From the Courtroom to you: Day 3

Update from Duane Peterson, VPIRG Board President, on the last day of Vermont Yankee trial.

Day one: Vermont was losing bad but pulled it out at the end with a star witness and won the day

Day two: Slow and steady won the day for the state

Day three: Entergy turned a corner and put in a strong push down the home stretch, but the state also did well.  Ultimately, I think they fought to a draw on day three which means that the overall three day hearing favored the state.

I attended yesterday’s conclusion of the federal court hearing on Entergy’s lawsuit seeking to compel Vermont to host the crumbling nuclear reactor against our will.  Before I dive in to what happened, here’s a quick recap on what happens now. Next up are after-hearing memos from the parties, including VPIRG, due by September 26.  Judge Murtha will then make his decision, likely in October.  Entergy and/or the State likely will appeal, so the legal wrangling could go on for years probably all the way the US Supreme Court.  But if the decision goes our way and the judge refuses to grant an injunction to allow the troubled plant to continue operating without a state permit, Vermont Yankee could actually retire as scheduled next year.  But first, we need to win this case – which is by no means guaranteed.

Now, back to Day 3 and closing arguments…

For all the thousands of pages of documents that flooded the courtroom and Entergy’s best-legal-team-that money-can-buy, the case boils down simply.  Entergy contends that Vermont over-stepped its authority by focusing on safety issues in regulating the reactor, since federal law authorizes only the Nuclear Regulatory Commission to address safety.  Vermont counters that it’s impossible to know the underlying motivations of the hundreds of legislators who passed the various laws in question over the past decade, and that the plain language of the laws they passed (and Governor Douglas signed) is what matters – and they’re all quite legal.

I have a simpler take.  Vermont’s legal team found a load of internal Entergy memos that showed their executives supported these very laws at the time and were happy to work within the state’s process (remember, they had then Governor Douglas in their pocket).  Entergy earned hundreds of millions of dollars from the operation and increased power output that the Legislature authorized.  Only when Entergy didn’t get its way did it reverse course and ask a federal judge to change the rules in its favor.  That can’t be the way our democracy works.

Yesterday’s final day of the trial brought all of this to light.

Entergy’s high priced lawyers spent 4 agonizing hours yesterday in closing argument, repeatedly apologizing to the judge for the long and tedious presentation.   With fancy technology at their fingertips, they sought to show that our Legislature was motivated by concerns over the safety of the reactor.  They played scores of audio clips of legislators and committee witnesses discussing the confusing federal-state jurisdiction over safety and non-safety issues and how the Legislature could legally exercise its authority.  Entergy’s contention was that legislators understandably were concerned about the potential for a nuclear accident and the very real radiation leaks, but federal law forbids their considering such safety issues in the regulation of the reactor.  So a decade’s worth of legislators and the republican governor too engaged in a grand conspiracy to conceal their true motivations behind a smokescreen of legally permissible language.  Hmm.
Vermont’s Deputy Attorney General calmly disputed Entergy’s assertions, beginning with the utter inability of the Court or anyone else divining THE motivation of THE legislature, as the hundreds of members of that body are individuals with their own experiences, beliefs, knowledge base and political interests.  She made clear that Entergy had agreed to and benefitted from the statutes it now opposes (my favorite Entergy internal memo was titled “GOOD NEWS!” from its chief lobbyist on the passage of Act 74 which expanded Vermont Yankee’s spent fuel storage capacity while also making clear that Entergy would need legislative approval to operate after March, 2012).

The outcome of this case will boil down to:

Entergy’s description of the legislative history taints the various state laws in dispute by showing they were based on impermissible safety concerns.  The landmark US Supreme Court case PG&E says that such a fishing expedition is inappropriate.  Other lesser cases since allow for some of it.

Vermont’s contention that Entergy supported and benefitted from the state’s regulatory process all along the way, and can’t suddenly oppose it now.

Lastly, the judge asked about the implications of taking the legislature out of the relicensing process and sending the matter to the state’s Public Service Board – a split the baby outcome.

The outcome of this important case is unclear, although I’d rather be defending our position than theirs.

VPIRG will continue to file updates as this case progresses and concludes next month.  We’re getting close to resolution.

In the meantime, you can help us make the case in the court of public opinion by heading to our VY action center.