The PSB, the Diesels and Sherlock Holmes

Bulldog asleep

Waiting for the Public Service Board

About a week ago, on May 21, I blogged about the fact that Vermont Yankee needs another back-up diesel, and the Vermont Public Service Board (PSB) has been dragging its feet about giving permission to install that diesel.  Entergy has an NRC deadline to install the diesel, and therefore, Entergy sued the PSB in federal court.  The court hearing is scheduled for June 4, which is Tuesday, and coming up fast.

By denying the diesel permit, the PSB is interfering with nuclear safety, an area of federal jurisdiction. My post was A Court Case With A Deadline: The Black Start Diesels. 

That post included the "Breaking News" that the PSB hearing officer for the diesel docket had recommended that PSB grant the permit for the diesel.  The Department of Public Service also supports granting the permit for the diesel.  Here's a link to the Vermont Digger article by Andrew Stein on these recommendations that the PSB approve the diesel.

However, these were only recommendations. The PSB itself did not rule on this matter. The Vermont Digger article quoted Jim Sinclair of Entergy: “While we appreciate and agree with the hearing officer’s recommendation, we remain uncertain as to when the Board will rule,” he said. “Therefore, we will have to determine how this may affect the federal court hearing.”

Will the PSB Rule? Time Passes

The Vermont Digger article appeared on May 20, and the hearing is June 4.  I'll be blunt.  I was waiting for the PSB to make a statement.  I thought PSB might say:

•  "We agree with our hearing officer and here's your diesel permit. " 

or

• "To heck with our hearing officer's recommendations. We don't hand out diesel permits to outfits like you, and we'll see you in court."

But, so far, nothing has happened.  At this point, it looks like the PSB is happy to ignore the hearing officer and the Department of Public Service.  The court date is approaching fast.

I waited. I wanted to write a blog post about this, as soon as there was some news.

Sherlock Holmes and Me

Then I realized that the lack of news--is also news! Non-action is also information.

To quote Sherlock Holmes:

"You consider that to be important?" he [Inspector Gregory] asked.
 "Exceedingly so."
 "Is there any point to which you would wish to draw my attention?"
 "To the curious incident of the dog in the night-time."
 "The dog did nothing in the night-time."
 "That was the curious incident," remarked Sherlock Holmes.

The Memoirs of Sherlock Holmes (1893) : Silver Blaze

In the Holmes case, the fact the "dog did nothing in the night-time" means that a stranger did not commit the crime.  If a stranger had been there, the dog would have barked. Holmes concluded that the crime was an inside job.

To me, the fact that the PSB has done nothing means that they are happy to go to court June 4, even though (IMHO) they are pretty sure to lose on this one. In my opinion, this shows they are heavily influenced by politics.  I think that the more often the PSB is in court, the more political credibility they think they have with the Shumlin administration and the Vermont legislature: We TRIED to shut that plant down! We really did.  They sued us all the time, but we kept trying. 

In my opinion, this non-action on the hearing officer's statement shows that political credibility is what matters to the PSB.  The PSB is supposed to be a non-partisan board, but this incident of the Dog in the Nighttime indicates something else. The Public Service Board is ignoring its own hearing officer and the State's Department of Public Service. It seems happy to be dragged into court.

A political agenda is the best explanation I can come up with.  I welcome readers' comments with other explanations.

Will Davis and Me

And here's a comment to start you off!  Will Davis hosted the most recent nuclear blog Carnival at his Atomic Power Review site.  The Carnival included a link to my post about the diesels, and Will Davis had this to say about it:

Will Davis

Atomic Power Review Note:  Regarding the Yes Vermont Yankee post linked and described above...  Just how many times in this post-Fukushima world would one EVER expect to find any group, anywhere, that could possibly justify campaigning AGAINST adding a back up diesel generator at a nuclear plant site?

I think that says it all.  I hope to receive more comments, but it will be hard to beat Davis's pithy comment.

And Yet Another Lawsuit

In related news, a group of intervenors just sued the PSB in Vermont Supreme Court, claiming the PSB should "enforce their own orders" and close the plant.  Here's the May 25 article by Bob Audette in the Brattleboro Reformer on that suit:  Groups Ask Vermont Court to Affirm PSB Rulings on VY.

