Feb. 28, 2012, Don Kreis: Vermont Yankee and the Rule of Law

Don KreisIt 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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