It is time for Vermonters of goodwill, from Gov. Shumlin to the SAGE Alliance, to inure themselves to the reality that Vermont Yankee will not be shutting down on March 21, 2012.
The latest flurry of federal court pleadings from Vermont Yankee’s owners at Entergy suggest that, in a sense, the whole notion of civil society has become somewhat frayed in the wake of January’s decision by U.S. District Judge J. Garvan Murtha that federal law precludes the Vermont Legislature from ordering the nuclear plant closed on March 21. Attorney General Sorrell has appealed Judge Murtha’s decision to the U.S. Court of Appeals for the Second Circuit and, thus, by all rights the action should now shift to that New York City-based court.
Instead, Entergy has fired off a frantic pleading to Judge Murtha, asking him to amend his original judgment, along with a filing at the Court of Appeals that apparently raises the same issue. (For civil procedure buffs, note that the former submission is styled as a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure, and the latter takes the form of a notice of cross appeal.)
What appears to have Entergy freaked out is a memorandum issued on Feb. 22 by the Vermont Public Service Board (PSB). The PSB is in the limelight these days because, although Judge Murtha declared that the Legislature could not block the continued operation of Vermont Yankee, the PSB still has at least some authority to take such steps. The PSB’s free pass is grounded in the fact that when Entergy bought Vermont Yankee from a consortium of regulated utilities in 2002, it agreed to return to the PSB to seek further operating authority in the event Vermont Yankee wished to consider remaining in business beyond the original expiration date – that ominous date of March 21, 2012 – of the plant’s federal license. The feds have since extended the license by another 20 years.
The PSB has had a docket open for the purpose of considering the question since 2008, although the proceeding had been stayed from 2009 till Judge Murtha issued his decision. All the PSB did in its Feb. 22 memorandum is issue a perfectly innocent document asking, in effect: What now? In other words, deciding precisely nothing – and, indeed, betraying no inclination to decide anything in a particular manner – the state utility regulators simply asked the parties to state their positions, in writing, about what the PSB may and may not do under applicable Vermont law in light of the U.S. District Court’s decision. The parties, including Entergy and the Shumlin administration (through the Vermont Department of Public Service), have until Friday (March 2) to answer the PSB’s questions.
Entergy’s Rule 60(b) implies that by merely asking these questions, the U.S. District Court should assume that the PSB might just order Vermont Yankee to close on March 21. That’s ridiculous.
It’s ridiculous because it is perfectly obvious that shutting down the plant on March 21, under state law, would be inconsistent with Judge Murtha’s decision. And unless and until some higher court (i.e., the Court of Appeals and/or, perhaps eventually, the U.S. Supreme Court) tells Judge Murtha he was wrong, his decision is lawful and binding.
In a better world, alarmist pleadings like Entergy’s would be unnecessary because the owners of the nuclear plant would sit down with Attorney General Sorrell or his designees and agree that Vermont Yankee can continue to operate while the case is pending. Nuclear power plants, like every other kind of baseload generation facility that is designed to run more or less constantly, can not be turned off and on like an automobile or TV set. As was amply demonstrated last summer during Entergy’s unsuccessful effort to get Judge Murtha to issue a preliminary injunction – a request that he denied, by the way, based on an ultimately unfulfilled promise to resolve the case speedily on its merits – shutting down Vermont Yankee pending final resolution of its legal arguments would wreak irreparable harm. In other words, Vermont Yankee would lose even if it ultimately won in such circumstances.
So, instead of a common sense agreement to preserve the status quo, we have the unseemly spectacle of Entergy filing its latest pleading in U.S. District Court. The Entergy submission reads like an attempt to intimidate the three members of the Public Service Board, each of whom is a named defendant in the federal litigation. All of this threatens to do real harm to the integrity of the process by which the PSB exercises its quasi-judicial authority to regulate Vermont’s electric industry and other public utilities.
Contributing to the climate of incivility that now swirls around the Vermont Yankee litigation are the public pronouncements of a group calling itself the SAGE Alliance. If you check the group’s web page, it does not identify what groups or individuals comprise the alliance, nor does it even disclose the simple fact that SAGE stands for “safe and green energy.” More to the point, the SAGE Alliance has proclaimed itself the organizer of a campaign of unspecified “nonviolent direct action” aimed at making sure Vermont Yankee closes as decreed by the Legislature on March 21.
