Column: Lawyers Can’t Rescue a Weak Case | Valley News

Column: Lawyers Can’t Rescue a Weak Case | Valley News

My op-ed in the Valley News this morning. In appeals court, Vermont lawyers tried to make the case that Vermont has "economic" reasons to shut Vermont Yankee.

Actually, of course, Vermont Yankee is a major economic asset to the state of Vermont. Vermont has no economic reason to close it.

As the title says: "Lawyers can't rescue a weak case."

Post on Federal Hearing at ANS Nuclear Cafe (and more)

Graph from economic report
March 2010

State Turns Economic Facts Upside Down

Yesterday, ANS Nuclear Cafe published my blog post: In Federal Appeals Court, Vermont Presents Backwards Economic Arguments. In this post I go through the Appeals Court hearing, and especially Vermont's claims of why they say they want to shut down Vermont Yankee. With quotes and examples, I show that Vermont's arguments are..well...bogus.

Yes, "bogus" is the word I used in the post, and I think it's the right word.  Though I am fond of the word meretricious, which Google defines as: "Apparently attractive but having in reality no value or integrity: "meretricious souvenirs for the tourist trade".

Let's look at these meretricious arguments.

First Vermont claimed they were interested in economics, not safety, when the Senate took their famous vote.  I point out that they voted in February. They had ordered an economic report on Vermont Yankee, but it was due to be issued a few weeks after their vote.  They voted anyway, not willing to wait for their own economic report on Vermont Yankee, which was issued in March.  Pretty hard to claim the vote was all about economics, under these circumstances!

Second, I quote their lawyer, who basically says that the state wants Vermont Yankee shut down because the paid-off plant makes it hard for new plants to compete.  The state has an interest in keeping electricity prices high?  That's a new one.

Third, in a last-minute salvo, the state lawyer said the revenue sharing agreement with Vermont Yankee is worth $587 million dollars (to Vermont utilities), and that agreement ties the utilities to Vermont Yankee, and that's a bad thing.  Again, a amazing statement.  True. Entergy may have to pay half a billion dollars to Vermont utilities, allowing them to upgrade infrastructure and/or lower rates to their customers.  How is that any evidence that the state should shut the plant down?

I end my ANS post with a quote from Cheryl Hanna of Vermont Law School   Hanna concludes that if the state loses the case (and she thinks it probably will), it is not going to be because the state was "out-lawyered." It will be because the facts and the law are mostly on the side of Entergy.

Please read my post about the hearing. I worked quite hard on it. I am pleased that it was chosen as Best of the Blogs at Nuclear Townhall yesterday.

Guy Page's Guest Post is Now at Energy Collective

Monday, I posted a guest post by Guy Page about the importance of the nuclear plants to the economy of New England.  He based his post on a New England Council report on energy and economics.  I am proud to say that his post has been picked up by The Energy Collective, a prestigious and widely-read blog about energy issues.  It's getting some good comments there, too. I am happy to see an important post on an important topic get more readership!  Energy Policy is Key to Vermont's Future.

Fun with Fuel Pools

XKCD is a scientist, cartoonist, and essayist.  On Tuesdays, he has a feature called "What  If?  Answering your hypothetical questions with physics, every Tuesday"  Yesterday he addressed the question: "What if I took a swim in a typical spent fuel pool?"   Great fun with beach balls!

For the geeky, I also recommend his comics. I love the one about energy density of uranium versus other fuels: Log scales are for quitters who can't find enough paper to make their point properly. 

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.

Three Vermont Yankee Hearings: The Week of Living Lawyerly

The week of January 14, there are three different hearings about Vermont Yankee in three separate courts and on three separate subjects.  It is the Week of Living Lawyerly.

The hearings are in the Federal Appeals Court, the Vermont Supreme Court, and  the Public Service Board. (The Public Service Board hearing concerns the need for a new diesel generator.)

First Hearing: Federal Court

What: Federal Court of Appeals Hearing on State and Entergy Appeals

Where: 2nd Circuit Court of Appeals (in New York City)

When: January 14, Monday

Why: Judge Murtha ruled in favor of Entergy in the main federal case, and the state appealed the ruling. The state mainly challenged the part about pre-empting nuclear safety issues.  Entergy also placed two appeals before the circuit court.  The first appeal was about spent fuel rods, and the second appeal was about the NEC suit in Vermont Supreme Court.  This second appeal is discussed below, in the Supreme Court section. 

