not obey his own laws (the ones HE wanted to pass) about his own pet project, how is he going to treat the Entergy agreement?

Soon we will know

The PSB should rule by Monday, March 31, or the Settlement Agreement may become null and void.

• The PSB may rule for the agreement, or they may rule against it, or they may stall and not rule at all.  
• If they do rule for the agreement, the Attorney General may still sue Entergy for moving spent fuel from the fuel pool, and using the "wrong" money to do so.  
• If all is well with the PSB ruling and the Attorney General, the state may simply ignore their obligations under the contract.

Welcome to Vermont politics. Stay tuned.  Oh yes.  Stay tuned.

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Acknowledgment: John McClaughry and Rob Roper are officers of the Ethan Allen Institute.  I am director of the Energy Education Project which is part of that institute.

The Fuel Pools: Opponents Say the Darndest Things!

Attorney General Sorrell

My View of an Opponent Statement

Statement: We're gonna sue you if you use the wrong money to address our safety concerns!

Actual Statement: Attorney General Bill Sorrell said:

If Entergy elects to remove money from the fund, Sorrell said the state will take legal action.

"The fund" is the Vermont Yankee decommissioning fund.   Here's the longer quote with Sorrell's statement. This quote is from John Herrick's report in Vermont Digger-- Special Report: Despite Recent Agreement, State and Entergy Remain at Odds Over Funding for Dismantling Vermont Yankee

Entergy wants to tap the fund to move some of the roughly 3,000 total fuel assemblies at the Vernon plant from its cooling pool and into dry cask storage, a process known as spent fuel management.
Meanwhile, the state wants the fund reserved to tear down the plant.
Ultimately, the state and Entergy “agreed to disagree” on the matter.
Vermont Attorney General Bill Sorrell, who helped to negotiate the agreement, said if Entergy taps the fund, the company could mothball the plant for 60 years, a process referred to as SAFSTOR — the worst-case scenario for Vermont officials.
If Entergy elects to remove money from the fund, Sorrell said the state will take legal action.
“The stakes are very significant,” Sorrell said in an interview. "Vermont is going to want a place — a legal opportunity to be heard on those requests in the future. So stay tuned."

Fuel Pool in France
Fuel assemblies
from many nuclear
plants
Courtesy AREVA

My Comment:

As you can see by the comment stream on the Herrick article, one of the great concerns of nuclear opponents is that spent fuel stored in fuel pools is very dangerous.  Look at Fukushima!  Oh...right, nothing happened to the fuel in the pools at Fukushima.  Well, anyhow...

Opponent comment streams have been steady on the subject that Entergy had better move that fuel quickly to save us all from danger.

But, as you can see, moving the fuel quickly is not the main goal of our state government.  No, if Entergy uses the decommissioning funds to move fuel quickly, the state will sue them.

Let's set aside the fact that decommissioning funds are usually used for fuel management. Let's set aside the fact that such fuel-moving costs may well be reimbursed by the federal government.

Dry Cask Storage
Courtesy NRC

Let's just look at the fact that the state government doesn't see moving fuel as a high priority, compared to keeping the money in the decommissioning fund in order to tear down buildings. The state is threatening to sue if Entergy doesn't use money from somewhere besides the decommissioning fund in order to perform certain decommissioning activities.

It would be moderately amusing to watch the state, once again, try to tell the NRC what to do about nuclear safety or use of decommissioning funds. These recent threats of lawsuits show that the state has not learned any lessons about pre-emption.

Furthermore,  it seems to me that punishing Entergy for running a power plant in this state is very important to Governor Shumlin. It seems more important to him to punish Entergy than to have Entergy take an action (move fuel to dry casks) which many of Shumlin's supporters believe would increase their safety.

So AG Sorrell is going sue if Entergy gets NRC permission to use the decomm fund to move fuel, and then moves it?  On what exact grounds is he going to sue?  Is he going to argue it right up to the Supreme Court?

Wow.  Opponents say the darndest things.

A Lingering Lawsuit: The Generation Tax

Since I blog about Vermont Yankee, every now and again I have to update the legal issues.  So here we go...again.   The first lawsuit is about the Generation Tax.

The Generation Tax: The First Lingering Lawsuit

What it is: A tax law written so narrowly that only Vermont Yankee was affected by it. This tax was challenged by Entergy in federal court

History: The legislature passed a law which increased the "generation tax" on Vermont Yankee (fee to the state per kWh sold) to a total of about $12 million a year.  This tax was designed to force Vermont Yankee to continue to make payments to the state at the same level as it had been paying the state under Memorandums of Understanding (signed contracts with the state). However, these contracts ended in March 2012.

