How the Courts Got the Vermont Yankee Decision Wrong

Ever since the Supreme Court decided the PG& E case in 1983, it has been settled law that the federal government occupies the whole field of nuclear safety regulation, and that accordingly States may NOT pass legislation based on safety considerations.

In the Vermont Yankee case, no one contests this. The question before the courts was whether or not, by passing Acts 74 and 160, Vermont impermissibly attempted to shut the plant down for safety reasons.  Two courts decided that it did. But both are clearly mistaken, since neither law can be reasonably interpreted as an attempt to shut the plant down for ANY reason.  Indeed, the precise opposite is true.

What the laws really did

Since 1977, 10 VSA 6501a has given the legislature the right to decide whether or not establishing a “spent” fuel storage facility promotes Vermont’s “general good.”  Both courts acknowledge this; no party contests it.  This law remains on the books.

Vermont Yankee’s fuel pool was originally designed to hold fuel from only a few cycles of operation, after which the fuel was to be transported to an offsite facility.  When it became apparent that no such facility was going to be built in time, the plant’s operators re-designed the pool (twice) to maximize the amount it could hold.

Entergy’s 2006 “uprate” would have filled the pool BEFORE its license expired in 2012, requiring that some fuel be stored OUTSIDE. To continue operation after the uprate, Entergy effectively had to trigger the 1977 law.

This brought about Act 74, which actually REMOVES the 1977 impediment for the period prior to 2012 and hands authority to the PSB.  Had it not been enacted, section 6501a would have required the plant to cease operations BEFORE 2012. For operations after 2012, Act 74 maintains the status quo ante.

Act 160 doesn’t change this, since the vote it calls for and the CPG process it restructures concern ONLY the period after 2012.  The vote required by Act 160 involves no ADDITIONAL approval, a fact explicitly acknowledged by combining the 2 votes. (Sec. 1f)

The combined effect of the two laws, then, was to allow the plant to continue to operate from the moment its fuel pool would have been filled BEFORE 2012 until its operating license expired in March, 2012.  Without them, the plant would have been forced to shut down prematurely.  Operations after 2012 remain subject to another legislative vote, just as before the two laws passed.

Only this explains why 1) a legislature with plenty of supporters of Vermont Yankee (both Democrats AND Republicans) voted overwhelmingly FOR both these laws (Act 160 passed the House 130-0), 2) Vermont Yankee’s “best friend” Governor Jim Douglas signed both bills, and 3) Vermont Yankee’s manager emailed his co-workers with “GOOD NEWS” in the subject line when Act 74 passed.

No one has asserted that either of these two bills is unclear or ambiguous.  Neither bill makes any attempt to regulate or even discuss nuclear safety, despite a plethora of statements prior to enactment in legislative committees.

Actual Meaning vs. Conspiracy Theories

The courts viewed this silence about nuclear safety as conspiratorial following Entergy’s “dog that didn’t bark” hypothesis.  But for a conspiracy to have any footing in reality, the EFFECT of the conspirator’s intent must show up somewhere.

The courts allege that they have discovered this hidden intent by reading history backwards.  The Senate, they note, voted in 2010 NOT to allow VY to continue after 2012. That must explain why the legislature voted in 2005-2006 FOR continued operations.  Hmm.

The courts read the wrong detective story.  They should have read the “Purloined Letter,” where the needed evidence was placed right in the open for all to see, just like the legislative intent of Vermont’s two laws. Both laws lay out their intent in findings, which the enactments follow closely.  There is no mystery as to their meaning.

Act 74 represents a typical legislative bargain in which Entergy got the fuel storage it needed, and the State got money to promote renewable energy alternatives.

Act 160 clearly articulates the legislature’s desire to broaden considerably the scope of the decision before it, well beyond the usual standards for a Public Service Board CPG case. In addition, it allowed the legislature to acquire information (voluminous studies of every non-safety-related aspect of the plant’s operations and their consequences for Vermont’s “general good”) and public input (articulated in detail). These were sought so that a later legislature could rationally decide the plant’s fate.

Indeed, the courts use some of this very information in reaching the decision that THEY, the judges, would not have voted to shut the plant down based on the (very partial, albeit voluminous) record before them, unless preempted safety concerns motivated them to do so. But in reaching that conclusion, they totally ignore the fact that the very record on which they base those judgments did NOT exist in 2006, was created, in fact, by the articulated INTENT of Act 160, and exists ONLY because of Act 160.

Having failed to find the EFFECTS they impute to either law in the laws themselves, and ignoring the clearly stated intent which actually IS put into effect by the laws, the courts infer the supposed presence of legislative motivation by combining the very studies the law itself created with a selective misreading of miscellaneous snippets of legislative history.  Hmm.

The Dog That Didn’t Bark and The Cherry Orchard

But surely, there must be SOME reason Entergy was able to invoke a “veritable cherry orchard” of statements by legislators appearing to discuss the topic of nuclear safety.  Absent a conspiracy, what would account for that?

First, at most, there are a few hundred pages in which such quotes occur, out of a record of tens of thousands of pages which, as the State told the courts, is far from complete because not all legislative committees record everything and the House does not record its floor debates at all.  At most then, the “cherry orchard” constitutes less than 10% of what must be a corporate mega-farm.  Why did the courts fail to examine the other “crops?”

Second, the identified speakers represent only a handful – fewer than 5% — of the 180 legislators who actually voted on the bill.  Why are the courts completely silent about the “intent” of the other 95%?

Third, it is remarkable that not one judge made any attempt to read the quotes in context, to determine whether tone of voice, preceding statements, etc. might have made words which APPEAR to mean one thing actually signify the very opposite.

Fourth, and again because no one bothered to examine contexts, it’s not clear whether these quotes relate to the laws as they were enacted, to a discarded version, or even to a legislative text at all.

