Friday, September 16, 2011

The Vermont Yankee versus Vermont-Shumlin Trial: What's Next, and What Happened

What's Next

What is next is basically--a long wait. The trial at the Brattleboro Courthouse took three days, and was over on Wednesday. However, Smallheer at the Rutland Herald reports that the judge asked the attorneys to file briefs on the legal issues of waiver, estoppel and laches, as well as Act 248, the state law that regulates utilities. The attorneys have until September 26 to file answers to Judge Murtha's questions. (The Smallheer article is behind a paywall.)

The injunction hearings were June 23 and 24th in Brattleboro, and the judge ruled on July 18. That was about three weeks. The injunction ruling was a smaller ruling, and one that would not be tested by any sort of appeal process.

Most judges don't want to see their rulings overturned. In this case, both parties have said: "Whichever way it goes, we will appeal!" With that background, I suspect this will be a very carefully-written opinion. Everyone expects this ruling to take at least two months, if not longer. Early November? Thanksgiving? Christmas? Sometime in January?

What's next is....we wait.

What Happened: The Legal Points

Entergy basically had three major points within the court case.

  1. Breach of contract. By passing Act 160, the legislature inserted itself into the Memorandum of Understanding between the state Public Service Board and Entergy. This changed and breached the contract, and basically invalidated it.
  2. Pre-emption. Whatever the heck the legislature said about reliability, the only thing they looked at was safety, safety, safety. They never mentioned the plant's capacity factor, for example, but rather talked about the dangers of leaking tritium. Radiological safety is the legal business of the NRC and the federal government, not the state. The state was attempting to pre-empt an area reserved for federal rule-making.
  3. Commerce clause. Legislators stated that they were not going to give a Certificate of Public Good to Vermont Yankee unless the plant sold power within Vermont at below-market rates. Since the plant sells power to three states (Vermont, New Hampshire, Massachusetts), a requirement for better rates in-state violates the interstate commerce clause of the Constitution.
What Happened: What Was Said

Discussing what was said about these three areas is clearly more than one blog post worth of discussion! So, here's my quick summary, to be expanded in future days.

The State pounded on the Breach of contract issue. It claimed that Entergy had agreed to abide by Act 160, even though it now objects to the act. The State claims that Entergy should have sued immediately, or something like that. As a matter of fact, the words waiver, estoppel and laches are all about this. I heard that the State played a video of a forty-minute deposition by a former Entergy vice-president. In the video he talked about how Entergy needed to mend fences with the legislature. The State contended that this video shows that Entergy accepted their authority and the legislature's role in the Certificate process. The State also pushed the question of whether Entergy had brought the suit at the right time. (I blogged about this several months ago. I link to my blog post on the subject, which includes very interesting comments by Donald Kreis of Vermont Law School.)

Entergy stressed the Pre-Emption issue, pointing out all the times the legislature talked about radiological safety and then added the word "reliability" like some kind of fairy dust that would keep them safe from accusations of pre-emption. Entergy also noted the many things the state never considered: capacity factor, turbine and other non-safety inspections, etc. The state responded that they only mentioned safety to be sure they weren't mentioning safety, that they were still on appropriate state-controlled ground.

(Stepping out of reporter role here: Yeah, right. I sat in hearings where legislators said in a very jolly tone of voice "You know we can't use the s-word." So they used the r-word for s-word concepts. I saw Shumlin talking about how radioactive leaks from this aging plant would affect the teeth of children in Vermont. Gimme a break. It was safety, safety, safety.)

In early parts of the trial, the Entergy brought up the issue of the Commerce Clause. Entergy showed that the legislators told them that Entergy would not be granted Certificate of Public Good unless they sold power at below market rates to Vermont utilities. Trying to enforce a better deal for your own state (of a commodity that is sold to several states) violates the Commerce Clause of the Constitution. This was discussed by Entergy's attorney, but I don't think it went anywhere within the context of the trial. But I am not sure.


Oh, I know I should have some conclusions. I don't.

I think it is all very much still up in the air. For further information, I recommend Olga Peterson's articles in the Commons and Vermont Digger, and the relatively sparse articles in the Vermont Law School blog about the lawsuit. For a quick overview, Pat Bradley at WAMC in Plattsburgh New York did a great 4-minute radio segment on the trial. (Full disclosure: Bradley quotes many people, including me.)

At the end of the radio segment, you can hear Cheryl Hanna of Vermont Law School explaining that the outcome is still up in the air.

More analysis to come in the future!

About the pictures: This post has photos of the September 12 rally; the photos were taken by Milo Shaefer. The upper picture shows both sides of the street in Brattleboro, shortly before court convened. Plant supporters are mostly to the right, plant opponents to the left. The lower picture shows plant supporters, with one plant opponent (wearing black) in the middle. You can click on the pictures to make them larger.

In the earlier post about the rally, the photos were by Bob Hargraves. I am very grateful to Milo and Bob for participating in the rally and taking these great pictures!

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