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View Diary: Court to Vermont: "Drop Dead" (200 comments)

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  •  There are two points I'd make. (31+ / 0-)

    The first is that judges bring little independent information to the table.  They listen to arguments from both sides, consider whether they are legitimate and germane and then pick the one that's most persuasive to them.  Often times, the proponents of the "winning" argument get to write the judgment and the judge signs off.  So, the more expert and well-trained lawyers win.
    Citizens United was unusual in that the Justices introduced ancillary matters.

    The second thing is that, while the general public has been led to believe that permits are like permission slips and reflect submission to a higher authority that's empowered to deny a particular behavior, that's false.  Permits are issued for the convenience of agents of government to let them know what's going on and alert them to a condition to which they might have to respond, as part of their mission to deal with the vagaries of man and nature. The underlying behavior for which the permit is issued, and must be issued if the forms have been properly filled out, is presumed to be good and proper.  Man has been entitled to dump his wastes in nature since the founding of the nation without needing a permit. Requiring a permit is an acknowledgment that industrial pollutants are different, but there's still that underlying presumption that dumping on Mother Nature is good and human are entitled to do it.  They have a right, damn it!

    How do we solve this problem?  First, in addition to asserting that artificial persons, made up of many people and constituted for the express purpose of evading individual liability for error, are substantially different from natural persons and NOT entitled to any of the same rights, we have to reform the chartering/creation process, so that corporations are properly restricted in their operation and functions from the get-go, including a time-limit on their existence and the conditions that determine their premature termination.  Corporations have to be stripped of their immortality and their immunity.  Otherwise, we've created a monster that can't be restrained.

    People to Wall Street: "LET OUR MONEY GO"

    by hannah on Tue Jan 24, 2012 at 03:21:23 AM PST

    •  Agree with most of this: (23+ / 0-)

      But, the author of the blog emphasizes the terms of the contract itself between the State and the Corp.  In contract law, it is much tougher for good lawyering (though not impossible) to get around the actual words of the contract.

      If the contract specifically states that the reactor may be shutdown by the state after a specified period of time and has shown to fail certain requirements set out specifically in the contract - then this is a rogue judge or the contract is extremely murky.

      I agree that the state has far more potent weapons in its arsenal than an immediate appeal, the successful use of eminent domain used in NY is a good example - but would cost the state money they should not owe to the corp.  A much cheaper solution seems to be the huge safety risk posed by the reactor and an appeal to the Atomic Energy board and or the EPA for illegal dumping in violation of the clean water act.  Very serious violations can result in clean up costs and criminal charges that would effectively make the reactor to expensive to maintain and lead to its shutdown.

      DO NOT give up.  This things sounds like an epic environmental disaster, sure to get worse.  IF the entire state is essentially against this thing, it will be shut down, one way or another.

      "How can the United States be the Greatest Nation ever if it is the only modern nation where citizens hold bake sales to pay for life saving medical care?" Single payer is coming but how many people will die before it becomes the only solution?

      by 4CasandChlo on Tue Jan 24, 2012 at 04:58:29 AM PST

      [ Parent ]

      •  There must be more. (2+ / 0-)
        Recommended by:
        Samer, ColoTim

        From the diary:

        In 2003 Entergy made a deal with the state of Vermont. The Louisiana-based nuke speculator said that if it could buy and operate the decrepit Vermont Yankee reactor under certain terms and conditions, the company would then agree to shut it down if the state denied it a permit to continue.
        Surely the state doesn't have unlimited discretion to deny the permit on a whim. Surely the contract, or permit law, says the permit can only be denied if VY fails to meet safety requirements.

        Now, I understand that the diarist is making a pretty good case that VY is unsafe. But unsafe in the opinion of Kossacks is not the same as unsafe under whatever safety standards have been legally enacted by the state of Vermont, and presumably by the US government.

        So I suspect the court dispute boils down to, "Has VY met the safety standards in the contract and in the law?" And I suspect it takes a nuclear engineer, or advice from nuclear engineers, to answer that question.

        I could be wrong. If so, please correct me.

        "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

        by HeyMikey on Tue Jan 24, 2012 at 07:14:17 AM PST

        [ Parent ]

      •  generally one may waive (2+ / 0-)
        Recommended by:
        Joieau, happymisanthropy

        statutory rights in a contract. So if the contract was open ended, Vermont could withdraw the permit at any time after a specific date for any reason, or any numbers of reasons,  potentially including safety or 'best interest of the public" as one of them, the court should have enforced the contract as written.  Most statutes which contain provisions that may not be waived by contract state so explicitly.