To which people of goodwill ought to inquire: Whither the rule of law?
On its web site, the SAGE Alliance accuses Entergy of attempting to “undermine the will of the people,” “steal our vote away” and “subvert democracy” as the company “defies Vermont law.” Adopting these propositions requires one to conclude that we are all free to ignore judicial decisions with which we disagree.
This is a disquieting notion for those who can recall the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, two federal statutes that decisively preempted the racism that was enshrined in state law across much of the U.S. Some may find it unseemly to compare Entergy – widely regarded as a bad corporate citizen by virtue of its mediocre stewardship of Vermont Yankee – to the oppressed racial minorities whom federal troops had to protect at notable junctures in the 1950s and 60s. But the legal principles are precisely the same. Either all of us are bound by judicial decisions and, thus, by the rule of law or there is the possibility that none of us are.
Either the laws duly enacted by Congress are the “supreme law of the land” under Article VI, Section 2 of the U.S. Constitution or they are not. The result can not vary according to whether we are talking about the Voting Rights Act or the Atomic Energy Act.
Judge Murtha’s decision is certainly open to incisive criticism, some of it appearing on this very blog. As others have pointed out, his ruling sets a troubling precedent about legislative debate, which might be stifled in the future because Judge Murtha attached so much importance to it here. As I have pointed out, there are good reasons to question Judge Murtha’s ruling that it would be unconstitutional (based on the Commerce Clause) to preclude Vermont from demanding low-cost power for Vermonters if Vermont Yankee is to stay in business. But the federal court has ruled and its judgment is worthy of respect – in the suites and in the streets.
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Hello, Don. Not sure who did your homework: if you check the website of the SAGE Alliance, and click on About Us, you will see that the SAGE Alliance is open about who we are, and have always acted with transparency. There are links to the websites of the ten citizens’ groups which founded the alliance. There is even a photo of the SAGE coordinating committee, which I took, and of which I am a member. http://sagealliance.net/who_we_are
Why am I, personally, committed to SAGE? Because Entergy has proven time and again it cannot be trusted to properly maintain the reactor; people forget, in all the rhetoric, even after Fukushima, that that this is about nuclear waste and nuclear accidents, and accidents last generations. Because we, who live with the consequences, have no say over safety, and because the NRC is a tool of the corporations. Because Entergy is a corporate bully, using its $11 billion in revenues to play the legal and regulatory systems. Because those federal systems are broken and are disconnected from the will of the people.
But my number 1 reason for taking part in this citizens’ movement is that I care, deeply, about democracy in the State of Vermont. Vermont is one of the few places in the US where direct democracy continues to function. I cannot simply watch while Vermont falls to a corporate takeover. On March 22, assuming Entergy is operating without my state’s permits, my duty as a Vermont citizen takes me to the streets, with peaceful intention. I am simply joining a long history of citizens who have done so to ensure that democracy is kept alive — including those who marched and were arrested before and after passage of the Voting Rights Act and the Civil Rights Acts.
Leslie (Leslie Staudinger of VLS days of yore)
Just once, I wish I could agree with Don Kreis, since he’s such a likeable fellow. Alas, that’s not to be, at least not this time.
1) First, let’s get the chronology straight. Judge Murtha handed down his decision on January 19. On January 25, DPS wrote to the PSB, requesting a prehearing conference to be scheduled no earlier than Feb. 24 or specifically, AFTER decisions had been made concerning an appeal of Judge Murtha’s decision.
On January 31, Entergy petitioned the PSB for a final decision “without taking any new evidence.” (This petition directly contradicted what Entergy told Judge Murtha at the trial (namely, that the docket was tainted and a fresh docket was needed.)) The Attorney General filed his notice of appeal of the Murtha decision on February 18. Then, on Feb. 22 the PSB issued a “Request for Comments on Procedural Issues,” noting that a prehearing conference was set for March 9 and that briefs were requested for March 2. The Board went on to ask that parties “also respond to the following additional procedural issues.”
