Another reply to another Don Kreis post: post-decision chronology, what’s at stake, and more

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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