June 24, 2011, Belly Buttons and Blarney in Brattleboro

Don KreisJohn Herron, CEO of Entergy’s nuclear operations, seems affable enough. He drew a laugh in U.S. District Court in Brattleboro on Thursday when he referred to a “belly button count” as a folksy synonym for the number of people working at his company’s Vermont Yankee nuclear power plant. But there was nothing affable about the implied threat that Herron delivered a few minutes later in the courtroom of Judge J. Garvan Murtha. The backdrop, of course, was the lawsuit Entergy has filed against Gov. Shumlin and other high state officials seeking to block the state’s assertion of veto power over the Vernon plant’s continued operation after March 21, 2012. Judge Murtha convened the parties in his courtroom starting Thursday for a two-day hearing to consider Entergy’s request for a preliminary injunction—a pre-trial order that would keep Vermont Yankee in business past March 2012 while the case works its way toward a possible date with the U.S. Supreme Court. Sitting in the witness box just a few feet away from the judge, Herron noted that Vermont Yankee has plans for a refueling outage beginning in late October. Then Herron explained that, in order to conduct the planned replacement of one-third of the fuel rods in the reactor, which is necessary to the facility’s continued operation at full power, he would have to commit, by July 23 at the latest, to buy the radioactive material from the supplier, General Electric. The price tag, according to Herron—a cool $60 million. Herron looked Judge Murtha in the eye and testified that, unless Entergy gets its preliminary injunction, the New Orleans-based company just might close down Vermont Yankee—permanently. “Here’s the challenge I have,” Herron said. “I have to make a $60 million investment here that I may not ever be able to recover.” Of course, the permanent shutdown of Vermont Yankee is precisely what Gov. Shumlin and lots of other Vermonters desire. But Judge Murtha is supposed to be—and by all appearances actually is—a neutral arbiter. As such, he could not have enjoyed being told by a high official of the plaintiff in an important lawsuit pending before him that unless he grants extraordinary and emergency relief—ruling along the way that the plaintiff is likely to win its case—the litigation will be pointless and hundreds of Vermonters (all those belly buttons) will lose their jobs. So here’s what Judge Murtha did. He waited patiently until the lawyers were finished questioning Herron and then he posed some questions of his own. First, Judge Murtha asked Herron whether he would commit to spending that $60 million in July given that even with a preliminary injunction, the case might still end in defeat for Entergy—a process that could take years. “I would release GE to manufacture those fuel assemblies based on that,” Herron testified. Then Judge Murtha pounced. “What happens if I don’t?” he asked, meaning grant a preliminary injunction. Herron equivocated. “I don’t want to say we would agree to shut down,” he told the judge. “It’s a decision we have not really finalized yet.” Meanwhile, the threat stands. And Judge Murtha will have to assess it in light of a notably unpersuasive argument by Entergy. One threshold Entergy must clear is demonstrating a likelihood of success on the merits. And it is here that Entergy has its strongest case. Although there are colorable arguments on both sides, what looms large is federal legislation that, under the Constitution’s supremacy clause, grants to the U.S. Nuclear Regulatory Commission the exclusive right to regulate radiological safety at nuclear power plants. When the Vermont Legislature in 2005 and 2006 adopted the bills that claimed for the lawmakers themselves the right to veto Vermont Yankee’s continued operation, legislative leaders were careful to omit any mention of safety from the final draft of the bill. The second of the two contains formal legislative findings to the effect that everything but safety was the basis of the enactment. Among other things, this yielded a theatrical morning on Thursday in U.S. District Court that featured Entergy lawyer Kathleen Sullivan playing a series of “gotcha” sound bites from the legislative record. These were designed to convince Judge Murtha that no matter what the Legislature declared formally, everyone knew that the stated reasons were pretextual and the law was grounded in, to quote Sullivan’s persistent refrain, “safety, safety, safety.” “Okay . . . let’s find another word for safety,” Sen. Ann Cummings is heard saying during deliberations on the 2006 legislation. Attorney Sarah Hofmann, then the chief of public advocacy for the Vermont Department of Public Service, is likewise heard telling legislators that “we can help you come up with some language that you could put at the top (i.e., in the declaration of findings) to hopefully prevent preemption problems.” Sullivan showed Murtha successive versions of at least one legislative document suggesting that lawmakers simply deleted the word “safety” prior to final enactment. It is, of course, abysmal public relations for a company that wishes to remain in Vermont to be heard trashing the state’s citizen-lawmakers. So, Sullivan kept praising as “conscientious” the state legislators who were talking about safety, maintaining that this was the issue constituents seemed to care about. Vermont Assistant Attorney General Bridget Asay countered by playing a series of “anti-gotcha” sound bites on behalf of the defendants. “We are not looking at safety, we are looking at reliability,” the Court heard Sen. Ginny Lyons advise her colleagues from the Senate floor. In any