A federal court called some of those payments  "a form of blackmail (extorted by the state) for approval of construction (by Entergy)," but at least they were signed contracts.  The new twelve million dollar tax, however, is a tax imposed by the state on "power plants with a nameplate capacity of over 200 MW."  There's only one such plant in the state. When they passed this law, legislators were warned by lawyers that such a closely-directed law would probably be challenged in court. (See page 12 of this Entergy filing.)

What happened recently:  Entergy lost in federal court and in appeals court.  The tax continues in effect.

On the other hand, courts do not like to rule on constitutional issues if they can find another way to decide. Both federal courts ruled mostly on jurisdictional issues, claiming that Entergy should have filed suit in the state courts before coming to the federal court.  You can see these rulings on this page, maintained by the Attorney General of Vermont: Generating Tax Entergy Litigation.

In the sequence:

• the federal court dismissed the case,
• Entergy appealed the dismissal 
• the appeals court ruled against Entergy.  

The appeals courts said that that Entergy has to start the appeals process in state courts.

You can also read a review of the case by Gabriella Khoransanee at FindLaw, a website for legal professionals.

Calvin Coolidge tips hat

By the way, a big hat tip and kudo to William Sorrell, Vermont Attorney General, for keeping up these user-friendly and complete pages on the various lawsuits.

What's next:   Khoransanee expects the legal challenges to the tax will continue in other courts, as suggested by the federal court rulings.  To some extent, the whole thing is going to be moot pretty soon, because Vermont Yankee is planning to close.  At that point, Vermont Yankee will no longer pay a "generation" tax, because it won't be generating electricity.

However, twelve million dollars for a year's worth of tax is twelve million dollars.  I suspect both sides will consider it worthwhile to keep litigating about this sum of money.  I think Entergy will follow the guidance of the federal court, and begin the litigation process again in the state courts.

The Formal Negotiations: On Decommissioning Vermont Yankee

Attorney General Sorrell 

After some preliminary reports that "negotiations between Governor Shumlin's administration and Entergy would be held," we finally have a report that one such meeting was held.

"Issues" were discussed--

Dave Gram of Associated Press reports that Governor Shumlin, Attorney General Sorrell, Department of Public Service Commissioner Recchia (and perhaps others) are meeting with Entergy. The group plans to prepare a "global agreement" on decommissioning issues. They have met at least once, and  they plan to meet again in early December.  

This is a round of "formal negotiations." According to Sorrell, it includes discussion of the following "issues":

• how much work will need to be done on the site, 
• what's in the underground piping, 
• how long it's likely to take for the nuclear fuel rods to cool enough that they can be moved

Since these "issues" are actually not "issues" but facts, I think  the Shumlin people are actually just getting a briefing from Entergy. This doesn't sound like a "negotiation."  If it is any kind of negotiation,  I wish the plant the best of luck.  I think that Entergy may want a global agreement.

But sound bites may be planned.

I also think that Governor Shumlin will prefer having sound bites to having an agreement. 

Governor Shumlin

I suspect Shumlin plans to hold a press conference after the meetings. In this conference, he will claim that Entergy-Louisiana would not give Shumlin what he wants for the people-of-Vermont. (We don't live in Louisiana, you know?)

Okay, okay, I am judging Shumlin by his past words and his past actions.  He may have changed.  I believe that people can change.  I will have to wait and see if Governor Shumlin has changed.  For the sake of my friends at the plant, I hope Shumlin has changed!

However, if Shumlin begins insulting "Entergy-Louisiana" in the near future, please remember that you read it here first.

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

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

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



Economics? The State Has Financial Interests? Huh?

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

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

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

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

The State's Argument is Backwards

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

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

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

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

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

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

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

State's Argument Does Not Work

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

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

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References, including an Audio of the Hearing

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

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

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

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

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

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

Bill of Attainder or Just a Regular Old Tax?

