When my students first begin to study law, they have a tendency to focus on the holding of the case, such as “Preliminary Injunction Denied.” It’s like reading the headlines in a newspaper. But any good lawyer knows that the most important part of the decision is often found in the footnotes. And in Judge Murtha’s decision denying Entergy a preliminary injunction, the footnotes say far more than the headline.
But let’s start with the headline: Yes, Judge Murtha ruled no preliminary injunction because Entergy did not convince him that it would suffer irreparable harm between now and the September 12 hearing on the merits. Judge Murtha essentially called Entergy’s bluff. To paraphrase the decision: “You’re really going to shut the plant down in the next two months if I don’t grant the injunction? Really? I don’t think so.” The decision to either order new fuel rods or suspend operation is a business decision made difficult by litigation, but any harm to Entergy is neither likely nor imminent. Judge Murtha went out of his way to state that he is not making any ruling on the likelihood Entergy will ultimately prevail.
Entergy didn’t get the preliminary injunction, but it also didn’t lose the case. If you read the footnotes, you will see that Judge Murtha has tipped his hand about the merits of the case. Or at least he has signaled to the state that it better have some answers to some hard questions he’ll be asking.
Let’s start with footnote #2: Here it is (and I have taken the liberty of highlighting the important stuff) :
Defendants argue the Vermont Senate’s February 23, 2010, 26-4 vote against reading Senate bill S. 289 for a third time amounts to “no legislative action” on Vermont Yankee’s petition. (Prelim. Inj. Hr’g Tr. at 130:3-21, June 24, 2010 (Doc. 83).)
The “Legislative Policy and Purpose” section of Act 160 suggests “the general assembly,” which comprises two houses, the Senate and the House of Representatives, “shall grant the approval or deny the approval” of a petition for operation and storage of spent nuclear fuel beyond March 21, 2012. 2006 Vt. Laws 160 § 1(f) (LexisNexis). The substantive provision of the enactment speaks only of “approval” and appears to allow inaction by the Senate to prohibit continued operation. Vt. Stat. Ann. tit. 30, § 248(e)(2). The State’s position is that Vermont’s statutes do not require a final determination of a petition and Acts 74 and 160 themselves amount to a decision to prohibit continued operation. (Hr’g Tr. 132:19-24, 134:22-24, 135:2-13 (“a decision was made in Act 74 and Act 160″ although the legislature is “always free to take it up”).) Vermont Yankee’s petition for a renewed license, filed March 3, 2008, is in a suspended docket before the Public Service Board. Entergy argues that because this legislative inaction, which amounts to a one-house “pocket veto,” is to be given significant executive effect, this Court may consider events in 2010 in determining Entergy’s claim that Act 160 is preempted as applied. Id. at 62:9-13, 40:8-11, 68:25-69:2. The arguments on this question may warrant further development at trial. It is also unclear to the Court how a legislative scheme that does not require final determination of a renewal petition for a nuclear plant is compatible with the safe decommissioning of a plant. Cf. 10 C.F.R. § 2.109(c).
Translation: The Court is concerned that the statute giving the Legislature the power shut down Vermont Yankee by simply doing nothing, thereby placing VY in legal limbo, may be seriously flawed. And if Vermont loses because the statute does not have the proper checks and balances among the branches of government, nor the proper due process requirements, then the Court never has to get to the harder legal question of field preemption.
Now let’s look at footnote #3 (I have again highlighted the important parts):
The Court is aware the challenged statutes contain words that may or may not permit consideration of preempted grounds for granting or denying certificates of public good, and that the legislative history of the challenged enactments contains numerous references to “safety,” some of which may be problematic, some of which may merely reflect legislators’ responsible recognition that Vermont cannot regulate radiological health and safety. Act 189 commissioned a study of “reliability,” which initiated ongoing oversight at Vermont Yankee that appears to examine numerous aspects of radiological safety affecting reliability. It is not clear if reliability oversight pursuant to that enactment is still ongoing. The Court believes the parties’ arguments warrant further development on full evidence offered at a trial on the merits.
Translation: Vermont must convince this Court that the statutes in question were not enacted because of radiological concerns. The Court is not yet convinced. This is critically important and the crux of Entergy’s case. If Vermont can’t convince Judge Murtha that the Legislature was regulating for reasons other than safety, then, again, the Court never has to reach the harder legal question of field preemption
Here’s what is NOT in any footnote or in the decision: the Memorandum of Understanding. Not even a passing reference. Judge Murtha told the parties in footnotes #2 and #3 the issues on which the case will proceed – the procedural integrity of the law, and the rationale behind the legislature’s actions. The argument that Entergy waived the right to bring this lawsuit or that it has breached its contract with Vermont is MIA (missing in action), and DOA (dead on appeal).