event, Murtha gave every indication that he regarded the sound bites as a waste of his time. He offered the very plausible theory that, by listening to those urging that references to safety be stricken from the measures, lawmakers were not being disingenuous but were, rather, simply following good legal advice to avoid the regulation of safety issues. More persuasive—and quite possibly dispositive—was Sullivan’s comparison of this situation to the famous Sherlock Homes story in which the sleuth solved the case by noting the failure of a dog to bark one dark and dreary night on some moor. Here, the dog that didn’t bark was the lack of references during hearings and debates to other reasons for authorizing a legislative veto of continued Vermont Yankee operations. Legislative history—all the stuff that gets said or written on the record as bills are considered—has fallen from favor in the federal courts, and for good reason. Anyone can say anything about any bill, and none of it really explains what was in the heart or head of any given legislator when he or she votes. But, in this case, the court will still want to assure itself that if the legislation in question is not about nuclear safety, it has some rational purpose. And, as was amply debated in court on Thursday, Vermont doesn’t have much to regulate about Vermont Yankee other than safety for the simple reason that the plant is no longer owned by any of the state’s regulated utilities. Thus, if the plant falters for some reason, the economic consequences do not inure to Vermont electric customers. This is in sharp contrast to the situation the U.S. Supreme Court confronted in its 1983 Pacific Gas & Electric (PG&E) case, much debated in Vermont these days. California had banned the development of new nuclear power plants on the ground that dire economic consequences could befall the state’s citizenry given the lack of options for disposing of nuclear waste. The Supreme Court said this assertion was not preempted because it was not an effort to regulate safety but, rather, the economic aspects of nuclear power. But the unbuilt California plants would have been owned by regulated utilities that would have passed on those waste-related costs to their customers. Vermont Yankee is a merchant generator; if the plant goes broke over waste disposal, Entergy does not get to send the bill to Vermont electric customers. That was the whole reason for allowing Entergy to buy the plant from regulated utilities in Vermont (and elsewhere in New England) in the first place. But forget Entergy’s likelihood of success on the merits for the moment. For it is Vermont Yankee’s status as a merchant generator that undermines its argument on another hurdle Entergy must clear to win a preliminary injunction. Entergy must demonstrate that without the injunction, it will suffer irreparable harm as the result of the state’s unconstitutional assertion of authority. In fact, what Entergy has demonstrated is that it now confronts, in admittedly stark terms, adverse consequences of the very business risk it knowingly undertook when it bought Vermont Yankee in 2002. This became patently clear as Herron was explaining why Entergy could not simply shut Vermont Yankee down temporarily and await a hoped-for final victory in court. He agreed that other nuclear plants have closed temporarily in analogous circumstances, but then he described Vermont Yankee as a “merchant plant” that is a “separate business entity that has to survive on its own.” In other words, Vermont Yankee is a separate subsidiary of Entergy that has no guaranteed revenue stream from retail customers paying regulated rates. “I don’t have the option of going to the ratepayers to see if I can get recovery—that option’s not there for me,” Herron explained to Judge Murtha. Precisely so. When Entergy bought Vermont Yankee in 2002, it did so knowing that the plant’s federal operating license expired on March 21, 2012, along with its state-law authority to operate. Indeed, Entergy explicitly agreed to seek permission from the state Public Service Board for permission to continue running after that date. And Entergy knew that it would have to eat any financial losses if further licenses and permits were not forthcoming—that’s what makes Vermont Yankee a merchant generator. And then there is the longstanding legal principle that one who comes before a court seeking equitable relief—in this case, a preliminary injunction—must do so with “clean hands.” Entergy has a problem in this regard: It actively lobbied in favor of the first of the two bills it now challenges as unconstitutional. “That should matter,” Asay argued. She has a point. Judge Murtha, for his part, seemed to be struggling with a coolness to injunctive relief on the one hand and a desire to find a middle ground on the other. He suggested during his colloquy with Herron that he might enter an injunction of limited duration and, despite previous references to trial in October, the judge also disclosed that he now plans to hear the merits of the case in September. One question this raises is: Why have a trial at all? Trials are to resolve disputed issues of fact. Here, the dispute is purely one of law: Is Vermont’s assertion of authority over Energy preempted by the federal Atomic Energy Act or not? The question has been extensively briefed in connection with the request for preliminary injunction and, after this week’s courtroom proceedings, the issue has now been exhaustively argued. Call me an omphaloskeptic if you want, but sometimes I think that if Entergy was really concerned with irreparable harm, it would stop talking about belly buttons and just get on with the case.