On Feb. 28, Entergy filed 4 distinct items, 3 in direct response to the Board’s memo. First, 2 items filed with the 2nd Circuit Court of Appeals: 1) notice of cross-appeal “from the final judgment … and each and every part thereof;” (This had nothing to do with the Board’s memo and its filing on the same day as the other 3 items is coincidental). 2) a motion for a limited remand to resolve motion under Fed. R. Civ. P. 60 (b). In addition, there were 2 more filed with Judge Murtha 3) “MOTION FOR RELIEF FROM JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b); and 4) “EXPEDITED MOTION FOR INJUNCTION PENDING APPEAL.”
Finally, on Feb. 29, Entergy wrote to the PSB, requesting that the prehearing conference be postponed, but failing that, that other parties be required to file briefs by March 2 but that Entergy’s brief be deferred till March 7. [Entergy is now asking the Board to slow down the process which less than a month earlier, they asked the Board to expedite.]
2) It is clear from this chronology why Don’s version is just too simple. The reason that “by all rights the action should [NOT] now shift to that New York City-based court” is that there is a second process legitimately underway: namely, the CPG decision making process which will take place at the PSB. By remanding the case to the PSB – which Entergy ASKED him to do –Judge Murtha clearly set in motion a process which COULD evolve separately from the appeal. Entergy specifically requested that it SHOULD do so, knowing full well when it did so that the State might well appeal Judge Murtha’s decision. In any case, now that Entergy has asked for a final decision, the PSB has little choice but to at least hear from all the parties their opinions on how best to proceed.
3) It is also clear from the Board’s questions and Entergy’s response that it is NOT “perfectly obvious that shutting down the plant on March 21, under state law, would be inconsistent with Judge Murtha’s decision.” Indeed, it isn’t clear at all. There are at least 2 pertinent reasons for this.
First, as the Board pointed out in its Feb 22 memo, Judge Murtha did not strike down all of Act 74. In particular, the Board cites Section 6522 (c)(2), noting: “It appears that this provision, which was incorporated in the Docket 7082 CPG, has not been preempted by the District Court.” (p.2) The language of that provision specifically limits storage of spent fuel “…to the amount derived from the operation of the facility up to, but not beyond, March 21, 2012 ….” That clearly suggests that continued operation after March 21 would create spent fuel which could NOT be legally stored. There is likely to be controversy surrounding this point, given that it clearly revolves around a part of Act 74. There is no question that Act 74 was clearly one of the focal points of Judge Murtha’s decision.
The second point, however, concerns subsection 6501, which was written in 1979: “No facility for deposit, storage, reprocessing or disposal of spent nuclear fuel elements or radioactive waste material shall be constructed or established in the state of Vermont unless the general assembly first finds that it promotes the general good of the state and approves, through either bill or joint resolution, a petition for approval of the facility.” That has never happened, and Judge Murtha’s decision did not address it at all.
Judge Murtha’s reasoning about Acts 74 and 160 revolved ENTIRELY around their legislative history. In shortest form, he ruled that their legislative history showed that the legislature’s “real” motivation in passing the laws was “radiological safety” and that therefore parts of both acts were preempted by the Atomic Energy Act. There is no logical way to extend this reasoning to a law passed a quarter of a century BEFORE the legislative history the judge had before him. It follows that the Judge’s conclusion that parts of Act 74 are unconstitutionally preempted does NOT imply that Section 6501 is also. Any such conclusion would have to follow from OTHER evidence, which has never been put before the judge.
All of this, in turn, suggests that regardless of the outcome of the 2nd Circuit appeal, there are remaining legitimate issues which can be explored at the State level, independent of the appellate process. Thus, it would not be “a better world” — certainly not a world in which the rule of law is more respected, which appears to be what Don Kreis is after — if the Attorney General were to ride roughshod over all of these legitimate questions and simply agree to concede to Entergy that it can operate until the appeal is resolved.
3) It is also a vast oversimplification to suggest that Judge Murtha’s denial of Entergy’s requested injunction last summer was “based on an ultimately unfulfilled promise to resolve the case speedily on its merits.” The judge, after declining to rule on the probability of success on the merits based on the proximity of the trial date, carefully looked at the harms which Entergy claimed would ensue if the injunction were denied, and decided they were baseless. In particular, Entergy claimed that it was risking upwards of $65 million on its decision to refuel, a decision which it would need to make well BEFORE the trial was to occur in September. The judge had little sympathy with this argument.
