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

The company held a “conference call” in which a PR suit with a South African accent (always a nice touch) announced Richard Smith, a management suit (with a vaguely southern accent) would make “remarks” but would not answer questions, “because today’s subject matter is now in litigation.” Always on the high road, these people. (How is a one-way transmission a “conference”?)

Last month, ten days after the tsunami that touched off the Fukushima catastrophe, the Nuclear Regulatory Commission (NRC), issued Vermont Yankee a 20-year extension of its federal operating license, despite knowing Vermont Yankee is of the same flawed design as the reactors at Fukushima and despite the fact that its spent fuel pool (50 feet off the ground) is jammed with highly radioactive waste, far beyond its design capacity.

Everyone expected Entergy to file suit. Mr. Smith said doing so was Entergy’s “least favored approach,” but was the “appropriate and responsible” thing to do. From my experience with Entergy, these people wouldn’t know “appropriate and responsible” if they ran up and bit them in the leg.

Since it bought the plant nine years ago, Entergy has lied (often under oath) to the citizens of Vermont, its managers have cheaped out to the point that some parts of their facility collapsed from lack of maintenance and others caught fire for no apparent reason. The rust bucket has leaked – and continues to leak – radioactive material into Vermont’s pristine groundwater. This lawsuit merely represents the latest example of bad-faith dealing from a company that appears to know no other way of conducting itself.

Tuesday, full-page ads appeared in nine Vermont newspapers featuring an open letter from Entergy CEO J. Wayne Leonard, again regretting the need for litigation, then proceeding to piss all over the notion that Vermonters might have a say in who conducts uncontrolled nuclear experiments in our state. An Entergy spokesuit said the ads were purchased because Mr. Leonard “wanted to have a conversation about the issue with the people of Vermont.” No questions, please.

I, for one, welcome this lawsuit.

In 2002, when Entergy purchased Vermont Yankee, the company signed a Memorandum of Understanding (MOU) with the state, agreeing that the state’s Public Service Board (PSB) can decide whether or not the plant may continue operation after March 2012.

Monday, Mr. Smith said the company’s lawsuit is premised on the notion that a state cannot prevent a federally-licensed nuclear facility from operating. If that argument is true, then it was true when Entergy signed the Memorandum of Understanding in 2002.

So, number one – I look forward to hearing Entergy attorneys explain that one – that they’re filing this suit out of deep concern for a process that did not seem to enter their minds in for the past decade.

Mr. Smith argues Entergy need no longer honor the 2002 MOU because in 2006, the Vermont legislature directed the PSB to withhold action on a CPG until both bodies in the legislature approve of the action. That was a deal-breaker, Mr. Smith said today.

If that’s true, why didn’t Entergy sue in 2006? Why wait until now? (In 2006, Entergy spokesuits said they supported the legislature’s participation.) And why sue on grounds of federal pre-emption? It seems a breach-of-contract suit is the proper means to seek judicial relief. But I’m not a lawyer, so I welcome this suit, so I can understand the issues better.

I welcome this lawsuit as a kind of spring training for state governments in New York and Massachusetts, because they have serious questions about the operation of Entergy nuclear plants in their states (at Indian Point and Pilgrim, respectively). (Here’s a hint: the NRC has no jurisdiction over taxes. Why don’t states help balance their budgets by taxing the living crap out of spent fuel that nuclear industry refuses to take out of dangerous storage pools and place into safer dry casks? Or tax the crap out of flawed, Fukushima-style reactors?)

Finally, I welcome this lawsuit as a much-needed public forum in which to hold a full and vigorous debate on the desirability of nuclear power in the United States in the post-Fukushima era.

Let’s have at it.

© Mark Floegel, 2011

I’m in the latter group. In Vermont, we’ve been trying for years – and we’re close to success – to shut the Vermont Yankee nuclear reactor in Vernon, in the southeast corner of the state, where Vermont joins New Hampshire and Massachusetts.

It’s a General Electric boiling water reactor with a Mark I (GE BWR Mk I) containment system, the same design as the reactors falling apart at Fukushima Daiichi. No one’s expecting a 9.0 earthquake or tsunami in southeast Vermont, but we don’t need either.

Entergy, the Louisiana-based conglomerate is mismanaging the plant into the ground. The series of Homer Simpsonesque mishaps would be funny if they didn’t involve serious threats to human health and the environment – collapsed cooling tower, fires, lost fuel rods. For over a year, radioactive material has been leaking into the groundwater from underground pipes that Entergy’s managers swore under oath did not exist.

In 1972, the year Vermont Yankee commenced nuclear fission, an official at the Atomic Energy Commission (forerunner of today’s Nuclear Regulatory Commission) warned the design of the GE BWR Mk I was badly flawed and failure of its cooling system could lead to catastrophe, as we’re seeing in Japan.