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15 Responses to June 24, 2011, Belly Buttons and Blarney in Brattleboro

  1. Meredith Angwin says:

    Don. As usual, a fine essay. However, you say Entergy lobbied “for the first of the two bills it now challenges as unconstitutional.” I don’t know what you mean. There was a lot of brouhaha with Shumlin claiming that Entergy lobbied for Act 160 (“how can they change their minds?” sort of thing) until Entergy showed plenty of evidence that they had lobbied AGAINST Act 160. As so very often, Shumlin….misspoke…couldn’t remember…whatever. Anyhow, what bill did Entergy lobby for? The first of two bills? Please be more explicit about this.

    • Meredith Angwin says:

      Tom. Thank you for the update. I feel bad about asking this and posting, because of course I found Act 74 for myself about an hour later.

  2. A VT Yankee neighbor in Gill, MA says:

    Doesn’t the Supreme Court’s judgment in the medical records case make you worry that the final decision here will be whatever most benefits “free enterprise” a.k.a. Industry? I fear we will end up with a 5-4 decision overturning the VT law and claiming that only the NRC has the right to regulate nuclear power plants.

    Or perhaps nuclear power plants will be redefined as corporate “speech” …. With this court it isn’t impossible.

  3. Howard Shaffer says:

    Professor Kreis,

    Great discussion.

    If it gets to the point of asking “If the Legislature wanted to vote on allowing the Public Service Board’s findings to be released and enacted, why didn’t they tell the Department of Public Service to get that in the Memorandum of Understanding for the plant’s sale?” what will the State answer?

    In response to a comment on an article months ago, you said there were several reasons that Entergy VY might not want to invoke Article I Section 10 of the US Constitution against Vermont. Could you discuss those now?

    As you say, ENVY is a business. They made a contract with the State in 2002 (MOU). In 2006 the Legislature effectively passed a “Law impairing the Obligation of Contracts.”
    Isn’t this so?

  4. Donald Kreis says:

    Kind readers:
    Thanks for the gracious comments about my account of day 1 of the hearing before Judge Murtha. A few responses:
    1. Tom Buchanan’s response to Meredith Angwin’s question is exactly right. So I’ll let that one drop.
    2. Regarding the suggestion that recent Supreme Court decisions suggest that the Court would decide this case in whichever manner best suits big business: Please forgive me for not indulging in public expressions of cynicism or legal positivism. First, I think that one of my jobs as a law professor is to foment rather than undermine respect for the judicial system. Second, I have spent five years as a law clerk to four different judges, serving at the U.S. District Court in Maine as well as the state supreme courts of Maine and Vermont. This experience has left me convinced that judges consistently do their work genuinely striving to do the right thing. Though I don’t know any of the justices of the U.S. Supreme Court personally, I have no reason to think that any of them are even a little bit venal. I will admit that judges can and frequently do give cases a “smell” test, come to a preliminary notion about which party is the most deserving of victory, and then see if the law allows that party to win.
    3. Howard Shaffer asked me for some thoughts about why this isn’t a Contracts Clause case (i.e., one in which the plaintiffs claim that the statutes at issue are ones “impairing the obligation of contracts”). In essence, I don’t think it helps Entergy to base its claim on an allegation that the MOU is a contract that the state has breached. First, it’s not completely clear that the MOU truly IS a contract — in fact, I would argue it is NOT a contract because it’s not sufficiently clear this is the intent, and I don’t think the PSB or the Department of Public Service, as they were constituted in 2002, had the authority to bind future PSBs, DPSes and, indeed, legislatures and governors. More importantly, I don’t think the state actually breached the MOU because it contains no provisions that prohibit the Legislature from legislating as it did. Here’s a link to the document:

    http://publicservice.vermont.gov/dockets/6545/MOUfinal40305.PDF

    Regrettably I was not able to attend today’s proceedings in Brattleboro, although from a detailed account I received it seems that Judge Murtha may share my view that all the ‘evidence’ about legislative history amounts to little more than blarney when it comes to discerning the intent of Acts 74 and 160.

    Apparently there was further discussion in court today about whether Act 160 is really an effort to regulate not safety but “reliability” and/or “economics.” I remain skeptical. Again, deregulation and restructuring loom large. In the days of vertically integrated utilities — i.e., back when the PG&E case was decided in 1983, it made sense that a state could scrutinize their utilities’ generation investment decisions on reliability grounds. But today, merchant generators like Vermont Yankee simply bear no responsibility for the reliability of our electric service — that responsibiliy lies with retail utilities (e.g., CVPS and GMP) and ISO New England, the regional transmission organization that literally keeps the lights on throughout New England. It bears recalling that if Vermont Yankee trips one second from now, nobody’s lights will go out because the system is engineered to survive the loss of much bigger elements than one 622 megawatt generator.

