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May 05, 2011

Citizens' Group Petitions to Intervene in Entergy Lawsuit

VT-Yankee-10x22-crop-w The antinuclear group New England Coalition announced Wednesday it has filed a motion in the U.S. District Court seeking to intervene in Entergy's attempt to keep Vermont Yankee running beyond 2012.

Entergy is suing Vermont in federal court in an attempt to keep Vermont Yankee running beyond 2012, when its state certificate of public good expires. Earlier this year, the U.S. Nuclear Regulatory Commission gave the go-ahead for VY to operate another 20 years -- to 2032.

A 26-4 vote taken last year by the Vermont Senate put the kibosh on Entergy's efforts to have the Vermont Public Service Board hear its case to stay running.

Last month, Entergy sued Vermont and argued that neither the Vermont Legislature nor the Vermont Public Service Board has the authority under federal law to effectively shut down a nuclear power plant. It is also seeking an injunction to ensure that VY can continue operating while the case is being heard by U.S. District Court Judge J. Garvan Murtha.

Entergy also argues that any binding memoranda it signed at the time of the sale in 2002 were essentially null and void because of a 2006 law that gave the Vermont Legislature the authority to say yea or nay to VY's operations beyond 2012.

After that 2006 vote, VY experienced several mishaps, including a dramatic cooling tower collapse and a tritium leak that shook the confidence of some Vermonters -- and politicians -- and eventually led to the 2010 Vermont Senate vote.

Murtha is holding a status conference on the case tomorrow. It's unlikely Murtha will rule on the NEC's request at that time. Given Murtha's past rulings, it would appear he is likely to rule in favor of Entergy's request for an injunction.

“NEC promised at the time of the Senate vote not to approve relicensing of Vermont Yankee to do all that it could to defend the state’s decision, should it ever be challenged in court,” said NEC adviser Raymond Shadis. "We are deeply concerned that Entergy seeks not only to undermine the authority of the legislature, but also the Vermont Public Service Board, to whom Entergy swore it would never invoke federal preemption. New England Coalition brings to this case the unique perspective of 40 years of citizen advocacy, and, since Entergy’s purchase of Vermont Yankee, more than 10 years of continuous litigation on Vermont Yankee issues."

NEC represents members in affected neighboring communities of New Hampshire and Massachusetts as well as Vermont, Shadis adds. Vermont Attorney General Bill Sorrell, meanwhile, is only representing Vermont citizens. Communities in New Hampshire and Massachusetts are within the federal 10-mile emergency planning zone (EPZ) that would be evacuated in the event of an emergency at the nuclear power plant. 

“NEC has a very important role to play in this litigation,” said NEC's attorney, Jared Margolis of Jericho. “NEC has provided testimony and arguments before the Public Service Board indicating that Vermont Yankee is a poorly managed and deteriorating nuclear power plant that cannot be reliably operated past 2012. NEC believes that its years of participation in these matters have led to an understanding by Vermont legislators and the public that the economic and land-use-related risks of continued operation are too high to warrant relicensing. These are nonpreempted grounds for the state finding that the continued operation of this plant is not in the public good, and the U.S. Supreme Court has held that the state does retain authority over these traditional state concerns. Entergy must not be allowed to eviscerate the state’s ability to protect the interests of Vermont.”

When the Vermont Public Service Board investigated the sale of Vermont Yankee to Entergy, NEC argued that the regulators should not allow an out-of-state merchant owner to buy the plant because the PSB would likely lose any "state control" or regulatory leverage over the new owner.

Prior to Entergy's ownership, Vermont Yankee was owned by a consortium of mostly in-state, regulated utilities who had to answer to the PSB for all aspects of their operations and were governed by state law. Entergy? Not so much.

"Thus, the state's right to consider license renewal at issue in this litigation exists in part because the NEC raised the issue of loss of local control," states the NEC's brief.

The NEC was party to the original legislative discussions around the construction of Vermont Yankee, and participated in the original permit deliberations. It was also the only group to intervene and oppose Entergy's request before the U.S. Nuclear Regulatory Commission to boost Vermont Yankee's power output, and has participated in almost every permit review at the state and federal level since VY first went online.

In 2009, the NEC raised concerns before the PSB about whether Entergy lied to regulators about the existence of underground pipes -- pipes that eventually leaked tritium into the groundwater, the Connecticut River and at least one on-site drinking well. That well was taken out of service before the tritium was detected.

At the time, the NEC asked the PSB to impose sanctions on Entergy for misleading regulators and other parties on the docket involving VY's request to continue operating beyond 2012. In 2003, the PSB fined Entergy $50,000 for withholding information from NEC and flouting PSB rules.