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

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

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

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

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

Background: The Clean Energy Development Fund Needs Money

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

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

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

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

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

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

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

State Legal Team Issues a Warning to Legislature

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

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

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

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

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

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

The Warning Comes Home: Entergy Sues

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

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

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

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

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

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

The Empire Under the Dome Fights Back

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

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

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

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

It's the Renewables, Stupid? Vermont Files a Brief

Attorney General Sorrell

Opponent Rhetoric in the Past

Long before the lawsuits, Howard Shaffer and I would attend various committee meetings, rallies, and so forth.  Opponents would always say: "We must shut down Vermont Yankee so we can build renewables!"  Or similar words to the same effect.

Howard and I would shake our heads in wonder.  These statements were the merest rhetoric.  In reality, the existence of any particular power plant does not prevent or encourage renewables.  As a matter of fact, Vermont Yankee contributions to the Clean Energy Development Fund paid for much renewable development in Vermont.  Still, VPIRG especially made a point of "We must close Vermont Yankee so we can build renewables!"

Sorrell Borrows the Rhetoric to File A Brief

Fast forward to the brief that the State of Vermont filed in appeals court on Monday of this week.  They have borrowed the old VPIRG rhetoric as the main basis for Vermont's appeal.

Starting on page 17, the brief shows that the state has had energy plans since the early 80s, all the plans encouraged renewable energy, renewable energy has always been important to Vermont, and...wait for it...Act 160 about Vermont Yankee was a mere sunset-provision procedural law about energy planning for the state (page 25):

Under this framework, Act 160 is not preempted because it is a process statute — as relevant here, a sunset provision — by which the Legislature granted itself a role in deciding whether Vermont Yankee would continue to operate past the date on which its existing licenses were set to expire. Act 160 sets forth the Legislature’s purposes for making this change to the CPG renewal process, and those purposes are consistent with decades of Vermont energy policy:

In other words, the state wants to shut down Vermont Yankee in order to build renewables.

There's more the 78 page brief than this, but this is the crux of it, in my opinion.    When I linked to the brief from the Save Vermont Yankee FB page, I wrote:

Direct link to the Vermont AG appeal of the pro-VY ruling. Appeal starts with statements that Vermont wants renewables, not fossil or nuclear, and it says so in the Vermont energy plans! So they can shut down any non-renewable plant they choose, maybe? That seems a very weak argument, but hey, I'm no lawyer.

Sarcasm alert:  I wonder how the general rejoicing at Gaz Metro/GMP purchase of electricity from Seabrook Nuclear power is going to play in court..  I have a blog post about that: Nimby and Nukes. Also, Shumlin applauded the Seabrook deal because "cheap power makes a real difference." They tried to shut down VY to build renewables? Really? Just askin'...

My photo:
base of turbine at Lempster wind farm

A Lawyer Mostly Agrees with My Assessment


Don Kreis of Vermont Law School has an excellent blog post, mostly agreeing with my assessment.  State to Court of Appeals: Act 160 Just a “Process Statute”.  I wrote my note about Vermont's brief on FB ('seems a very weak argument") on Tuesday, June 5, and Kreis posted on Wednesday June 6.  Great minds think alike!  I am always pleased when a knowledgeable lawyer agrees with my assessment of a court action.

Kreis's post is worth reading.  It covers a lot more ground than my comments do, including the fact that Attorney General Sorrell  has hired a high-powered D.C. law firm to assist Vermont in its case. However, the Vermont argument gets back to the same thing: the legislature now says they were just trying to get some renewables going, not anything pre-empted. They were shutting the plant to build renewables! They weren't regulating radiological safety, heavens no!

I quote part of Kreis concluding paragraph:

But this begs the ultimate question, which is:  If Act 160 was not an effort to regulate radiological safety, then what was its purpose?  The idea that it was merely a “process statute” and a “sunset provision” is somewhat difficult to accept, at least on first read

Kreis also says that further arguments may indeed reinforce the AGs view of Act 160.  I do not want to put words in his mouth....Kreis and I agree only partially. I recommend his post for a fuller explanation of his views.  Also, he starts with an amusing and sarcastic look at possible legal implications of the Seabrook purchase.

My Assessment of the Brief

Since the legislators were okay with buying nuclear power from Seabrook, and they talked (a lot) about tritium at Vermont Yankee...what were they regulating?  This was no mere "sunset provision." In my opinion, the Vermont legislators were regulating radiological safety and such regulation is pre-empted by the federal government.

Vermont can hire expensive lawyers with taxpayer money. However, in my opinion,  Act 160 and the vote were about radiological safety, not about renewables.  I am sure Entergy will make that case in its rebuttal. And the court cases go on....