    On the question of whether Act 160 is plausibly a form of economic regulation: While it is true that the Federal Power Act claims for the FERC the right and obligation to approve Vermont Yankee’s rates (because they are wholesale), leaving other aspects of economic regulation to the state, this begs the relevant question: What aspect of the plant’s economics is left for the state to regulate given that Vermont Yankee is not owned by a regulated utility. The state has no cognizable interest in the plant’s depreciation, financing, even its solvency. I believe questions related to decommissioning and the decommissioning fund are, like radiological safety, preempted and subject to the exclusive authority of the NRC.

    I see there was much discussion today about whether the language in Act 160 about “public health” means the state is regulating something OTHER than radiological safety. In my view, this is a distinction without a difference unless someone can articulate a valid public health concern that has nothing to do with radioactivity.

    Thanks for reading!

  5. Matt says:

    http://www.ctriver.org/documents/VY/4%2021%2006%20CRWC%20Fact%20Sheet.pdf this is a possible valid public health concern that has nothing to do with radiation

  6. Donald Kreis says:

    According to the account that David Gram filed for Associated Press, Entergy lawyer Kathleen Sullivan told Judge Murtha on Friday that it is “highly likely” Vermont Yankee would shut down permanently if the Court does not grant the preliminary injunction the company has requested. On the key issue of irreparable harm, AP quoted Sullivan as stating: “We are harmed now by uncertainty in a business that depends on certainty.”

    This is profoundly unpersuasive, even to someone who believes that Entergy may well have the better argument on the merits of the case.

    As I have previously argued, the “uncertainty” of which Sullivan speaks is precisely what separates a merchant generator from a generation facility that is owned by a regulated utility. Why harp on this? Because the customers of the regulated utilities that sold Vermont Yankee to Entergy in 2002 also took a risk — the risk that Entergy was paying too little for a plant that the ratepayers had been paying for since the plant was commissioned in 1972. True, there were provisions in the infamous MOU (memorandum of understanding), and elsewhere, that were designed to mitigate that risk. Vermont ratepayers kept half of Vermont Yankee’s output through March 2012, but Entergy was (and is) free to sell the rest at whatever the market will bear. The upside, for utility customers, is that they were no longer financially responsible if something unwelcome happened to the plant — such as the facility not having its operating authority renewed after March 21, 2012 by either state or federal authorities.

    Thus Sullivan’s claim, that her client “depends on certainty,” is close to the opposite of the truth. Or, to view the situation from a somewhat different angle, Vermont Yankee and Entergy DID have the benefit of certainty — they knew, as of the date in early 2010 that the Senate rejected the measure approving a new CPG (certificate of public good), that a March 21, 2012 shutdown date loomed. In practical terms, the Legislature ordered Vermont Yankee shut down when it adopted Act 160 five years ago. If Vermont Yankee truly depends on certainty, it arguably had what it needed in 2006.

    It would be unfair to fault Entergy for the timing of its lawsuit. As others have noted, the case would arguably have been unripe had it been filed before the Nuclear Regulatory Commission issue Vermont Yankee a new license earlier in 2011. But neither would it be equitable to reward Entergy with a preliminary injunction when the harm, even if in some sense irreparable, was of the company’s own making.

    Moreover, the threat from Entergy that it will shut Vermont Yankee down permanently, first issued in Judge Murtha’s courtroom in Thursday, is not wearing well. For one thing, Entergy explicity declined to state that it would, in fact, be unwilling or unable to operate the plant without an injunction. For another, the threat, such as it is, doesn’t really involve shutting down the plant — it concerns placing an order for uranium in late July for use in mid-October during the planned refueling outage. Vermont Yankee would presumably not shut down in July without an injunction; indeed, it could arguably continue to operate without refueling, albeit with a diminishing output, for some considerable period of time.

    Judge Murtha could plausibly treat Entergy’s position as an affront to the Court. Posturing and bluster and threats are completely appropriate in negotiations between parties who are litigating against each other. But Entergy should not treat Judge Murtha as if the company were negotiating with him. If Entergy will truly be forced to shut the plant down permanently without an injunction, thus mooting the case and possibly depriving the company of a victory it otherwise deserves, it should say so, on the record, and offer proof. If such facts are too damaging to be revealed publicly, there are mechanisms for this aspect of the case to be sealed.

    Finally, the $60 million question is why this case cannot be decided now, on the merits. An explanation from one or both of the parties would be welcome. As far as I can tell, there is no reason why the U.S. District Court cannot resolve the case finally well before Mr. Herron has to buy that $60 million in uranium in late July. It’s true that appellate proceedings would then ensue, leaving the ultimate answer still unknown. But a victory or a loss in the trial court would go a long way toward giving Entergy an idea of Vermont Yankee’s future prospects.

