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.

The Other Vermont Yankee Lawsuit: Reactor Operators Sue For Property Rights

Everyone expected Judge Murtha to rule on the main Vermont Yankee lawsuit by the end of the year in 2011. This lawsuit was brought by Entergy against Shumlin et al in their capacities as officials of the State of Vermont. Entergy claims that the state cannot force Vermont Yankee to close, since the NRC has extended its license.

The main lawsuit is complicated, and I have blogged about the overlapping issues, including state pre-emption of nuclear safety regulations. For this lawsuit, you can also connect to all the filed documents on the Vermont Attorney General's web site.

On this suit, newspapers reported last year that "a ruling is expected by the end of the year." I don't know where they obtained this information. I cannot find a quote from Judge Murtha saying that he would rule in that time-frame. 2011 is over, and the ruling didn't happen.

The Operator Lawsuit

However, the Entergy lawsuit is not the only Vermont Yankee case in front of Judge Murtha right now. In June, several licensed reactor operators brought suit against the state. They claimed that the state has denied them their jobs and taken their property without due process. The state wanted their case dismissed, of course. In December, the reactor operators asked Judge Murtha not to dismiss their case. The Brattleboro Reformer has a reasonably complete article on the operators' request to Judge Murtha.

Basically, the state claims that the operators have no legally protected right to their jobs, so their lawsuit should be dismissed. The operators claim that the state is attempting to shut down Vermont Yankee without a legally-valid reason, and therefore, it is inflicting harm on the operators without due process. Much of the argument depends on interpretation of various due-process clauses in the Constitution. For example, the Fifth Amendment includes the words: No person shall ... be deprived of life, liberty, or property, without due process of law...

Due process is a knotty concept in the legal world. If you read either the Wikipedia article on due process, or the Brattleboro Reformer on the operators' request to Judge Murtha, I can guarantee that your head will swim.

I'm not a lawyer, and we're not going there.

The German Experience

As far as I can tell, the operator's claims are very similar to the claims that Vattenfall, the big Swedish utility, is making in a lawsuit against Germany. Vattenfall owns several nuclear plants in Germany. As Spiegal On-Line reported in November: Nuclear Phase-Out Faces Billion-Euro Lawsuit.

From Vattenfall's point of view, the German government's decision to abandon nuclear power has destroyed the value of its assets....

The fact that Vattenfall is a Swedish company will help it in German courts, according to the Spiegel article.

According to Handelsblatt, Vattenfall has an advantage in seeking compensation because the company has its headquarters abroad. As a Swedish company, Vattenfall can invoke investment rules under the Energy Charter Treaty (ECT), which protect foreign investors in signatory nations from interference in property rights.

Last time Vattenfall challenged the German government, they settled out of court. Sounds likeVattenfall knows how to get compensated when the German government acts arbitrarily toward its power plants.

(By the way, nothing in the law seems to operate on time. The Spiegel article says that the Vattenfall lawsuit suit would be filed by Christmas. It wasn't. Newspapers said Judge Murtha would rule on Vermont Yankee by January 1. He didn't.)

A General Concept: Due Process

Following the individual twists and turns of due process is difficult, but the concept is easy. The government cannot deprive individuals or companies of their property without due process of law.

Civilized countries have tax laws in place (due process). Uncivilized areas have thugs who show up at the door and ask for "protection money." The thugs require arbitrary amounts, deriving people of their property according to the whim of the thugs.

Governments aren't supposed to do that. They aren't supposed to take your property or forbid you to operate your business, just because they feel like it. When governments act like thugs, they get themselves sued. The Magna Carta in Britain started the trend toward limiting the powers of government. Here and in Germany, recent lawsuits are forcing governments to acknowledge that their citizens also have rights.

I am no lawyer, so I can't even begin to predict how the current lawsuits will turn out. However, the principal is clear and straightforward. Even a government can't seize property or close down a business without due process.

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John of England signs the Magna Carta, from Wikipedia

85th Carnival Of Nuclear Energy Bloggers: Right Here at Yes Vermont Yankee!

Looking to the Future: World-Wide

The 85th Carnival of Nuclear Energy Bloggers is being hosted by Yes Vermont Yankee. The Carnival is right here, right now. When I signed up to host the Carnival, I promised to post it this weekend. However, I wasn't sure whether I would post it this year or next year.

In a small burst of ambition, I'm putting the Carnival in place in 2011.