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By the Way: Please "like" the Save Vermont Yankee Facebook Page.

Also: Act 160 was the act by which the legislature, not the Public Service Board, decided whether Vermont Yankee would get a Certificate of Public Good from the state of Vermont.

Vermont's Attorney General: Guest Post by Vermont Senator Benning

2/8/2012

An Open Letter To Attorney General Sorrell

Dear Mr. Sorrel:

For the past twenty-eight years I have represented well over three thousand clients as a trial attorney in the Northeast Kingdom. In each of those cases I have had to examine a set of facts and assess how the law would be applied to those facts. This past weekend I read the decision of Judge Murtha in the Vermont Yankee case. Last night on the Channel 3 news I was alarmed to hear you remark that Judge Murtha had made the wrong decision. Respectfully, I must disagree. I'm writing to urge you to reconsider any thought of going forward with an appeal.

The facts of the case are quite clear. For over fifty pages Judge Murtha identifies quotation after quotation of state senators using safety as the basis for their desire to see Vermont Yankee close. Sprinkled throughout the decision are repeated warnings from various witnesses that safety concerns were not within the purview of state concern. Although there may exist other reasons why some senators voted the way they did, the facts found are iron-clad that safety concerns were the foundation for the ultimate vote. An appellate court will give great deference to the record below. The record below here is simply not in Vermont's favor.

The law is also quite clear. Under the Atomic Energy Act, safety of a nuclear power plant falls squarely within the purview of the federal government. State law does not trump federal law. That constitutional mandate was not just decided in a federal courthouse; it was cast in stone at Appomattox Courthouse back in 1865. An appellate court cannot change that. The law is simply not on Vermont's side.

Judge Murtha's decision has thus left Vermont with an insurmountable obstacle. I'm writing because I fear the decision to appeal may be clouded by the emotions of politics. With neither facts nor law on a client's side, I believe we lawyers have a duty to rise above emotions and explain why pursuit of a legal claim is not going to produce the remedy desired. While the decision to appeal is ultimately yours, it will be up to my legislative colleagues and I to finance that decision. At a time when (among other things) we are struggling to fund a state hospital system for our most vulnerable citizens, I submit we should spend no more money on this case.

Sincerely,

Joe Benning

State Senator

Caledonia-Orange District

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This letter was also printed in the Caledonian Record. Why the illustration at the head of the post? Senator Benning was a charter member of the Paths Around Lyndonville (PAL) group. They organized a pedestrian walking path along the banks of the Passumpsic River. You can read more about Senator Benning here.

People ask me about my opinion of the Attorney General's decision to appeal. I could definitely write blogs about this, but I decided to print these guest posts instead. I think Vermont legislators such as Tom Koch (guest post yesterday) and Joe Benning (today) do a wonderful job of putting this issue in Vermont context. I couldn't do better and would probably do worse.

I must also include a link to today's editorial in my hometown paper: The Sorrel Record: Questions Mount Along with Losses. This editorial supports my conclusions that Vermont sometimes cares more for "state's rights" than for the rights of its citizens. I listed similar concerns in my blog post Citizen's Rights, State's Rights, and Vermont.

Vermont and the Supreme Court: A Guest Post by Representative Thomas Koch

Rep. Thomas F. Koch

Barre Town

“Scribblings”

An Occasional Newsletter from the Legislature

January 22, 2012

* * * * *

I hate to say “I told you so,” but….

In 1997, the legislature passed a new campaign finance law, severely restricting both contributions and expenditures permitted in Vermont elections. The restrictions were, for most offices, totally unreasonable, without any inflation factor for future years, and in clear and absolute contravention of the 1976 United States Supreme Court decision in the case of Buckley vs. Valeo, which held that for the exercise of First Amendment rights in this day and age, it is often necessary to spend substantial amounts of money, and that many campaign finance restrictions, therefore, were unconstitutional.

During the debate, I quoted the Buckley case, and the answer I received was that the committee was well aware of that case, but that it was 20 years old, and the committee thought it was time for the Supreme Court to reconsider the case, and the bill before us was designed to set up the necessary challenge to Buckley. Obviously, the committee was totally unaware that in constitutional law, 20 years is like yesterday, and there was absolutely no reason to believe that the Supreme Court was inclined to change its mind.