Why would General Electric design such a shoddy reactor? Because they were cheaper and easier to build than if they’d designed a decent machine. Good idea guys, let’s cut corners with nuclear devices. Okay, but once the defects were acknowledged we count on our government “watchdogs” to shut the damn things down, for safety’s sake, right? No, can’t do that, as another official noted at the time, because it “could well be the end of nuclear power.”

Last week, as the reactors at Fukushima were blazing out of control, the NRC granted Vermont Yankee a 20-year extension on its license. Since 2006, the NRC has allowed Yankee to operate at 120 percent of its design capacity. Yes, this 40-year-old reactor with the well-know catastrophic design flaws managed by a company so maintenance-negligent that pieces of the facility just fall over.

You think your government is acting in your best interests? No way. The NRC does what the nuclear industry demands – your life and your kids’ lives don’t even enter the thought process. Why should the NRC be any different that the FDA, OHSA or EPA?

Happily, when Entergy bought the plant in 2002, it signed a memorandum of understanding with the state that gave the state’s legislative and executive branches the authority to issue – or withhold – a certificate of public good. In lay terms, Vermont is the only state that can shut down a nuke. The state senate voted overwhelmingly last year to close the dump and our new governor ran on a “shut it down” platform.

Entergy has more or less announced its intention to sue Vermont, even though it signed an agreement giving the state authority over Yankee. (“When we say ‘legally binding,’ we mean for you, not fur us!”) They’ll claim only the NRC can deny a permit to a nuke and a state cannot pre-empt the feds. My prediction: Entergy will win the pre-emption argument, but Vermont will win the case, on grounds that Vermont Yankee has polluted our groundwater and the state has a right to protect its natural resources, which fall outside the NRC’s purview.

If I’m honest (and selfish), I’ll admit Vermont Yankee could melt down and it would have little effect on me. The border that circles us both is political, not ecological. Wind and water currents would carry radiation to the east and south. I live to the north and west. On the other hand, two GE BWR Mk Is – Nine Mile Point One and James Fitzpatrick in Oswego, New York are upwind of my house. Where are you, Andrew Cuomo?

© Mark Floegel, 2011

The venom I received from the bees last week was not, in the longer view, as effective as I’d hoped it would be. This comports with what Bill Mraz (he’s highly esteemed in the beekeeping community) told me a few weeks ago – bee venom is more potent in some seasons than others and winter is an “other” season.

We came down on USAirways and I was again astounded at how wooden-headed airline policies can be. Our first flight was late and some dozen of us missed the connection because waiting another minute for us would have meant missing an “on-time departure.” The plane got its “on-time departure,” but the passengers didn’t. I guess we don’t count in the statistics. I don’t want to sound too grumpy. At least no guitars were broken.

In other travel-related news, Rolling Stone is reporting Congressional representatives and senators visiting Afghanistan were subjected to “psychological operations” techniques at the order of Lt. General William Caldwell, supposedly to convince the legislators to increase budgets for the Afghanistan war or – more likely – to plump Gen. Caldwell’s career. (Underlings called it “Operation Fourth Star.”)

If true (I’ve no reason to believe it’s not), then Army regulations and perhaps laws were violated. The lieutenant colonel who blew the whistle was – of course – harassed by the Army for trying to do the right thing. Hey, Republican “budget hawks”! Guess which wasteful, stupid enormous part of the budget actually does need cutting?

On the topic of GOP “budget hawks,” (are these great segues or what?), Forbes reports that “fiscally minded” would-be union-busting Governor Scott Walker buried deep in his budget a secret provision to allow the state to turn over management of state heating, cooling and power plants to private contractors on a no-bid basis. Yeah, no-bids are famous for saving money. Collective bargaining, competitive bidding – seems Scott Walker’s against anything with the initials C.B. Too bad, Charlie Brown. And guess which right-wing billionaire brothers from Kansas who underwrote Mr. Walker’s campaign own three companies that stand to benefit from the no-bid contracts? If you guessed David and Charles Koch – you’re right!

Rumors that Gov. Walker has also proposed changing the name of the state to WisKochsin are untrue as of this writing. But stay tuned.

Back up in still-buried-in-snow-and-ice Vermont, I’m going to miss a debate between two pro-nuclear engineers tonight at the University of Vermont. On the face of it, doesn’t sound like much of a debate, but one of the engineers – Arnie Gundersen – is opposed to operating nuclear reactors in an unsafe and irresponsible manner. The other – Howard Shaffer – seems to believe the nuclear industry should be given anything it wants, even if it, as Vermont Yankee’s owner Entergy Louisiana as amply demonstrated, behaves in an incompetent and dishonest manner.

According to some fine reporting by Green Mountain Daily, it seems the pro-stupid-nuclear camp can’t even stage an honest debate, even when the Vermont taxpayers subsidize it. Oh well, Arnie will still win. He has the overwhelming advantage of truth and common sense on his side.