This suit bears an uncanny resemblance to a lawsuit the Vermont Supreme Court turned down in March of this year.  Here's the Andrew Stein article in Vermont Digger  on March 28: Vermont Supreme Court Denies New England Coalition's Petition to Close Vermont Yankee.  Or, as I blogged on March 28 in Court Won't Close Plant During PSB Hearings. Since the Vermont Yankee matter is active in both federal court and the PSB, the Vermont Supreme Court is unlikely to get involved.  Courts don't like to step on each other's toes.

Frankly, I don't get this intervenor latest suit.  It looks frivolous to me: it looks like the same contentions as the lawsuit in March.  Why are they doing this? However, I freely admit I am not a lawyer, so there may be a reason. Once again, comments are welcome.

Vermont Supreme Court Won't Close Plant During PSB Hearings

Vermont Supreme Court 

Request: Shut It Down NOW, Your Honors!

In January, an intervenor went before the Vermont Supreme Court, asking that court to shut down Vermont Yankee immediately.   I blogged about it at the time:  Unique Request: Opponent Wants Vermont Supreme Court to Rule Before PSB Rules. 

The Supreme Court hears appeals after lower courts or judicial bodies have ruled. In this case, the intervenor asked the Supreme Court to rule while a lower-court (the Public Service Board, a quasi-judicial body) was still holding hearings on the same subject. That was unique!

 I predicted that the case would be dismissed because courts don't like to step on the processes of other courts.

Answer: Case Dismissed, Please Go Away, You're Bothering Us

Yesterday, the Vermont Supreme Court denied the petition to close Vermont Yankee.  Andrew Stein at Vermont Digger wrote about it today: Vermont Supreme Court denies New England Coalition's petition to close Vermont Yankee.   A quote from the ruling:

NEC fails to demonstrate, as predicates for the injunctive relief sought, that it exhausted its administrative remedies and that it has no adequate legal remedy.  ....  NEC has not requested, nor has the Board issued, an order directing Entergy to cease operating Vermont Yankee on the grounds advanced by NEC here.  Nor is it established that Board enforcement of Condition 8, if applied for, would necessarily be covered by the federal injunction enjoining enforcement of Act 160.....

Dismissed

In other words: "Why are you asking us, the Supreme Court, to rule about this?  There's a perfectly valid legal process underway, and we see no reason to derail it."

It Was Only Procedural

The attorney for the intervenor seems happy that the Supreme Court ruled only for procedural reasons.  According to the Digger article: Jared Margolis said: "The substantive issue that we brought before the Supreme Court has not been determined to be invalid”

Of course the Supreme Court would rule for procedural reasons.  Courts try avoid stepping on each other's toes!

In my opinion, the intervenor petition was a waste of taxpayer money (court costs) and simply a way to harass Vermont Yankee.

As I included in an earlier blog post, here's a minute-and-a-half WPTZ video of the January Supreme Court hearing that led to the decision yesterday.

Court House Update in February

I went to a Superbowl party, and everyone asked me: "What's going on with Vermont Yankee?"

It's very confusing.  As a matter of fact, the whole thing is as confusing as a complex play in a football game.  I wish I had instant-replay and colorful arrows to track the different players.  Anyhow...

There are four court cases, at least two Public Service Board cases, and maybe more.  Here goes.

The Four Court Cases

The first case is the federal appeals case held in New York City last month: 2nd Circuit Court of Appeals.  The state was trying to convince the court that it had economic reasons to shut down Vermont Yankee. The hearing was 30 minutes long and I think that the state's case is fairly weak.  In any event, the judges will rule in a few weeks or a few months or whenever.  You can read about it and listen to the hearing on my blog post:  State Claims Economic Argument for Closing Plant.

The second case is the intervenor case claiming that Vermont Yankee is operating illegally: this case was brought in Vermont Supreme Court. This is the "let's you and him fight" case, where the Public Service Board wrote a strange ambiguous letter that opened the door for such lawsuits.  You can read about it at my earlier Hot Potato blog posts. Or you can watch a succinct 90 second video from WPTZ at my post: The Short Version: Another View of the Vermont Supreme Court Hearing.The hearing is over, and we wait for a ruling from Vermont Supreme Court.

The third case is a new case, brought by Entergy, about the Public Service Board closing a docket. This case is also in Vermont Supreme Court. The Public Service Board had a docket, docket 7440, on the Vermont Yankee Certificate of Public Good, but they decided that docket was compromised by the various lawsuits. So the PSB opened a new docket, docket 7862, subject of my blog post: Docket 7862, Where Are You?  (Docket 7862 is now on the Public Service Board website).