    • John Greenberg says:

      Don Kreis repeats here a point he’s made elsewhere (VT Digger): “It would be unfair to fault Entergy for the timing of its lawsuit. As others have noted, the case would arguably have been unripe had it been filed before the Nuclear Regulatory Commission issue Vermont Yankee a new license earlier in 2011. ”

      Sorry, but that won’t fly. Act 160 passed within months of Entergy’s FILING of its NRC relicensing. Two points.

      1) Nothing precluded Entergy from filing its renewal application in 2002, as soon as they bought the plant. Seabrook has filed, and its license doesn’t expire until 2030.

      But far more important is this.

      2) NRC licensing cases cost millions of dollars and thousands of man hours. Entergy could have filed suit in 2006 saying to the court: “We’re about to spend a whole lot of money and time on a process the effect of which (continued operations) this law might well abort. Since the law’s unconstitutional, it should be overturned, and the time to do it is now, BEFORE we invest all this money.”

      Kreis’s argument depends on the outcome of NRC’s decision for ripeness; my point is that the investment of all that time and money made the question ripe for reasons not dependent on the NRC’s ultimate decision, a long time ago.

  7. John Greenberg says:

    First, two related comments:
    1) The problem with the “Dog that didn’t bark” is that it DID, as a matter of fact, bark. “Here, the dog that didn’t bark was the lack of references during hearings and debates to other reasons for authorizing a legislative veto of continued Vermont Yankee operations.” The fact of the matter is that the record is REPLETE with other reasons. One need look no further than to the reports and testimony that Entergy itself brought into the courtroom.

    Entergy cited a myriad of studies on issues of reliability, job loss, tax revenues, etc. to argue that there was no merit to closing VY. Moreover, Entergy acknowledges that most if not all these issues are NOT preempted (and they’re wrong about the ones they say ARE preempted, but that’s for another day). By doing so, Energy has tacitly acknowledged that the legislature DID consider these same issues. It’s worth noting, in passing, that Act 160 requires the studies, but presumably legislators would not have commissioned studies about whose conclusions they were already fully convinced. The results of the studies may have some bearing on the reasoning behind the 2010 vote; the results can have NO bearing on the constitutionality of the Act which simply commissions them.

    But those are not the only other dogs in the barking kennel. As I have reminded Mr. Kreis before, the Enexus deal was pending at the time of the Senate vote, and the Senate Finance Committee (and maybe others) took significant testimony on the issue from a variety of sources, including, but not limited to Entergy (Jay Thayer) and DPS. This concern weighed heavily on the minds of Senators; I know: I discussed it with them myself. In particular, several of VY’s most ardent supporters voted against continued operations, at least partly because of the Enexus deal. Senator Illuzzi published an op-ed in the Rutland Herald to say just that.

    Which leads to my second point:

    2) As Mr. Kreis acknowledges, trials are needed to resolve matters of fact. What I have just stated is a matter of fact, and it remains UNRESOLVED in this case. Entergy alleges that there are no barking dogs. The State will, one hopes, present substantial testimony to show that there are many of them. If the judge buys this argument and grants an injunction, a trial WOULD be needed to determine whether the facts presented so far correctly represent what actually happened.

    There is a third problem with this “dog that didn’t bark argument. By definition, this argument tells us to look NOT at what the text DOES say, but what it does NOT say. Entergy backhandedly acknowledges that the legislature was well-schooled in preemption law (it took a great deal of time in courtroom and space in its briefs to enumerate instances of such schooling). Entergy is also tacitly acknowledging that the text of the laws they are challenging, as written, reflects little, or nothing (the words “public health” continue to pose about the only remaining issue) that is facially preempted. For just this reason, Entergy is telling us to look AWAY from the text for the “dog that didn’t bark,” i.e. for the preempted motivation that isn’t expressed in the text. The problem with this argument is that once one is untethered from textual interpretation, one can go just about anywhere.

    And that’s exactly what Entergy does. Unlike Sherlock Holmes, who, if memory serves me, merely deduces that the killer was NOT a dog (Hound of the Baskervilles), Ms. Sullivan unleashes a whole chain of deduction from her non-barking dog. Her argument is structured like this: if the text does not mean what it (only) SEEMS to say, then it must mean something else. This leads to the next (tacit) inference: if I present the whole universe of possible explanations for meaning, and then eliminate all those which are impossible, then I must be left with the “real” explanation.

    Anyone looking at that statement should smell a problem: it’s not easy to define whole universes, especially when, as here, they are universes of meaning in the minds of others. Failure to include ANY possible member of the universe can potentially lead to a false conclusion, since that possibility will NOT have been eliminated.

    Yet we know that this is not only possible here; it’s exactly what occurred. The Enexus deal WAS examined by the Senate, but to the best of my knowledge, it has NOT been introduced to the court. So the universe in the court’s record is incomplete, which means that Sullivan’s inference does NOT follow.

