More dialogue with Don Kreis on the interpretation of Act 160

These comments were written in response to comments by Don Kreis in VT Digger: http://vtdigger.org/2012/02/04/entergy-seeks-4-6-million-in-legal-fees-from-state-of-vermont/#comment-29338

 

First, thanks to Don Kreis for his very kind words.  They are much appreciated.

 

Don makes 2 important arguments.  The first concerns the 2002 grant of a conditioned and limited CPG by the PSB.  Don suggests that such limitations might have been beyond the Board’s authority under the legislation which existed at the time.  I simply do not know enough Vermont utility law to answer this question, but the fact that it is being raised only now, and was NOT raised by Entergy’s lawyers or anyone else during the voluminous proceedings we’ve just been through suggests to me that this thesis may simply be incorrect.  In any case, I’ll leave this matter to others more informed than I.

 

But even if we assume that Professor Kreis is correct on this point, this argument resolves nothing regarding Judge Murtha’s decision.   First, as he notes, Entergy agreed to the conditioned permit.  Second, they did not and have not contested it on the grounds he raises.  And third, if they were to do so, unless I’m very mistaken, the issue would have to be resolved in State court, not in federal court.  Finally, the issue has NOTHING whatever to do with federal preemption.

 

I would suggest that, given all I’ve just said, the notion that Entergy really DID have “permanent authority” to operate and that Act 160 was written to reverse this is more than a bit of a stretch.  Certainly, there is not one scintilla of evidence that I’m aware of that anyone before 2011, when Don first raised the issue, even considered the possibility that this might be an issue.  I understand Don’s argument that Act 160 might IMPLICITLY be interpreted as reversing this supposed earlier error, but were that interpretation correct, one would expect to find something about the issue in the findings Section of the law, where, in fact, there is nothing whatsoever.

 

In sum, this is a creative and interesting suggestion, but at this late date I do NOT believe that anyone is likely to find it a convincing interpretation of what Act 160 actually does or why it was passed.  As noted previously, VY supporters voted overwhelmingly for this bill, INCLUDING Senator Mazza, one of the 4 “no” votes in 2010.  It’s a safe bet that he didn’t buy Kreis’s theory.

 

One last point.  Given Don’s repeated (and clearly correct) argument that “the 2006 Legislature had no authority to bind succeeding legislatures,” if Kreis’s theory of legislative intent is also correct, then why didn’t the 2006 legislature simply vote then and there NOT to allow the Board to issue a CPG?  A later legislature could always change this decision, after all.  So if the 2006 legislature was convinced as Kreis suggests that VY should be closed in 2012, why didn’t they just say so?  Why defer the decision?  And why write the rest of the bill?  If this theory is to have any credibility at all, these questions cry out for an answer.

 

This leads us to the 2nd and more important issue: namely, whether “Act 160 is so overwhelmingly, if not totally, addressed to nuclear safety that Act 160 is plainly inconsistent with the Atomic Energy Act and thus preempted.”  Surely, if a bill is “overwhelmingly, if not totally” addressed to ANY issue, then it should be a simple matter indeed to use its actual text to demonstrate the point.   So my question is simply this: if that’s the point of this bill, then where precisely does it make it?

 

Surely, it’s more than a bit odd that a bill which we are supposing to be all about nuclear safety never uses the word “safety,” or the word “radiological.”  The word “nuclear,” which is used repeatedly, is most frequently used to modify the words “facility,” “plant” or “station.”  In other words, it uses the term nuclear as a generic descriptor of Vermont Yankee.

 

The word “nuclear” also modifies “fuel” once, in the phrase “the general assembly shall consider concurrently the issue of storage of spent nuclear fuel derived from the operation of Vermont Yankee nuclear power station after March 21, 2012 as set forth in No. 74….” And it also modifies the word “waste” 3 times.  First, it appears in section 1a, where it calls for “full, open, and informed public deliberation and discussion” of “the economics and environmental impacts of long?term storage of nuclear waste,” among other issues.  Then it appears in section 2(b)(2) twice: specifically, in A1 and B where it is used to specify some of the studies the Act requires.

 

In sum, the words we’d expect to find never appear in the bill or are used in a context which clearly has nothing whatever to do with the issue being raised.  Nor are there any “code” words that I can see, but perhaps the proponents of this interpretation will enlighten us.

