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.

Did Vermont Yankee Bring the Suit at the Right Time? Some Thoughts on the Injunction Hearings

The current hearings about Vermont Yankee are not about the merits of the case, but about the injunction, that is:

Shall the court grant an injunction that allows Vermont Yankee to keep operating until the entire case is resolved? If the injunction is granted, the State could not close down Vermont Yankee while the lawsuit was in progress.

Injunctions are often granted when one side could take action that would be a de facto win for that side. For example, a tenant has a leaky roof and the landlord has refused to fix it. So the tenant has sued. If the landlord evicts the tenant while the court case is going on, the landlord has basically won the case, no matter what the merits of the situation might be. In this case, the court would almost certainly grant an injunction that prevents the tenant from being evicted during the court case.

Vermont Yankee is also asking to not-be-evicted during the court case.

The State Says Vermont Yankee Should Have Sued Sooner

As the Associated Press reports: Scot Kline, an assistant attorney general on the state's legal team, maintained the company was exaggerating those claimed harms. He also said the company has known for years that March 2012 loomed, could have filed its lawsuit much sooner and shouldn't be complaining of a time crunch now.

"To the extent they find themselves in a corner, they kind of walked into this corner," Kline said.

Entergy Took Action As Soon As It Could

Entergy took action as soon as it could.

• On March 10, 2011, the NRC announced it was going to grant a license extension to Vermont Yankee.
• On March 21, the license extension was granted.
• On April 18, less than a month later, Entergy filed suit against the state.

Why do I say this was "taking action as soon as it could?" A little personal history here--not about Entergy, but about my own legal education. I owned a business, and someone cheated me. It didn't cause immediate harm, but I was pretty sure it would impact my ability to get contracts in the future. (No, I am not going to go into the gory details.) At any rate, I went to a lawyer.

The lawyer told me not to sue--I couldn't win. He looked over the contracts and agreed that the other side had cheated me. However, he explained that there were two parts to a lawsuit: responsibility for the action, and harm from the action. I had one, but I didn't have the other. I had only potential harm, if other things happened in the future, if other clients did this or did that, and so forth.

In other words, any harm to me was future, nebulous, depended on other people's actions, unquantifiable. I had the cheaters on responsibility, but I could prove no real harm.

I didn't "have a case."

I was steamed, but I learned something about the law.

Earlier: Entergy Had No Case

In 2006, the legislature passed Act 160, giving themselves veto power over the Public Service Board (PSB) issuing a Certificate of Public Good (CPG) to Entergy. If Entergy had tried to bring a suit in 2006, right after Act 160 passed, I think they would have met this response from the court:

Look here, Entergy--you claim that, six years from now, IF the NRC grants you a renewal license, and IF you have that license but the legislature doesn't vote to allow the PSB to release its findings and IF the PSB finding would-have-been to grant you the Certificate of Public Good....if all this happens, then you will be harmed by this Act 160 law? Well, gimme a break. Don't clutter up the calendar with such far-fetched cases, where the harm depends on so many actions happening in your favor by so many third parties, with only the legislature causing the harm. And all this is going to happen six years from now, no less! You haven't got harm, you haven't got a case, please go away.

(Note: Entergy is currently taking the position that the PSB ruling has also been tainted by the legislature's actions. However, in the paragraph above, I am pretending it is six years ago, not today, and that Entergy attempted to sue at that time, which is what the state claims it should have done.)

The Right Steps at the Right Time

Entergy lobbied against Act 160, they fought it, they knew it was not a good thing. But they quite rightly did not sue about it until it was clearly a source of harm. In this, they acted very responsibly, in my opinion.

Of course, the State thinks Entergy should have sued immediately. After all that is what the state does! Just recently, the state lost a major suit about doctors and pharmaceutical companies, which our Attorney General argued right up to the Supreme Court. The State is johnny-on-the-spot to go to court with our tax money, but Entergy quite rightly waited till it "had a case."

Post Script: A few words about the pictures.

Howard Shaffer took these pictures outside the Brattleboro Federal Courthouse on Thursday morning, June 23. (Since Howard is behind the camera, I am in the pictures.) The Safe and Green Campaign was running a protest at that time.

In the top picture, you can see me at the far right.

In the next picture, I do not know the name of the man with the "Mafia" sign, but I have made the assumption that if you are standing on a sidewalk with a sign, you expect to get your picture taken.