    Please note. I am NOT arguing that, as a matter of FACT, Enexus determines the meaning of the vote. I am arguing that, as a matter of LOGIC, there is nothing which tells us it isn’t. (A factual inquiry could well determine that it’s completely irrelevant, but that needs to be done on the base of an evidential record; Sullivan’s logical universe is flawed, as is her argument as presented. This is one example: decommissioning issues are another. Issues surrounding the impacts of events at Vermont Yankee on the “Vermont brand” are a third. In fact, there’s much more to the universe of possibilities than Sullivan presents. Yet, her argument REQUIRES that the possibilities presented represent ALL the possibilities.

    The remaining problems concern not the definition of the possible universe of meanings, but rather the method used to eliminate possibilities. It too is flawed. Sullivan argues, in effect, the legislature commissioned studies, so they MUST agree with their results. This is pretty obviously absurd when put this way: a heavily Democratic legislature asks a very Republican administration to produce studies and therefore MUST believe every jot and tittle of the conclusions of the studies. If you believe that, we need to talk about this bridge I have for sale in Brooklyn.

    What Sullivan is really assuming is: We find these studies convincing, so EVERYBODY must have found these studies convincing, or more precisely, it is inconceivable that legislators still had doubts about these issues after reading the studies, and that their votes and enactments were — in part — determined by these issues.

    Two final points. First, we are perilously close here to asking a federal judge to determine NOT the constitutionality of a law, but rather the merits of a decision. In fact, Sullivan’s process of elimination proves less than what is required. Accepted at face value, it may well prove that legislators were WRONG in their concerns about the issues covered by the studies, but unless you believe that legislators ALWAYS make the right decisions and inferences, it does NOT prove that these issues were not of concern to them. It is worth pointing out that it is perfectly Constitutional for a legislature to pass wrongheaded or even silly laws. In other words, Sullivan’s argument only appears to get us where we need to go: namely, to the elimination of everything other than safety issues.

    Lastly, Sullivan’s process of elimination REQUIRES that the studies she cites 1) constitute the whole universe of consideration on these issues (they don’t), 2) that they be properly represented in her discussion of them (they aren’t), and 3) that they be correct (many are not). I know the first point is false, because I wrote on a number of these subjects myself, and sent my writing to almost every member of the legislature. I know the second point is incorrect, because I’ve read the studies. MANY of them are far more nuanced than she represents. Finally, I believe the third point is wrong, because I’ve critiqued a number of these studies personally (and again, shared the results with legislators), and the State produced compelling evidence that some of these studies are wrong, or out of date.

    To sum up, Mr. Kreis is absolutely correct that this is the nub of Entergy’s argument. Without demonstrating that a facially non-preemptable law means something entirely different from what it actually says, Entergy is left with a perfectly Constitutional set of enactments. In my estimation, this is exactly where we are.

    P.S. Kreis is also correct that the words “public health,” which appear in Act 160 appear problematic and seemed to trouble the judge. But the issue is, at best, exceedingly minor. The words appear, as best as I can determine, only once, in reference to the aforementioned studies: Section 254 (b) (2) says “The studies arranged by the department in consultation with the joint energy committee and the public engagement process, in general, shall… (B) ) identify, collect information on, and provide analysis of long term environmental, economic, and public health issues, including issues relating to dry cask storage of nuclear waste and decommissioning options.” The State pointed out that this is part of one item in a lengthy list of topics to be studied. In any case, whether the studies did or did not get into questions of radiological health is now a determinable matter of fact: we can look at the studies themselves. Since Entergy CITES the studies in defense of their argument, it’s pretty hard to believe that they do, in fact, cover preempted issues. In any case, they have not, to my knowledge, presented any argument anywhere suggesting that the studies, as written, do in fact discuss preempted issues of public health.

    Finally, the judge pointed out that the words also appear in — indeed, may be lifted from — Act 248 and that the process of ascertaining most CPGs has nothing whatever to do with radiological health and safety issues. I’m out of my water here, but I would guess that looking at the meaning of the phrase in Act 248 would give substantial comfort that this Act has not entered into any field preempted by the federal government. The State needs to do a better job of presenting that argument, however; the judge was clearly not convinced, nor frankly, was I.

  8. Jeff S says:

    Mr. Kreis,

    I find your prose a bit inappropriate, in particular,

    “But there was nothing affable about the implied threat that Herron delivered a few minutes later. . .”

    How is it a “threat”, to point out that the company has to reach a decision about buying new fuel or not, and that the decision must be made by a certain date. Are injunctions not specifically designed to prevent unnecessary harm to one of the parties in the case, and doesn’t that party need to show what the harm would be, if it is not granted an injunction, so that the court might make an informed decision on the motion for injunctive relief?