Fifth, no allowance is made for the fact that, in a citizen legislature, everything needs to be learned from scratch – especially a question as complex as the federal preemption of nuclear safety – and for this, witnesses must be questioned thoroughly.  Assuming that every witness who testified about preemption and every legislator who inquired about its details and limits engaged in a conspiracy is like assuming that every patient who asks a pharmacist how many pills to take intends to exceed the dose, and that every druggist who answers such a question is conspiring with the patient to that end.  In both cases, the obvious innocent explanation seems considerably more likely to be the correct one, especially when the patient is standing alive and well before you.

In light of all this, the “cherry orchard” looms considerably less large than first imagined. But nonetheless, it’s still there.  For the sake of argument, let’s grant that these suspicious citations really do express the motivation of the Vermont legislature, despite wise warnings from the Supreme Court about drawing just this kind of inference from precisely this kind of fishing expedition, and also despite an abundance of contrary evidence which these courts simply ignored.

Intent without effect is no basis for preemption

What should the courts have made of all these quotes in the absence of any evidence that this suspicious intent manifested itself in illicit regulation? Nothing.

Just as a man who has repeatedly expressed murderous intent towards another cannot be justly convicted of murder if the victim is sitting alive and well in the courtroom, so too legislators cannot be guilty of REGULATING in a preempted field merely because judges CLAIM they’ve found statements which demonstrate intent to do so.

For preemption to have a credible basis, the suspicious intent must show up somewhere in the ACTUALLY ENACTED LEGISLATION, yet neither law has language which relates in any way to any of these quotes. In fact, there is no connection at all between the quotes the courts cite and the laws the legislature passed and the governor signed.

One example can stand for many.  Both courts recount this anecdote:  “After being informed that regulation based on radiological safety was preempted and impermissible, the committee chair responded, “Okay, let’s find another word for safety,” an approach also adopted by the Board chairman.” (Appeals, p. 35) (Murtha, p. 29) That certainly SOUNDS suspicious. But neither court asks the obvious follow-up question: What word did the legislature come up with and where does it appear in the laws?

In other words, the courts overlook the absence of vital missing pieces of the puzzle, which no amount of conspiracy of intent can supply.

We’re left with this: Legislators were SO concerned about safety that they passed laws in which safety actually never appears and the effect of which is NOT to regulate it.  Nevertheless, the courts conclude that Congress intended to preempt such behavior.  Hmm.

Free Speech vs. Nuclear Safety Regulation

Courts exist not to decide what a legislature SHOULD HAVE DONE, but to judge what it actually did.  The question they must ask is not “was the legislature right?” – That’s none of their business – but, as pertains to this case, “did the legislature act constitutionally?”

Legislators do not leave their free speech rights at the Capitol door.  Lawmakers ARE permitted to TALK about nuclear safety just like everyone else; no law preempts them from doing so. They must not REGULATE it.  No evidence has ever been adduced that the Vermont legislature made any such attempt.

Conclusion

The courts found what they thought were barks, and then imagined they found a dog. But, like the Purloined letter, they ignored the obvious meaning of the laws found in the legislative text because they did not deign to read it.

Following any measure of normal statutory interpretation, there is simply nothing to indicate that by enacting Acts 74 and 160 Vermont’s legislature entered the preempted field of nuclear safety, and there is thus no basis for overturning these laws.

Prior to passage, legislators and others did indeed mention the issue of safety; nothing precludes that.  But since the laws were, as even the courts acknowledge, “scrubbed clean” both of the words AND (as the courts fail to note) of any impact those words may have had, the enactments are, as a matter of law, constitutionally permissible.

These decisions should not stand.

NOTE: A different version of this essay, with more detailed factual documentation and fuller analysis of some points passed over here is available at http://www.brattleboro.net/authors/john-greenberg/why-the-appeals-court-is-wrong-about-vy/.

John Greenberg

Marlboro, VT

How the Appeals court got it wrong

The 2nd Circuit’s decision errs because it fundamentally misinterprets Vermont’s laws concerning nuclear power, resulting in a totally failed analysis of the effect, intent, and therefore the meaning of the laws it overturns.

While the court acknowledges that longstanding Vermont law[1] – which preceded the contested laws by more than 25 years – required that the legislature vote affirmatively to store nuclear waste in Vermont (pp 6-7), its analysis completely fails to fully consider the effect of that enactment and thereby reaches unsupportable conclusions.

In discussing the passage of Act 74, the court acknowledges that Entergy tried and failed to get the legislature to change this 1977 law after the Vermont Attorney General’s office had ruled that a provision passed two years afterwards in 1979 (Section 6505) applied only to the Vermont Yankee Nuclear Power Corporation as such, and therefore not to Entergy.  The court summarizes this simply by noting: “This proposal failed to obtain support from the Vermont [8] Legislature, however,” (pp. 7-8) and then moves on to its discussion of the passage of Act 74.

The court’s analysis splits the effects of Act 74 into two time periods. During the first: “Entergy would only need to seek a CPG from the Board before constructing storage facilities for new spent nuclear fuel, rather than the Vermont Legislature as had been required by section 6501(a). However, this CPG would remain in effect only until March 21, 2012.” (p. 8) Given that prior to the passage of Act 74 Entergy needed legislative approval, during this first period, Act 74 shifts the decision from the legislature to the Public Service Board.

But that’s NOT the case for the second time period: “after March 21, 2012, the storage of any new spent nuclear fuel in Vermont would require an affirmative vote by the Vermont Legislature.” (p. 8) In making that statement, however, the court fails to note that this requirement simply restores the status quo ante, since section 6501a ALREADY required a legislative vote.

In other words, there is NO “post-March 21, 2012, shift of responsibility for approving the storage of spent nuclear fuel generated by Vermont Yankee from the Board to the Vermont Legislature” (p. 8), at least none due to Act 74.  The responsibility for approval during the second time period was in the legislature before and after the enactment of the law, and it continues today, with or without the preempted sections of Act 74.  The shift occurs only during the FIRST period, when the Legislature passes the responsibility (for a few years only) to the Board.