What is at stake: In the main issue, whether the Circuit Court will (or will not) uphold the Murtha ruling.  

What is at stake, part two: Whichever way the Circuit Court rules, both sides say they will appeal the Circuit Court ruling to the United States Supreme Court.  

Comments by the Blogger:

The Circuit Court calendar shows that both side have a full fifteen minutes each to present their cases.  This length of time seems to be standard for arguments before this court.  I am not a lawyer, but to me, this means that the written material in the docket is the important material.

In terms of the Entergy appeals,  Murtha granted the first appeal, and has just recently turned down the second appeal (about NEC and the Vermont Supreme Court).  I blogged about the turn-down of the appeal against the NEC case in  Hot Potato Continued.

I have some, but not all, of the docket material for the federal case (and the Public Service Board case) posted at Dockets for Public Service Board and Courts on the Vermont Energy Education Project website.

The State asked for "expedited oral arguments" in this case, with the arguments to be presented "as soon as November."  Entergy asked for more time.  The court granted the State of Vermont request for expedited oral arguments, but the arguments are being heard in January.  (Don't ask me...I have no idea what this implies.  I just thought I would mention it.)
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Vermont Supreme Court

Second Hearing:  Vermont Supreme Court

What:  Hearing on NEC Request to Vermont Supreme Court

Where: Vermont Supreme Court in Montpelier Vermont

When: January 16, Wednesday

What is at stake: A long-time plant opponent, New England Coalition against Nuclear Pollution (NEC) has asked the Vermont Supreme Court to step in and order Vermont Yankee closed. They want the Vermont Supreme Court to issue this order in accordance with a clause in the sale agreement from 2002.  The Public Service Board  and the Department of Public Service have asked the Vermont Supreme Court to deny this request.

What is at stake, part two:  If the Supreme Court were to issue an order to close down Vermont Yankee, everyone expects Vermont Yankee to appeal to federal court.

Comments by the Blogger:

I blogged about this subject extensively in Hot Potato, and Hot Potato Continued. I think that this case is a hot potato that the Public Service Board wants to throw to someone else.

UPDATE: I have put the November 29 Public Service Board statement and the Entergy request for dismissal on a new Vermont Supreme Court filings page at the Energy Education Project site.

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Emergency backup diesel generator
At a sewage treatment plant

Third Hearing: Public Service Board 

What: Hearing on Certificate of Public Good for Station Blackout Diesel Generator Docket #7964

Where: Public Service Board Hearing Room, Bank Building, Montpelier

When: January 17, Thursday

What is at stake: Will Vermont Yankee be allowed to install a new back-up diesel generator?   Vernon Dam will no longer be considered a Black Start facility by ISO-NE. (I blogged about this in Black Start, Black Out and Diesels, Some Clarity) Since the dam will not be maintained as a Black Start facility, the NRC will no longer consider it to be qualified as a Station Blackout back-up facility.  (The dam is still there, of course, and Vermont Yankee still has a direct line to the dam.)  So Vermont Yankee needs a new station black-out back-up facility.  In most cases, this would be a stationary diesel generator.

What is at stake, part two:  In most cases, getting a new back-up diesel for a power plant would be a slam dunk.  However, the Public Service Board is concerned that if it grants a permit for this piece of safety equipment,  Vermont Yankee would continue to operate.

Wait! Whoops!  That was snarky of me.

Of course, I meant to say that the Public Service Board is concerned because

Normally, the Board would not consider a petition from a company that is not in compliance with existing Board orders, unless that company also demonstrated an intent to come  into compliance. Entergy VY has not indicated such an intent here.

That's a quote from the order, and you can read the entire Public Service Board order setting up the diesel-docket here.

It is important to note that "non-compliance with Board orders" basically means...the plant is still operating, after March 21, 2012, while hearings are on-going.  The Board has several dockets about the Certificate of Public Good, and the Board claims that, according to one of the dockets, the plant is not in compliance because a new Certificate of Public Good has not been yet been granted by the Public Service Board.

Comments by the Blogger

No comment.

Vermont Loses Lawsuit Against NRC about Water Quality Permit

The Intervenors (and Vermont) Sue the NRC and Lose

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

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

Liz Miller
DPS Commissioner

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

The State's Case and My Opinion

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

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

It didn't.