"NEC's record as a Vermont Yankee adversary and public interest advocate presenting nuclear safety and environmental concerns and sustainable energy and conservation advocacy, at every legislative and legal level, is unequaled," the group states in its brief. "NEC provides a necessary public interest perspective regarding the history and technical aspects of the Vermont Yankee operations, which is not adequately addressed by the state of Vermont."

A.) "“NEC has provided testimony and arguments before the Public Service Board indicating that Vermont Yankee is a poorly managed and deteriorating nuclear power plant that cannot be reliably operated past 2012."

The experts including Gunderson have testified that VY can reliably operate past 2012. What some special interest group made up of common citizens believe is irrelevant.

B.) These groups should not be allowed to have "public interest groups" in the name, title, or raison d'etre as they hardly represent the public's interest. Certainly some of the public will be on board with their agenda, however some of the public thinks they are nothing more then hacks looking to score some media time for their "cause". I propose that VPIRG, NEC, CLF all required to be limited to "interest groups" removing the word public.

This piece is also just trumped up hoopala, almost every quote in this blog from an NEC affiliate is a commercial and a pat on the back at how important they are. Makes one wonder if this is more of a fundraising ploy...

"Under an oak, in stormy weather,
I joined this rogue and whore together;
And none but he who rules the thunder
Can put this rogue and whore asunder. "

http://en.wikiquote.org/wiki/Jonathan_Swift

All this does is make it clear that those Vermont citizens who most want to shut VY down don't trust that the State will be able to prevail in this lawsuit. Bravo, "concerned citizens!"

NEC adviser Raymond Shadis. "We are deeply concerned that Entergy seeks not only to undermine the authority of the legislature, but also the Vermont Public Service Board, to whom Entergy swore it would never invoke federal preemption."

I love the spin these guys put on things. Do you think they realize how ignorant it makes them look? Hey Ray, stop being concerned. Entergy didn't file preemption to usurp the VPSB, exactly the opposite. They filed because they want the VPSB to be able to have their say. Your statement that they are undermining the PSB's authority is entirely untrue, and a blatant lie. Something that also appears to be a big "issue' for NEC, at least when it is on the other foot anyways.

". . . and, since Entergy’s purchase of Vermont Yankee, more than 10 years of continuous litigation on Vermont Yankee issues."

This one clause says it all. NEC has opposed VY at every opportunity and has litigated against VY on every issue. NEC is not interested in anything other than having VY shut down. Yesterday. Period. How is this maniacally single-minded attitude helpful to the Court?

Their minds are already more shut down than they want VY to be. So what useful counsel do they have to offer the Court in this case?

They are not a party to this case. The parties are VY and the State. They were not a party to the 2002 MOU. They were not a party to the Legislature's 2006 law. They have no standing to intervene, anymore than the Elks Club would have. They have nothing relevant to say, other than their obvious VY-hating partisan opinion.

If I were the Court I'd let them intervene. But only to file a one-sentence brief that says, "NEC wants VY shut down." And then I would say thank you and not allow them to file anything else. Not one additional piece of paper.

JCarter writes: "Entergy didn't file preemption to usurp the VPSB, exactly the opposite." Perhaps he'd like to explain this statement from Entergy's brief filed on April 18: "Plaintiffs are likely to succeed on either of two independent bases for finding Vermont's effort to assert control ... [is] preempted ... WHETHER EXERCISED BY THE PSB ALONE AS BEFORE THE 2006 ACT, or by the PSB and the Vermont legislature after that Act." (Caps added)

No John, I'm not going to explain, you wouldn't accept it anyways and continue to ignore anything I provided. I am done trying to talk with someone who is so entirely prejudiced on a topic that they don't even try to respond to points, rather just pretend they were never made. Good luck to you and the other anti-nukes. Maybe you will get your way, maybe not. Rest assured either way, know this. You do no benefit to the people of this state or New England as a whole.

Good Day

It is true, in its suit papers, VY is saying that neither the Vt. Legislature nor the PSB has jurisdiction over safety issues. But lets remember two things:

1. Vt. changed the rules of the game first. In the 2002 MOU, VY agreed to abide by a relicensing decision of the PSB. Vt. changed the rules of the 2002 MOU by voting in 2006 to give themselves the power to say whether the PSB could even decide the relicensing issue (and then of course voted in 2010 to deny the PSB that authority).

2. If Vt. hadn't changed the rules of the 2002 MOU, the PSB would be deciding the relicensing issue right now, and this lawsuit wouldn't exist.

It's more than disingenuous to accuse one of the players of changing their positions after you yourself have changed the rules of the game after the game has begun.

Not so fast.

First, by suggesting that the PSB was preempted BEFORE the law changed, Entergy is admitting that it did NOT "expressly and irrevocably agree" and is thus directly contradicting its MOU agreement. The statement that "If Vt. hadn't changed the rules of the 2002 MOU, the PSB would be deciding" is true, but the added conclusion -- "and this lawsuit wouldn't exist" -- follows from this premise only if you assume that the PSB would have decided FOR Entergy.