This is no small point.  Indeed, the whole case really turns on it.

For the sake of argument, let’s simply grant the court’s suggestion that the legislative records of Act 74 clearly show a pre-empted concern for nuclear safety and even its finding that the legislature was aware of that: “Indeed, the 2005 MOU endorsed by Act 74 includes a provision under which Entergy “waived” any right to bring a preemption challenge to the Board’s authority to regulate Vermont Yankee, which clearly demonstrates the concern of the Vermont Legislature and the Board as to whether their actions would withstand scrutiny under the Atomic Energy Act and Pacific Gas.”(p. 42)

Where would accepting all that leave us?  The court has already told us, but appears to have forgotten its own point: Section 6501a precluded the storage of spent fuel in Vermont without approval of the legislature.  The first section of Act 74 now being moot (the Board granted the CPG, the pre-2012 fuel is already being stored, and the casks are full), section 6501a continues to preclude any further storage. In consequence, whether before OR AFTER the passage of Act 74: “If no such affirmative vote occurred, storage of nuclear waste generated from operations after March 21, 2012, would not be permitted. Thus, Vermont Yankee would have to shut down.” (p. 8)

The court’s conclusion as to the law’s effect is thus precisely backwards.  If “the Vermont Legislature’s impermissible motive in passing Act 74 – namely, to shut down Vermont Yankee based on concerns of radiological safety while attempting to avoid a preemption challenge under Pacific Gas,” (p. 42) had been the purpose of the enactment, the legislature would simply have done nothing.  The plant would have then been required to close as soon as its spent fuel pool was full. Failure to enact a new law in 2005 would have left the 1977 law in place, and, exactly as the court repeatedly points out about the new law, the old law was not reviewable by any court.  In other words, only passage of Act 74 permitted Vermont Yankee to keep operating.

The court is thus led to the absurd conclusion that concerns over nuclear safety led legislators to pass a law whose passage allowed continued legal operation of a plant which would otherwise have closed, since passage didn’t force a shut down, but failure to pass the law would have.

Legislators were clearly aware of this when they passed Act 74, which is the only conceivable reason that pro-nuclear, pro-VY legislators voted FOR its passage, a pro-nuclear, pro-VY governor signed it, and Vermont Yankee’s plant manager sent an email to his co-workers with “GOOD NEWS” in the subject line upon hearing that the law had passed.[2]

Very similar reasoning applies to Act 160. By the time Act 160 was contemplated, Act 74 had become law.  So in considering the new law, legislators knew that without an affirmative legislative vote prior to 2012, Vermont Yankee would be forced to shut down because it would have nowhere to store its spent fuel.

Legislators also knew that Vermont’s Public Service Board was created by the legislature to handle highly technical decisions in a quasi-judicial forum and that the Board’s history and mandate would limit discussion in a CPG case to evidence which is judicially admissible and to the precedents the Board had set over its years in existence.  And, last, they understood that the decision to allow Vermont Yankee to continue to operate for another 20 years had serious and broad implications for the State: millions of dollars, thousands of jobs, a burgeoning renewables industry and far more were at stake in the decision.

It’s hardly surprising, then, that the legislature decided to broaden consideration of the issues beyond what the Board would, in the normal course of its business, be allowed to consider. As the court notes: “Act 160 would also help foster a “larger [12] societal discussion of broader economic and environmental issues relating to the operation of a nuclear facility in the state, including an assessment of the potential need for the operation of the facility and its economic benefits, risks, and costs,” and of alternative methods of power generation as well. Id. § 1(d). Act 160 also includes a stated purpose of ensuring that the evaluation of new CPGs be conducted under new cost-benefit assumptions and analyses, rather than those that supported the previous CPG. Id. § 1(e).”  (pp. 11-12)  These are precisely the kinds of concerns which Pacific Gas affirms belong within the ambit of State decision-making (see p. 215).

While it’s certainly correct that shifting the decision from the Board to the legislature had the effect “that [the legislative] decision [unlike a Board decision] would not be subject to judicial review.” (p. 28), the court conveniently opts to overlook what we’ve already seen above: namely, that such a legislative decision was ALREADY ensconced in Vermont law (by BOTH Act 74 AND section 6501).

Legislators, on the other hand, did not miss this point. Indeed, the legislature explicitly recognizes that fact by combining the legislative vote required by Act 74 with the new vote to be taken in consequence of the passage of Act 160. (Section 1(f))

Now, suppose that, instead of paying lip service to the notion that “The proper place to begin the analysis of a statute is its text,” (p.27) we actually LOOK at the text of Act 160 to discern its intent.  The bulk of the law sets up a series of studies and timelines completely consonant with the intent quoted above: the law requires that the legislature and the Board be furnished with considerable new information on all aspects of the plant’s implications for Vermont EXCEPT nuclear safety.[3]

We would then note that a voluminous record of non-radiological, non-safety issues was created by numerous officials at considerable expense, resulting in literally tens of thousands of pages of testimony, reports, etc.  All of this effort would have been an exercise in total futility if the legislature had, when enacting Act 160, already decided to shut the plant down for preempted safety reasons (or for ANY reasons, for that matter).

The court’s interpretative conclusion leaves three obvious questions unanswered.  1) Why would busy legislators with far more on their plates than just this one issue opt to expend all those resources in a farcical charade just to accomplish a goal which could be more quickly and easily accomplished by doing nothing at all?  2) Why would fiscally conservative officials including legislators and the governor go along willingly with such a farce, especially given that many of these same officials actually supported continued operations of the plant? And 3) How did conspiring legislators convince Vermont Yankee supporters to keep their nasty secret under wraps?  In short, the court’s “analysis” leads directly to absurdities which defy credibility.

