For the Record

Late in the day last Thursday, federal Judge J. Garvan Murtha ruled the Vermont legislature cannot intervene in the continued operation of the Vermont Yankee nuclear plant.

In his 102-page ruling, Judge Murtha closely tracks the arguments made by attorneys for Entergy, the owner of Vermont Yankee.  Entergy argued and the judge agreed that while the statute passed by the legislature says that the state’s concerns about Vermont Yankee are based on issues of reliability and economic benefit, the legislators were really concerned with radiological safety and such safety is the sole province of the Nuclear regulatory Commission (NRC), which last year issued a permit for Vermont Yankee to operate for another 20 years.

(The plant’s reactor, which is the same design as the melted reactors at Fukushima, has been running for 40 years, which was the projected lifetime of the reactor when it was built.  Since 2006, it has been running at 120 percent of its design capacity, again with the blessing of the NRC.)

Judge Murtha devoted nearly half his ruling to a detailed legislative history of the past decade.  In it, he pointed to numerous statements on safety by legislators, just as Entergy’s attorneys did at trial.  He concluded that because the issue of safety had been broached, the statute passed by the legislature did not mean what its words said it meant, it was a ruse cooked up by politicians overstepping their boundaries.  Neither the judge nor Entergy’s attorneys (nor the state’s attorneys, for that matter) seem to have counted the number of times legislators mentioned “reliability” or “economics.”  Would it have mattered if someone had?  I’m sure Judge Murtha sees his ruling as qualitative, not quantitative.  He chose to base his decision on the legislative record, rather than the words of the statute.  Some people think that’s a backward way of looking at law, but I’m not an attorney, so I’ll let that pass.

Judge Murtha took pains to note his ruling is not a comment on the merits or defects of nuclear power and said Entergy still needs a certificate of public good from Vermont’s Public Service Board (PSB).  The PSB, however, can only base its decision on reliability and economic benefits.  The board said yesterday it will not take up Vermont Yankee’s docket until after 24 February, after the date by which the state must decide whether to appeal Judge Murtha’s ruling.

As of 21 March, Entergy will no longer have contracts to sell electricity to Vermont utilities at below-market rates, so there will no longer be direct economic benefit to Vermont for hosting Vermont Yankee.  (Vermont, as part of the New England grid, will indirectly benefit but no more than any of the other five New England states.)

Entergy has for years significantly starved Vermont Yankee’s decommissioning fund.  It has long been a point of contention between Entergy and the legislature (one of those things Judge Murtha discounted).  In 2009, Entergy tried to spin off Vermont Yankee and several other decrepit nuclear plants into a stand-alone asset-free company called Enexus, a bad-faith move if ever there was one (also ignored by Judge Murtha).  Entergy contributes thermal pollution to the Connecticut River and radioactive tritium leaks from the reactor, issue affecting not just Vermont, but New Hampshire, Massachusetts and Connecticut (and overlooked by Judge Murtha).  Finally, Entergy has a record of making incorrect statements – either through malfeasance or misfeasance – under oath to Vermont regulators.  Judge Murtha declined to address these in his ruling.

Everything in the preceding paragraph is fair game for the Public Service Board and more than reason enough to deny Entergy a new certificate of public good.  Entergy, of course, will choose to sue the state again if a certificate is denied.

This is a tough situation for Vermont Attorney General Bill Sorrell.  It’s easy (and cheap) enough for me to predict the PSB will deny Entergy a certificate of public good and advise Mr. Sorrell to save his staff time for the inevitable appeal to the Vermont Supreme Court, but he can’t take such predictions into account when deciding on the federal appeal.

At the end of the day, this is Entergy’s strategy: spend Vermont into submission.  Entergy spent more on the trial before Judge Murtha ($8 million) than Mr. Sorrell has in his annual budget.  Simultaneous appeals in two venues look like a sure budget-buster.

Ethan Allen, our founding father, hated a coward.  So is it true of his civic descendants.  Nail the flag to the mast and full speed ahead.  Live by the record, die by the record.  Vermont will prevail if we persevere.

© Mark Floegel, 2012

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