As the two-day hearing on Entergy’s request for a preliminary injunction wrapped up Friday, June 24, a few issues remained somewhat in doubt.
First, what effect will Entergy’s not so subtle threat to close the plant if it loses the preliminary injunction have on Judge Murtha’s decision? None, in my estimation. Federal judges are used to having parties predict the end of the world if they do not get their way. Assistant Attorney General Scott Kline is right that Entergy painted itself into this corner. The company could have filed this suit years ago if it really believed the state was acting illegally. It chose the time and place for this fight and it must bear responsibility for the consequences. My guess is Entergy will not throw in the towel if it loses. But whatever happens, it will be Entergy’s decision, not Judge Murtha’s.
Second, while the state did a credible job at the hearing, it did not score a knockout punch, and its theory of the case ran into a skeptical Judge Murtha on its position that the certificate of public good will automatically expire on March 21, 2012, without the need for any further action by either the Vermont Legislature or the state Public Service Board (PSB). Frankly, this is an odd situation. The PSB has an open docket on Entergy’s March 3, 2008, petition to renew the certificate of public good. The evidentiary hearing and briefing have been completed. But the PSB takes the position that Act 160 precludes it from rendering a final decision (the Act states that PSB “may not issue a final order or a certificate of public good until the General Assembly determines that operation will promote the general welfare and grants approval for that operation”). As everyone knows, in February 2010 the Vermont Senate voted 26-4 against recommending that PSB act on Entergy’s petition; however, the bill was not referred to the House and the General Assembly did not take a final vote. A bill seeking another vote was introduced in the 2011 legislative session but it failed to advance.
So, it appears the Legislature will not take up the issue before the March 21, 2012, deadline. The Attorney General takes the position that the Senate vote does not represent final legislative action and is not before the court. Judge Murtha seemed puzzled by this position and asked a number of probing questions of both the Attorney General and Entergy’s lawyer, indicating his belief that the Senate vote was relevant. The Attorney General lawyers stuck to their guns and persisted in arguing that the PSB cannot act without legislative approval, while at the same time arguing that the Legislature has no duty to vote up or down on the approval. Judge Murtha is clearly troubled by this seeming Catch-22. Hard to say how this might affect his ruling on the preliminary injunction motion. Entergy has argued that the PSB is already “tainted” by the legislative acts and can no longer be trusted to render an objective decision. Entergy might, however, like another shot at a vote in the Legislature. It mounted a full-court advertising campaign last winter to drum up support for a re-vote.
Finally, surprising as it may seem, Entergy may have made some headway with “the dog that didn’t bark” argument. The somewhat strained Sherlock Homes metaphor goes like this: If safety is not the reason for shutting down the plant, what is? Entergy argues that there is no plausible reason other than safety and has challenged the state to identify specific, non-preempted reasons to justify closing a plant that it claims is a reliable, cost-effective and carbon-free source of electricity to the region. The state argues, rightly, that the law presumes that the challenged statutes are constitutional and it is Entergy’s burden to prove that they aren’t. On their face, the statutes say nothing about regulating radiation hazards. Entergy bears a heavy burden to prove that the Legislature constructed an elaborate subterfuge to disguise its true intent.
Nevertheless, the Pacific Gas & Electric Co. v. State Energy Resource Comm., case does say that the court must satisfy itself that there is a genuine non-radiological rationale for the state’s decision to bar a nuclear power plant. The Attorney General has offered a few examples of regulatory concerns that do not involve radiological health and safety, such as air and water quality issues, but it is not clear that Judge Murtha is entirely satisfied. He has come back to the same questions several times. What does “public safety” mean if it doesn’t mean radiological safety? Isn’t safety a necessary component of reliability? What other grounds exist to support the state’s position?
The two-day hearing last Thursday and Friday barely scratched the surface of the voluminous legislative history dealing with Vermont Yankee and the broader subjects of the state’s energy future—with or without the plant. Undoubtedly, there is much more to be gleaned from a careful examination of these materials. At this point, however, there is nothing more the state can do to beef up the record on these points unless Judge Murtha requests further briefing. At the close of the hearing, he did say he would let the parties know by this week if he wants additional information.
The state’s briefing on all of the issues has been very strong and it should be enough to win the day. But this is no slam dunk. If Judge Murtha does grant some form of preliminary relief, the state will have another chance to make their case at trial, which has been moved up to September 12. The state may need to tie up some loose ends to secure a final victory.
Print 
PDF 
A few comments on Pat’s excellent review.
1) “My guess is Entergy will not throw in the towel if it loses.” Pat will be pleased to know that the judge shares his guess. During Ms. Sullivan’s presentation on Friday, Judge Murtha asked her whether VY would shut down if he didn’t order an injunction, adding: “I kind of doubt it but that’s just my surmise.” (I may have transcribed the last word incorrectly; I’m no stenographer).
My own guess is that Pat and the judge are wrong, but that’s based on my sense that this is economically a very marginal plant at best, and that investing large amounts of money for small amounts of time and limited possibility of success would be a silly economic decision. Since Entergy does not make its profit and loss statements public for each of the plant it owns, however, I have to add that my assessment is based on a significant number of best guesses and inferences, which could easily be leading me astray.
