Comments on Kreis blog which summarize where we are now (March, 2012)

NOTE: The first set of these comments below responds to Don’s blog; the second, to comments he made to me in reply.  I recommend to readers that they read all of the blog as well as all of the comments.  It’s all quite interesting.  Published here: http://vtyankeelawsuit.vermontlaw.edu/feb-28-2012-don-kreis-vermont-yankee-and-the-rule-of-law/#comment-6361

Just once, I wish I could agree with Don Kreis, since he’s such a likeable fellow. Alas, that’s not to be, at least not this time.

1) First, let’s get the chronology straight. Judge Murtha handed down his decision on January 19. On January 25, DPS wrote to the PSB, requesting a prehearing conference to be scheduled no earlier than Feb. 24 or specifically, AFTER decisions had been made concerning an appeal of Judge Murtha’s decision.

On January 31, Entergy petitioned the PSB for a final decision “without taking any new evidence.” (This petition directly contradicted what Entergy told Judge Murtha at the trial (namely, that the docket was tainted and a fresh docket was needed.)) The Attorney General filed his notice of appeal of the Murtha decision on February 18. Then, on Feb. 22 the PSB issued a “Request for Comments on Procedural Issues,” noting that a prehearing conference was set for March 9 and that briefs were requested for March 2. The Board went on to ask that parties “also respond to the following additional procedural issues.”

On Feb. 28, Entergy filed 4 distinct items, 3 in direct response to the Board’s memo. First, 2 items filed with the 2nd Circuit Court of Appeals: 1) notice of cross-appeal “from the final judgment … and each and every part thereof;” (This had nothing to do with the Board’s memo and its filing on the same day as the other 3 items is coincidental). 2) a motion for a limited remand to resolve motion under Fed. R. Civ. P. 60 (b). In addition, there were 2 more filed with Judge Murtha 3) “MOTION FOR RELIEF FROM JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b); and 4) “EXPEDITED MOTION FOR INJUNCTION PENDING APPEAL.”

Finally, on Feb. 29, Entergy wrote to the PSB, requesting that the prehearing conference be postponed, but failing that, that other parties be required to file briefs by March 2 but that Entergy’s brief be deferred till March 7. [Entergy is now asking the Board to slow down the process which less than a month earlier, they asked the Board to expedite.]

2) It is clear from this chronology why Don’s version is just too simple. The reason that “by all rights the action should [NOT] now shift to that New York City-based court” is that there is a second process legitimately underway: namely, the CPG decision making process which will take place at the PSB. By remanding the case to the PSB – which Entergy ASKED him to do –Judge Murtha clearly set in motion a process which COULD evolve separately from the appeal. Entergy specifically requested that it SHOULD do so, knowing full well when it did so that the State might well appeal Judge Murtha’s decision. In any case, now that Entergy has asked for a final decision, the PSB has little choice but to at least hear from all the parties their opinions on how best to proceed.

3) It is also clear from the Board’s questions and Entergy’s response that it is NOT “perfectly obvious that shutting down the plant on March 21, under state law, would be inconsistent with Judge Murtha’s decision.” Indeed, it isn’t clear at all. There are at least 2 pertinent reasons for this.

First, as the Board pointed out in its Feb 22 memo, Judge Murtha did not strike down all of Act 74. In particular, the Board cites Section 6522 (c)(2), noting: “It appears that this provision, which was incorporated in the Docket 7082 CPG, has not been preempted by the District Court.” (p.2) The language of that provision specifically limits storage of spent fuel “…to the amount derived from the operation of the facility up to, but not beyond, March 21, 2012 ….” That clearly suggests that continued operation after March 21 would create spent fuel which could NOT be legally stored. There is likely to be controversy surrounding this point, given that it clearly revolves around a part of Act 74. There is no question that Act 74 was clearly one of the focal points of Judge Murtha’s decision.

The second point, however, concerns subsection 6501, which was written in 1979: “No facility for deposit, storage, reprocessing or disposal of spent nuclear fuel elements or radioactive waste material shall be constructed or established in the state of Vermont unless the general assembly first finds that it promotes the general good of the state and approves, through either bill or joint resolution, a petition for approval of the facility.” That has never happened, and Judge Murtha’s decision did not address it at all.

Judge Murtha’s reasoning about Acts 74 and 160 revolved ENTIRELY around their legislative history. In shortest form, he ruled that their legislative history showed that the legislature’s “real” motivation in passing the laws was “radiological safety” and that therefore parts of both acts were preempted by the Atomic Energy Act. There is no logical way to extend this reasoning to a law passed a quarter of a century BEFORE the legislative history the judge had before him. It follows that the Judge’s conclusion that parts of Act 74 are unconstitutionally preempted does NOT imply that Section 6501 is also. Any such conclusion would have to follow from OTHER evidence, which has never been put before the judge.

All of this, in turn, suggests that regardless of the outcome of the 2nd Circuit appeal, there are remaining legitimate issues which can be explored at the State level, independent of the appellate process. Thus, it would not be “a better world” — certainly not a world in which the rule of law is more respected, which appears to be what Don Kreis is after — if the Attorney General were to ride roughshod over all of these legitimate questions and simply agree to concede to Entergy that it can operate until the appeal is resolved.