It is worth recalling two points about timing, which, from start to finish, has been in Entergy’s hands. Act 160 passed in 2006. It was no more or less constitutional then than it is now. The argument has been made that, had Entergy sued when that bill was enacted, the courts might have ruled that the case was not “ripe,” since the NRC had not acted. Weighing against that suggestion, however, is the fact that in 2006 Entergy filed its petition for relicensing with the NRC, which would cost it millions of dollars to pursue. That alone suggests that the case would have been ripe for decision BEFORE the expenditure of those millions. We’ll never know, since Entergy CHOSE not to bring the action.
Similarly, Entergy could have brought this case in February 2010, following the Senate’s vote. Had it sued THEN, it would not be facing any kind of loss now, since there would have been plenty of time to resolve all of the complicated issues which surround continuing operations. Again, Entergy decided to wait more than a year before suing, bringing the looming deadline of March 21 that much closer. If Entergy is forced to close down while resolving the claims it decided to wait until the last minute to bring, it’s clearly NOT the fault of the State of Vermont or its Attorney General. Entergy must face the consequences of its own decisions and strategies.
4) Finally, Don’s analogy of Entergy to “oppressed racial minorities” misses some pretty basic points. The most salient, of course, is that those racial minorities were using non-violent direct action, precisely the tactic Don is assailing, to contest the injustice of laws which had been duly passed by state legislatures and upheld, in many instances, by the US judicial system (both state and federal). That’s WHY it’s called “civil DISOBEDIENCE.” Put differently, non-violent civil disobedience is, by definition, a violation of man’s law in acknowledgement of a higher law or principle.
Sure, along the way there were points when the federal government called out troops to enforce the decisions of federal courts, but there were also many occasions when protestors had to go to jail to dramatize the larger injustices of duly passed and enforced Jim Crow laws to American society and to the world.
To be honest, I haven’t decided whether or not civil disobedience is an appropriate tactic at this juncture in the battle against Vermont Yankee, but it is crystal clear to me that if it is used, it is the demonstrators, not Entergy, who are analogous to blacks who decided to peacefully violate laws with which they felt they could not longer comply and then to suffer the consequences of their actions.
John, this reply is in response to your third point about 10 V.S.A. Section 6522 (c)(2) and 6501 (a).
Curiously, spent fuel is not defined in the Vermont Statutes (10 V.S.A. Chapter 157 or otherwise). Therefore, I’m basing my opinion on an accepted definition of spent fuel. “Spent fuel is nuclear reactor fuel that has been irradiated to the extent that it can no longer effectively sustain a chain reaction because its fissionable isotopes have been partially consumed and fission-product poisons have accumulated in it.” The key idea I’m arguing is that spent fuel is not continuously generated in a nuclear reactor inside of a fuel cycle, but only at the end of a fuel cycle prior to a refueling outage.
Based on the definition of spent fuel above, I would argue that there is no more spent fuel today or currently being generated than there will be prior to the start of the next cycle. Entergy chose to refuel the reactor for another 18-month cycle and not to refuel the reactor to only operate until March 21, 2012. Carefully note that the statute does not limit the plant to the amount needed only to operate until March 21, 2012, but to the amount derived from the operation of the facility up to March 21, 2012. I think that provides a clear enough distinction for continued operation after March 21, 2012 in terms of the 10 VSA 6522 (c)(2) question.
I agree with you about 10 VSA 6501 (a). Clearly this needs resolution, but if it wasn’t an issue when the ISFSI pad was constructed and became operational in 2008, I fail to see why it should be such an issue on March 21, 2012.
Respectfully,
Dennis
The question Dennis Pearson raises is best answered by an attorney, and I don’t pretend to be one. So I want to start by stating clearly that I know I’m stepping beyond my competence in this response. Still, I think I can help reason through this a bit.
Assuming I understand his argument, Mr. Pearson is suggesting that the fuel which is now in the reactor will not be “spent” until the end of the fuel cycle, when a portion of it will be removed from the reactor. Again, my understanding is that from this premise, Mr. Pearson concludes that VY should be allowed to operate until the end of its current fuel cycle. At most, in other words, what would be at stake is a question of roughly 1 year.