Fearless Predictions: Dan Yurman at Idaho Samizdat offers his annual "fearless predictions" for the global nuclear energy industry in 2012. His post, Predictions, Speculations and Raw Random Ideas for 2012, starts with a description of the future for Japan (of course). Until 2011, Japan and France were two stalwarts of the nuclear field. Now they face new challenges. China and India will move ahead, and the U.K. maintains progress for its new build.

The two big new deals in 2012 are the Czech Republic's Temelin project for up to five new reactors worth $28 billion and an expected tender by Saudi Arabia for up to 16 new reactors worth $112 billion.

New Directions: While she wouldn't quite characterize it as a New Year's projection, Gail Marcus of Nuke Power Talk considers New Directions in her post. She speculates that the Fukushima Dai-ichi accident in Japan may increase the pressure to continue the development of advanced reactor technologies, including some of the SMR designs, that hold the promise of being more robust in the event of a "Fukushima-type" accident. This would be any scenario that can lead to a prolonged loss of cooling water or backup power. However, she cautions people to heed the words of Admiral Rickover, who famously enumerated the differences between a "paper reactor" and a real reactor.

Moving Forward in the U.S. Margie Jepson blogs at Nuclear Clean Air Energy as part of Entergy's Nuclear Clean Air Energy education initiative. In The 2011 Year: So Long! Jepson looks back at the Year of Fukushima. Then she looks forward to the ways that 2012 will expand many of the excellent trends of 2011 in this country. Reactors are being built, capacity uprates have been granted by the NRC, and the uranium enrichment facility (planned for eastern Idaho) now has an NRC license.

Nuclear Plants to Fight Climate Change: At Canadian Energy Issues, Steve Aplin writes Extreme heat, electrical load, and political stability: the connection and the solution. 2011 was a year of record extreme weather in North America. The extreme episodes were fueled by the higher temperatures in the earth’s atmosphere, which gave extra energy to the heat waves and wind storms that ravaged the continent. It is an alarming trend. One upshot is that there will be huge demand for electricity for summer air conditioning. Aplin argues that this demand must be met by CO2-free nuclear plants, not by CO2-belching natural gas-fired ones.

By the way, I like the energy tracker on Aplin's blog, displaying real-time electricity data for Ontario. I include a screen shot of the tracker. Double-click to enlarge the graphic.

Fusion Power Moves Closer: Brian Wang of Next Big Future truly looks to the future with a blog post on how fusion power moves closer, due to results from a lab in Germany. A gamma ray laser and a Bose-Einstein Condensate could help make it happen.

Fire Put Out: Wang also reports on a Russian submarine which caught fire. The fire was successfully extinguished. (To me, this is the scariest story of the bunch. The Russians do say the ICBM's were not on the ship at the time of the fire.)

Students are the Future: What questions do young people have about nuclear power? Recently, Howard Shaffer and Meredith Angwin had opportunities to hear their questions. Meredith Angwin discusses the questions as well as the answers, and the implications for nuclear education. The post, Young People and Nuclear Power, is at ANS Nuclear Cafe.

Fukushima Update and Japanese Nuclear Future: For many people within the nuclear industry and outside of it, 2011 will be remembered as the Year of Fukushima. Will Davis of Atomic Power Review posts Fukushima Tepco Update for December 28. This post provides a set of updates on situations relative to Fukushima Daiichi: An announcement by Fukushima Prefecture with wide implications; a report by TEPCO on core, pressure vessel, and containment damage; and TEPCO's announcement of an attempt to "scope" No. 2 containment. In this post, Davis has provided his own illustrations to explain the information from TEPCO. I believe his excellent use of graphics is one of the reasons that Atomic Power Review is so widely read.

Scientists Punch Holes in the Linear Non Threshold Theory. Leading researchers at Lawrence Berkeley Laboratory, including a leading cancer researcher, designed an innovative experiment in which they could see cells repairing themselves after irradiation. As you might expect (but they showed) repair was much quicker and better after low doses of radiation. Another hole in the LNT theory. I blogged about it in the controversial post Will a Little Bit of Radiation Hurt You? Berkeley Scientist Break the Hold of Linear Non Threshold Reasoning.

Here's to a great 2012, for the Nuclear Industry and for the entire world!

To all my friends, and to everyone who reads this blog:

Have a healthy, happy, and prosperous New Year!