Eventually, the bill passed, with only 17 negative votes in the House, mine being one of them. The court challenge eventually came, it went up to the Supreme Court, Vermont lost, and the Court threw out most of Vermont’s 1997 law. No surprise there. But in certain federal cases, including cases based on constitutional claims, the loser often has to pay the attorney fees of the winners. In this case, the state paid about $1.5 million—a rather poor use of the taxpayers’ money for what was a thoroughly improvident escapade in the first place.

One would think we would have learned our lesson. Don’t be silly.

In the February 1, 2008 issue of “Scribblings,” I wrote:

Then there is the subject of data mining, which is the practice of the pharmaceutical industry trying to determine which drugs physicians are prescribing, and then using that information to approach the physicians and persuade them to prescribe a particular manufacturer’s drug instead. It is a practice that I do not like and believe should be outlawed or severely restricted.

The problem is that the State of New Hampshire was the first to outlaw data mining. They got sued, and last spring the federal district court in New Hampshire declared their law unconstitutional. That just happened to be the same week our legislature was about to vote on a copycat data mining law. Faced with the likelihood that a copycat law in Vermont would meet the same fate as New Hampshire’s law, the health care committee pulled the bill back into committee and, with the help of the Attorney General, “tweaked” the bill, which the Attorney General then pronounced “defensible.”

There were those of us who urged caution and suggested that we ought to wait until the New Hampshire case had fully run its course through all appeals before adopting a law in Vermont. We suggested that the tweaked version was not so different as to avoid a court challenge, and that such a challenge—win or lose—would be very expensive. Nevertheless, the majority proceeded full steam ahead and voted for the bill.

Meanwhile, Maine also adopted a similar law, less strict than either New Hampshire’s or Vermont’s. Not surprisingly, the pharmaceutical industry sued Maine, and the federal district court in Maine, concluding that the drug companies would likely prevail at a trial on the merits, issued a temporary injunction preventing Maine’s law from taking effect.

Vermont has now been sued as well, and it is costing us dearly. The Attorney General has seven attorneys in his civil litigation division, four of whom are known to be working on this case, at least part time. That is a substantial allocation of limited resources. In addition, the budget adjustment bill that passed the House this week contains $117,000.00 to pay expert witnesses for this case, and the case is just beginning.

The Attorney General has now come to the legislature suggesting some amendments to make this “defensible” law even “more defensible!” Seeing the handwriting on the wall, the AG is asking that we re-write the law before we lose the case! But even with these amendments, the AG now advises that this is “an uphill fight.”

So the question is why are we looking for this fight in the first place? What do we have to gain? The theory is that if we can prevent data mining, then we can prevent the use of the data for marketing purposes, and if we can restrict marketing and advertising, we can drive down the price of drugs. The trouble with that theory is that it is untested, and as the New Hampshire court concluded, there is no evidence that it will work.

If our only gain is speculative cost savings, what are the risks? First, the lawsuit will be expensive just to present Vermont’s case. The current tab of $117,000.00 for expert witnesses will undoubtedly grow, and lawyer time, depositions, travel, and other expenses need to be considered. Half a million dollars is not an unreasonable estimate. And if we lose, the law requires that we reimburse the drug companies for their attorney fees and other expenses in challenging the law. We need to remember that just a year ago, we lost a challenge to our campaign finance law, and we had to pay $1,500,000.00 to the challengers. We could end up doing so in this present litigation.

I have a suggestion. Rather than amend the data mining law, repeal it! The drug companies would have to drop their lawsuit, and we could cut our losses. Then wait to see how the New Hampshire and Maine cases finally turn out after all appeals have been taken. That should give us some pretty good guidance as to what we can and cannot do to limit the practice of date mining. Once we have that guidance, re-enact a law that follows the court’s guidelines and takes the maximum permitted action to restrict data mining. That way, we may avoid a new lawsuit, and even if we do get sued, the new law will be most likely to survive the challenge. I intend to offer such a repeal amendment next week, but I predict that I will not be successful. It seems that we enjoy being sued!

Guess what. The Attorney General took his “defensible” case to the Supreme Court…and lost. So far, we have received claims for legal bills from the drug companies who challenged the Vermont law in excess of one million dollars, and this week, the House voted to add $3,000,000 to the “state insurance liability fund” (now there’s a euphemism if I ever heard one!) to cover “pending or possible” liabilities.