A far more natural interpretation of the law results from simply taking it at face value: the legislature of 2006 wanted the information it asked for in Act 160 BEFORE deciding whether or not the plant should be allowed to operate[4].  Had it wanted to shut the plant down then and there, after all, it could have done so, with no effort and no cost.

In a passing attempt to examine possible non-preempted rationales for the law, the court analyzes SOME of the multiple areas the legislature demanded be investigated, finding that SOME of the CONCLUSIONS offered by state experts years later in court did not warrant shutting the plant down.  (pp. 30-33)  Unfortunately, this attempt completely fails to explain how or why the legislature would or should have known in 2006 when it passed the law what the court THINKS  it knows (there’s no need to debate the details here) in 2013.  Hindsight certainly helps to sharpen vision, but the legislature was asking for information on these topics in 2006, not examining the results generated by their inquiries as the court did in 2013.

Like the district court before it, the appellate court is suggesting Act 160 was enacted IN ORDER TO shut down Vermont Yankee for safety reasons. But this makes NO sense either legally or historically, even if one takes at face value every statement quoted from every legislative record as supposed evidence of this intent.

We’ve already seen that the easiest way available to the legislature to shut the plant down was to simply do nothing.  As the Appeals court keeps telling us, such a decision would have been unreviewable by the courts, and therefore final.  It’s clear that the intent of Acts 74 and 160 can NOT have been to shut the plant down as the courts suggest, unless one also assumes that all 180 legislators were so stupid that they forgot that they could achieve their aim by doing nothing, and unless one also fails to note that the effect of the enactment of these laws – for the next several years at least – was precisely the opposite of the supposed intent: namely, to allow the plant to continue to operate (as safely or as unsafely as ever) and then to re-examine the issue when more information became available.

Similarly, the court’s rendition is simply not credible politically.  Vermont has NEVER spoken with one voice about nuclear power. The plant was built originally thanks to a one-vote legislative majority. In the succeeding years, there were ALWAYS members of the legislature who were highly supportive both of nuclear power in general and of Vermont Yankee in particular.  (Given recent Entergy actions, the number of the latter might be approaching zero now, but that was not the case in 2005, when Act 74 was passed, nor was it true in 2006, when Act 160 was enacted.)

If either Act 74 or Act 160 is interpreted to mean what the courts say they mean, in other words, it is simply impossible to explain why the latter passed the Vermont House unanimously, and the remaining votes in both chambers on both bills were lopsidedly supportive. It is also impossible to explain why Vermont Yankee’s “best friend” former Governor Jim Douglas would have signed them.

In short, the analysis the courts are offering of these bills simply fails of its own weight: the bills CANNOT possibly mean what the courts say they do, REGARDLESS of whether or not safety was a motivating factor.  While it’s true that the ultimate effect of the failure to achieve legislative approval is, as the courts have declared, that the plant is not operating with legal approval from the State, elimination of these 2 laws does not change that basic fact in any way: section 6501a has required that same vote since 1977.

That being the case, the court’s entire discussion of legislative comments on safety during the passage of Act 74 and Act 160 is to no avail: the intention of legislators in 2005-2006 cannot have influenced the decisions of legislators in 1977, and is accordingly irrelevant.  Moreover, if the laws’ meaning were correctly understood in the first place, there would have been no need for these forays into the legislative record.

Nonetheless, let’s examine just a bit more closely the methodology being employed here by the courts. The appeals court summarizes its reading of legislative history by noting that “The record also indicates that during hearings on the bill that would become Act 160, members of the Department, regulators, and Vermont legislators repeatedly demonstrated awareness of the potential for a preemption problem and disguised their comments accordingly.” (p. 36)

“Disguised” is, of course, a loaded term, and it is used here because the court already assumes that it understands that legislative intent – a “court’s primary purpose in statutory interpretation,” (p.34) — is to shut the plant down, though our analysis has shown that neither Vermont law, nor the history of these enactments supports that reading.

Why then is the record “as consistent and replete [38] with references to radiological safety as that here?”  First, we should note that “replete” is a relative term.  The courts, following Entergy’s lead, have cherry picked a multi-thousand page record and found, not to quibble, perhaps a hundred pages in which safety concerns are raised in any fashion.  In so doing, and especially in raising these concerns to the PRIMARY motivation of the legislature, these “analysts” are simply ignoring the far more voluminous record of concerns which have nothing whatsoever to do with safety.  That’s an odd way to consider ANY historical record.  Similarly, if memory serves me correctly, only 6 identified speakers account for ALL of the safety-related quotes, which means that 97% of legislators did NOT raise these concerns.  Yet somehow, this small contingent, not the silent remainder, is ASSUMED to represent the legislature’s intent.  Again, this is an odd way to examine ANY record.  Finally, the courts never bother to provide any context for the quoted statements, so we do not know, for example, whether they occurred in the context of passages of the law which passed, or passages (or drafts) which never passed.  One could be forgiven for concluding that this is a distinction of some importance here since laws are reviewable, but legislative (or committee) drafts are not.

Putting all this to one side, the question persists as to why there are ANY references to radiological safety when federal law preempts State legislatures from regulating in that area.[5]

The simple answer is that Vermont legislators are not legal, nuclear, or technical experts, and the legislative process ALWAYS involves a learning curve.  Legislators do not enter the Capitol and suddenly benefit from divine inspiration concerning the details of nuclear preemption law, or any of the other highly technical legal and financial questions they need answered.  They must learn everything the hard way.  They bring in experts, they ask them questions, and they LEARN how to legislate by legislating.  Courts may legitimately interpret legislative products, they have no right to judge legislative process. Any effort to discern legislative intent needs to examine what comes OUT of a legislature; NOT what went in to the sausage factory.

