Comments in response to Don Eggleston & Coleman Dunnar

Don Eggleston suggests that I “do not explain (despite your long-winded attempt) what Act 160 is actually about.”   So again: it is about re-defining the role of the PSB and the legislature in VY deliberations  (sections 2 &3), and also about a series of studies to be undertaken by DPS and presented to both the PSB and the legislature after a specifically articulated public input process (section 4).

Eggleston asserts: “Vague references to conducting studies on “economic and environmental considerations” of energy policy, with no explanation or elaboration of what those terms mean and what the state should do with or about the results of any such studies, doesn’t cut it.”  I did not recite all of the specifics of these studies and will refrain from doing so here.  Anyone interested can find them spelled out in detail in the bill (Section 254(b) and (c)).


Even granting, for the sake of argument, Eggleston’s assertion that the meaning of the terms in the law is unclear, the simplest solution to the problem is straightforward: look at the studies.  They have all been completed and submitted, so any doubt as to what DPS thought the terms of Act 160 meant has been resolved.  It is worth noting that these studies were to be undertaken “with the review of the joint energy committee,” (section 254 (a)(2), so presumably if there had been any question as to whether DPS were properly interpreting the law, the legislative committee would have set the record straight.  There is no record of that happening.  Nor is there any other evidence of any kind that the legislature believed that DPS had misconstrued its task.


There is thus no need whatever for “the court [or anyone else] to consider what the legislators thought they were actually voting on,” since the results are clear beyond any reasonable doubt.  An attempted fishing expedition into legislative psychology is a poor substitute for examining the text of the law and what actually transpired as a result.  Attempting to infer legislative intent from random selected remarks of a few legislators must never substitute for probing the law as written and implemented.
It is worth adding that Entergy repeatedly cited these studies in court, NEVER suggesting that there was anything in them about prohibited issues like radiological safety.  Nor has anyone else made that suggestion to my knowledge.


Act 160 leaves no doubt either as to what “the state should do with or about the results:” the legislature is to vote on continued operations, and, if the vote is affirmative, the PSB has to reach a “final order” on the matter.  The Senate’s vote in 2010 was the direct result, leaving no doubt that the legislature knew what it “should do with … the results.”


The remainder of Eggleston’s comments confuses Act 160, discussed above, with Act 189, which is ALL about reliability, but which Judge Murtha declared to be “moot” since all of the studies in the act have been completed and submitted.  Given that this act plays no further role in the Judge’s decision, I did not discuss it.


I have no idea why Bill Sorrell said that the State’s case was all about reliability concerns, but I don’t speak for Mr. Sorrell nor he for me.  To be crystal clear: I do NOT agree with this characterization AT ALL. The closest I can come to explaining Mr. Sorrell’s statement is that, during the trial, Act 189 looked like a major issue, and that both sides spent an enormous amount of trial time focused on it.  The real answer, however, is that you should ask him, not me, for an explanation.


It is important not to read historical events based on 20/20 hindsight.  In 2011-2, we all know that VT utilities will not be purchasing power from VY after next month, but when Acts 74 and 160 were passed, NO ONE was predicting that result, and Entergy spent considerable time and money advertising the benefits of its low rate contracts to Vermonters.   Given that, it is unsurprising that there would be some concern about the ongoing reliability of such a major, but aging, power source.  (cf. section 6521, subsections 1-5 in Act 74).


Similarly, we now know that Act 189 played little role in Judge Murtha’s decision, but neither side knew that during the trial, where the issue loomed large.


These notes were originally written as comments in VT Digger:

In response to more comments, I added the following:

1) Don Eggleston begins by taking one of my statements out of context, and then misinterpreting it. Perhaps my remarks were unclear, so let me restate my point a bit differently.  Section 4 of Act 160 required a set of studies to be conducted and submitted.  These submitted reports ARE the result of that portion of the law, as it was carried into action, and which I previously called “clear beyond a reasonable doubt.” No one alleges that these studies have anything to do with safety.  Since there is no evidence of anyone in the legislature (or elsewhere) suggesting that the studies’ authors misconstrued the legislature’s intent, and since no additional studies are contemplated, if there were any remaining question about the legislative intent of this section, it would now be moot. I explained the remaining 2 operative sections previously.


Mr. Eggleston waxes hyperbolic about how unclear the statute supposedly is.  Perhaps he’ll be so kind as to show us all exactly WHICH words in the statute are unclear and precisely what it is that might require further resolution. Or perhaps he could point to any passage in Judge Murtha’s decision that does this.


Absent that, I continue to assert that the meaning of the law is not problematic, that each section of it is comprehensible and unambiguous, that the parts all fit nicely with one another, and that all of the operative sections are also completely consistent with its findings section which is the legislature’s articulation of its intent.  I would add that the State made precisely this case to the judge during the trial.


2) While Bill Sorrell is certainly “the state’s top lawyer,” it was NOT he “who attempted to defend the statutes in court.”  He sat in the audience for 2 of the 3 days of hearings, but never spoke in court.  More to the point, Mr. Eggleston takes a press report of Sorrell’s remarks concerning two pieces of testimony (there were DAYS of testimony and dozens, if not hundreds of exhibits) and then characterizes these as the whole case the State made to the court.


