Why I disagree with VLS Professor Don Kreis on the Murtha decision

This is a portion of a comment (in a much longer string of comments) in VT Digger: http://vtdigger.org/2012/02/04/entergy-seeks-4-6-million-in-legal-fees-from-state-of-vermont/#comment-29338


The core point on which Professor Kreis and I disagree concerns this statement: “As of 2008, the Vermont Legislature had effectively divested Vermont Yankee of any state-law authority to continue to operate after March 21, 2012.”  (He means 2006 since he is referring to Act 160.)


The first problem is quite obvious: VY never had any “state-law authority to continue…,” so clearly none could be divested.  As a matter of simple fact, the premise on which he relies is false.


In 2002, in the now infamous MOU, the PSB spelled this out quite clearly: “The signatories to this MOU agree that any order issued by the Board granting approval of the sale of VYNPS to ENVY and any Certificate of Public Good (“CPG”) issued by the Board to ENVY and ENO will authorize operation of the VYNPS ONLY UNTIL March 21, 2012 and thereafter will authorize ENVY and ENO ONLY to decommission the VYNPS. Any such Board order approving the sale shall be so conditioned, and any Board order issuing a CPG to ENVY and ENO shall provide that operation of VYNPS beyond March 21, 2012 shall be allowed only if application for renewal of authority under the CPG to operate the VYNPS is made AND GRANTED.” (Paragraph 12, MOU; emphasis added)


In other words, Entergy knew at the time it completed its purchase of VY that it would require another CPG to continue to operate beyond March 21, 2012, that is, that it would NOT be able to operate without a CPG after that date. Act 160 did not change this.


Instead, it changed the PROCESS by which a CPG would be granted, requiring a future legislature to vote before the PSB could issue a final order.  Put in Kreis’s terms, the bill divested the authority of the PSB, but it took no authority away from Entergy or VY, since no such authority ever existed.


Moreover, reducing Act 160 to just this one provision is an unacceptably crabbed, reductionist reading, which fails to consider the vast bulk of what the law actually says and does. Textual analysis requires that the interpreter read the WHOLE text, giving meaning to all of it, rather than simply cherry picking just the parts of it they prefer to use, as Vic Hudson (and I in caricature) have done above.


There is no plausible way to read ALL of Act 160 as being primarily a law about a legislative vote. Doing so renders all of sections 3 and 4 gibberish, or worse, a flagrant waste of tens or even hundreds of thousands of dollars of state funds in pursuit of some hypothesized but never articulated motive, which, according to Kreis, Hudson and Murtha must be radiological safety.  (Hudson and Murtha get to that motive through legislative history, which a method Kreis abjures.  It’s not clear how Kreis gets there).


The only reason this reading even SOUNDS plausible NOW is that we are examining Act 160 from the perspective of 20/20 hindsight: the studies it mandated are now written and submitted, the specified processes completed, and in 2010, we were left with one important remaining provision, which was spotlighted and dramatized with the Senate vote, and now that too is in the past.


The fact of the matter, however, is that the 2010 senate was able to base its vote on a body of knowledge which was NOT available in 2006, and which therefore could NOT have been the basis for the 2006 legislature’s actions.  In fact, Kreis agrees: “You can say that the state was concerned about economic benefits post-2012 but the reality is that those benefits were unknown in 2008 [2006] and thus incapable of forming the basis for what the Legislature did.”  But this ASSUMES that “what the [2006] Legislature did” was to REACH A CONCLUSION based on its ignorance.  Instead, here’s what the legislature actually DID do: it acknowledged what it did not know, and established a process by which a future legislature WOULD know it.


In fact, Act 160 is a law ENTIRELY about a deliberative PROCESS which the legislature intends to follow and have followed by other agencies.  It provides detailed instructions to the PSB in all 3 operative sections (2-4), and to DPS as well in section 4.  It repeatedly shows the legislature’s concern with its perceptions that PSB decisions are made too narrowly and without sufficient public input, which is crystal clear from the text of section 3, as well as from the specific processes detailed in section 4.  The legislature’s perception of the PSB may be entirely wrong, but there is nothing federally preempted about it.


As to one legislature binding another, Kreis is correct.  Legally, one legislature cannot bind another.  Here, no attempt was made to do so.  What one legislature CAN do is provide information for another, and the Vermont legislature does this quite frequently, by establishing commissions and study committees, by ordering the executive to produce reports, etc.  In a part-time citizen legislature with minimal staff, there’s no mystery about this.  Clearly, a later legislature can ignore the results of these studies entirely if it so chooses., so there is no unconstitutional binding going on.


Since Professor Kreis is wrong about his presumption that Act 160 divested VY of authority and also wrong about the reasons the legislature chose to interpose itself in what would have been a PSB decision, it is fair to ask WHY the legislature DID act as it did.


Reading section 2 of Act 160 in the light of sections 3 and 4 provides a coherent and consistent answer. The legislature, rightly or wrongly, worried that the PSB’s decision would be too narrowly based, and saw itself as the body capable of making public policy decisions with a wider angle of vision.  The question as to whether the legislature is right or wrong is NOT for a federal judge to decide, since there is literally nothing here about radiological safety.


Lest there be any doubt whatsoever about the answer I just provided, Section 1 of the law articulates all this with total clarity: “(a)  It remains the policy of the state 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.

(b)  It is the purpose of this act to establish a statutory process to implement this policy….

(d)  It is appropriate that the spent fuel storage issue be framed and addressed as a part of the larger 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 in order to allow opportunity to assess alternatives that may be more cost?effective or that otherwise may better promote the general welfare.”


In sum, Professor Kreis has not one problem to resolve, but three.  The first, noted above, is that his argument assumes an authority which clearly never existed.  Second, as just demonstrated, his argument invalidly reduces a bill which is all about establishing the rules for a public decision-making process on a particular issue to a bill which has the legislature ASSUME in 2006 what it would not KNOW until 2010: namely, the results of the very process which the text of the bill spells out.  And finally, third, the argument assumes that the only reason the legislature would seek specific, detailed information about economic cost-benefit matters was to hide some completely unrelated, unstated and preempted reason, which the legislature had been repeatedly told was not within its purview: namely, radiological safety.


Kreis and Hudson share a common flaw, along with Judge Murtha.  When you interpret a text to mean what you WANT it to mean or what you think it OUGHT to mean, rather than beginning (and, in most instances, ending) by looking at what it actually SAYS, you’ve launched a process which can take you anywhere you want to go. But since that result is no longer tethered in any way to the text, it cannot possibly purport to interpret it.  Indeed, the result makes a mockery of textual analysis.

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