Neither the district court nor the appeals court have shown in their interpretations of these laws how the supposed intent of regulating nuclear safety issues manifests itself in texts which do not, in any way, regulate these issues. If the courts could show in the language of the text the well-hidden, preempted, safety implications that legislators supposedly buried there, then its efforts to rake through legislative history MIGHT bear fruit.  Which words in these laws are disguised surrogates for the preempted topics of radiological health and safety?

Since the answer, with the possible exception of “public health” (see footnote 3) is “None,” then on what basis are the courts imputing a hidden safety motivation to the laws actually passed?  If safety is indeed the motivator for these laws, it must “surface” somewhere in the language, unless the courts’ contention is that the motivation is so well hidden as to not appear at all in texts whose meaning is otherwise perfectly clear.  Because the courts are mistaken about the EFFECTS of these laws as well, there is, in actuality, no such motivation apparent anywhere: not in the language of the laws, and not in their effects.  The courts’ foray into legislative history then appears to be exactly what it truly is: a futile exercise in search of a justification.

This decision, like its lower court predecessor, has implications that go well beyond the failed analysis of nuclear law. If allowed to stand, it will have a remarkably chilling effect on legislators everywhere and, in some cases, may well bring the legislative process to a screeching halt.  The implications are far-reaching, and they go well beyond the narrow issue of federal preemption of nuclear safety issues.

One last point, raised and basically dismissed by Judge Carney’s concurrence is this: one could read the decisions of both the district court and the appellate court and forget the HOLDING in Pacific Gas.  Unanimously, the Supreme Court upheld California’s moratorium, despite evidence that safety issues may have played a role in California’s deliberations. The Court did not stop at the notion that a decision “grounded in safety” would be preempted; rather, it asked “whether there is a nonsafety rationale.” (p. 213) Although the appellate court APPEARS to have done that here, I’ve suggested that the analysis is totally colored by the temporal distortion which it brought to its examination of the issue.  A proper reading of Act 160 shows not just a non-safety rationale, but a plethora of points which the legislature thought it needed to consider, all but one of which (Public health) clearly have NO safety motive.

For all these – and other – reasons, this decision should be appealed AT LEAST to the whole appeals court.

John Greenberg

Marlboro,VT

August 16, 2013

Published as a comment on Senator Joe Benning’s Times Argus op-ed: http://www.timesargus.com/article/20130307/OPINION04/703079991/1024

Joe Benning is missing out on a great career as a fiction writer. Tempting though it is to address each of his creations here in turn, I’ll confine myself to one.

Benning writes: “The purpose of the misunderstood “moratorium” was simply to gain enough time to create needed legislation. We needed to set up parameters for renewable development, strengthen the ability of towns and regions to participate in the process, study the true economic and environmental impact of various renewable tools (including industrial wind), and coordinate renewable tools with our desired energy portfolio and available infrastructure.”

He fails to note that the moratorium in question was to last 3 years, during which there would be no “industrial” wind development in Vermont.  As I pointed out repeatedly to him and to others, there was no need for a 3-year moratorium to produce whatever legislation is needed (if any), since Vermont has been studying this issue for over 3 decades.

And now even Mr. Benning admits that what he wanted 3 years to do has magically been accomplished WITHOUT a moratorium in less than 3 months: “Interestingly, the Senate Natural Resources and Energy Committee has now had enough time to make S.30 into a vehicle to do just that. A moratorium is no longer necessary as long as the bill becomes law.”  That would be truly remarkable, had it not be predicted so often.

One last point.  No one was frightened by the WORD moratorium.  What bothered many of us was the notion that we would allow ourselves to mask the opposition some feel to wind projects behind a  useless delay in implementing policies put in place over the last 40 years.  Fortunately, we no longer have to contend with either the word nor the reality behind it.  The moratorium is now dead.

I for one do not mourn its loss.

These comments were posted in March 8 edition of  the Burlington Free Press in response to Art Woolf’s column on raising the minimum wage.

It’s interesting to note all the ways Mr. Woolf tries to downplay the impact of raising the federal minimum wage.

“Less than 3% of all workers in the nation earn the minimum wage.” Table 653 of the 2012 Statistical Abstract (http://www.census.gov/

The following comments were written in response to Joe Benning’s op-ed in the Burlington Free Press on January 11, 2013, which are published here: http://www.burlingtonfreepress.com/article/20130113/opinion02/301130011/ridgeline-wind-power-sledgehammer?odyssey=mod|newswell|text|frontpage|s

Joe Benning’s comments deserve comments on a number of points.