© Mark Floegel, 2011

Our legislators all have other jobs – they’re farmers and business people, professors and attorneys. There’s a law on the books that says a person cannot be fired from his or her day job because she or he is attending to legislative duties. Wealthy professionals are over-represented in the Vermont legislature, but show me a legislature where they’re not. All in all, I think we do pretty well.

Still, I sense an unvoiced inferiority complex when it comes to our legislature. We have New York just to the west and Massachusetts to the south and while we all thank good fortune every day that we are not those states, there’s a certain junior varsity air to the whole undertaking.

So what? The point of a legislature is not offices and staffers or worse, to provide a space for lobbyists to hang out all the year through. The point is to make good government and then go home. That’s what the Vermont legislature does in 16 weeks (more or less) each year.

Yesterday, the Vermont Senate, on a vote of 26-4, became to first legislative body in America to close a nuclear power plant, Vermont Yankee, which is owned by the Entergy Corporation of New Orleans, Louisiana.

The plant, first opened in 1972, is scheduled to close in 2012. Entergy Louisiana, which bought Vermont Yankee in 2002, wanted the legislature to extend its permission to operate another 20 years.

The Louisiana folks have – to be honest – run the place into the ground. A cooling tower collapse, a transformer fire, a crane dropping high-level radioactive waste, missing fuel rods – it would be funny if it wasn’t tragic.

The latest fiasco has been leaks of tritium and cobalt-60 that Entergy cannot neither find nor plug for the last seven weeks. We do know the leak is from an underground pipe – a pipe Entergy Louisiana officials swore under oath did not exist.

Yesterday Curtis Hebert, new guy in Vermont (the old guy got sent on vacation after the leak) held a (sorta) press conference before the Senate met. He read a statement and refused to take questions. The statement said lawyers hired by Entergy to conduct an “independent internal investigation” found Entergy officials didn’t lie to regulators about the supposedly nonexistent leaky pipe. (Translation: “We’re not dishonest, we’re incompetent. Can we please keep running a nuke in your state?”)

The snow flew all through the day, heavy flakes that accumulated like wet cement. Town meeting, our annual exercise in direct democracy, is next Tuesday and we always seem to get a blizzard within a week of town meeting.

Inside the statehouse, a holiday atmosphere reigned. Some two hundred supporters of closing Vermont Yankee crowded the halls. Entergy Louisiana had trucked in 50 plant workers the day before, but none we present for the actual debate. Off looking for the leaks, I suppose. A public gallery runs the perimeter of the Senate chamber. Citizens sit so close, they can reach out and tap legislators on the shoulder.

Extra police officers were in the halls to help with crowd control, but environmental organizers kept everyone headed where they needed go. I saw one police officer cooing to a year-old baby who had a “Retire Vermont Yankee as Planned” sticker on her snugli. A delegation of Russian citizens on a cultural exchange passed through the crowd with their interpreter. Their eyes were wide in amazement. Doesn’t look like this back home, does it folks?

The final vote – 26 to 4 – is in keeping with conversations I’ve had with fellow Vermonters in the last few years. Most people know the time for nuclear power is past and look forward to a renewable energy future. A few people disagree, are dug in and put out that they constitute such a small minority. It’s OK, they’ll get over it. We’ll welcome them back. It’s Vermont, after all. We’ll be living together for the rest of our lives.

© Mark Floegel, 2010

This is bad timing for Yankee’s owner, Entergy of Louisiana, because the Vermont legislature is currently considering Entergy’s request to extend the 38-year-old plant’s license to operate for another 20 years. (Vermont is the only state in which the legislature has the power to intervene in a nuclear plant’s license.)

Even Governor Jim Douglas, who has been an unabashed Entergy supporter until now, demanded the firing of Entergy Vice President Jay Thayer. Mr. Thayer swore under oath that Vermont Yankee has no underground pipes. Then it was discovered that the tritium was leaking from – underground pipes. (Still a friend to Entergy, the governor has also called for a “timeout” to allow the corporation to rebuild the people’s shattered trust. After all, you wouldn’t want to decide whether or not to go ahead and get married after you catch your intended in bed with your best friend, you’d want to give it time to rebuild trust.)

It’s unclear at this point who is the dog and who is the pony in this dog-and-pony show, but Entergy did get rid of Mr. Thayer. (Which is not to say he was fired. He was placed on “administrative leave” pending investigation, which means he goes on vacation until this whole thing blows over; when he returns with a tan, he’ll be sent off to tell whoppers about some other Entergy facility.)