Think we’re finished? Not a chance. You’ve no doubt heard that Vermont lost its Entergy Vermont Yankee case in Federal District Court and that Vermont Yankee will not be closing in March, as planned by its opponents, including Governor Shumlin. Because nuclear safety issues are solely the province of the federal government, and Judge J. Garvin Murtha found that the law Vermont was using to close down Vermont Yankee was predominantly motivated by safety concerns, he ruled that the Vermont legislature could have no legitimate role in the matter of relicensing the nuclear plant, and the matter should be handled by the Vermont Public Service Board.

Here’s what I wrote in “Scribblings” on January 10, 2010:

We have established processes to decide contested public utility cases. The Public Service Board is a three-member board appointed by the governor and confirmed by the Senate, which has special qualifications and experience with public power and utility issues. The board is appointed to act in a judicial-like capacity, finding facts after formally hearing the evidence, applying the law to the facts it has found to be true, and ultimately determining whether granting the applicant’s petition is or is not in the “public good.” An applicant and other interested parties, both pro and con, present their cases before the Public Service Board. The public is formally represented by the Public Service Department. Eventually, the PSB makes its decision. But in the case of licensing or relicensing a nuclear plant, the PSB is prohibited from making a decision—for or against the applicant—unless the legislature flashes the PSB a green light.

So what, one might ask, does the legislature really know about nuclear plants? What special expertise do the 150 members of the House and 30 members of the Senate have? Why should the legislature hold the ace of trump, to play or not to play at will? I would argue that we have no such expertise, and that we should not be involved in the process in the manner that we are. Forty-nine other legislatures have seen fit to respect established processes; only the Vermont legislature thinks it is the repository of all wisdom.

I trust that the established process will work to the benefit of all Vermonters if we allow it to, and for that reason, I am prepared to vote to get out of the way and allow the PSB to do the job it was appointed to do.

Now that Judge Murtha has sent the question of relicensing back to the PSB and other established regulatory agencies, we are waiting to find out if the Governor and the Attorney General will decide to appeal. In view of the fact that legislative involvement in the relicensing process was improvident in the first place, that few legal authorities are surprised by Judge Murtha’s decision, and that his 102 page opinion has been described as very detailed and well reasoned (not to mention the Attorney General’s track record in the Supreme Court), they would be little short of crazy to file an appeal.

By the way, expect Entergy to send the state its legal bills, which will probably be in excess of two million dollars!

One might hope that by now we have learned our lesson, but I have no confidence that we have done so. I am absolutely fed up with the idea that Vermont must “lead the nation,” that we need to be David slaying Goliath, and that we should waste the taxpayers’ hard-earned dollars in fruitless legal challenges that any good lawyer will tell you up front are losing causes.

As I said at the beginning, “I don’t like to say ‘I told you so,’ but…” the fact is, I did.

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This "Scribbling" also appeared in Vermont Tiger.

Representative Koch puts the current court case in the perspective of other Vermont attempts at redefining the Constitution.

Other Vermont reviews of this case include:

"But He Sure Can Take a Punch. Sorrell Comes Out of His Corner for Another Round" by Todd Smith at Vermont Tiger.

Legal Bills, by John McClaughry at Vermont Tiger.

Attorney General Appeals Court Ruling

Yes, we all knew it would happen. The State is appealing the judgment. The State is throwing good money after bad, but Shumlin has to show his hard-core supporters that he really tried.

The appeal is a short document, and there will be more to come, no doubt. But here's a link to the document that was filed today. Filed early morning Saturday at the beginning of a three-day weekend in order to avoid news coverage? Or to annoy the press? Who knows?

Once you are throwing taxpayer money down the toilet, I guess anything goes.

Here's a longer Vermont Digger article about the appeal, including Governor Shumlin's latest comments about "Entergy Louisiana." (Losing on the basis of the Commerce Clause doesn't seem to prevent Shumlin from demonizing other states.) The main point of the appeal seems to be that "citizen legislators" can talk about nuclear safety and that does not affect the laws they pass. They're just chatting. In other words, statements like "we have to find another word for safety" don't show intent. Whatever. I guess the courts will now decide.

Citizen's Rights, State's Right, and Vermont

The Term States Rights Used to be Inflammatory

In April, Entergy sued the State of Vermont: the State was attempting to shut down Vermont Yankee, using illegal grounds and illegal tactics.

The Entergy case included federal pre-emption issues, derived from the Supremacy Clause of the Constitution. The Entergy case also described how the state had interfered with the Commerce Clause of the Constitution. In other words, the Entergy case depended on the Constitution.

