Federal Court Dismisses Vermont Yankee Tax Case

The Generation Tax

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

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

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

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

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

The Ruling

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

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

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

Quotes Without Comment

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

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

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

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

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

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

My reasoning is below.

Safety Regulation

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

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

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

Cherry-picking safety statements

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

Governor Peter Shumlin

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

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

Nothing could be further from the truth.

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

The Department of Public Service and the NRC

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

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

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

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


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

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

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

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

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

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

Tax Revenue

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

Catching Up: The River, Lawsuits and Some Anniversaries

September 12, 2011
In front of courthouse in Brattleboro

It's time for a little catching-up.

Shaffer at ANS Nuclear Cafe on Plant Cooling

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

Lawsuits: The Present

Lawsuit about discriminatory taxes: New Lawsuit

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

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

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

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

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

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

I was right.  It ended up in court.

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

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

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

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

Filings in Entergy Appeal.

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

Anniversaries: The Past and the Pictures

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

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

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

Five Legal Wrangles About Vermont Yankee

Everybody expects Judge Murtha to rule on the Vermont Yankee lawsuit this week. However, this week is almost over. Unless Murtha is planning to throw his ruling into the famous Black Hole of the Friday News Releases, I think he will not rule this week. I could be wrong.

So today is a good day for a retrospective blog post on all five legal wrangles about Vermont Yankee. In reverse order of importance.

5. Mark 1 Reactors and the NRC

What: Beyond Nuclear and other groups petitioned the NRC to shut down all Mark I reactors.

What happened: The NRC turned the petition down. The NRC also said it would review the emergency containment venting. Of course, the NRC was reviewing the venting anyway, as part of the ongoing Fukushima-inspired reviews.

What's amusing: Paul Gunter of Beyond Nuclear dislikes the idea that the Mark 1 vents exist at all. Gunter said he can't sleep at night (or maybe he meant that the NRC people shouldn't be able to sleep at night) because Oyster Creek isn't safe.

4. Vermont Joins New England Coalition in Suing the NRC about a Water Permit that Vermont Does Not Require

What: The New England Coalition (NEC), a long-time anti-nuclear group, is suing the NRC, saying that they shouldn't have granted a license renewal to Vermont Yankee because VY doesn't have an appropriate water quality permit. The Vermont Department of Public Service joined the lawsuit along with NEC.

What happened: As is the custom, the State extends water quality permits unless something has changed about the water discharges. For the state to require Vermont Yankee to get a new permit would cost the state time and money. Instead, the state sued the NRC for granting a license renewal to Vermont Yankee without Vermont Yankee having a new water permit. There has been no ruling on this to date.

What's amusing: As I said in my blog post about the water permit: Vermont is suing the NRC, claiming it was the NRC's obligation to make sure that Vermont Yankee had an up-to-date permit. Apparently, the state didn't care about the permit, except that the state wanted to be sure that the NRC cared.

3. State Passes an Illegal Law to Bill Entergy for the State's Costs in the Lawsuit

What: When Entergy sued the state of Vermont, Shumlin quickly had a law passed requiring Entergy to pay for the state's costs in the lawsuit.

What happened: The law was immoral, unconstitutional, and can't be enforced. That's why the state Attorney General is not attempting to enforce it. As the Attorney General admitted: the concept is shaky. He's not trying to collect from Entergy.

What's amusing: Attorney General Sorrell also said that he doesn't want to muddy the waters by attempting to bill Entergy while the judge is deciding the main case. I find this selective enforcement of laws quite upsetting (sarcasm alert!). However, non-sarcastically, I do wish Sorrell had attempted to collect the money. Entergy would have objected, and Sorrell could have found himself defending this unconstitutional law in the same court, and in front of the same judge, as the main lawsuit. Since the bill-Entergy law exists, I wish Sorrell had enforced it and "muddied the waters."

2. Reactor Operators Sue the State For Loss of Property Rights in Their License

What: Several licensed reactor operators brought suit against the State of Vermont. They claim Vermont has denied them their jobs and taken their property rights in their licenses, without due process.

What happened: The lawsuit is in front of Judge Murtha of the District Federal Court. He is the same judge who is hearing the main lawsuit between Vermont and Entergy. As I described in a blog post, the operators have recently asked Murtha to not dismiss their lawsuit.

What's amusing: The State wants to frame this lawsuit as a relatively frivolous suit by people who believe they have a perpetual right to their jobs. However, it is actually a suit about the lack of due process in Shumlin's attempts to shut down Vermont Yankee. Again, I do wish the Attorney General was enforcing the state law that says Entergy has to pay the State's costs in the lawsuit. If the pay-costs case ended up in front of the judge at the same time as the operator's case, the judge would have to take notice of the lack of due process and constitutionality in Vermont's dealings with Entergy. As the lawyers say: Res ispa loquitur. The Thing Speaks for Itself.

(Okay. I know that isn't what the lawyers would probably say in this case. I'm not a lawyer. However, I do think the passage of an unconstitutional Bill of Attainder against Entergy does Speak for Itself.)