If the PSB decided AGAINST Entergy, there is every reason to infer that the lawsuit would have been brought, since Entergy's basic case is based on the Atomic Energy Act and the Pacific Gas & Electric decision, and NOT on the MOU. There are excellent reasons to believe the PSB would have reached precisely the same conclusion as the legislature, given that all of the parties to the case except Entergy, IBEW and perhaps CVPS (I never could figure out exactly what they were arguing) agreed that without PPAs, a CPG should NOT be granted. In putting it this way, I am including not only the environmental intervenors, but also Jim Douglas and David O'Brien's Department of Public Service, whose position at the PSB was consistently AGAINST continued operation in the absence of PPAs, and GMP, which also opposed granting a CPG without PPAs.

Second, there are a number of reasons that the passage of Act 160 does NOT constitute any change in the MOU. First, the MOU did NOT expressly preclude changes in the law. The PSB is a creation of the legislature, and is thus ALWAYS subject to changes in legislation. If Entergy wanted to make that a condition of the MOU, their lawyers could easily have written in such a condition; it's not recondite law.

Second, the legislature is not a party to the MOU, and it is questionable whether the DPS could in any way bind a separate branch of state government. In fact, there is nothing in the MOU which suggests ANY limitation on the legislature.

Third, the MOU section (12) in question quite explicitly mentions every party to the MOU EXCEPT DPS. The most plausible reading is therefore that DPS was NOT bound by those sentences, since any other reading fails to give meaning to the listing of the parties and the exclusion of DPS.

Finally, Entergy by its own admission (page 11, footnote #2 of the April 18 brief) AGREED to the change in the law when Act 160 was passed. Contracts voluntarily modified by both parties remain valid.

"There are excellent reasons to believe the PSB would have reached precisely the same conclusion as the legislature . . ."

Bull****. The PSB understands its role. The Legislature doesn't. First, whether or not there were PPAs in place with VT utilities absolutely, positively does not end the inquiry on whether the plant's continued operation is in the state's economic interests. Even without PPAs in place, the state benefits from an operating plant far more than from a non-operating one. Profit-sharing with the VT utilities. Taxes. Employment. Vendor contracts. Duh.

Second, at least one of the reasons there were no PPAs in place is precisely because the Vt. Legislature was threatening to shut VY down. You can't argue that a self-fulfilling prophecy makes the plant uneconomical. That's bull.

Vermont changed the rules. End of story. So we're back to square one, in which VY is perfectly free to argue that any and all bodies of VT state government are preempted from regulating safety, which is 100% what this debate is about. The federal judge is NOT bound to accept the Vt. Senate's completely transparent idiocy of wink-wink-nod-nod-let's-pretent-this-isn't-about-safety. And I wager he won't, because it's obvious to anyone with a brain that the claim that the Senate vote wasn't about safety is a big fat lie.

VY will win its injunction because the precise issue before the court is simply the necessity of maintaining the status quo (allowing the plant to keep operating) until the preemption issue is finally decided by the courts. VT is not harmed in any way, shape, or form by maintaining the status quo for another year or two or three until the legal issue is finally resolved. VY on the other hand, is disatstrously harmed if it has to do a cold shut down of the plant only to have a ruling later that the state is pre-empted. It's not even clear that it would be able to start up again.

And Greenberg, you have two "seconds" in your argument.

Four points:

1) "... whether or not there were PPAs in place with VT utilities absolutely, positively does not end the inquiry.." I completely agree, and I never said otherwise. As a matter of FACT, however, in this case, the inquiry DID consider all of those other issues. In Docket 7400 all of the testimony had been offered and cross-examined (if the case were re-opened, the subsequent tritium leaks will have changed that), and briefs and rebuttals had all been filed. In other words, the case was finished except for the Board's opinion (which is, of course, preempted by the legislative veto). There were several thousands of pages in the docket. The conclusions I referred to in my post above were in the briefs and rebuttals at the END of the case, having ALREADY considered all of the arguments you raise.

Specifically, Entergy (and the IBEW) argued, just as you do that "Even without PPAs in place, the state benefits from an operating plant far more than from a non-operating one. Profit-sharing with the VT utilities. Taxes. Employment. Vendor contracts." None of the other parties, including several of VY's supporters, bought the argument, and I don't believe that the PSB, acting on the evidence before it, would have either, but that's one man's opinion.

Your second argument is baseless. "... at least one of the reasons there were no PPAs in place is precisely because the Vt. Legislature was threatening to shut VY down." Negotiations began in 2008 (if not earlier), and there was no serious threat at the time that the legislature would vote to shut the plant down. A reasonably priced offer would have almost guaranteed a "yes" vote. As someone working against that outcome, I can assure you that was my greatest fear: a generous offer would have made a legislative veto exceedingly difficult, if not impossible. I was not alone in that assessment.