The new face of Entergy in Vermont is Curt Hebert, Jr., Entergy’s vice president of external affairs and former head of the Federal Energy Regulatory Commission (FERC). Mr. Hebert is known as a lifelong opponent of government intervention in energy markets. (Then why was he the federal government’s chief energy regulator, you ask? He was appointed by George W. Bush.)

So up here in Vermont, the public, press and politicians are seriously cheesed off at the out-of-state corporation that has mismanaged the state’s only nuke since it bought it in 2002 and has been caught passing misinformation again and again. What’s Entergy’s response? To send a bitter foe of government intervention to the one state where the government has more power to intervene than any other. It makes one wonder if Entergy’s CEO Wayne Leonard might be spending too much time in the radiation room.

Mr. Hebert’s greatest claim to fame is that he presided over the federal government’s deer-in-the-headlights inaction when the 2000-2001 energy crisis caused rolling blackouts in California. (Heckuva job, Curty!)

According to published accounts, Mr. Hebert – acting on Dick Cheney’s orders – covered up the market manipulation by Enron and others that led to the California and instead encouraged California to cancel its environmental regulations. Now his kind ministrations will be visited on Vermont. Oh boy.

To paraphrase Lord Acton, power corrupts and nuclear power corrupts absolutely.

© Mark Floegel, 2010

That’s not true, there’s plenty of mischief still available to the Terrible Twins and as we saw with the wiretapping bill last month, there are more than enough foolish Democrats willing to abet Bush/Cheney shenanigans.

When Congress reconvenes in a few weeks, it will take up consideration of an energy bill and the Cheney cronies will be pushing for the construction of a new generation of nuclear reactors. Expect to hear that we need – desperately need – more nuclear power as a solution to global warming. All the politicians who’ve been doing the bidding of big oil (“Oh no, we can’t tax ExxonMobil’s billions in windfall profits.”) and big auto (“Oh no, we can’t raise fuel-efficiency standards.”) will now stand in the wells of their respective bodies and tell us that unless we allow another wave of nuclear experimentation wash across the nation, your grandma will die of heat stroke.

To the eternal embarrassment of most of my fellow Vermonters, we have a nuclear power plant in the Green Mountain State. Vermont Yankee was built 35 years ago and should be nearing the end of its life. Its license is set to expire in 2012, but the plant’s owner Entergy Nuclear, has applied for a 20-year extension. It may well get the extension, seeing as last year the Nuclear Regulatory Commission allowed the plant to increase its power output by 20 percent more than it was designed to produce.

Tuesday, still in the midst of high summer electricity demand, Vermont Yankee had to cut its output by half when its cooling towers began to fail under the pressure of the extra water that’s been forced through them since the power boost.

Okay, okay – Vermont Yankee is an old reactor. The nuclear industry says its new generation of reactors will be “inherently safe.” Maybe – maybe not. The problem with a promise like that is we cannot determine its truth unless we allow the construction of the new reactors and they operate safely for 50 years – or have meltdowns.

Since we can’t predict the future, we have to use the past as a guide. We know when nuclear-generated electricity was first developed, we were told we could have it for nothing, as it would be “too cheap to meter.” It was not, is not and never will be. In fact, when the first nukes were built no insurance company on Earth would write a policy to cover one. To fill the gap, the federal government in 1957 agreed to cover losses from a nuclear mishap for the first ten years until everyone saw how safe nuclear plants were. By 1967, still no insurance company would write a nuke policy, so the federal insurance scheme was extended for another 10 years. After that, the extensions were for 12, 15 and 20 years. Congress keeps making the extensions longer as its way of facing the fact that “the invisible hand of the free market” won’t come within a thousand miles of one of these idiotic machines.

While the US has had nukes for a half-century, we have never agree on a place to put the nuclear waste, which will be hazardous to living things for hundreds of thousands of years. We’ve spent $10 billion on a “repository” at Yucca Mountain, Nevada, but it’s not clear that it will ever open. Meanwhile, five decades of nuclear waste sits in “temporary” storage on-site at power plants, accidents or terrorist targets waiting to happen.

In recent nuclear news, a French consortium earlier this month won a half-billion euro contract to build a new sarcophagus over the melted reactor at Chernobyl, scene of the world’s worst nuclear accident. Radiation is leaking out of the site again.

Last month, an earthquake in Japan shut down the world’s largest nuclear power complex which, unknown to authorities (!!!) was built on a major fault line. The earthquake caused a fire at the reactor, tipped over barrels of contaminated material and spilled hundreds of gallons of radioactive water into the ocean.

In France and Alabama reactors have been shut down this summer – again during peak demand – because their water discharges were overheating local rivers. How is that a solution to global warming?

The list of nuclear energy’s deficiencies is almost too long and farcical to be believed and is available to all with the slightest of Googles. A new generation of these disasters should be the easiest of pitfalls for Congress to avoid, but recent history unfortunately suggests that may not be the case.

© Mark Floegel, 2007