There are at least two points to consider. First, let’s accept the technical basis of his premise for the sake of argument, although I’m reasonably certain it’s wrong: the fuel in the reactor on March 22 will yet not be “spent,” because, in Mr. Pearson’s words it is NOT “irradiated to the extent that it can no longer effectively sustain a chain reaction….” Even accepting his point that until it is MORE irradiated, the fuel is not yet “spent,” it’s not as though we don’t know HOW fuel gets irradiated. Indeed, the text of the law points us in the right direction: fuel is irradiated by “the operation of the facility.” In other words, the fuel may not be spent, but, to coin a phrase, the operators are “spending” it each day they run the plant. In practical terms, Mr. Pearson is saying that the operator, in this case Entergy, could run the plant KNOWING that some of the spending of the fuel which will be removed for storage at the end of the fuel cycle will have occurred after March 21 and also knowing that there is no legal place to store the result. This is where being a lawyer comes in, but the concept of premeditation certainly comes to mind. Please note also that after March 21, the same AMOUNT of fuel will simply become more irradiated; in other words, the AMOUNT stays the same, and the text of the Section 6522 refers to the amount.
I suspect Mr. Pearson would try to argue that since the fuel in the reactor on March 21 is not irradiated “to the extent that …,” then it is not “spent.” This won’t fly. If the reactor were to permanently shut down today, ALL of the fuel in the reactor would be legally classified as spent fuel. I haven’t researched this enough to cite sufficient chapter and verse to satisfy myself for certain on this point, but I’m pretty sure that’s the case under existing law.
I did do a casual search, which turned up the following definition which seems helpful. 10 CFR 2.1105(b) defines spent fuel as ““fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.” [Nothing about HOW irradiated.] If that’s a generally accepted definition, then Mr. Pearson’s whole argument collapses entirely: the fuel in the reactor NOW is spent (or will be when withdrawn), because it’s irradiated and has not been separated ….” Additionally, as I think about this a bit more, the term “low-level radioactive waste” IS defined in Vermont statute, as in federal law, effectively by EXCLUDING spent fuel, which also points towards our concluding that the fuel in the reactor was “spent” as soon as it was irradiated. I’m not prepared to make this a hard and fast assertion based on my flimsy research, but the research and my gut (educated by 25 years of dealing with these issues) strongly suggests to me that Mr. Pearson’s definition is NOT correct.
In sum, Mr. Pearson’s argument is quite clever, but I don’t think it will get him very far. I’m fairly certain that his premise is simply wrong, and in any case, that anyone looking at the intent of 6522 would determine that the law strongly suggests that March 21 IS a deadline for operations. Certainly, that appears to have been the conclusion reached by the Public Service Board, which after citing the section in question asks: “Does Entergy VY plan to operate past March 21, 2012, if the Board has not yet issued a CPG? If so, what does Entergy VY plan to do with spent fuel generated as a result of such operation?” This matter is about to be briefed to the PSB by next Wednesday, so we’ll see what those more intimately familiar with these technicalities have to say.
In addition, we certainly do need to consider that planning to commit what WILL be a crime next year may not be a crime under the precise statute I quoted, but again my gut strongly suggests that it isn’t legal either. So, for that matter, does Entergy’s panicked reaction to the Board’s question.
I agree that the 10 CFR 2.1105(b) definition you provided in your reply is the legal definition for spent fuel. To repeat, the 10 CFR 2.1105(b) definition is “fuel that has been withdrawn from a nuclear reactor following irradiation…”. However, this definition presents a problem because VY likely has no intention to offload the entire reactor core to the spent fuel pool PRIOR to March 21. If they offload the core after March 21, then they are increasing the amount of spent fuel stored onsite which rubs against the statute. I don’t think this was the intention of the statute.
From the 10,000 foot level, the statute is trying to limit the irradiated fuel onsite to that amount generated through March 21. If the plant operates per the statute until March 21 and then shutsdown, the amount of spent fuel onsite is X. If the plant operates until spring 2013 and then shutsdown, the amount of spent fuel onsite is still X no matter how one defines the amount of spent fuel. We know that Vermont has no jurisdiction to regulate the level of irradiation of that fuel and I respectfully disagree with you about “spending” the fuel. On March 21, the core is either spent fuel or it is not.
And for the record, I agree that the reactor fuel becomes spent if the reactor license is terminated or the plant fails to get a new or renewed CPG. The fuel certainly has reached the end of its useful life if the reactor can’t operate and must be removed to the spent fuel pool.
Like you said, we shall see come Wednesday. I believe that cooler heads will prevail.