Vermont's response to the lawsuit depended on the state's assertion of State's Rights. I blogged about this at ANS Nuclear Cafe, shortly after the lawsuit was filed. My April post was titled States's Rights and the NRC.

I caught an earful about that post. The first person to comment on the post didn't like it, and he ended his comment with what he thought was a real zinger of a criticism. Tom Murphy finished his remarks with the statement: Finally the use of the term “States Rights” has such a negative connotation it is almost inflammatory.

Defending State's Rights

I guess it used to be inflammatory. Times have changed in Vermont! It looks like the term "States' Rights" is no longer a term that liberals will avoid.

In January, when the judge's ruling supported Vermont Yankee, the Seven Days blog reported the reaction in the Vermont Statehouse.

• The Senate President Pro Tempore, John Campbell, was quoted as follows: I think it is a deterioration of states' rights.
• The Speaker of the House, Shap Smith, said: There are some concerns about whether states' rights have been constricted.
• Tony Klein, a long-time Vermont Yankee opponent who chairs the House Natural Resources and Energy Committee said: "It's a sad day for state's rights and a sad day for America."
• Margaret Cheney, a member of the House Natural Resources Committee has impeccable liberal credentials. She was quoted in my local paper: The court ruling is a step backward for state rights, she said, but it left an opening for Vermont to regulate its sole nuclear plant.

"A sad day for state's rights is a sad day for America." That statement makes me feel ill, and I don't care if my comment is inflammatory! (In an earlier version of this post, I put up a Confederate flag. It was too inflammatory. I have taken it down.) Do these people know what they are talking about?

I am a person who was alive during the days when Martin Luther King Jr. was active. I am a person whose husband lived in Florida and went to a segregated school (the only kind there were in Florida at the time). I don't think that a "Sad Day for State's Rights is a Sad Day for America." Quite the opposite, as a matter of fact. A Sad Day for State's Rights is a Good Day for America. In my opinion, champions of State's Rights are rarely champions of individual rights. And that hasn't changed since the days of the Freedom Riders.

The Vermont AG and the Vermont Citizen

I can just hear some of my readers groaning. "Oh for Pete's sake, Meredith! This was a lawsuit between a company and a state. No fire hoses or police dogs were involved! What on earth are you talking about? You insult the entire civil rights movement with this comparison."

Okay, my friends. I live in Vermont, and I am talking about the Vermont Attorney General and his disrespect for the rights of citizens. Lots of people are talking about him in my township, and it has nothing to do with Vermont Yankee. His actions are an important part my contention that states that begin challenging the Constitution are states that think they are a law unto themselves. These states see nothing wrong with trampling on the rights of their citizens, as Hume and Hamilton predicted.

(I describe the background of smaller versus larger jurisdictions in the previous post: Vermont and State's Rights, the Fundamental Problem.)

The Hartford Police and the Attorney General

In recent months, there have been three incidents where the police in my township trampled on the rights of citizens. They also trampled on the actual citizens, by beating them up. None of the citizens was even charged with any crime. In all three cases, the Vermont AG cleared the police of any wrong-doing.

Now, in many jurisdictions, police occasionally behave badly. This is no surprise. However, it is shocking to me (and to many people in my township) that the state Attorney General took no action, not even the mildest hand-slap, about these egregious beatings by the police.

My conclusion: State's rights count for a lot in Vermont. Citizen's rights don't count for very much.

Three Cases and How the Attorney General Dismissed Them

Burrell case: In the first case, the Burrell case, the police did not have to reveal their records, because they said they hadn't made an arrest. Oh yeah. They pepper sprayed a homeowner in his own home, put handcuffs on him that cut his wrists, and then discovered they were wrong and took him to the hospital. No arrest, no records revealed. The Attorney General was fine with this.

Here's the case: an African-American man was very sick, naked and sitting on the toilet in his own home. He had knocked over a lamp, and the police got a call that there was a burglary at the home. The man was then "subdued" by the police who thought the home had been burglarized. (And the burglar had decided to sit naked and sweating on the toilet?) The man was muscular, sweating profusely, and did not respond to police orders. Pepper spray time!

Here's a link to the incident as Anne Galloway and the ACLU filed suit about it. Here's a link to Attorney General Sorrell's final disposition of the case against the police. In the AG's opinion, the police did nothing wrong and no harm done.