I urge Mr. Eggleston to read the trial transcripts and the briefs and then decide whether he still believes that to be a fair characterization.  Having sat through all of both the trial and the preliminary injunction hearings and read all of the testimony and briefs on both sides, I can say without hesitation that this does NOT fairly characterize the case the State put before the judge.  One of the most salient things about the judge’s decision, in fact, is that he NEVER even bothers to discuss the case the state made, except in the “equitable defenses” portion of his ruling.


3) Similarly, Coleman Dunnar recommends that we read Judge Murtha’s conclusion about Act 189.  It’s exceedingly brief, so I’ll quote it: “the Court holds the challenge to Act 189 is moot, and any prospective injunctive relief is unnecessary.” (p. 82)  That’s precisely why I did not discuss this question any further.


4) Mr. Dunnar also brings up the RSA, which he then goes on to misconstrue in a variety of ways.  First, it’s far from clear that “The hedge didn’t cost rate payers a cent,” since it was, in fact, part of the whole deal in which VY was transferred to Entergy.  To the extent Entergy assigned value to the RSA, they are likely to have accounted for that amount in the purchase price they negotiated.  Entergy presented testimony to the PSB that the value of the RSA would be in the hundreds of millions of dollars (or more).  It therefore seems incredibly improbable that Entergy decided on the sales price and then simply handed the sellers the RSA as a gift as Mr. Dunnar suggests.
As to its actual value, however, it now looks much more likely to be what I predicted 4 years ago: namely, zero.  More precisely, I argued that its only value is as an insurance policy. The RSA is based on Vermont Yankee’s total revenues for the year, which have nothing to do with the price of solar and everything to do with the wholesale price of electricity in the ISO New England power market.


As Mr. Dunnar notes, the strike price for the year beginning next month is set at $61.  Current New England wholesale prices are in the $40-45 range, meaning that, for the coming year at least, there is likely to be no excess revenue to share.  In March 2013, the strike price will rise with an inflation escalator, whereas the futures market suggests that the price of electricity will not rise commensurately.  Rinse and repeat.  The RSA lasts for 10 years, starting next month.


Sorry, Don Eggleston, but your analogies don’t work


Southern laws restricting blacks probably did not specify that they were intended to discriminate against blacks, but they DID specify the restrictions they imposed: e.g. poll taxes, literacy tests, etc.  These preconditions were NOT a secret; they were right there in the language of the law.  Courts then had to wrestle with the question as to whether these taxes, tests, or other restrictions passed constitutional muster.


Without having read these cases, my guess is that courts did that by turning from the language of the law to the law’s actual impact. Courts could presumably establish an evidentiary record showing that, thanks to literacy tests for example, all whites were able to vote, and few if any blacks could do so.  That, at least, constitutes a prima facie case for discrimination based on the actual impact of the law.  (Presumably, in order to declare the law, rather than its execution unconstitutional, one would also need to establish that the laws were carried out AS INTENDED; that is, that it was not just a case of rogue voting officials).


Similarly, States requiring women to jump through certain hoops before obtaining an abortion did not write these hoops in secret code.  They required, for example, that a woman do or refrain from doing things specified IN THE LANGUAGE OF THE LAW: (e.g. wait for X number of hours, receive counseling with specified text, etc.).  The courts then had to decide whether the specified language did or did not conflict with the Constitution and with existing precedents.


So in both sets of cases you’re citing, courts had real language to consider and real evidence about impacts.


In the case of the 2 acts which Judge Murtha found unconstitutional, there is NO language that he points to as being questionable, which is the point I’ve hammered at again and again, and which is what I asked you to provide.  If the law is really in “code” as Entergy suggests, then they should be able to show code words and decode them.


Reading the bills what we find is plain English about the PSB’s role, language about the legislature’s role, and mandated studies and processes for the DPS and PSB to follow (in the case of Act 160).  But none of these things conflicts with federal law.  Indeed, none of them is remotely related to safety concerns.  Similarly, in the case of Section 4, the EFFECTS of the bill as actually carried out are fully apparent and on the record. No one has suggested that they are tainted by any unconstitutional concerns. (Full disclosure: I DID suggest in several instances that their methodology and assumptions are flawed and that their conclusions are therefore incorrect, but that’s a POLICY question that I put before the PSB and the legislature, not a legal one to be considered by a court).


Given that there is nothing remotely unconstitutional either in the language of the laws or in their effect, a normal court would have stopped there.


Instead, you and Judge Murtha prefer to root around in statements made by unidentified legislators, picked out of hundreds or thousands of hours of legislative history looking for what you declare to be the “real motive” for the bills.  Even were this procedure legitimate, however, there still needs to be some “hook” somewhere in the language of the bill on which to hang this “real motive.”  Otherwise, why choose these particular bills?  Why not declare the appropriations bill passed by that legislature to be unconstitutional because some legislators at some point in some process made statements concerning nuclear safety in front of a microphone which recorded their comments?


In short, even if you don’t START by examining the text of the laws, you MUST return to it and show some nexus between the text and the supposed “intent.”  THAT is what no one has done in this instance.



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