Thanks, Dennis
I am glad to see John Greenberg go public with his assessment of me as a likable fellow, because he and I have struck up a very friendly and lively acquaintance over our respective views about the Vermont Yankee litigation. Since we do indeed frequently disagree, our conversations, some of which have unfolded in public, serve as a paradigm example of the kind of civility I was seeking to promote in my essay at the top of this page.
In any event, though, I don’t disagree with anything John has posted here. He has an astonishing facility with the in-the-weeds details about the Vermont Yankee story, the applicable legal issues, and the timeline. I’ve learned a lot from him and he has gradually worn me down on the fundamental preemption issue, to the point where I now think the Court of Appeals might just conclude that the Legislature was NOT regulating radiological safety but was, in fact, just taking safety (or lack thereof) as a given and balancing that against the plant’s positive contribution to the state, if any. I still don’t think it will play out that way, but I see it as a closer call than I formerly did.
Where I fundamentally part company with John seems to be over the question of how judges are likely to see this case. I think judicial decisionmakers tend to look first at these cases from the 10,000 foot level, figure out how they want to decide them, and then draft opinions that get them to the result they believe is consistent with justice and common sense. You could accuse me of a kind of know-nothingism — but I prefer to call it legal realism in the spirit of Oliver Wendell Holmes (the jurist, not the poet).
In this instance, I have a hard time believing that a rational decisionmaker would conclude anything but that given where the Vermont Yankee litigation is at present, the law requires the plant to stay open pending resolution of the federal lawsuit.
Thanks for your kind words Don.
After my initial and completely failed foray into predicting what judges will do, I’ve learned my lesson. I have absolutely NO idea what the appeals court will do with the case or what Murtha will do in any of the parts of it which remain in his jurisdiction. On the other hand, I still have a very clear idea of what they SHOULD do, however, and hopefully, I’ve made that sufficiently clear. So basically, this time out, I don’t disagree with much of anything YOU say.
Since you’ve made the 10,000 foot level remark before, however, I would say this: to me at least, the preemption part of this case (as presented to Murtha and now to the appellate court) looks no different from the air than it does down in the weeds.
These discussions with you and others have forced me to look VERY closely at various Vermont laws. What I come away is an enormous respect for the care with which they were drafted. (Having participated in the drafting of one law, that doesn’t surprise me at all, but it’s nice to have it confirmed.) Reading comments from others, one can often get the impression that Vermont’s legislators and legislative counsel are incompetent, careless, or slipshod. Frankly, I think that’s just plain wrong.
The reason I bring this up in this context is that, if one looks at the text of the law being judged rather than random comments swirling about in the air while it was being considered, the 10,000 foot view and the on the ground view are basically the same. As I have said over and over, these laws (Acts 74 and 160) say (with great precision) what they mean and mean exactly what they say. And they are carefully crafted to fit together as pieces of a common web of law, rather than standing in isolation from one another. I continue to fail to understand how ANY judge in ANY case can start (and even worse, finish) his analysis by NOT examining the text of the law he’s supposed to be judging.
The irony of where we are now in this case underscores my point. Judge Murtha and Entergy both knew that there were Vermont laws about storage of spent fuel PRIOR to 2002, but they chose to simply ignore them, EXCEPT in the context of situating Act 74 historically. (See, e.g., Murtha, pp. 12-13) Judge Murtha then went on to throw out the single provision of Act 74 which actually mirrors, almost precisely, a provision that was passed in 1977, claiming that the random comments he cites from legislative history show that the legislature’s desire for a vote on spent fuel storage means that they MUST HAVE BEEN motivated by safety.
I understand that the judge THINKS he has legitimately inferred this motive by researching the legislative history of the bill he’s looking at, though as I trust I’ve made clear, I entirely disagree with both his method and his conclusion. But surely even HE doesn’t think he can judge the earlier bill based on the later legislative history?
If instead of shooting off into the vast ether of legislative history, Judge Murtha had actually looked carefully at the texts of the 2 laws and their interaction in the first place, he’d have avoided the quandary we’re now in. After all, the legislature DID.