 

It’s all well and good to assert that the bill is “overwhelmingly, if not totally, addressed to nuclear safety,” but there should be SOME evidence of this somewhere shouldn’t there? If not, why isn’t the “interpretation” that the bill is overwhelmingly, if not totally, about baseball scores equally plausible?  Or fishing?  Or anything else you’d like to substitute.

 

As I’ve pointed out repeatedly, once you’re no longer bound in ANY way by the text, you can “interpret” a law to mean anything you want.  All you have to do is say so.  If THAT is acceptable judicial interpretation, God help us all.

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Having reflected more about Don Kreis’s arguments, I find them considerably less compelling than I suggested above.

Don argues that the temporal limitation in Entergy’s 2002 CPG is legally flawed because the Board did not have the legal authority in 2002 to limit a CPG in time and that, in Act 160, the legislature “effectively divested Vermont Yankee of any state-law authority” to continue operating.

I’ve already pointed out that, to my knowledge, the only person to have ever spoken about this supposed flaw is Don, more than 5 years after Act 160 was signed into law. In particular, no one brought this matter to the attention either of the PSB or of any court. I believe that an examination of the evidence in the Board’s subsequent dockets would suggest that all parties, including the Board itself, assumed that the CPG time limitation is valid.

So the first problem that arises is this: even if Don is correct that the Board lacked authority, wouldn’t either the Board itself or a court need to make that determination legally to change it? Put differently, in the absence of a successful legal challenge to the proper authority, the CPG – with or without a flaw – remains in effect as written. And that means that the basic assumption in Don’s argument is not supportable: the CPG explicitly states that VY has no authority to operate after March 21, 2012 (unless it receives another CPG) and, until Judge Murtha’s decision, nothing else has intervened to give it that authority.

But, in fact, the situation is actually worse than that for Don’s assumption. Act 74 DID intervene in 2005, and it says, in pertinent part: “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.” (Section 6522(c) (2). Then, a bit further down in subsection c (4), Act 74 states: “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.”

In other words, by the time Act 160 came along a year later, it was clearly the case that the plant lacked legal authority to continue to operate after March 21, 2012. On the one hand, the 2002 CPG (which was upheld by the Vermont Supreme Court in 2003) explicitly denied continuing operations past that date; on the other, Act 74 denied the plant authority to store fuel generated after March 21, 2012 without “approval of the general assembly.”

Without overturning both of these provisions legally, it is clear that Don’s assumption is simply wrong. Moreover, the same legislature that passed Act 74 also wrote Act 160 AND made explicit reference to the provision of Act 74 just cited in doing so.

Indeed, the legislature made no secret of ITS understanding of the status quo ante; they spelled it out quite clearly in Section 1(c): “Pursuant to No. 74 of the Acts of the 2005 session, the owner of the Vermont Yankee nuclear power station:
(1) is required to obtain the approval of the general assembly before storage of spent fuel derived from the operation of Vermont Yankee nuclear power station after March 21, 2012, and also
(2) is required to obtain a section 248 certificate of public good from the public service board before operation beyond that date.”

Legally, the plant lacked authority for continuing after 2012, and as a matter of stated fact, the legislature took cognizance of that fact in writing Act 160. Additionally, for what it’s worth, Judge Murtha effectively does as well, as Don acknowledges: “Judge Murtha did not explain why, despite these infirmities, Entergy should still be required to seek a new CPG from the Public Service Board now.”

Its false underpinning is not the only reason Don’s argument fails, however. This whole issue arises in the first place because Don is arguing that the purpose of Act 160 is to divest VY of its authority to operate. In doing so, Don reduces the whole bill to section 2, declaring that Sections 3 and 4 (the bulk of the bill) are “surplusage.” In doing so, however, Don fails the basic principle of interpretation: ALL of a text is to be considered meaningful.

Indeed, Don’s argument is a textbook case for why this principle cannot be ignored. By declaring most of the law “surplusage,” there is no further need to examine what it does: which, as argued in previous comments, is to establish a process for cost-benefit analysis. Only by virtue of overlooking this point and grounding himself in his clearly erroneous assumption, can Don arrive at the notion that “There was no plausible reason for the Legislature to decide in 2008 to shut VY down four years hence other than radiological safety. You can say that the state was concerned about economic benefits post-2012 but the reality is that those benefits were unknown in 2008 and thus incapable of forming the basis for what the Legislature did.” By simply eliminating precisely the parts of the law in which the legislature effectively acknowledges that “those benefits were unknown” and establishes a process to find elucidate them, Don removes the only natural reading of the text.