The Court's Opinion

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

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

The Opponents' Opinions

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

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

Pat Parentau
Vermont Law School

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

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

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

The Next Step

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

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

Oh By The Way

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

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

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

The Court Decision on Spent Fuel and Vermont Yankee

The Court Decision and the Local Reaction

Dry Cask illustration from NRC

In March of this year, Vermont and other petitioners brought suit against the Nuclear Regulatory Commission (NRC).  Their suit claimed that NRC rulemaking on spent fuel storage was insufficient. On Friday, June 8 the Federal Court of Appeals in the District of Columbia ruled in favor of the petitioners.  According to the court, the NRC rules on spent fuel storage will have to be revised. You can read the court's decision here.

Some of the local reactions have been unrealistically optimistic that this ruling means Vermont Yankee is doomed. There's a spirit of: "We told you so and now Vermont Yankee won't be able to operate any more!"  A recent Vermont Digger article was titled: Federal ruling could give state officials basis for denying Entergy license to operate Vermont Yankee. Meanwhile, in a Vermont Public Radio article, Nuclear Waste Ruling Could Strengthen VT Court Case, Vermont Attorney General Sorrell said that the lack of long-term storage was an economic risk to Vermont, and the Vermont Public Service Board can look at economic issues. A direct quote from Sorrell:

"Here you've got under what was the NRC decision, 20 years of relicensing, and then the ability to store spent fuels on the Vermont Yankee site for another 60 years," he said. "So 80 years out of spent nuclear fuels being stored there, 60 of those supposedly after Vermont Yankee is no longer operating. And is that good for the state economy?"

(Note.  I find this remark completely illogical in terms of economic consequences, so don't ask me to explain it.  I quoted it, and that's all I can do.)

The Real Court Decision
The Vermont Yankee opponents are wrong about the consequences of this decision.  They are loud (as usual) but they are wrong.

In my view, there are three facets to the court decision, none of which have any immediate consequences to any operating power plant. They may have economic consequences in the future, but these consequences are unpredictable.

The background is this.  In 2010, the NRC ruled that spent fuel could be stored on site for sixty years after a plant was closed or until a permanent repository was available. Regarding this action, the court said:

Centralized fuel pool
(pool for many reactors)
Areva

• The rule-making for fuel storage on site is a major federal action, and therefore must have either an environmental impact statement or an official finding of "no environmental impact."
• In 2010, NRC extended of spent fuel storage on-site from thirty to sixty years after a plant has closed.  The court ruled that this NRC time extension was not justified nor sufficient.  The NRC must address the possibility that no permanent repository will ever be available, and do an environmental impact assessment of that possibility.
• The NRC can do the type of rule-making it usually does for general issues, and does not have to address the storage at each plant on a case-by-case basis.

All these factors are as applicable for any other plant as they are for Vermont Yankee. None of them challenge the NRC's role in assessing radiological risk from nuclear plants.  In other words, nothing in this ruling allows the state to take any kind of pre-emptive action about radiological safety.

The NRC also has the right to appeal this decision to the Supreme Court.

The NRC has work to do. 
No matter how many commentators say that the Vermont Public Service Board  should be influenced by this decision, the decision is completely about NRC rule-making. It defers to the NRC for further rule-making.  This decision does not give the state of Vermont any right  to pre-empt federal regulation of radiological safety. It does not require that Vermont Yankee fuel storage be assessed as a separate case.

(Another note.  I'm not a lawyer. Still, I thought this decision was pretty clear, so I feel reasonably confident in what I wrote.)

Spent fuel shipment canister
Areva

Pressuring Congress?

Maybe this ruling is about pressuring Congress for a spent fuel storage facility. You might look at Will Davis Atomic Power Review post on the ruling.  He starts by repeating the introductory statement (from the ruling)

This is another in the growing line of cases involving the federal government’s failure to establish a permanent repository for civilian nuclear waste.

In other words, you can look at the ruling as a set-back for the NRC.  Or you can look at the ruling as a boost, provided by the courts, for  opening a spent-fuel repository.

More Resources:

Two excellent articles on the subject are Federal Court Throws Cold Water on Nuclear Waste Ruling at EnergyBiz, and Court Forces a Rethinking of Nuclear Fuel Storage at the New York Times.  My local paper, the Valley News, has a clearly-written op-ed with the history of the NRC's rulings on spent fuel storage: Confidence Game: Court Rightly Challenges the NRC.

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.