3) It is also a vast oversimplification to suggest that Judge Murtha’s denial of Entergy’s requested injunction last summer was “based on an ultimately unfulfilled promise to resolve the case speedily on its merits.” The judge, after declining to rule on the probability of success on the merits based on the proximity of the trial date, carefully looked at the harms which Entergy claimed would ensue if the injunction were denied, and decided they were baseless. In particular, Entergy claimed that it was risking upwards of $65 million on its decision to refuel, a decision which it would need to make well BEFORE the trial was to occur in September. The judge had little sympathy with this argument.

It is worth recalling two points about timing, which, from start to finish, has been in Entergy’s hands. Act 160 passed in 2006. It was no more or less constitutional then than it is now. The argument has been made that, had Entergy sued when that bill was enacted, the courts might have ruled that the case was not “ripe,” since the NRC had not acted. Weighing against that suggestion, however, is the fact that in 2006 Entergy filed its petition for relicensing with the NRC, which would cost it millions of dollars to pursue. That alone suggests that the case would have been ripe for decision BEFORE the expenditure of those millions. We’ll never know, since Entergy CHOSE not to bring the action.

Similarly, Entergy could have brought this case in February 2010, following the Senate’s vote. Had it sued THEN, it would not be facing any kind of loss now, since there would have been plenty of time to resolve all of the complicated issues which surround continuing operations. Again, Entergy decided to wait more than a year before suing, bringing the looming deadline of March 21 that much closer. If Entergy is forced to close down while resolving the claims it decided to wait until the last minute to bring, it’s clearly NOT the fault of the State of Vermont or its Attorney General. Entergy must face the consequences of its own decisions and strategies.

4) Finally, Don’s analogy of Entergy to “oppressed racial minorities” misses some pretty basic points. The most salient, of course, is that those racial minorities were using non-violent direct action, precisely the tactic Don is assailing, to contest the injustice of laws which had been duly passed by state legislatures and upheld, in many instances, by the US judicial system (both state and federal). That’s WHY it’s called “civil DISOBEDIENCE.” Put differently, non-violent civil disobedience is, by definition, a violation of man’s law in acknowledgement of a higher law or principle.

Sure, along the way there were points when the federal government called out troops to enforce the decisions of federal courts, but there were also many occasions when protestors had to go to jail to dramatize the larger injustices of duly passed and enforced Jim Crow laws to American society and to the world.

To be honest, I haven’t decided whether or not civil disobedience is an appropriate tactic at this juncture in the battle against Vermont Yankee, but it is crystal clear to me that if it is used, it is the demonstrators, not Entergy, who are analogous to blacks who decided to peacefully violate laws with which they felt they could not longer comply and then to suffer the consequences of their actions.

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Thanks for your kind words Don.

After my initial and completely failed foray into predicting what judges will do, I’ve learned my lesson. I have absolutely NO idea what the appeals court will do with the case or what Murtha will do in any of the parts of it which remain in his jurisdiction. On the other hand, I still have a very clear idea of what they SHOULD do, however, and hopefully, I’ve made that sufficiently clear. So basically, this time out, I don’t disagree with much of anything YOU say.

Since you’ve made the 10,000 foot level remark before, however, I would say this: to me at least, the preemption part of this case (as presented to Murtha and now to the appellate court) looks no different from the air than it does down in the weeds.

These discussions with you and others have forced me to look VERY closely at various Vermont laws. What I come away is an enormous respect for the care with which they were drafted. (Having participated in the drafting of one law, that doesn’t surprise me at all, but it’s nice to have it confirmed.) Reading comments from others, one can often get the impression that Vermont’s legislators and legislative counsel are incompetent, careless, or slipshod. Frankly, I think that’s just plain wrong.

The reason I bring this up in this context is that, if one looks at the text of the law being judged rather than random comments swirling about in the air while it was being considered, the 10,000 foot view and the on the ground view are basically the same. As I have said over and over, these laws (Acts 74 and 160) say (with great precision) what they mean and mean exactly what they say. And they are carefully crafted to fit together as pieces of a common web of law, rather than standing in isolation from one another. I continue to fail to understand how ANY judge in ANY case can start (and even worse, finish) his analysis by NOT examining the text of the law he’s supposed to be judging.

The irony of where we are now in this case underscores my point. Judge Murtha and Entergy both knew that there were Vermont laws about storage of spent fuel PRIOR to 2002, but they chose to simply ignore them, EXCEPT in the context of situating Act 74 historically. (See, e.g., Murtha, pp. 12-13) Judge Murtha then went on to throw out the single provision of Act 74 which actually mirrors, almost precisely, a provision that was passed in 1977, claiming that the random comments he cites from legislative history show that the legislature’s desire for a vote on spent fuel storage means that they MUST HAVE BEEN motivated by safety.