In January, the Public Service Board closed docket 7440.  However, the "you and him fight" letter (see the second case) was on that docket, and closing the docket might have consequences.  I am not a lawyer, and I am puzzled.  However, Entergy reviewed the matter,  and they brought suit in Vermont Supreme Court against the Public Service Board for closing the docket.  An article by Susan Smallheer at the Rutland Herald gives the background of the case. The article ends with the confusing (to me) statement that the PSB thinks that by triggering an appeal by Entergy, the court cases would ultimately be simplified.

I also recommend you to read the Entergy brief, which I have posted at the Energy Education Project website.  It has appendices that give all the relevant statements, dockets, etc.  The Entergy brief is like a history of the case.  When you figure out this whole thing, write a comment or send me an email.  Okay?  Thanks.  I appreciate your help.

The fourth case is about money, specifically the sudden $12 million dollars a year tax that Vermont laid on "plants above 200 MW that started operations after 1965." Entergy claimed this was an unconstitutional levy on a single business.  (I agree!) A federal court recently said they lacked jurisdiction on this and dismissed the case.  I thought I would list it here, because it is an important case, in my opinion. It may be case-closed, or it may be heard in another court.  I don't know, but I think it is important.

The Two Public Service Board Cases

One of the cases is  Docket 7862, the new docket about the Certificate for Public Good. This seems to be going along according to schedule.  Public hearings are over, but public input continues.  You can submit your input through this form.  I hope you will write something about why you think Vermont Yankee should have a certificate of Public Good.

The other docket is about the new diesel generator, as mentioned in my post Black Start, BlackOut and Diesels. Due to a grid operator change in the classification of Vernon Dam, Vermont Yankee needs a new diesel generator, and needs a Certificate of Public Good for that diesel.  There was one hearing on this docket 7964, and it was not reported in the press.

Word of mouth says the hearing was very preliminary and inconclusive.  I bet it was!

• If the PSB grants permission for the diesel, are they also signalling that they plan to grant a Certificate of Public Good for Vermont Yankee?  
• If they don't grant permission, are they interfering with nuclear safety requirements?  

I personally think "inconclusive" will reign on this docket until other issues are resolved.

Football is over

Football is over until next year, but the court cases linger on....Sometimes I wish I wasn't the go-to person for these questions all the time.  It makes it hard to concentrate on the game. Can someone please pass the potato chips?

The Short Version: Another View of the Vermont Supreme Court Hearing

Yesterday, I posted about the Vermont Supreme Court hearing about Vermont Yankee. An anti-nuclear group asked the Vermont Supreme Court to shut down the plant though the Public Service Board hearings are on-going.

Yesterday's post is Unique Request: Opponent Wants Vermont Supreme Court to Rule Before PSB Rules.  The post includes links to many articles about the hearing. It's the long version.

Here's the short version.

I think many of the issues are encapsulated in this video clip from WPTZ.  The clip is about a minute and a half long, and worth viewing.

Unique Request: Opponent Wants Vermont Supreme Court to Rule before PSB Rules

Vermont Supreme Court

In Three Vermont Yankee Hearings: The Week of Living Lawyerly, I described the three hearings about Vermont Yankee that are happening in three different courts this week. The second hearing took place yesterday, in front of the Vermont Supreme Court.

Stepping on the Process

An anti-nuclear group, NEC (New England Coalition Against Nuclear Pollution) asked the Supreme Court to shut down Vermont Yankee even while the Public Service Board holds hearings about granting Vermont Yankee a Certificate of Public Good.  Andrew Stein of Vermont Digger wrote about the hearing in Anti-nuclear group petitions the Vermont Supreme Court to shut down Vermont Yankee.  At VPR, John Dillon wrote Entergy Asks Court to Dismiss Attempt to Shut Down Yankee.   That article ends with the comment that It's likely the high court will rule fairly quickly on Entergy's motion to dismiss.

I have blogged about this case extensively, most recently in the post Hot Potato Continued: Federal Court Turns Down Entergy Injunction Request.   I said that I thought the Public Service Board was happy to see you (NEC) and him (Entergy) fight in another venue, and leave them (the Public Service Board) out of the picture and off the hot seat.

An Appeal Before the Ruling?

But the main question is simple: groups usually appeal to the Vermont Supreme Court when a lower court or judicial board (like the Public Service Board) has ruled against them.  I have never before heard of a group jumping the gun and bringing a case to the Supreme Court while the lower court is still deliberating.  It's odd.  Actually, it's unique, as described in the WCAX video clip by Jennifer Reading.