Bottom line from the footnotes: Judge Murtha hasn’t yet made up his mind on the merits, but he strikes me as skeptical about Vermont’s case. As one of my colleagues noted after reading the opinion, the state better get its act together for the trial. But given the actions of the Vermont Legislature that lead to this case, it may be too late. [1]
[1] Just a final thought: My colleagues and I have often suggested that this case could ultimately be decided by the U.S. Supreme Court. I am not so sure of that anymore. If Entergy ultimately prevails on the issues from footnotes #2 or #3, then there is really no pressing legal issue for the highest Court to address. If the trial Court finds as a matter of fact that the statutes have some fatal flaws, the Second Circuit is likely to give deference to those findings. It is only if Vermont wins the case on the merits that the Supreme Court would have to address whether a state that refuses to issue a certificate of public good because of concerns other than safety is still preempted from doing so because Congress has occupied the field and never intended states to have such power. In light of Judge Murtha’s opinion, it is just not clear to me that any Court will reach that question. Of course, like any good unpaid talking head, I reserve the right to change my opinion.
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It will surprise no one that I’ve reached precisely the opposite decision from reading Murtha’s decision.
While Murtha didn’t consider all of the arguments raised in the case by any means, here’s the scorecard: merits = a very explicit decision not to decide: (“Because the Court finds a preliminary injunction is not warranted between now and a decision on the merits in the fall, it need not, and expressly declines to, issue a holding regarding Entergy’s likelihood of success on the merits.” (p.3) ); on irreparable harm:, 4 issues = 4 wins for State, 4 losses for Entergy.
Even on the merits, Murtha is clearly rejecting the VAST BULK of the arguments Entergy presented to him. By the first day of the hearing, he had already thrown out all the stuff that was based on press statements rather than actual legislative history (which was QUITE a bit). While he’s left the door somewhat open in terms of legislative history, on which Entergy spent HOURS of trial time, he’s actually closed it on 90% of the stuff they actually brought up, which he characterizes as “responsible recognition that Vermont cannot regulate radiological health and safety.” (He said something quite similar at the hearing). But he does leave the door open a crack by saying that there are numerous references to safety “some of which may be problematic.” (Or not!)
Similarly, he’s effectively ruled out broad brush attempts to just say everything MUST be safety related, which is really virtually EVERYTHING ELSE Energy has presented so far. Instead, he states clearly that he wants to look at “WORDS that may or may not permit consideration of preempted grounds” (emphasis added) That means, as I have argued consistently from the beginning of all this, that he wants to START with legislative text.
If I look at that as Entergy’s lawyer, my reaction is that I have to redo my whole case from the beginning up. What’s worse is this: as soon as you try to do this, you’re out of luck, because the facts simply aren’t there. Entergy has already admitted, in the argument that Murtha has brushed aside, that the legislators were well briefed on preemption law and thus did NOT put explicit language in any of the bills which would cause preemption problems to arise.
Remember the “dog that didn’t bark” argument? Well, if the legislators were showing “responsible recognition” of preemption issues as Murtha suggests, then the dog didn’t bark because there was nothing to bark about. In other words, THAT argument is now down the tubes.
Unlike professors Kreis and Hanna, I read the Murtha decision as a subtle, but significant assault on Entergy’s whole case to date. What Murtha’s really said, I think, is that the issue of preemption is serious enough to warrant creating a full, detailed judicial record by having a hearing in September, but that, so far at least, virtually nothing Entergy has said has actually impressed him.
The one exception, which has been noted in these columns previously by Kreis and by me, concerns the word “reliability” and the issue of whether “reliability oversight pursuant to that enactment is still ongoing.” First, I don’t believe it IS ongoing; second, even if it were, declaring it unconstitutional would not change the fundamental decision in this case, nor would it have ANY impact on Acts 74 and Act 160 which were passed before the word came up.
Put differently: the issue of preemption is serious and the record is sufficiently vast (a number of laws and hundreds of hours of legislative history) that there MAY be something problematic, so rather than toss the case out now, go ahead and bring it on in September. I see this NOT as a rejection of ANY argument put forward by the State (indeed, it’s significant that he does NOT raise the issue of “public health” any longer), but rather as a willingness, in what may well be an excess of caution, to comb ALL of the evidence in a much larger record for possibly preempted issues.