    I’m disappointed that a lawyer for a law school blog would use such emotionally charged language as the word ‘threat’ to describe a party simply exercising their right to ask the court for relief, and to discuss what the real-world consequences will be if the relief is not granted?

    I mean, are you arguing that the plant wouldn’t need to shutdown early if they can’t get new fuel? Are you arguing that the plant wouldn’t then need to lay off most of their workforce once the plant shut down? How is it a threat to tell the court that the company running it would need to do exactly what the State is trying to accomplish (shut the plant down), if the State is allowed to shut the plant down?

  9. John Greenberg says:

    Don Kreis is distorting my point about the facts in this case.

    The question before the court is whether a series of laws are preempted because they enter the field of radiological safety. (I’m simplifying because the other issues raised will not change the argument I’m about to make). Entergy concedes that if these laws mean what they say, they are not preempted, so they instruct us to look elsewhere for their meaning.

    I’ve laboriously looked at the logical structure of that “elsewhere” above, so I won’t repeat myself. The point is that the argument depends at key decision points on “studies” and that these studies MUST, at the very least, be the ONLY studies that were in front of the legislature (they aren’t); they must mean what Entergy says they mean (quite often, they don’t); they must conclude what Entergy says they conclude (sorry Charlie), and they must be unassailably correct (no way Jose). But all of these are matters of FACT, not of law, and cannot be determined on the record currently before the court. Still, they have nothing whatever to do with the competence of legislators to testify, which is a red herring.

    So, either Prof. Kreis must finally admit with me, that the laws mean what they say, and are therefore not preempted, in which case, I will certainly agree with him that no trial is needed. OR, he must introduce a new line of argument to tell us why these laws ARE preempted (e.g. a textual analysis of anything other than the already discussed phrase “public health” which appears once, in one of 5 laws, in a laundry list of topics for study and which, to my knowledge, never bore any fruit in the resulting studies), OR alternatively he must admit that his and Entergy’s argument depends on the structure I analyzed above, and that it, in turn, requires substantial FACTUAL evidence, which in turn, would require the evidential record of a trial to establish.

    • Don Kreis says:

      It’s obviously not my intention to distort or to misinterpret the assertions of others. We may be talking past each other here in any event.

      You write: “Entergy concedes that if these laws mean what they say, they are not preempted, so they instruct us to look elsewhere for their meaning.”

      If that is an accurate statement of Entergy’s position, I do not agree with it. Specifically, I don’t think the Court should “look elsewhere” (including the evidentiary record adduced at last week’s hearing) for enlightenment on what the Vermont Legislature was doing, or trying to do, in Act 189 or Act 160.

      It’s possible that the Court, and whatever appellate panels consider this case thereafter, may agree with Entergy that the stated reasons for Act 160 are pretextual. If so, the right place to look next is NOT the body of self-serving statements made by legislators, executive branch officials and lobbyists in connection with the deliberations on the two bills. Rather, the challenged legislation should be put in its appropriate legal context, i.e.: all of the other applicable law that bears on the question of what Vermont could do and/or did do with respect to Vermont Yankee. One might — and I stress the word “might — find in that body of law reasons to conclude that Vermont could not have been regulating what it purported to regulate and was, in fact, asserting authority over radiological safety.

      People often fault members of the U.S. Supreme Court for deciding cases cases based on their personal policy preferences. But isn’t that what everyone is doing here? Or is it just a coincidence that everyone who dislikes Vermont Yankee also believes that on the merits the state has the better argument — and everyone who likes Vermont Yankee thinks that Entergy has the more persuasive case . . .?

      • John Greenberg says:

        Don.

        1) I’m a bit surprised — no, frankly, I’m shocked — to see you write, at this stage of the game: “If that is an accurate statement of Entergy’s position, I do not agree with it. ” I presume you’ve read the briefs in the case and I KNOW you sat through a day of the hearings, so presumably by now you have formed some opinion as to whether it is or is not an accurate summary of Entergy’s position.

        2) I’m also a bit surprised to see you suggest that the court should START by looking at ANYTHING other than the TEXT of the law itself. I’m not an attorney, and I’ve read only dozens of legal decisions, but I can’t think of one of them that did NOT begin addressing a law by examining the text of the law itself. That is PRECISELY what Entergy wants us NOT to do. Indeed, their whole case is built on sophisticated efforts to make us do ANYTHING BUT that.

        The only reason to look for pretext is to resolve ambiguity or uncertainty about the meaning of the legislation. The first law of textual interpretation, I would have thought, is that texts mean what they say, unless there’s a clear, well-defined reason to think otherwise. If courts begin their analysis by looking at ANYTHING but the text itself, what’s to stop them from going anywhere they wish? If that’s permitted, we’ll soon end up with courts rewriting laws to mean what the COURTS want them to say. As to your suggestion that we look at the whole body of applicable law, that’s fine IF there’s an unresolved question. But the first place to look is to the law to see what, if anything, requires resolution. I am suggesting that there is, in fact, virtually nothing here which does (the exception being “public health” which I’ve addressed above). Moreover, it’s a bit late in the day here to be talking about what a court “might” find in terms as vague as you do above. Isn’t it time that you tell us where in the texts (or elsewhere) YOU see a specific preemption issue that MIGHT justify a court decision against the State?