Will the Vermont Supreme Court step in, step on, and step over the Public Service Board process?

If the Supreme Court acts now, it would be a very bad precedent for hearings before all other lower courts and judicial boards. That's my opinion, but only time will tell how the Vermont Supreme Court will rule.


WCAX.COM Local Vermont News, Weather and Sports-



Background

There are three hearings about Vermont Yankee this week.

The first hearing was Monday in federal court. This was a hearing in the Federal Court of Appeals in New York City. In this hearing, the State of Vermont attempted to convince the court that they were not concerned with nuclear safety, a federally pre-empted subject, but merely with economics.  Vermont claims that it wants to shut the plant down for economic reasons.  Since the plant contributes greatly to the state prosperity (and the state tax coffers), this argument was completely backward.  I blogged about it in Vermont Yankee: State Claims Economic Argument for Closing Plant. 

This post describes the second hearing, before the Vermont Supreme Court. Also, I have posted a few of the documents in the Supreme Court case at the Energy Education Project site.

The third hearing was today, before the Public Service Board, on the question of whether or not Vermont Yankee will be allowed to buy a back-up diesel generator.

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.)
---------------------------------------

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.

---------------

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.

Hot Potato Continued: Federal Court Turns Down Entergy Injunction Request

Plant Opponent Tries a New Court

On November 29, the Public Service Board (PSB) issued a "strongly worded" but "narrow" ruling against Entergy.  In this ruling, the PSB refused to take the "requirement to have a Certificate of Public Good to operate after March 21, 2012" off the original 2002 Sale Order for Vermont Yankee.  The Board also said, however, that it  did not reach any conclusions concerning the merits of modifying or extending Entergy VY's obligations under existing Orders and CPGs.

Yes, it was a confusing ruling. A long-time plant opponent, the New England Coalition against Nuclear Pollution (NEC), looked at this ruling and used it as a basis for a suit filed  in Vermont Supreme Court.  NEC filed in Vermont Supreme Court, although active hearings were on-going at the Public Service Board and in Federal Court. In other words, NEC was trying their luck with suit in a third court.

I blogged about this opponent filing in The Very Latest Lawsuit: Opponents Will Probably Lose. I had some evidence for this.  The Vermont Department of Public Service has joined other NEC lawsuits against the plant, ever since Shumlin was elected. To my surprise, the Department of Public Service asked the Vermont Supreme Court to deny the NEC request for an injunction.  Then the Public Service Board itself asked the Vermont Supreme Court to deny the NEC petition.

One of the issues is that the Public Service Board's November 29 ruling could be read as an endorsement of third-party suits against Vermont Yankee. I wrote about this in Hot Potato and the New Request: Entergy Asks for an Injunction against PSB and Shumlin in Federal Court.   In other words, the November 29 PSB ruling could be interpreted as tossing the hot potato: Let's you (NEC) and him (Entergy) fight, and leave us (the PSB) out of it!

Entergy Tries an Old Court

As I noted in my Hot Potato post, when NEC filed in Vermont Supreme Court, Entergy filed an injunction against NEC in Federal Court. Entergy filed in the same court  that ruled for Entergy in the original case about Vermont's pre-emption of the federal prerogative to regulate nuclear safety.  The same judge (Gavan Murtha) heard the request for the injunction against NEC.  Yesterday, Murtha ruled against Entergy about the injunction.

Basically, Entergy claimed that the NEC Vermont Supreme Court filing was an end-run around the Federal Court ruling that the Public Service Board should not take action to shut down Vermont Yankee during the federal appeals process.  Judge Murtha did not explicitly agree or disagree with this analysis. However, Murtha noted that NEC was not a party to the federal suit, and that the federal court does not take action against those not involved in federal suits.  Also, the federal court usually does not interfere with state court issues.  Bob Audette at the Brattleboro Reformer describes the Judge's reasoning, including the fact that NEC asked to be a party to the original suit, but was not granted standing by the federal court.

Meanwhile, Ray Shadis of NEC issued a press release that was quoted in the Reformer: "We hope this federal rebuff will serve Entergy as an inoculation of anti-arrogance serum, but we suspect that booster shots will be needed before Vermont Yankee is history and we can move to the details of decommissioning."