The last picture shows me being interviewed by Robbie Leppzer, who is filming a documentary about Vermont Yankee. My hand-made sign says: Save the Children, Yes Vermont Yankee and shows a small child with an asthma treatment nebulizer. My point is that replacing VY with fossil would mean more childhood asthma. However, many of the anti-Vermont Yankee protesters told me, in no uncertain terms, that VY would be replaced with wind turbines and solar, not fossil.

Protests Grow in Southern Vermont. About Biomass.

The Biomass Facility

Pownal Vermont is the proposed home of a 29 MW biomass plant and wood pellet facility. Like Vernon, home of Vermont Yankee, Pownal is in southern Vermont, close to the Massachusetts border. Pownal is in the western half of Vermont, near New York State, while Vernon is in the eastern half, near New Hampshire.

People in Pownal and neighboring Massachusetts are vigorously protesting the biomass plant. About eighteen protesters recently lined the road to the proposed plant (there's a great picture in that link). At meetings in local churches, groups against biomass have described many possible hazards, including:

• biomass plants used as incinerators
• biomass plants starting fires in neighboring areas
• particulate from biomass escaping the very best scrubbers, and lodging in people's lungs

A biomass opposition website contains extensive information about the hazards of biomass, along with specific ideas on how to fight this plant. Plant opponents also attack the safety record of the company proposing to build the plant.

If the company breaks ground for the plant before the end of the year, the developers may be eligible for $50 to $80 million in federal grants. Naturally, plant opponents are eager to slow them down. As Vermont Digger reports: Pownal resident Doreen Forney said she wants to see the process slowed. “At least be thorough with your investigation of this company,” she said. However, it is not just this company that is the problem. Vermont Digger reports that Rachel Smolker of Biofuel Watch Group states that “Big oil sees this (biomass) as a way out of their oil dilemma...There are a lot of powers at play here,””

Still, some local residents want the plant. Others feel that biomass money should be used for solar and wind power instead.

Thanksgiving

Why does this all sound so very familiar?

I give thanks that I don't plan to investigate the pros and cons of this biomass plant.

It is interesting to observe yet more excitement about power plants on the Vermont/Massachusetts border. That is why I decided to blog about this protest. But I'm not going any further with this.

For electric power production, I prefer heat engines based on nuclear fission. I'm going to leave it at that.

Woodpile image from Wikimedia

Older and Unthinking: The Grandmas at Yankee

The video above is not from the most recent arrests of elderly women at Vermont Yankee. It's about a year old, from the Rutland Herald covering the September 2009 arrests of the same elderly women at Vermont Yankee.

They were arrested again at Vermont Yankee just a few days ago. The Rutland Herald article describing the more recent arrests notes that charges are never filed. Some of these women have been arrested nine times at Yankee, without any charges as follow-up. The self-named "Raging Grannies" are okay with that. The Rutland Herald reported:

Nestel said she didn't at all feel frustrated by the lack of prosecution, and she said the act of civil disobedience was a profound experience for the protesters.

(Hattie Nestel is featured in the video above.)

By trespassing on the plant grounds, the older women play chicken with the guards, disrupt the plant, and make sure Vermont Yankee gets negative publicity. If a guard actually shot them, Vermont Yankee would get even worse publicity. It's a good thing the guards are well trained to safeguard the plant while avoiding the use of force. I know some people who work at the plant who might well say: "Oh, don't tempt me!"

However, the protesters do have a profound experience when they protest. That's got to be worth something.

Older But Not Wiser

If the plant and the prosecutor feel like pressing charges, I think they should press charges. If they decide that pressing charges will just clutter up the court system, they shouldn't press charges.

However, as a grandma myself, I believe very strongly that this decision should be made without respect to the age of the law-breakers. I don't believe people should get a free pass to disobey the laws because they are older. If I broke a law, I would expect Bad Things might happen to me. If I broke laws repeatedly, I expect that Bad Things (like jail time) would certainly happen to me.

I learned cause and effect about law-breaking back in civics class, in sixth grade. They didn't have these new-fangled horseless carriages back then, but us kids really learned.

Oh. Okay, I'm not that old. I'm basically a Boomer.

My opinion. Trespassing and tempting people to shoot you is not funny. I think that someone should bring charges. Let's not have a tenth set of arrests and get-out-of-jail-free cards.