Thierren: Monica Thierren is not a homeowner. At the time of the incident, she was living in an inexpensive motel with her boyfriend, and had called in a domestic violence situation to the police. When the police arrived, Ms. Thierren was very drunk and the officers found no evidence of domestic violence. At that point, the police said that they attempted to "grab her shoulder in an attempt to place her in protective custody" but she fell and suffered a head injury. Three witnesses at the motel said that the police slammed her to the ground.

The AG investigated for 13 months (supposedly) but didn't interview the witnesses. As my local paper wrote in Missing Witnesses: That's a pretty long time, so it is puzzling to learn that during those 13 months, only one of the three civilian witnesses to this encounter was interviewed and her statement was essentially ignored. Granted, the attorney general's office had other things to do during this time, like losing the Vermont Yankee case in federal court, but it doesn't seem too much to ask to at least talk to the witnesses and address the contradictions between their account and the official Hartford police version.

Daoust case: The third case is that of Derek Daoust. This man is a resident of Quechee, an upscale village in my township. He drove his car into the ditch on the way home one night. He sensibly got out of the car and walked home, deciding to get the car towed in the morning. The police found his car and went to his house. That is when the fun began.

The police didn't have a warrant for an arrest or search, but they came to Daoust's door and insisted that he step outside to talk with him. He refused, since they had no warrant and he was committing no crime by being at his own house. They pulled him out of his house and once again "subdued" him, this time beating him with their flashlights. The local paper wrote about this in Without Warrant or Consent.

The Attorney General again found no wrong-doing by police, though he did suggest that the Hartford police should be trained to obtain either a consent or a search warrant in order to enter a residence.

The AG was supposed to decide if the police committed a crime. Instead, he decided they needed "more training." Really? As the local paper concluded: The bad news is that the narrative of Darrek Daoust's encounter with Hartford police ought to chill to the bone anyone who believes that the Fourth Amendment means what it says about the people's right to be free from unreasonable searches and seizures, and the requirement for authorities to obtain warrants.

This violation of the most clear aspects of the Constitution didn't bother our Attorney General. He decided to act as an authority on police training, rather than an authority on the law.

Disrespect for the Constitution is Disrespect for the Constitution

In my opinion, disrespect for the Constitution and insistence on State's Rights cuts two ways. Yes, it leads to lawsuits in federal court. It also leads to disrespect for the rights of citizens, especially if they are African-American, poor and drunk, or even well-off but insisting on their constitutional rights. I don't like the cry of "state's rights" and I don't mind saying so. I like the Constitution.

As one of my local friends (who is against Vermont Yankee) put it: "I wouldn't open my door to the Hartford police. And we have got to do something about that Attorney General!"

Hume from Wikipedia

Entergy Requests Legal Fees

A few minutes ago, I learned that Entergy had requested $4.6 million in legal fees from the state of Vermont.The state of Vermont knew this was coming. These are the legal fees for the Commerce Clause part of the lawsuit. In a front-page article by John Gregg in my local paper about a week ago, Attorney General Sorrell said it's also possible that the state of Vermont could be liable for Entergy's legal fees in arguing one part of the lawsuit that involved constitutional issues under the commerce clause, but that it was unclear whether Entergy would seek reimbursement.

In an article by Terri Hallenbeck of the Burlington Free Press earlier this week, she noted that Entergy had until the end of this week (that is, until today) to ask for reimbursement.

I figured Entergy would ask for reimbursement. As a business, if you can get reimbursement, you ask for it. That is especially true of public companies like Entergy. They could be sued by their stockholders for saying the equivalent of "Yeah, the State of Vermont owed us lots of money, but we thought we should be nicey-nicey and not collect." Why Sorrell even thought Entergy might not seek reimbursement is not clear to me. The state has lost other lawsuits, and the requests for reimbursements are still coming in, at the one and two million dollar level per party involved in the lawsuit, with no end in sight.

I can just imagine the number of newspaper articles that will come out of this, and the anger from people who oppose the plant. Well, those will be other stories, for other days.

That's the news for now!

Update: Rutland Herald article says judge's ruling includes that Vermont Yankee is owed legal fees. Here's a link to the ruling...I haven't looked for the "legal fees" statements yet.

Saturday AM Update. Excellent article in Vermont Digger about the fees. Sorrell is negotiating fees on other cases he has lost. Supreme Court has said that on Constitutional issues, legal fees are awarded to the winner, to be sure that all sorts of people can bring these cases.