2) Pat writes: “…while the state did a credible job at the hearing, it did not score a knockout punch ….” That was my first take on the matter as well. The more I’ve thought about the core argument on the merits of the case, however, the more I’ve come around to thinking that Bridget Asay’s incredibly understated presentation belied a devastating set of blows to Entergy’s arguments. Going back and forth between Sullivan’s long-winded, and far more dramatically presented arguments and Asay’s, concise, subtle replies, I realized that Asay had left nothing at all for Entergy to rely on. The analogy that came to me today is of those movies in which someone’s head is cut off so cleanly that it takes them a moment to realize they’ve been beheaded. Where it matters, Asay’s arguments left Entergy a walking (and VERY verbal) zombie.
3) “The Attorney General takes the position that the Senate vote does not represent final legislative action and is not before the court. Judge Murtha seemed puzzled by this position …” So, frankly, am I, after hearing it presented two days in a row.
My best guess is that the state is arguing that the senate vote is not before the court in order to reinforce its contention– already strong, in my estimation — that Entergy’s challenge was brought long after it could have been, and that therefore any emergency there may be (the State does not acknowledge any), is self-inflicted. In other words, the argument is intended to address the issue of timing and to respond to Entergy’s claim that harm is “imminent” by pointing out that it wouldn’t be if the suit had been timely resolved.
Whatever its merits in terms of imminent harm, however, surely, it makes no difference to the substance of this case. One need only assume that it is rejected to see that. If the senate vote IS a legislative enactment and IS before the court, how does the question of preemption change? As far as I can see, the answer is: it doesn’t.
4) I have addressed the theory of the dog that didn’t bark at length in response to Pat’s colleague Don Kreis, elsewhere on this website (http://vtyankeelawsuit.vermontlaw.edu/june-24-2011-belly-buttons-and-blarney-in-brattleboro/ ) Suffice it to say here that the argument is flawed not only legally and factually, but logically as well.
5) “Nevertheless, the Pacific Gas & Electric Co. v. State Energy Resource Comm., case does say that the court must satisfy itself that there is a genuine non-radiological rationale for the state’s decision to bar a nuclear power plant.” We need to be quite careful here. First. I think a closer reading of PG&E suggests that this is true ONLY if the language or situation of the law raises the possibility that the motivation might have been safety. But as Entergy has acknowledged, albeit in dark and conspiratorial tones, the legislature was well counseled on PG&E law, and avoided ANY such appearance. The terms of these laws, as written, simply do NOT raise the issue of safety. The ONLY way to read safety into these laws, in fact, is NOT to read them in the first place, but rather to simply ASSUME that they cannot mean what they say. It is certainly an understatement to suggest that this is an odd argument. Interpreting legislation by completely abandoning textual analysis at the outset leads us not to a new theory of legal interpretation, but rather deep into the world of Alice in Wonderland’s Humpty Dumpty where a word means whatever he says it means.
Moreover, to the extent that the issue DOES arise at all, it’s because of Entergy’s synedochial suggestion that these laws are based on reliability and that reliability is really a code word for safety. Reading the laws, however, one can see a variety of other concerns, none of which concerns safety OR reliability. Looking at Act 160, for example, one finds the following, which mention NEITHER reliability NOR safety:
– Sec 1 a: “including the state’s need for power, the economics and environmental impacts of long term storage of nuclear waste, and choice of power sources among various alternatives”
– Sec. 1d: “of the larger societal discussion of broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits, risks, and costs; and in order to allow opportunity to assess alternatives that may be more cost effective or that otherwise may better promote the general welfare.
– Sec. 254 b(1) The objectives of the studies … : “(A) to facilitate public discussion of long term economic and environmental issues relating to the operation of any nuclear facility in the state;
(B) to identify and assess the potential need for the operation of the facility and its long term economic and environmental benefits, risks, and costs; and
(C) to assess all practical alternatives to those set forth in the applicant’s petition that may be more cost effective or that otherwise may better promote the general welfare.”
There are more examples, if one continues reading the law. Suffice it to say that there is no preempted purpose on this list and therefore nothing requiring the court to “satisfy itself” about motive.
6) Pat notes that “[Judge Murtha] has come back to the same questions several times. What does “public safety” mean if it doesn’t mean radiological safety? Isn’t safety a necessary component of reliability?” First, I think the phrase he came back to MANY times was “public health,” NOT “public safety.” It occurs in section 254 b(2)B. Again, since I addressed this in response to Don Kreis, I won’t repeat myself here.
Second, he certainly did focus, with both attorneys, on the question of “reliability” and “safety” and their interaction, but it’s hard to see how the case would turn on his decision. Again, assume the worst (from my point of view): namely, that the judge agrees with Entergy that “reliability” is just code for “safety.” The word reliability appears exactly once in Act 160, where it is part of the name of another piece of legislation. It doesn’t appear at all in Act 74. In fact, its role is strictly limited to the so-called reliability study, which, perhaps, Judge Murtha will find should never have been done. And then? Entergy’s case requires him to overturn a whole spate of legislation, most or all of which predates the suspect study. How can he do this even if he grants Entergy’s notion that the reliability study was “really” about safety?
7) “At this point, however, there is nothing more the state can do to beef up the record on these points unless Judge Murtha requests further briefing. ” The judge did say that he would issue an order this week if he wanted more information, but he also acknowledged that the State had asked to submit proposed findings. While he didn’t seem to rule on the request, he seemed willing to grant it as far as I could tell.
by the way, I don’t know if anyone has mentioned this but the state dept of public health does have a dept of radiological health which has more stringent limits for fence line doses than the NRC.
Is this stepping over the bounds of federal jurisdiction?
so public health does not equal radiological safety but radiological HEALTH.
imagine, claire
If this person is teaching I would not take his classes, he has a vision problem. I believe it is called opticalrectise, That’s where you vision gets crossed with a different part of your body and things look ——