1. The Big Kahuna Legal Case: The Lawsuit to Keep Vermont Yankee Operating

What: In April, Entergy sued the State of Vermont. Vermont was attempting to shut down Vermont Yankee through various legislative maneuvers, despite the fact that Vermont Yankee has a license from the NRC.

What happened: The case was heard in September, and most people assumed a ruling would come by the end of the year. It hasn't.

What's amusing: As I noted in a blog post, there are at least three legal issues in front of the judge:

1. State pre-emption of Federal regulatory prerogatives of nuclear safety.
2. State breach of contract by one-sided changes in a contract.
3. The plant's position in interstate commerce and the commerce clause of the Constitution.

The lawsuit is far from amusing: Vermont Yankee matters to this state. Are we going to be able to keep a clean in-state source of power and jobs and revenue?

However, one thing is moderately amusing as we wait for the ruling: both parties have said they would appeal. Whatever Judge Murtha decides, another judge is sure to look at his decision. So..the amusing part..why are we all waiting with bated breath to hear from him? Of course we want to know his ruling and his reasoning, but his ruling is probably just one step in a process.

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Picture of the Brattleboro District Courthouse on June 23, 2011. It is the morning of the injunction hearing. Robbie Leppzer is interviewing me, and Vermont Yankee opponents are in front of the courthouse. Howard Shaffer took this picture.

Painting: The Oxbow: The Connecticut River near Northampton, MA. Cole Thomas, 1836

Reactor Control Room from NuclearTourist

Attorney General of Vermont Acknowledges "Shaky Concept" in Charging Entergy for Vermont's Expenses

The Bank of Entergy

Vermont Yankee received its license extension from the NRC, but the Vermont legislature thought a one-house vote on a one-sided contract change could shut the plant down. Entergy sued the state, and Governor Shumlin's reaction was swift. He would fight! In an April blog post, I quoted a Brattleboro Reformer article (now behind a paywall) as follows:

Attorney General Bill Sorrell said his office has been preparing for well over a month for the possibility that either Entergy would be suing the state or it would continue operating the plant, forcing the state to sue Entergy.

"We've known this was going to end up in court," he said. "The governor authorized us to get more resources, both in staffing and expert witnesses. We've got a lot of work to do, but we're not scrambling woefully behind." (emphasis added by blogger)

Shumlin hadn't caught on to the fact that the Bank of Entergy was closed. He still thought he could order up "more resources" whenever he wanted to do so. Shumlin was used to the idea that Entergy paid for everything.

Just as you must pay the costs for your car inspection and license certificate, Entergy was required to pay all state costs connected with their application for a Certificate of Public Good (CPG). Vermont took as much advantage as it could of Entergy's requirement to pay. For example, Entergy had to pay Arnie Gundersen and Peter Bradford $300 an hour to be on the Public Oversight Panel (POP). The POP was a new invention that the state required for this particular CPG application.

As I wrote in my blog post about the lawsuit:

"I don't think Shumlin really understands that the game has changed. The 'Bank of Entergy' is closed to him.....His only source of funding right now is the taxpayer."

Shumlin Attempts to Open the Bank with A Bill of Attainder

Shumlin immediately had an addition placed in another legislative bill. This addition required Entergy to pay Vermont's costs in the lawsuit. In another blog post, I called this an unconstitutional Bill of Attainder law, a law directed at one individual or company. I wasn't the only one to notice this law was immoral and unconstitutional.

Cheryl Hanna of the Vermont Law School posted: It is my humble yet considered judgment that not only is the law unenforceable, but it is also likely unconstitutional.

John McClaughry of the Ethan Allen Institute posted this in Vermont Tiger:

It’s one thing to bill back to a Public Service Board applicant the costs of issuing a final order on its application. But it’s quite another to bill back the state’s legal costs of defending against a litigant whose application the politicians have forbidden the PSB even to rule upon.

Gov. Shumlin’s ethically challenged billback scheme is one more deplorable disgrace to the once honorable state of Vermont.

Shumlin forced the passage of a bad law. It won't stand up to scrutiny. Has anybody in the state government noticed this?

Yes. The Attorney General has noticed.

The Shaky Concept

Today, Terri Hallenbeck of the Burlington Free Press posted: Despite law, Vermont not billing Entergy back for lawsuit.

Here's a quote from that post: Attorney General Bill Sorrell said his office has not billed Entergy back, and he conceded that’s because the concept is shaky.

He said the state is waiting for a verdict in the case and didn’t want to muddy the waters by trying to bill the other party in the meantime. If Entergy prevails in the case, “It’s uphill sledding to suggest they should pay our costs,” Sorrell said. “We would want to take a hard look at the legality of charging them.”

If the state prevails, he said, “We would take a harder look at it than if we lose.”

Translation: That law won't stand up in court. Vermont can't bill Entergy.

In short, the Bank of Entergy is closed to the State. However, I hope and expect that the Vermont Yankee power plant will remain open.

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Photo of Bill Sorrell from VPR article in which Sorrell announced there would be no criminal prosecution of Entergy.

Full Disclosure: John McClaughry is vice president of the Ethan Allen Institute. I am director of the Energy Education Project, which is part of that Institute.

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!!