Sunday, June 26, 2011

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.


Meredith Angwin said...

For a reasonable discussion of the merits of the case, I recommend Don Kreis post at the Vermont Law School blog. I often don't agree with Don, but he is always worth reading. This latest post redeems the Law School Blog in my eyes. (I critiqued that blog pretty hard a few days ago)

Atomikrabbit said...

“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”

These people live in an alternate-reality make-believe land (some call it “Vermont”) where atomic energy stations routinely kill millions of people, and the concept of “capacity factor” doesn’t exist.

Anonymous said...

What kind of law school is Vermont Law School? I have to ask, because I'm left scratching my head reading the post by Don Kreis.

Entergy says they have to make a decision on a large investment by the middle of July, so would like a ruling from the court on whether or not the court will grant an injunction.

Kreis then characterizes this as a "threat", like Entergy is some sort of mob strongman asking for "protection" money.

What is so unreasonable about a company telling the court that they are facing a decision, and that rationally, the court's decision will necessarily impact their investment decision?

That doesn't strike me as some made up, "forced" confrontational situation. Courts make real-world decisions that have real world consequences. What is so sinister about a company executive simply trying to lay out for the court what the situation in?

How can a lawyer at a law school, of all people, possibly think it reasonable to use such emotionally charged language as the word 'threat' to describe a rational proceeding in the court?

mo said...

I'm grateful to Meredith for recommending my blog post about last week's hearing . . . It's gratifying to be able to have such a civilized discussion of this radioactive topic -- and I frequently find myself agreeing with Meredith even though she is more enthusiastic about nuclear power than I am.

With regret, I can't agree with Meredith's analysis of the ripeness question. (Just so it's clear, the question is relevant because it bears on whether Entergy filed its lawsuit too late to warrant the injunction it has requested.) When the issue is whether a particular controversy is ripe for judicial decisionmaking, the court will "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of witholding court consideration." Abbot Laboratories v. Gardner, 387 U.S. 136 (1967). (Sorry, don't have the specific page cite.) On the fitness question, as early as 2006 the battle was arguably joined because the Legislature had, in Act 160, effectively revoked any state-law authority VY had to operate the plant after 3/21/2012. (The opportunity for the Legislature and the PSB to approve a new CPG is properly viewed as a chance for Entergy to ask the state to reconsider its decision.) Nothing amorphous or hypothetical about that. And on the hardship question, Entergy could have made exactly the same arguments it is making now under the "irreparable harm" rubric. True, the employee exodus argument would have been somewhat less compelling, but merchant generator plants can and do enter into very longterm contracts; VY's ability to negotiate and enter into those was clearly circumscribed as soon as the Legislature adopted Act 160.

Regarding Jeff Schmidt's comments: Although I usually don't dignify intemperate criticism with a reply, I will simply say here that if Entergy knows for a fact that it cannot and will not be able to refuel the plant in October unless the company obtains an injunction now, its witness, Mr. Herron, had the opportunity to so state, under oath, last Thursday. He unambiguously declined to do so. Thus Entergy's position is fairly described as a threat. I am sorry that Mr. Schmidt finds that word to be "emotionally charged." I think Entergy is trying to bully Judge Murtha and, unlike the attorneys actually involved in the case, I am at liberty to call 'em as I see 'em.

Don Kreis
(my middle name is Maurice)

Meredith Angwin said...

Don. Thank you for the comment. It's always a pleasure to have a conversation with you!

And now I know your middle name!

You are the lawyer, and I am not, for sure. Still, I think that Entergy suing in 2006 would have been pretty odd, considering that they didn't have an NRC license extension at that point, and that the legislature had taken no action against them. It just put itself in a condition where it COULD perhaps take action.

Anyhow, you and I don't get to decide this, but I am pleased to have your insight on this.

About Jeff's comments. Don, you don't go to some of the events I attend. For example, at the NRC meeting, one woman in the audience said that the NRC was trying to bring in Department of Justice "Goons". With that sort of talk on the opponent side, it's hard to hear Entergy's description of probable harm as "threatening" the judge. I see where Jeff is coming from on this, though you disagree.