Were I Entergy, I would take little solace from any of this.
Finally, I should note that I agree to some extent with Hanna’s reading of footnote #2. It’s the one aspect of the State’s case that Murtha clearly rejects: namely, that the 2010 Senate vote is not an enactment and therefore not really before the court. Murtha’s skepticism was clear during the hearing, and it is even clearer here. As I’ve written here before, it’s a rather bizarre argument to start with, and so far at least, I haven’t found ANYONE who agrees with it (myself included).
Having said that, however, I would not agree with Cheryl Hanna’s further notion that “if Vermont loses because the statute does not have the proper checks and balances among the branches of government, nor the proper due process requirements, then the Court never has to get to the harder legal question of field preemption.” For one thing, at the very best, this would buy Entergy an exceedingly brief reprieve. It would be simple enough — and clearly the votes are there to do it — to have both houses take up the issue again and vote down continued operations in a bill which would then be signed (with maximum fanfare no doubt!) by Governor Shumlin. So practically, this would get them nowhere.
But it’s NOT clear that it’s the “pocket veto” that Murtha objects to. Entergy is NOT in legal limbo. The permission to operate (CPG) expires in 2012. It did as soon as it was granted in 2002; it did before the Senate voted in 2010, and it does now. I believe that what Murtha objects to — as do I — is the State’s bizarre argument that because the Senate vote rejecting continued operations in 2010 was not an enactment, it is not before the court.
P.S. I’m pretty certain the judge misunderstood Entergy’s witness on the issue of refueling. Murtha characterizes one of the options as shutting down BEFORE THE TRIAL in September, but in fact, as I understood the testimony, the option presented by the witness was to shut down before the current operating license expires. Shutting down before the trial would mean leaving some of the fuel currently in the reactor unused, which would be a loss both of revenue AND of fuel cost to Entergy. The only reason to do that would be that anticipated revenues were SO poor as to make it unprofitable to milk even the last few months of profit from this Fukushima clone.
But shutting down before next March makes perfect business sense (and is, in fact, the option that Herron (and following him, Entergy’s lawyer Sullivan, declared “most likely”). If they decide now not to buy fuel, they save $65 million in fuel costs AND $35 in outage costs. Murtha notes that they can delay the outage until next Feb., which means that they can run until that point (or for as long as it’s profitable to do so) without ANY additional spending and can also produce additional, unplanned revenues which would have been lost during the outage.
It’s quite possible that Murtha’s skepticism about this part of Mr. Herron’s testimony (which he had already signaled during the hearing) were based on this difference.
I respect your views. I don’t agree in total with them because you are making assuptions about how someone else thinks. What I read inclines me to believe that the Judge does not believe the decision needs to be made before the trial, therefore first we have the trial then we decide if an injunction is needed. Additionally, don’t count out the plant running as you indicated until the fuel is expended then VY shuts down to refuel. This will be at a high power demand level and the price of electricity will be high on te open market. Be careful what you wish for!
I assume George Wright’s comment is addressed to me.
1) ” … you are making assuptions about how someone else thinks. ” Absolutely. This is a VERY uncertain exercise, which, interestingly, precisely mimics what the judge will have to do in order to rule on the merits of the case. We’re looking at a text, and attempting to decipher, from those parts which are less than articulate and clear, what the judge MIGHT be trying to say. Interpretation is a pretty straightforward exercise when the text is clear and unambiguous: here, for example, the judge DENIED the injunction and declined to express his opinion on the merits of the case. Those points are crystal clear from the text itself and as far as I know, no one disputes them.
What those of us trying to read into the footnotes are engaged in is a far more dubious exercise of trying to infer from a less than clear text just what the judge is trying to hint at. That’s precisely why there’s disagreement: this is NOT a straightforward exercise.
The judge will need to do exactly these same things with Vermont’s laws. He’ll need to see, first, what IS clear and unambiguous, then isolate any ambiguity and resolve it.
2) “… the Judge does not believe the decision needs to be made before the trial …” Absolutely correct. No disagreement at all.
3) ” … don’t count out the plant running as you indicated until the fuel is expended then VY shuts down to refuel. This will be at a high power demand level and the price of electricity will be high on te open market. Be careful what you wish for!” I’m not sure where we’re disagreeing, so let me try to explain the options as I see them.