I understand that the judge THINKS he has legitimately inferred this motive by researching the legislative history of the bill he’s looking at, though as I trust I’ve made clear, I entirely disagree with both his method and his conclusion. But surely even HE doesn’t think he can judge the earlier bill based on the later legislative history?

If instead of shooting off into the vast ether of legislative history, Judge Murtha had actually looked carefully at the texts of the 2 laws and their interaction in the first place, he’d have avoided the quandary we’re now in. After all, the legislature DID.

The text of the portion of Act 74 that he cavalierly tossed in the trash explicitly refers to the older law: “Compliance with the provisions of this subchapter shall constitute compliance with the provisions of this chapter that require that approval be obtained from the general assembly before construction or establishment of a facility for the deposit or storage of spent nuclear fuel, but ONLY to the extent specified in this subchapter or authorized under this subchapter. … Storage of spent fuel derived from the operation of Vermont Yankee after March 21, 2012 shall require the approval of the general assembly under this chapter.” (emphasis added) (6522(c)(4)

The question the PSB is asked in its memo stems directly from the failure of the judge’s analysis. Judge Murtha clearly INTENDED to throw out the last sentence quoted above, but what about the first? Since there is no analysis of it in his decision (or even recognition that it might mean something worth considering), it’s pretty hard to guess.

The 1977 provision states: “No facility for deposit, storage, reprocessing or disposal of spent nuclear fuel elements or radioactive waste material shall be constructed or established in the state of Vermont unless the general assembly first finds that it promotes the general good of the state and approves, through either bill or joint resolution, a petition for approval of the facility.” (Section 6501)

So what are make of the current situation? Here’s my answer:

1) Section 6501, as we’ve just seen, requires legislative approval for storage of spent nuclear fuel. It remains the law.

2) Section 6522 in Act 74 establishes the conditions for the granting of a CPG, and was thus intended to satisfy the requirement in #1, but in very explicitly limited ways. For example, section 6522 c(2) says: “Any certificate of public good issued by the board shall limit the cumulative total amount of spent fuel stored at Vermont Yankee to the amount derived from the operation of the facility up to, but not beyond, March 21, 2012, the end of the current operating license,” and section 6522 c(5) confirms : “Compliance with the provisions of this subchapter shall not confer any expectation or entitlement to continued operation of Vermont Yankee following the expiration of its current operating license on March 21, 2012. Before the owners of the generation facility may operate the generation facility beyond that date, they must first obtain a certificate of public good from the public service board under Title 30. “

3) Given that both of those provisions of Act 74 remain in effect, it’s clear that the existing CPG does NOT allow VY to continue to generate spent fuel after March 21, and that, at the very least, a new CPG is required. Entergy stops its analysis there, by arguing that they’ve submitted the application, it was complete but for the Board’s vote, and therefore administrative law allows them to continue.

4) But that simply ignores the role the legislature allotted to itself, as to which, legislative intent is pretty hard to miss. Knowing that 6501 required a vote, the 2005 legislature took one (at Entergy’s request), but was careful to note that their consent was being given for a limited time only: namely, until the end of the current operating license. Accordingly, they ORDERED the PSB to limit the CPG to that period as well. They then made explicit, in the subsection Murtha threw out, what would have been pretty clear implicitly anyway: namely, a new CPG requires a new vote. Had they never acted at all, 6501 would have required the vote. With things as Judge Murtha left them (i.e. most of Act 74 still in place, section 6501 requires a vote). If Judge Murtha now throws out ALL of Act 74, section 6501 STILL REQUIRES A VOTE.

In other words, the legislature acted in a very limited way; it CLEALY EXPLAINS the limitation, and then effectively restores the status quo ante for the period following their limited grant of approval. With or without the provision Murtha tossed out, a legislative vote is required. With it, the vote stems from a 2005 provision; without it, it stems from a 1977 provision.

5) Entergy and the Judge now find themselves in a pickle, because Entergy based its whole case on smoke and mirrors and the judge took the bait. But it’s transparently clear that whatever the judge thought he could conclude about a 2005 law from its OWN legislative history, tells him precisely nothing about a law passed more than a quarter of a century earlier. Even this judge should be able to see that.

Worse still, the passage of Section 6505 in 1979, providing an exemption to 6501 for the then-owners of VY, makes it pretty obvious that at least THAT legislature did NOT intend to shut down VY for safety or any other reasons. Quite to the contrary, the legislature effectively gave its blessing to the old owners of VY. In sum, ALL of the arguments Entergy and Judge Murtha have brought to bear on Act 74 have exactly NO bearing on Section 6501 and cannot possibly be used to justify declaring it unconstitutional.

Let’s be clear. That doesn’t mean that it ISN’T unconstitutional, but it clearly DOES mean that any such finding requires evidence and reasoning that is not before this court at this time.

Finally, I end where I began. All of that means that what Judge Murtha OUGHT to do is completely clear, but what he WILL do is entirely another matter. Based on the first go-round, I have to admit that I’m no longer the idealistic optimist I once was.

Clairifying the problems of Nuclear Power in the Green Mountain State and beyond