The problem is that there's a general way of talking on the nuclear opponents side (goons, they are making threats, they are lying to us) and pro-nuclear people all get sensitized to it.

Once again, thank you for your comments!

Howard Shaffer said...

Prof Kreis wrote the following on the Law School blog in response to my question.

"3. Howard Shaffer asked me for some thoughts about why this isn’t a Contracts Clause case (i.e., one in which the plaintiffs claim that the statutes at issue are ones “impairing the obligation of contracts”). In essence, I don’t think it helps Entergy to base its claim on an allegation that the MOU is a contract that the state has breached. First, it’s not completely clear that the MOU truly IS a contract — in fact, I would argue it is NOT a contract because it’s not sufficiently clear this is the intent, and I don’t think the PSB or the Department of Public Service, as they were constituted in 2002, had the authority to bind future PSBs, DPSes and, indeed, legislatures and governors. More importantly, I don’t think the state actually breached the MOU because it contains no provisions that prohibit the Legislature from legislating as it did."

As a citizen and an engineer this is beyond me. He says the MOU is "not a contract." What is it then? If anyone with an MOU, such as a telephone company, failed to conform to their MOU, what would the PSB do about enforcing the "not a contract?"

Is this geting like Alice in Wonderland and the "unbirthday?"

Meredith Angwin said...

I believe Don Kreis wanted to post this comment to the blog. I received this email from him:

Oops -- sent the below to the "noreply" address from your blog . . . .

Dear Meredith:

Fair enough! I am a former law clerk -- I spent five years clerking, variously, for the supreme courts of Maine and Vermont as well as the federal district court in Maine -- and I feel keenly the pressures judges are put under, especially trial judges deciding high-stakes cases. I am ticked off at Entergy for what I perceive as trying to intimidate Judge Murtha (whom I have never met and don't have any personal need to defend). I like the way Pat Parenteau put it -- if Entergy really does decide now (or in July) to shut down Vermont Yankee it will be their responsibility and not the court's. I admit that Pat managed to make the point more temperately than I did.

I agree that it would have been unreasonable to expect Entergy to file its suit in 2006 -- I am just suggesting it could have done that, without the suit being bounced on ripeness grounds. The courts have a LOT of discretion here as long as the claim isn't entirely a hypothetical one. I've been thinking about what Act 160 really did; in my view, the somewhat awkward mechanism really amounted to a legislative decision in 2006 to deny VY continued state-law authority to operate. Requiring a subsequent Legislature decision to authorize a CPG was really a vestigial appendage because legislatures ALWAYS have the authority to repeal a previous enactment. N.B. a statute that gave the Legislature the right to veto a decision by the PSB to grant a new CPG would arguably have been unconstitutional under a case called INS v. Chadha. The Chadha case concluded that one-house vetoes of administrative decisions violate the presentment and bicameralism clauses of Article III of the U.S. Constitution. Of course a case challenging Act 160 on the same ground would arise under the Vermont Constitution, but it too embraces bicameralism and the requirement that legislation be presented to the chief executive for his signature or veto (followed by potential override).

Coming to our forum this afternoon at 4:30? We can have the conversation in public!

By the way, feel free to lift stuff from our blog and use in yours -- vtdigger is doing it so there is no reason you can't.


Meredith Angwin said...

About the forum. I thank Don for the invitation. I am not going because I can't arrange my schedule fast enough to get there. I feel bad that somehow I didn't notice this event earlier.

Here's the information about the forum, from the VLS website. Perhaps some of my readers will go.

June 27, 2011, 4:30pm - 5:30pm
Location: Chase Community Center
Contact: Courtney Collinsat (802) 831-1371 or
Professors Pat Parenteau, Michael Dworkin, Cheryl Hanna and Don Kreis.
An examination of the environmental, constitutional and political implications of the federal lawsuit over the controversial Vermont Yankee nuclear plant. The future of nuclear power nationally could be influenced by the outcome of the case, which is why the case is being watched so closely nationwide. This event is free and open to the public.