The text of the portion of Act 74 that he cavalierly tossed in the trash explicitly refers to the older law: “Compliance with the provisions of this subchapter shall constitute compliance with the provisions of this chapter that require that approval be obtained from the general assembly before construction or establishment of a facility for the deposit or storage of spent nuclear fuel, but ONLY to the extent specified in this subchapter or authorized under this subchapter. … Storage of spent fuel derived from the operation of Vermont Yankee after March 21, 2012 shall require the approval of the general assembly under this chapter.” (emphasis added) (6522(c)(4)
The question the PSB is asked in its memo stems directly from the failure of the judge’s analysis. Judge Murtha clearly INTENDED to throw out the last sentence quoted above, but what about the first? Since there is no analysis of it in his decision (or even recognition that it might mean something worth considering), it’s pretty hard to guess.
The 1977 provision states: “No facility for deposit, storage, reprocessing or disposal of spent nuclear fuel elements or radioactive waste material shall be constructed or established in the state of Vermont unless the general assembly first finds that it promotes the general good of the state and approves, through either bill or joint resolution, a petition for approval of the facility.” (Section 6501)
So what are make of the current situation? Here’s my answer:
1) Section 6501, as we’ve just seen, requires legislative approval for storage of spent nuclear fuel. It remains the law.
2) Section 6522 in Act 74 establishes the conditions for the granting of a CPG, and was thus intended to satisfy the requirement in #1, but in very explicitly limited ways. For example, section 6522 c(2) says: “Any certificate of public good issued by the board shall limit the cumulative total amount of spent fuel stored at Vermont Yankee to the amount derived from the operation of the facility up to, but not beyond, March 21, 2012, the end of the current operating license,” and section 6522 c(5) confirms : “Compliance with the provisions of this subchapter shall not confer any expectation or entitlement to continued operation of Vermont Yankee following the expiration of its current operating license on March 21, 2012. Before the owners of the generation facility may operate the generation facility beyond that date, they must first obtain a certificate of public good from the public service board under Title 30. “
3) Given that both of those provisions of Act 74 remain in effect, it’s clear that the existing CPG does NOT allow VY to continue to generate spent fuel after March 21, and that, at the very least, a new CPG is required. Entergy stops its analysis there, by arguing that they’ve submitted the application, it was complete but for the Board’s vote, and therefore administrative law allows them to continue.
4) But that simply ignores the role the legislature allotted to itself, as to which, legislative intent is pretty hard to miss. Knowing that 6501 required a vote, the 2005 legislature took one (at Entergy’s request), but was careful to note that their consent was being given for a limited time only: namely, until the end of the current operating license. Accordingly, they ORDERED the PSB to limit the CPG to that period as well. They then made explicit, in the subsection Murtha threw out, what would have been pretty clear implicitly anyway: namely, a new CPG requires a new vote. Had they never acted at all, 6501 would have required the vote. With things as Judge Murtha left them (i.e. most of Act 74 still in place, section 6501 requires a vote). If Judge Murtha now throws out ALL of Act 74, section 6501 STILL REQUIRES A VOTE.
In other words, the legislature acted in a very limited way; it CLEALY EXPLAINS the limitation, and then effectively restores the status quo ante for the period following their limited grant of approval. With or without the provision Murtha tossed out, a legislative vote is required. With it, the vote stems from a 2005 provision; without it, it stems from a 1977 provision.
5) Entergy and the Judge now find themselves in a pickle, because Entergy based its whole case on smoke and mirrors and the judge took the bait. But it’s transparently clear that whatever the judge thought he could conclude about a 2005 law from its OWN legislative history, tells him precisely nothing about a law passed more than a quarter of a century earlier. Even this judge should be able to see that.
Worse still, the passage of Section 6505 in 1979, providing an exemption to 6501 for the then-owners of VY, makes it pretty obvious that at least THAT legislature did NOT intend to shut down VY for safety or any other reasons. Quite to the contrary, the legislature effectively gave its blessing to the old owners of VY. In sum, ALL of the arguments Entergy and Judge Murtha have brought to bear on Act 74 have exactly NO bearing on Section 6501 and cannot possibly be used to justify declaring it unconstitutional.
Let’s be clear. That doesn’t mean that it ISN’T unconstitutional, but it clearly DOES mean that any such finding requires evidence and reasoning that is not before this court at this time.
Finally, I end where I began. All of that means that what Judge Murtha OUGHT to do is completely clear, but what he WILL do is entirely another matter. Based on the first go-round, I have to admit that I’m no longer the idealistic optimist I once was.