But even that still leaves an unanswered question. Even if we follow Don in simply ignoring sections 3 and 4 of the law, there is still absolutely nothing on which to base the conclusion that “There was no plausible reason … OTHER THAN RADIOLOGICAL SAFETY.” (emphasis added) Where did radiological safety come from??

Act 160 itself says nothing whatever about radiological safety. Don is clearly on record as arguing that courts cannot rely on legislative history to interpret the law, and that Judge Murtha should never have allowed the history to be introduced. So where does Don find radiological safety considerations?

This is not a small problem for his argument. Even if we grant Don his false assumption and follow him in ignoring most of the bill, the only conclusion which would follow would be the first part of his sentence: “There is no plausible reason.” But even if that WERE the case, there would be no constitutional flaw, because there would nothing to suggest that the State was legislating in a federally preempted field. So it’s absolutely crucial to his argument that there be some basis for introducing radiological safety; yet the law itself doesn’t provide any either in its effective sections (2-4) or in its statement of purpose. Without falling back on legislative history, then, Don’s house of cards gets him nowhere.

In the end, Don is quite correct when he writes: “I see two … theories about the intent and purpose of revoking VY’s state-law operating authority in Act 160. One view – the one I think the Court of Appeals is likely to take – is that Act 160 is so overwhelmingly, if not totally, addressed to nuclear safety that Act 160 is plainly inconsistent with the Atomic Energy Act and thus preempted. The other plausible theory is that the Legislature had really conducted a cost-benefit analysis ….”

Let’s examine the properties of each in reverse order. The second theory makes NO assumptions about legislative intent, beyond what can be found in a natural reading of what the law says and does. It considers ALL of the law, as well as each of its parts, finding that it is internally consistent, and consistent with the stated legislative purpose: namely, “… that a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly expressed in law after full, open, and informed public deliberation and discussion with respect to pertinent factors, 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.” (Section 1(a))

This theory uncovers no ambiguity, no lack of clarity, and no references to radiological safety either hidden or explicit. It is also completely consistent with the events as they unfolded: studies were ordered and conducted; processes, established and followed. A subsequent legislature, albeit unbound by the legislature of 2006, took its cue from Act 160 and held a vote after years of deliberation. No appeal to legislative history is required or useful in maintaining this interpretation, though a less cherry-picked, less selective reading than Murtha’s of what actually transpired would, in fact, support it. In short, the interpretation is fully consistent with the law itself and with all of the known facts.

Now turn to the other hypothesis. As we’ve already shown, it requires that we simply ignore the legislature’s stated view of the status quo ante: namely that further operations ALREADY required both a legislative vote AND a CPG. It ignores the fact that the Act 160 legislature actually AGREED with Kreis that the “benefits were unknown in 2008 [2006] and thus incapable of forming the basis for what the Legislature did.” That’s precisely why the legislature established a process to discover what was unknown, which is precisely the intent of sections 3 and 4 of the bill under any straightforward reading, the very provisions which Don gratuitously dismisses as mere “surplusage.” It also requires us to totally ignore the legislature’s stated intent (section 1). Finally, it introduces, out of nowhere, the notion of “radiological safety.” Not only does neither word occur in the law, as noted in previous comments, but there is nothing in the text which would suggest them. For example, pace Bill Sorrell, the word “reliability” does not occur either, except as part of the name of a piece of legislation.

Moreover, this second interpretation is completely inconsistent with virtually EVERY known historical facts. It suggests that legislators who supported Vermont Yankee actually voted for 2 laws, one PROPOSED by Entergy, and that these were then signed by a governor who vigorously pushed for continued operations. It fails to explain why 2 of the 4 senators who voted FOR continuing operations in 2010 also voted FOR these bills in 2005-6 (Peg Flory, then a member of the House, and Richard Mazza).

In other words, one interpretation, which has the benefit of being completely straightforward holds water; the other, despite a series of verbal gymnastics and verbal pyrotechnics collapses of its own weight. Is this REALLY a tough choice?

 

 

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