Other statements by NEC echo the idea that this federal ruling is not the final "shot" in these battles. Lawyer Margolis of NEC told the Reformer that he expects Entergy to "run to the district court" if the Vermont Supreme Court orders a plant shutdown.

Vermont Supreme Court 

Ignoring the rhetoric, I interpret these statements as: "It's not over till it's over."

Indeed, it is not over yet.

The Future

The next event in this saga will be the Vermont Supreme Court hearing on the NEC request.  As noted above, both the Department of Public Service and the Public Service Board have asked the Vermont Supreme Court to dismiss the request.   (UPDATE: Entergy has also asked for the NEC request to be dismissed.  I have put the November 29 PSB statement and the Entergy request to the Vermont Supreme Court on a new page Vermont Supreme Court Filings, at the Energy Education Project.) As far as I can tell, only NEC wants the Supreme Court to take the case, and the two Vermont commissions have asked it to dismiss the case.  The Supreme Court has scheduled at 30-minute hearing on this case on Wednesday, January 16, at 2:30 p.m.

Hot Potato and the New Request: Entergy Asks for Injunction against PSB and Shumlin in Federal Court

The DPS and Public Service Board Don't Join NEC

Public Service Board members David Coen, Commissioner
John Volz and John Burke (left to right in picture)
At November 7 PSB hearing

A few days ago,  the New England Coalition against Nuclear Pollution (known as NEC) sued in Vermont Supreme Court.  NEC asked the Vermont court to shut down Vermont Yankee, although there are two other jurisdictions hearing aspects of the Vermont Yankee case. In an earlier post, Vermont DPS Not Joining Opponent Lawsuit,  I wrote that the Vermont Department of Public Service (DPS) asked the Vermont Supreme Court to deny this NEC suit.

In that post, I wrote that the DPS probably asked the Supreme Court to deny the suit because if the Supreme Court undertook hearing the NEC lawsuit, that lawsuit would invalidate the Public Service Board process.  The DPS charter is to appear before the Public Service Board and take part in the Board process. Naturally, the DPS would want that process respected.

So, I was not surprised to learn that the Public Service Board itself had asked the Supreme Court to deny the NEC petition.  After all, the Public Service Board doesn't want its own process invalidated.

Hot Potato

However, there were still surprises in store for me.  I read last night in Vermont Digger that  Entergy filed a new motion in Federal Court in the against Shumlin, et al (in their official roles) and against the Public Service Board (PSB).


What? A request for a new injunction?

Yet, when I read the  Entergy motion for injunction, their request makes sense.  Not something I would have predicted, but it makes sense.  The Public Service Board has to stop  treating this Certificate of Public Good as a hot potato. "Somebody else take this, pretty please!"

Entergy notes the PSB rulings have been ambiguous. The PSB November 29 ruling pretty much invited third parties to challenge the operation of Vermont Yankee.  On page 5 of the Entergy filing, Entergy quotes the November 29, 2012 PSB ruling: it invites other parties to use the PSB ruling as a basis to bring actions against Vermont Yankee.

Aside: See Entergy quote about the ruling at the bottom of this post. Also, I wrote extensively about this recent ruling which was "strongly worded" against Entergy but also "narrow" and issued on an obsolete docket.  You can also read the ruling here. End Aside.

In other words, in that ruling, the PSB basically says: "The PSB is not going to take action, but you can. Let's you and him fight, and leave us (the PSB) out of it."

I don't understand the points of law, but I do understand that the Public Service Board has written ambiguous statements. The Public Service Board is supposed to hold hearings and issue rulings, and  I think the Public Service Board may be playing "hot potato" instead.  They have written an opinion that encouraged someone like NEC to take the docket off their hands. The Certificate of Public Good is a hot potato...quick, throw it to someone else!

Due Process

The purpose of the March ruling by Judge Murtha was to allow court cases and PSB dockets to continue in a logical and legal fashion, without the constant threat of the state attempting to shut down Vermont Yankee while the legal process is on-going.

It doesn't seem as if the concept of legal due process should be so difficult. You would think due process would be what the Public Service Board wants.  I would think the Board would want their own process to be respected. On the other hand, after a meeting this March in which the Board behaved in an unprofessional and crabby fashion (at least in my opinion), I am not sure what they want.

This Entergy docket for a Certificate of Public Good is a hot potato, politically.  But from the point of view of the law, it's a legal docket, and should be treated as one.