1) Joe Bennning (and commenter Dan King) seem to be inordinately concerned about “the obscenely enormous concrete base pads” placed on Vermont mountain tops and what Benning terms “the environmental destruction” from utility-scale wind installations, but neither expresses the slightest concern about the environmental destruction which our use of other forms of energy imposes
To supply the nation’s primary source of electricity – coal – mountains are not just “dynamited” or despoiled by removing some trees and placing concrete pads: in coal country, mountains are being removed in their entirety, and the other environmental attributes of coal are even less inviting. Granted, the New England region (and a fortiori Vermont) relies little on coal.
But natural gas is not a whole lot better from an environmental point of view, and it IS this region’s primary source of electricity. Does Senator Benning really think that natural gas pipelines just lay themselves down neatly in the environment or that oil wells are beautiful? Or that drilling or fracking for oil and natural gas are environmentally friendly processes? What about the methane (24 times more potent as a greenhouse gas) associated with natural gas production?
Dan King actually lauds nuclear power, the region’s other major electric power source, while Senator Benning remains silent on the topic. But the nuclear fuel cycle requires vast uranium mines, and those involve a good deal more environmental despoliation than a few concrete pads. Uranium enrichment requires vast quantities of electricity, mainly from Midwestern coal plants. No one knows what the environmental effects of properly storing nuclear waste will be, because no one anywhere on earth has yet managed that feat, but we do know that the US has multiple failed sites spewing radioactive isotopes into the environment. None of which is to mention the possibility of a catastrophic nuclear accident, which, after VY’s technological twin at Fukushima melted down, can no longer be dismissed as due only to old Soviet technology or lack of containment. Anyone planning on buying any cheap Fukushima real estate?
If we are to have a legitimate discussion of environmental destruction, we must undertake a systematic comparative consideration of the destruction from all alternative sources, rather than considering only a litany of exaggerated and high-rhetoric arguments about just one energy source.
It is also worth noting that Vermont wind developers, unlike for example Vermont Yankee, must show that they can fully decommission their sites before they receive permits to build them. But there is no reason to believe that the concrete pads on which wind turbines rest are any more “permanent” than the concrete buildings in Vernon which we’ve housed for more than 4 decades.
2) Senator Benning belittles the contribution of utility-scale wind to global warming, because it produces electricity, “which does not power our transportation fleet and does not heat our homes.” But actually, electricity is perfectly capable of doing both. A few decades ago, many Vermont homes (and hot water) were heated with electricity, but because the sources of the power were not sustainable, DPS and the utilities encouraged customers to switch to other sources. Electric heat may not be a good answer for Vermonters, but geothermal heating systems probably are a viable source, and they happen to require substantial amounts of electricity.
Similarly, electric cars have never been much of a commercial reality: until now. Detroit has bet big on electric vehicles in recent years. The Japanese auto makers are also seeing them as a commercially viable transportation alternative. All this may or may not come to fruition, but surely it is unwise to simply ignore these developments or dismiss them out of hand.

Without over-arguing the opposing side of the case, neither of Mr. Benning’s arguments deserves to be simply taken for granted without further thought. Power from wind turbines may well make a significant contribution in future years to both heating and transportation in Vermont.

3) Mr. Benning speaks of “clear-cutting of hundreds of acres of trees,” but as Avaram Patt points out elsewhere, “The construction phase of First Wind’s 40 megawatt 16 turbine project in Sheffield involved the clearing of a total of approximately 63 acres, for the turbine sites, roads and everything else. Upon completion of construction, approximately 39 of those acres are being allowed to re-green,“ meaning that the “total project footprint after construction: approximately 24 acres, including turbine sites and roads.” (http://vtdigger.org/2013/01/08/benning-big-wind-take-two/#comments)
4) Finally, Senator Benning touts his legislation which would declare a moratorium on utility-scale wind development, “to provide time for a comprehensive study of this particular tool.” He fails to note that Vermont has been studying this issue for well over 2 decades now, producing multiple Comprehensive Energy Plans and Electric Plans during that time. In preparing these reports, DPS held meetings with Vermonters, took public comment, and sought the advice of experts. The legislature has also visited and re-visited the issue multiple times. And since Vermont’s permitting process are notorious for being lengthy, none of these projects can be said to have snuck up on anyone.
Moreover, Vermont is not alone in having studied the issue. Other states and the federal government have done so as well, as have many other countries around the world. Capital markets have allocated billions to wind turbines, not just in the US, but around the world. Obviously, this does not necessarily mean that all these folks around the world are right, but it does suggest that virtually all the arguments wind opponents are presenting here have been heard and rejected elsewhere (except, of course, the argument that Vermont’s mountains are unique).
The senators’ call for a moratorium simply ignores all of the experience, studies, and reports which put Vermont on its current path, but fails entirely to provide a coherent rationale for doing so. Vermont’s processes are not perfect; they can certainly be improved. Some interesting suggestions for doing so can be found here: http://vtdigger.org/2013/01/09/wiquist-green-mountain-clubs-concerns-and-recommendations-to-the-energy-siting-policy-commission/
Simply turning our backs on twenty-five plus years of work make little sense, especially given the urgency not only of global warming, but of a host of other environmental problems associated with harnessing energy for human use.

http://www.burlingtonfreepress.com/comments/article/20130113/OPINION02/301130011/My-Turn-Ridgeline-wind-power-sledgehammer

These are comments on an op-ed promoting government subsidies for new nuclear technologies.  The op-ed is posted here: http://www.sentinelsource.com/opinion/columnists/guest/nuclear-innovations-deserve-a-boost-by-bob-n-leach/article_b48476e0-c7b3-569e-b0ae-4af7e8ddb607.html

First, the headline on this piece should be “Nuclear industry looking for yet another taxpayer handout.” Let’s be clear: what’s under discussion here is subsidizing a mature industry’s research and development with federal taxpayer dollars

Second, even nuclear proponents should acknowledge that it is NOT the case that “nuclear power generates a large amount of carbon-free energy.” The nuclear fuel cycle produce carbon at every point: in mining, enrichment, fuel fabrication, building and eventually demolishing the reactors, and in waste disposal. It is true that it is LESS carbon intensive than burning coal or oil, but it is also considerably MORE carbon intensive than energy efficiency and renewables. “Sammysock” complains about “lies” killing nuclear power; well here’s just one of those used repeatedly to promote it.

Third, nuclear power — especially the unproven technologies discussed here — is VASTLY more expensive than energy efficiency (all forms of energy generation are, in fact), but also considerably more expensive than utility-scale wind and solar. Worse, the cost curves are moving in diametrically opposite directions: nuclear power of all kinds is getting more expensive year by year, precisely while solar and wind prices have been plummeting.

Fourth, small modular reactors, which Leach promotes, are even less economically efficient than larger ones: all of the same overhead with regards to the fuel cycle and permitting, but a far smaller revenue stream to offset the fixed costs. Indeed, that’s why the private sector isn’t building them.

Finally, it is worth noting that the United States (and other countries) have now invested bllions of dollars in nuclear power and to show for it, we’ve now had 3 major accidents that the industry assured us could simply never happen and a world wide spent-fuel problem that no one has resolved despite repeated promises and assurances from governments all around the world.