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Update: Happy New Year! On this morning of January 1, 2012, I also want to say "Happy Birthday to Yes Vermont Yankee." I started this blog as a New Year's resolution on January 1, 2010.

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Photo from Wikipedia of New Years fireworks in London

Will Vermont Yankee be Replaced by Unicorns? Pictures of the Rally, and a Critique of the Vermont Energy Plan

The Rally

Thank you to Kay Trudell for the photos of the rally in support of Vermont Yankee this October! We just put an entire album of pictures on the Save Vermont Yankee Facebook page. These four pix are just a sample.

I couldn't resist putting in a picture of Howard Shaffer carrying a great sign

The Energy Plan for Unicorns

There's a new Vermont Energy Plan. It says that we are going to use 90% renewable energy by 2050. It says that we don't need Vermont Yankee, but we do need a new natural gas pipeline. That's the plan.

John McClaughry of Ethan Allen Institute has a great critique of the energy plan today at Vermont Tiger. McClaughry's title tells where Vermont's energy supply is heading: Unicorn Power for Vermont! Read it. You'll laugh. You'll cry. You'll laugh and cry, both at the same time. (Full disclosure: The Energy Education Project that I direct is part of the Ethan Allen Institute. John McClaughry is vice president of the Ethan Allen Institute.)

New Blog on the Blog Roll: ScienceWonk and Radiation Risks

The Federation of American Scientists (FAS) is a non-profit group that is dedicated to providing rigorous, objective, evidence-based analysis and practical policy recommendations on national and international security issues connected to applied science and technology. It was founded in 1945 by many of the scientists who built the first atomic bombs.

Looking at their website, I see that FAS is mainly concerned with national security, and also with science education and basic science. In other words, FAS and I would might have never crossed paths. However, Cheryl Rofer of Nuclear Diner recommended a new FAS blog, ScienceWonk, to nuclear bloggers like myself. I have just added it to the blog roll.

ScienceWonk is written by Dr. Y, a certified health physicist with 30 years experience in nuclear power and related fields, including planning for radiological emergencies. Dr. Y writes about radiation risks and other risks. For example, one post is called Putting Radiation Risk in Perspective. This post includes a link to the irradiated gemstone scare stories of a few years ago. Another post about airport screening safety includes a discussion of low-dose effects. Here's a fine quote:

Science is a field that makes predictions that can be tested and falsified – any putative risk from exposure to 100 mrem is far too small to be detected via epidemiological studies of the affected populations and the hypothesis that this harm is taking place cannot be tested and cannot be falsified. As such, until our epidemiological tools improve, such speculations are intriguing but may not be scientific because of this lack of falsifiability – they represent a belief or even a philosophy rather than a scientific position.

I hope you will enjoy ScienceWonk.

Oh yes, and visit Nuclear Diner, too! It includes a discussion forum and a blog. Nuclear Diner is open to people in favor of nuclear power and those opposed to it. Cheryl Rofer is one of the founders of Nuclear Diner, and she's also the one who told me about the ScienceWonk blog.

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Sunday on La Grande Jatte, by Georges Seurat, was done with the technique of pointillism. If you look at the dots, you see dots. You have to step back from the canvas to see the big picture. Dr. Y used it as an illustration in one of the ScienceWonk posts.

A Tale of Two Classrooms: Talking about Nuclear Energy at UVM and at a High School

At ANS Nuclear Cafe this morning, I have a post: Young People and Nuclear Power.

Recently, Howard Shaffer and I attended a film about nuclear energy at the University of Vermont. I blogged about the film and panel discussion.

However, we also visited a charter high school in Massachusetts. This was a very different experience. The senior class at the high school has been engaged in an intense cross-disciplinary study of nuclear energy and Vermont Yankee issues. We spoke to the entire senior class.

The high school students who had studied nuclear power asked very knowledgeable questions, and some were interested in careers in nuclear energy. At the University of Vermont, few of the college students at the film knew much about nuclear power. Many of the college student questions were anti-nuclear position statements disguised as questions. ("Why hasn't the NRC ever turned down a license extension application?")

The ANS blog post is the story of only two classroom events, but examples are often more interesting than general statements. I hope you will enjoy reading it.

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Picture of historical building at University of Vermont, Billings Library, from Wikipedia

Woodblock print of Thetford Academy (oldest secondary school in Vermont) from Wikipedia.