Either Entergy orders fuel now or it doesn’t. If it does, it will presumably refuel, as scheduled, in an outage scheduled to begin on October 8. If not, the scenario I mentioned takes effect: they operate as long as fuel, profitability, and NRC regulations allow then to, and then shut down.
If you are suggesting that they could refuel THEN, you’re missing (at least) two points. One of the reasons for shutting down in October is that energy prices are relatively low, so the revenue loss is lower than it would be in the winter (for just the reason you state: demand is higher in the winter). Shutting down in February would mean missing out on much higher revenues. Also, deciding to do this would require a) reconfiguring the core, b) substantial management time and cost to re-plan the outage, and c) ordering fuel (and temp workers for the outage) at some later date, but unless the shut down is to be extended, almost certainly BEFORE the judge makes his decision. Thus, the option you’re suggesting loses money in several directions while gaining nothing.
I sent this comment out to three newspapers.
Letter to the editor
As a retired lawyer who worked 31 years for Vermont’s Legislative Council, it is mind-boggling to contemplate Vermont Yankee’s allegations that the Vermont regulatory process, as amended in 2005 and 2006, “reveals its focus” on nuclear safety concerns that are entrusted solely to the federal government. Vermont Yankee’s argument conjures up unlikely visions of a secret confab between rabid VY opponents and rabid VY proponents, along with Governor Douglas, where they agree to craft a statute that somehow, indirectly, without actually saying so, gives the state jurisdiction over radiological health and safety. In fact, Vermont Yankee’s version of legislative history could scarcely be further from the truth.
Well before 2005, the legislature was acutely aware that the state had no jurisdiction over matters of nuclear health and safety. My perception as senior counsel who attended most of the relevant meetings was that consideration of VY bills was managed so as to respect federal jurisdiction and completely avoid matters of nuclear health and safety. I would be astonished if committee tapes were not replete with evidence that members accepted the fact that radiological health and safety were exclusively within federal jurisdiction.
On other nuclear plant issues, U.S. law accords the states their traditional roles in the regulating electrical utilities. Thus, many states’ statutes address the need for generation, land use, environmental concerns, ratemaking, economic issues, safety and security concerns, and costs of construction, operation, transmission, short- and long-term waste disposal and management, spent nuclear fuel storage, and emergency response planning.
Thus, in 1977 and 1985, Vermont required that legislative approval be obtained before creating a storage facility for spent fuel, and before constructing a new nuclear power plant, respectively. In each case, approval requires a finding that the facility will promote the general welfare. The former also requires a finding that the facility will not have an undue adverse effect on health, safety, aesthetics, historic sites, air and water purity, the natural environment and the economy; and will not unduly interfere with the orderly development of the region.
In 2005, the legislature approved dry cask storage of fuel rods generated during the existing licensing term, but required that legislative authority be obtained again for waste generated during any operations beyond that date. That law allowed storage only of waste generated in Vermont, required compliance with any MOU, and assured funds for management of spent fuel and its timely removal to a federal facility.
A 2006 law prohibits nuclear plant operation beyond the last date originally permitted, without legislative and public service board approval. This act considers the need for power, the economics and environmental impacts of long term storage of nuclear waste, and choice of power sources among alternatives. It requires the general assembly to consider together the issues of expanded dry cask storage and of continued operation of the plant. The act addresses funding to manage nuclear waste before its removal, closure obligations and funding, dates of completion, and funding for emergency management and evacuation plans before and after plant closure. In these acts, nuclear health or safety are not specifically mentioned.
Traditional licensing provisions also apply to nuclear power plants. Here, the public service board considers: need for power; affects on system stability and reliability; economic benefit; effects on aesthetics, historic sites, water quality, the public health and safety; compliance with the electric energy plan; affects on outstanding resource waters; and ability to be served by transmission facilities. The law also incorporates criteria located in Act 250, requiring findings regarding water or air pollution, the preservation of headwaters, onsite waste disposal, water conservation, flooding, maintaining the natural condition of the stream, shoreline screening and bank stabilization, wetland preservation, wildlife habitat, endangered species, water supply, erosion, impact on transportation systems, and impact on educational, municipal or governmental services and public facilities.
Let’s hope the court is able to acknowledge the legitimacy of the many non-radiological concerns addressed by Vermont law.
Al Boright
Middlesex, VT
(I was Legislative Counsel from 1977 through 2008.)