Instead, the negotiations dragged on for years, which also had the effect of delaying the legislative vote (the legislature wanted to SEE the PPAs before voting, which is perfectly reasonable), and the final offer Entergy made was completely unconvincing, enough so that the utilities, which SUPPORT continuing operations and said so, refused to sign it.

The irony is that Entergy's final price offer, had it been made two years earlier and without restrictions as to the amount of power and the RSA, probably would have won them both utility approval AND a "yes" vote, given market price expectations at the time.

2) You address none of the points I raised, and simply repeat your mantra: "Vermont changed the rules. End of story." Sorry, that won't wash. I gave you 4 very specific reasons why this is NOT so.

3) None of what's been said here says much about the essential issue in the case, which is whether or not Vermont's imposition of a CPG on electricity generators transgresses the line into federal preempted nuclear safety territory. Given that ALL Vermont electricity generators need CPGs in Vermont (I needed one to put 1 KW windmill in my front yard), and given that all OTHER major projects need Act 250 permits, it's going to be hard to argue that this requirement is strictly related to nuclear safety.

4) Your evidence free "wink-wink-nod-nod-let's-pretent-this-isn't-about-safety" assertion isn't at all convincing to me, especially in the face of a MASSIVE legislative testimony and debate record indicating precisely the opposite, but we'll see what the judge has to say.

Totally one sided, give it up...

You can't rationalize something with an irrational person. The cycle continues. JG doesn't understand the idea behind facts, conclusions, opinions, myths. Someone's opinion in a docket has already become conclusions. It will soon become undisputed fact....

It's pointless.

"A reasonably priced offer would have almost guaranteed a "yes" vote."

That is a baseless statement and pure opinion. In fact, I believe exactly the opposite. If VY had offered to give its power away for free, Shumlin and his cronies would still have led their crusade to prevent the PSB from granting "Entergy Louisiana" a CPG. Why? Because Shumlin's fight against VY was never, ever, ever, ever about the factual issues. It was about his cow-towing to the anti-nuke hysterics in on the left wing of the Vt. Democrtaic Party base and his insatiable desire to be Governor and his willingness to use VY as a bogeyman in his campaign for the governorship.

Please note the time frame for my statement: 2008. (In retrospect, I should have added the words "at that time" after the word "statement," but frankly, when I wrote the post, I assumed my meaning was clear.)

I do not disagree that, by the time the Senate voted two years later in 2010, the political world had changed dramatically. Much of that was due, in fact, to the seemingly endless delay in the negotiations over the PPAs, and then the subsequent failure of the parties to agree.

A lot was also due to a huge negative reaction in the legislature to the Enexus deal, which convinced a number of VY supporters to oppose continued operations. In fact, Vince Illuzzi published an op-ed, entitled "Should Vermont Yankee be relicensed to operate beyond 2012?" on January 19, 2010 in the Free Press, in which his first sentence said: "The answer is "yes," but only on the condition that the proposed Enexus spin-off is rejected or substantially financial safeguards are put into place to protect Vermonters."

When a friend and I met with him in early July 2008, Peter Shumlin was unwilling to commit himself one way or another on VY. As Peter knows, we're both strongly anti-nuclear and both Windham County constituents of his, so he had every reason to tell us that he strongly opposed the plant. He didn't. I came away from that meeting convinced that if Entergy made a sound offer, Peter would have been more than willing to accept it.

Subsequent to that meeting, I met with and/or called virtually every legislator in both houses of the General Assembly: roughly 170+ out of 180. Not all of the conversations were sufficient to form an opinion -- some were VERY brief -- but some lasted hours and reviewed many issues quite thoroughly, and in most cases, I came away with a pretty clear idea of what legislators viewed as the decisive issues. I specifically asked virtually all of them what would be the issues that got them to vote one way or another; not all answered it, but most did, either directly or by the tone of their responses.

So yes, it's my "pure" opinion, but it's certainly NOT baseless. Quite to the contrary, it's based on a hours and hours of input, much of it very specific, directly from the people who were going to be voting. It's worth noting, as long as I've gone this far, that almost all of these conversations took place BEFORE January, 2010, and thus before the tritium leaks were a matter of public knowledge (I have no idea when Entergy knew about them). After looking at who I expected to vote no and who DID vote no (and yes, of course), I was unable to discern ANY votes that depended on the tritium leaks, despite press reports to the contrary. (And by the way, there were no surprises, suggesting that my guesses were pretty solidly based after all). But again, all that's just one man's opinion.

Whatever.

An independent, semi-retired federal judge -- 1hopefully who is entirely above the despicable partisan, electoral politics that 100% drive this debate within Vermont -- will decide the issue.

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