        There was much discussion in the courtroom about the role of the findings of the act, but all of that verbiage masks an obvious fact: there’s nothing suspect in the body of the law to raise the red flag of hidden intent either. Read the texts of the legislation in question and ask yourself how we get from there to a hidden motivation of safety.

        Act 160, for example, commissions studies, as follows:
        “(2) The studies arranged by the department in consultation with the joint energy committee and the public engagement process, in general, shall:
        (A) identify, collect information on, and provide analysis of long term accountability and financial responsibility issues, such as:
        (i) funding plans for guardianship of nuclear waste after licensure but before removal of nuclear waste from the site;
        (ii) closure obligations, dates of completion, and assurance of funds to secure fulfillment of those closure obligations;
        (iii) federal obligations and assurance of funds to provide for any undischarged federal responsibilities;
        (iv) funding for emergency management requirements and evacuation plans before and after plant closure; and
        (v) any other financial responsibility related to any periods in which the facility is out of service.
        (B) identify, collect information on, and provide analysis of long term environmental, economic, and public health issues, including issues relating to dry cask storage of nuclear waste and decommissioning options.
        (C) identify, collect information on, and provide analysis of current economic issues, in light of the fact that the operation of the nuclear energy generating plant beyond the date permitted in any previous certificate of public good is to be evaluated under present day cost-benefit assumptions and analyses and not as an extension of the cost-benefit assumptions and analyses forming the basis of the previous certificate of public good for the operation of the facility.”

        Other than the words “public health,” which we’ve discussed above, what in this list looks to you like a safety regulation? Or a rate regulation? Or even a reliability regulation? What’s lurking behind which phrase? “Safety”‘s not hiding behind “reliability:” neither occurs here. What, in other words, is preempted here? We’ve heard lots of generalities, from both you and from Entergy, but looking at the actual language of the law, it’s pretty difficult to fathom where the lurking hidden (and preempted) problem occurs.

        Entergy has proposed a theory, and I’ve analyzed the theory above. Again, at this point, I would think it reasonable to ask you either to show where my analysis is flawed or present an alternative theory of preemption different from Entergy’s so we can all examine it. rather than making a vague assertion that there’s something problematic which someone somewhere MIGHT find preempt-able.

        It’s a reasonable question, I believe. Indeed, it’s the fundamental one in this case, and after a great many words on the subject, you haven’t provided an answer.

        If the language of a bill is facially unproblematic, clear, unambiguous, and outside of fields preempted by federal legislation, why should it be thrown out as unconstitutional? I’ve asked the question in a variety of ways. I’m still waiting for an answer that makes sense, or an argument that holds water.

        3) As to following our prejudices, I’m sure that, to some extent, we all do that. I DO have a horse in this race. Whether the arguments I’ve presented publicly are merely reflections of my biases is for readers to judge, but I’ve tried hard to acknowledge weaknesses in the State’s case, if for no other reason than to help the State bolster them. For the rest, I’ve also tried hard to keep my discussion, especially on this website, one of interpretation and analysis of law, rather than an expression of my own thoughts or feelings about nuclear power.

        For precisely that reason, for example, I’ve never urged the points raised by Tom Buchanan below, based on Blackmun’s concurrence. Blackmun didn’t win on these points, which is why they’re a concurrence, and not part of the majority opinion. I agree with Blackmun (and might go even further) and Tom, but I know that the binding precedent here is the majority’s opinion, not mine, and have represented it as such.

        In short, I’ve tried hard to avoid writing from my bias and to base myself strictly on the facts and the law of this case. How well I’ve succeeded is for others to determine.

  10. George Wright says:

    Interesting, I do not believe you are as clever as you say, if you were you would bee wrking for the big law firm in New York and making 10 times what you make now. Blowhard!!!!!

  11. Don Kreis says:

    So . . . this afternoon comes word that Judge Murtha has denied Entergy’s request for an injunction. We will scour the world for a copy of whatever order the judge issued and comment accordingly. The quote from Judge Murtha in the Associated Press story suggests that he based his ruling, appropriately enough, on the “irreparable harm” requirement and apparently did not express any views on the underlying merits of the case. (He would have had to rule that Entergy was likely to succeed on the merits if he were inclined to grant injunctive relief.) Please join me and my colleague Pat Parenteau tomorrow evening (Tuesday 7/19) for a full and robust discussion of these developments!