Successful industries do not require massive government subsidies after 50 years in order to develop new products and prosper. Steve Jobs did not come running to the federal taxpayers when he developed the Ipad or the Iphone. Surely, Bill Gates, of all people on this planet, can afford to promote his own technological breakthroughs using his own resources!

These comments respond to numerous anti-wind-technology commentators who publish silly remarks on an ongoing basis.  They are taken from this morning’s Burlington Free Press (source URL at bottom):

I posted the following comments in response to a Mother Jones blog:

“I’d like someone to persuade me I’m wrong, though.”

A few points in attempted persuasion:
1) US carbon emissions are declining right now.  Some of this, no doubt, is due to the recession.  But some is also due to Obama’s significantly raised CAFE standards and his commitment of $90 billion to efficiency and renewable energy projects.
2) Conservative studies show that the US wastes roughly 20% of the energy it consumes, which means that a VAST drop in carbon production is available at NO COST.  Indeed, most studies show a significant RETURN on investing in energy conservation.  Thus, the premise that “It’s expensive to address” is at least partially false.
3) The economic cost of renewable energy — particularly photovoltaics and utility-scale wind have declined precipitously in the last few decades and are not close to parity with non-renewably generated power.  Moreover, worldwide production has ramped up significantly (the photovoltaic industry is in crisis right now because supply exceeds demand), which means that efficiencies of production due to scale are or will soon be available.
4) Combined with the infancy of the electric car industry, this could have MAJOR implications for the production of carbon in our society.
5) Finally, the costs of producing oil are now such that the price of oil is unlikely to decline the the levels which, in the past, have made these alternative investments appear to be uneconomic (thanks also to our willingness to ignore externalized costs).

In sum, there are reasons to believe that the economic interests against producing greenhouse gases in the future  will be more confined to particular industries (think Koch Brothers and Exxon Mobil) than to general world economic interests or even to the interests of the wealthy as a whole. In addition, there are now major economic interests on the other side of the equation (Google, GM, GE).  Since most of the resistance to making the necessary changes has come from the moneyed classes as a whole, this bodes potentially well for our future.

Is It Time to Start Adapting to Climate Change?

The following comments are in response to Howard Shaffer’s remarks in Vermont Digger, which can be found here: http://vtdigger.org/2012/09/26/nrc-allowing-nuclear-plants-to-propose-alternatives-to-its-new-seismic-safety-assessment/#comment-41234.

Howard Shaffer and I have had this discussion before, and Bob Stannard has done a good job of calling him out on his misleading statements about radiation.  Still, for the benefit of readers who have less experience considering these matters, I think it’s important to state in some detail just how preposterous his claim is, beyond my rather snarky (and slightly incorrect as it turns out) comment from a few days ago.  These comments concern the first set of exchanges between Shaffer and Bob.

First, it should be noted that virtually no one believes that the best or only alternative to nuclear power now comes from coal.  What Shaffer suggests about the 1950s may or may not have been true at the time, but it’s clearly false today.  There are many adequate alternatives to nuclear power which do not involve anything like the risks of coal plants.

Second, radiation releases happen on an ongoing basis in the nuclear power industry, from exposure to miners and enrichment works, to planned and accidental releases from reactors, to releases at nuclear waste dumps around the country and the world.  While it’s true that the radiation from these ongoing releases pales in comparison to the damage done by the coal industry, it’s false to suggest that these releases do not exist or that they have no impact.

Third, Shaffer’s merely parroting industry propaganda when he claims that the results of Fukushima were “no immediate deaths due to radiation.”  There HAVE  been a handful of worker deaths as a result of the accident, some from diseases associated with radiation. TEPCO – a remarkably unreliable source – has claimed these deaths were not radiation related, but I haven’t seen any third party validation of that claim.

The real point, however, is in Shaffer’s innocent-sounding use of the word “immediate.”  Readers should not be misled by Shaffer’s glibness.  Massive amounts of radiation were released by the Fukushima accident into the atmosphere and especially into the Pacific Ocean.  From these releases, we can expect major health consequences. Most of these effects would not be expected to be immediate: smokers do not inhale a cigarette and then drop dead of cancer either. (If they did, I suspect there would be far fewer smokers than there are!) Many cancers “incubate” for 20 years and more. The real health effects of TMI should be starting to become visible NOW (30 years later), and those from Fukushima a few decades from now.

Our best understanding of radiation and human health says that any dose of radiation is harmful to humans and that the probability and magnitude of harm increase with exposure. There is, according to this theory, no safe (threshold) dose of radiation. Readers should understand that this theory represents the scientific consensus, repeatedly promulgated by the National Academy of Sciences over a period of decades, and used by most regulatory agencies around the world. Shaffer can, if he wants, dissent from this consensus, but he should do so overtly, and justify his claim.

Since the early 1960s, scientists understood that smoking caused cancer and other diseases, but in a string of court cases, the tobacco industry succeeded in making the claim that no PARTICULAR case of cancer could be PROVEN to be linked to cigarettes.  The same is certainly true of radiation. That’s Bob Stannard’s point above.

In fact, this is the nature of any probabilistic theory such as the ones in question here: we can “prove” a statistical probability, but not absolute causation. The suggestion that this means that the link is uncertain is no more true of radiation than it is of cigarette use.

It’s also worth noting that Shaffer’s suggestion that “the vast majority will only have their lives shortened a few years by cancer after many years” is predicated on the notion that the majority of those exposed were middle aged adults.  In fact, there is no basis for that assumption, since tens of thousands of children and young adults were exposed as well, and there lives will be shortened by many more than “a few” years.

In his latest comment, dated “September 30, 2012 at 4:42 pm,” Howard Shaffer moves from generalized innuendo to a full-blown defense of the hormesis theory of radiation: namely, small doses are actually good for you.