Ultimately, I think that is what the Entergy request is about.  The PSB should handle its dockets professionally. Instead, they issued an odd order on an old docket, and that order looks like an open-invitation to third party lawsuits.  By issuing that order, I think that the PSB hoped that someone will rescue the them from the necessity of making hard choices.

However, Judges and Boards are given the status, authority, and ability to make the hard choices.  That's why they hold the positions they hold.  I hope the PSB  realizes this.

-----
Longish quote from the Entergy filing:

The PSB did not affirmatively state that it would take action to shut down the VY Station for failure to obtain a new CPG from the Board before March 21, 2012, but the PSB did expressly invite others (such as NEC) to do so: “Entergy VY entered into a binding contract with the Department [of Public Service] and other parties not to operate after March 21 absent Board authorization. Entergy VY has not challenged the validity of this commitment in its  federal litigation.[1] Thus, any of those parties could seek specific performance ... at any time which, if granted, would bar operation after March 21, 2012.” Id. at 19.  

Non-party (to this action) NEC has now accepted the PSB’s invitation, asserting that the PSB’s March 19 and November 29 Orders require an immediate shutdown during the Interim Period despite this Court’s prior rulings.

Also note you can see many relevant filings at the Energy Education Project website, by following links from this page: Dockets for Public Service Board and Courts.
------

This is the updated post.  I took the word "Update" out of the title, because it has been updated for several days already.

The correction for the update was  the following:

Entergy brought this request for injunction in Federal Court,  on the same docket as the main lawsuit in federal court.  It was not a new suit, and it was not brought in Vermont Supreme Court.  In my original post, I said this was a new suit in Vermont Supreme Court.  The post has been changed to show that correction.  

Very Latest Lawsuit Updated: Vermont DPS not joining opponent

The Ruling and the Lawsuit

In my blog post a few days ago,  The Very Latest Lawsuit,   I described an order that the Public Service Board filed, which was strongly-worded against Entergy, but was not a summary judgment against the plant.

In response to that order, an opponent group, New England Coalition Against Nuclear Pollution (commonly called NEC), filed a suit in Vermont Supreme Court to have the Vermont Court take action and shut down the plant.

On the radio, Pat Bradley of WAMC had interviewed me and Pat Parentau of Vermont Law School.  I am a plant supporter: Parentau is an opponent.  We both agreed that this suit was not likely to get anywhere.

However, NEC hoped to have the Vermont Department of Public Service (DPS) join them in the suit, as DPS had joined them in other suits to attempt to shut down Vermont Yankee.

DPS will not join NEC in this one.

The Department of Public Service Steps Away from NEC

Yesterday, to my surprise, the DPS filed a brief asking the Vermont Supreme Court to deny the NEC appeal. Here's the Burlington Free Press article on the DPS filing  I also link to the DPS filing itself  posted at the Energy Education Project website.  The introduction to that filing:

While the Department appreciates the dedicated work of NEC and other parties over years of litigation with Entergy, the Department nonetheless respectfully requests that the Court refuse the relief requested under 30 V.S.A. $ 15. NEC's complaint does not encompass proper grounds for Section 15 relief; and other reasonable relief is available in pending proceedings before both the Board and the Second Circuit Court of Appeals.

Well, okay, DPS isn't really stepping away from NEC: they mention "dedicated work" and all that. But DPS realizes that there is no reason to open a docket in a new court for a case that is under active review in two other courts, federal and state.

The DPS decision somewhat confirms my belief that the NEC filing in Supreme Court was more for NEC publicity than to win the case.  Indeed, looking at the DPS filing, I realize that if DPS had joined NEC in this filing, DPS would have been undercutting the authority of the Public Service Board to make a ruling on the new docket for the Certificate of Public Good.  In retrospect, I realize...of course DPS wouldn't join NEC in this one.

I am talking about 20-20 hindsight here.  A few days ago, I thought DPS would join NEC in the Supreme Court filing, since that has been DPS's reaction in the recent past: "NEC is suing--let's join!"

Pat Parentau and I agreed with each other on the radio show a week ago: this filing will almost certainly be dismissed by the Vermont Supreme Court.  Looks like DPS came to a similar conclusion.

Howard Shaffer Post at ANS Nuclear Cafe:

Howard Shaffer has a great post  ANS Nuclear Cafe today: politics, lawsuits, and trials. Vermont Weather Gets Colder.  Vermont Yankee Politics Continue Hot.  I encourage you to read it.