Comments on Don Kreis’s critique of VT’s appeal brief

  1. Here we go again.

    There IS a teachable moment here, but it is not the one Don proposes. The real lesson is that, in matters of legal interpretation, “the devil is in the details.”

    Don writes: “the state wants the Court of Appeals to … treat Act 160 as nothing more than a procedural mechanism for effectuating a decades-old objective of ending Vermonters’ dependence on nuclear power.” Similarly, he later suggests that the State is arguing that “the true purpose of Act 160 is to take nuclear power out of Vermont’s electricity portfolio.”

    Neither statement is correct. The brief does make the point that overdependence on one power source is poor policy. In terms of THIS case, that concern manifested itself around Vermont’s dependence on Vermont Yankee, so that’s what the brief discusses. Not mentioned in the brief – because not relevant to this case – is the fact that Vermont energy policymakers have long also been concerned about Vermont’s equal dependence (roughly 1/3 in each case) on Hydro Quebec as well. The broad policy question to which Don is really referring has less to do with any one type of power generation type than with the issue of diversification which is standard to discussions of ALL kinds of portfolios, whether energy-related or financial: it’s bad policy to put all your eggs in one, or in this case, 2 basket(s).

    As to Act 160, it IS a “process statute.” The whole bill describes a detailed network of processes, including mandated studies by DPS to be presented, after specifically mandated public hearings to both the PSB and the legislature, and a mandated PSB process including details about dates, and so forth. The legislative vote which Judge Murtha overturned is just one piece of that network of interwoven processes. Simply reading the law — about which I’ve been harping with Don and others since this case arose — suffices to make it clear that process IS what it’s about.

    Given all of that, Don’s suggested Seabrook analogy is not apt. As a factual matter, Vermont utilities have not simply substituted reliance on Vermont Yankee for equivalent reliance on Seabrook. One utility – GMP — has substituted Seabrook power – under a very different type of contract – for SOME of the power it previously purchased from VY, but the upshot is clear: Vermont’s total dependence on Seabrook is far less than its former dependence on VY and its power portfolio is now more diversified. It’s worth noting that when the Vermont utilities were still negotiating for VY power from Entergy, both CVPS and GMP made it clear that they wanted to reduce the size of their purchase, precisely in order to diversify their portfolios.

    And as a legal matter, obviously the fact that Seabrook is not in Vermont means that it is not generally subject to Vermont’s jurisdiction in ways which an in-state nuclear plant indisputably is: e.g. land use, non-nuclear-related environmental regulation, etc. At most, Vermont MIGHT be able to regulate whether its regulated utilities could purchase power from an out-of-state nuclear plant, but even that is far from legally clear or unproblematic.

    Again as a factual matter, it’s worth noting that the problem with Don’s attempted reading of this case is the same problem which arises from Entergy’s misleading history and Judge Murtha’s decision to swallow it. There is simply NO evidence that a majority of Vermont legislators has ever been opposed to nuclear power and it is crystal clear that many of those who voted FOR Act 160 and even AGAINST continued operations for VY are supporters of nuclear power: e.g., Sens. Brock, Mullen, Carris, and Illuzzi just off the top of my head. (My guess, informed by discussions with well over 100 legislators, is that, as a generic proposition, the majority are either indifferent to or supportive of nukes as a power source).

    Since Don is proposing that we examine this issue from a Constitutional perspective, it is also worth noting another important aspect of the case he chooses to ignore: namely, that the burden of proof lies with Entergy to prove that the State HAS stepped into a federally preempted field, NOT on the State to prove why its legislation was passed. The State went out of its way in this appeal to provide a convincing narrative as to why Vermont’s legislature acted as it did (which as a matter of strategy I think was a very well-chosen move), but the law clearly does NOT require that, and as the brief contends at length (and I think convincingly), Judge Murtha erred completely in suggesting that it does.

    Similarly, Don passes over in silence a whole series of arguments in the brief as to why Judge Murtha erred in his reliance on snippets of legislative history. Not only, did the judge neglect the clear mandate of PG&E not to do so, but in fact, what he quoted isn’t really legislative history as such in its usual sense at all. Instead, it’s a hodge-podge of out-of-context, unattributed quotes about God only knows what which happened to be caught on tape in a legislative committee room during discussion of what may or may not have been drafts of the bill which in any case, as the brief makes clear more than once, were NOT enacted into law. That’s a pretty important piece of the puzzle to omit, once you’ve brought up the topic.

    Again similarly, Don suggests that “the state wants the Court of Appeals to ignore the 2006 legislative record that Judge Murtha found so persuasive, with its talk of health effects, three-headed turtles and sterile sheep,” leaving the reader to infer that the discussion of the turtles and sheep concerned the potential health effects of radiation.

    Actually, his doing so is a textbook example of PRECISELY why selecting out-of-context snippets is a dangerously misleading procedure. Here’s what the senator Don is quoting said in its fuller context: “we can sit here and listen to three-headed turtles and sterile sheep and whatever we want to listen to and we can make our own decision. And we can have a much broader range of ability to hear and to, you know, than the Board does. The board for good reasons has much more constraint. We may need more constraint, but we don’t have it. So this gives the folks that think perhaps they don’t get heard at the board level, the ability to be heard by their elected representatives.” (Senate Finance Committee, March 2, 2006 in Entergy’s Legislative Appendix I, 46-47) In fact, the senator is discussing EXACTLY what the State contends Act 160 is about: namely, the “procedural mechanism[s] for effectuating” Vermont’s energy policies, and in particular, WHERE (PSB vs. legislature) the decision should be made.

    The moral of this story keeps remaining the same. There’s absolutely nothing wrong with viewing legal cases “from 30,000 feet” as Don put it previously, AS LONG AS we don’t confuse the false impressions one can get from that distance with the reality on the ground. From 30,000 feet, people on the ground may LOOK like ants, but it would be a strange view of legal theory which would allow us to treat them as such.

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