First, let’s get our terms straight.  We’re not talking about “radiation” per se; we’re talking about IONIZING radiation.  The radiation from visible light, the heat from the sun (and other sources), cell phones, smart meters, electromagnetic pulses, etc. are all forms of NON-IONIZING radiation.  The consensus theory cited above (and in Shaffer’s remark – BEIR 7 is a product of the National Academy) concern IONIZING radiation only and have NOTHING to do with non-ionizing forms of radiation.

Second, the “vaccination effect” or hormesis theory has been around for decades, and is pushed by folks like Shaffer because it allows nuclear power proponents to minimize the impacts from nuclear power plant releases, whether ongoing or accidental.  The simplest answer – since I’m not a radiation scientist – is that the medical community clearly

Indeed, the opposite is true as can be seen from newspapers, TV programs, etc on a regular basis. There is a raging controversy among doctors about medical tests involving radiation, precisely because many now believe that the benefits of exposing patients to medical radiation do NOT offset the risks of harm the tests themselves create.  Hence, many doctors now question whether mammography should be recommended for the general population (of women, obviously).  Similarly, concerns about the overuse of CAT scans (which involve many times as much exposure) now mean that far fewer patients, including cancer patients, now receive scans as a matter of course.  That’s not to suggest that radiation no longer has medical applications: clearly, it does.  Rather, it’s to suggest that like other damaging medical concoctions, it’s application is being more and more limited thanks to a growing recognition of the harms caused by overuse.

Don’t take my word for it.  Go to any doctor of your choosing, and ask for to be exposed to any form of medical radiation you’d like on the basis that you want to “vaccinate” yourself against the damage from higher doses of radiation. Judge the results for yourself.  Any doctor taking you up on your invitation would be inviting a malpractice suit.

******************

An additional comment in response to another comment from Mr. Shaffer:

I’m not a health physicist, so I’m willing to be corrected, but I think Howard Shaffer is a bit off in his remarks on the new Berkeley study.  I’m make 2 points on this theme:

First, the Berkeley study, at least according to the write-up I read from the lab — http://newscenter.lbl.gov/news-releases/2011/12/20/low-dose-radiation/ — doesn’t PROVE much of anything.  Rather, it SUGGESTS that by creating fewer but more intense radiation induced foci (RIF), the DNA repairs itself better than the linear hypothesis would have suggested, and the authors “hypothesize” that “multiple repair activity increases the risks of broken DNA strands being incorrectly rejoined and that can lead to cancer.”  Moreover, the study is based on “an immortalized human breast cell line known as MCF10A, which has a much higher background of RIF than fibroblasts,” and the authors are now planning to replicate their results “to determine if our results are repeated beyond just a single cell line and under more realistic physiological conditions….”

As is often the case in the early stages scientific investigation, we’re a pretty long way from “proof.”

2) Shaffer also suggests that the more conventional interpretation – namely the linear, non-threshold hypothesis – suggests that low-dose radiation is cumulative.

I can’t speak for other interpretations of the linear hypothesis, but I’ve NEVER assumed that radiation damage was cumulative.  To the contrary, I’ve always thought that it involved ONE portion of ONE cell being bombarded by some form of radiation and repairing itself badly.  The reason the curve would be linear and proportional to dose is simply that the odds of that happening would be proportional to the number of events: the more bombardments, the greater the odds that the cell DNA will repair itself badly (rather than repairing itself correctly OR dying) in one of them.

My own guess would have been that lower doses actually cause MORE cancers, because the bombardments are less likely to kill cells outright, and more likely to damage them, but this new study certainly suggests that my hypothesis may be wrong.

Finally, Shaffer’s last paragraph makes an entirely different point:

3) I think Mr. Shaffer fails to appreciate the role of an interconnected grid in energy supply. In modern developed countries, electricity demand is met not on a one-to-one basis by any single power plant, but by an interconnected grid into which all power plants operating at any given moment (in a region) are fed.  This allows the grid operator to compensate in the background as it were for all kinds of intermittency, which otherwise would shut power down far more frequently than is the case now.

For example, Vermont Yankee is by far the largest generator in Vermont. If we relied SOLELY on VY for power, users would be blacked out whenever VY goes down for any reason, be it planned repairs or some accident or mischance.  Instead, power is dispatched from other sources when VY is not available and users are none the wiser as to when that happens.  The same thing happens when electrical demand spikes, as it does on a daily basis as well as, at unplanned times.

The importance of this is that wind and solar are CLEARLY intermittent sources which require EITHER batteries or another storage method (in off-grid use) OR require that the grid itself function effectively as a battery.  The point Mr. Shaffer is missing – and he has plenty of company – is that this happens ALL THE TIME on an electric grid.  Indeed, that’s the primary FUNCTION of the grid: namely, to adjust for the constant disequilibrium between electrical supply and electrical demand.

With or without renewables, electrical supply in our complex, developed world is not constant: it varies minute by minute and hour by hour as plants are ramped up and shut down. But similarly, electrical demand is never constant either: demand is almost always higher during the day and early evening, for example, than it is late at night, and it’s considerably higher on the hottest summer days and coldest winter nights than at other times.  Even within these relatively predictable parameters, users make on-the-spot decisions which can cumulatively have major impact: if a number of large machines come on simultaneously and unpredictably, the system would either go down or require FAR larger quantities of reserve power than is currently maintained.

Lowell Mountain and other renewable sources of power are small, intermittent generators, but they are not alone in either characteristic.  The New England grid has many small plants as well as the large nuclear and fossil fuel plants.

ISO-NE, the grid operator in our area, tells us that they are currently prepared to incorporate power from intermittent sources up to 20% of the power supply, and working diligently to increase that number.  Since current numbers, while climbing, are quite a bit lower than that threshold, there’s plenty of time for the grid operators to prepare.