    •  Hannah, how does your second point coexist (1+ / 0-)
      Recommended by:
      Russgirl

      with other areas where the gov't demands a permit?

      while the general public has been led to believe that permits are like permission slips and reflect submission to a higher authority that's empowered to deny a particular behavior, that's false.

      Driving, building, protesting, guns???? The gov't claims the authority to allow only those they believe are "qualified" to do certain things. If you drive drunk, you lose your license. If you aren't an architect you surely wouldn't be allowed to build a bridge...

      Then we must include the punitive aspects of a specific behavior through lawsuits, where the person or entity can be held accountable further.

      I do, however, agree with your solutions.  It's about time we got to amending the Constitution, it's long overdue. Make incorporation only for specific public projects that benefit all, ie roads, bridges, schools, or make all corporations non-profit.

      -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

      by gerrilea on Tue Jan 24, 2012 at 06:21:47 AM PST

      [ Parent ]

      •  A license to drive an automobile is a (1+ / 0-)
        Recommended by:
        GANJA

        special case in that there is a presumption that the automobile is a potentially deadly machine and the operator must be qualified to operate it.
        Technical licensing, much of which is done by non-governmental professional associations, is also based on experiential evidence of hazards associated with their activities.
        Builders of shelters for themselves cannot be forced to apply for or take out permits.  If they hire professionals, those individuals have an obligation to apply for permits and then follow up with a request for inspections to, in effect, protect themselves and their associates in the craft against charlatans and to protect householders against scam artists (which only works sporadically).
        Intentional injurious behavior, if proved, is a crime.  Negligent injurious behavior is a civil matter and subject to claims for compensation via civil suits.  It is, as Justice Kennedy proclaims, up to the citizens to enforce the laws, in the end.

        Architects, btw, design bridges and buildings.  Somebody else builds them and, in the process, often discovers mistakes.  If the mistakes don't show up or the builder is sloppy, the building or bridge falls down.  Some things, like nuclear power plants, are not supposed to fail under any circumstance.  Since that's an impossible criterion to meet, nuclear plants (at least mega ones) should not be built. It's my understanding that the Russians are using their submarines off-shore in Siberia to generate power for the facilities on shore and, so far, that's worked.  Then too, our nuclear submarines seem to be able to operate safely for a long time.  Of course, since sea water contains uranium, any contamination in such a large body of water probably wouldn't be noticed.

        It's my considered opinion that where we go wrong is in setting up monopolies and mega anythings.  "Too big to fail" is absolutely wrong.  I'd say, "too big is sure to fail," like the dinosaurs.  We now know that some survived by getting smaller and turning into birds. Monopolies and monocultures and monoliths are vulnerable to catastrophes.

        When corporations get permits for dangerous activities, there's not only the assumption that their enterprise is good, but that the community benefits from their enterprise.  So, if a few people get injured, sick or permanently damaged, the cost to them is weighed against the benefit to the corporation and corporations always come out ahead.  If we want dangerous behaviors not to be carried out, we have to prohibit them up front, like New York is doing with fracking.  Cost/benefit analysis is a great concept, as long as the costs and benefits are assigned to the same party.  If not, it's a prescription for transferring public assets into private wealth and leaving the planet worse off.

        People to Wall Street: "LET OUR MONEY GO"

        by hannah on Tue Jan 24, 2012 at 07:23:07 AM PST

        [ Parent ]

        •  I'm not sure if I follow all of this. (2+ / 0-)
          Recommended by:
          Joieau, shaharazade

          Aren't nuclear reactors inherently more dangerous than cars? Haven't we witnessed their failures in Three Mile Island, Chernobyl and Fukushima?  I keep thinking of the toxic waste failures like our West Valley disaster and it's designation as a "Super Fund" site. These things will cause permanent damage for billions of years. Effecting everything everywhere, planets, people, animals.

          So, I'm still a bit confused on your position.

          Since I live in NY, I'm well aware of most licensing requirements, not the specifics, mind you but here the State of NY makes it mandatory that you be educated and trained THEN apply for a license (permit) from the State.

          Without that permit you cannot engage in commerce or do many things.

          http://www.op.nysed.gov/...

          The licensing requirements ARE to prevent specific behaviors that can harm the public.

          I know here in Erie County, my landlord had to apply for a permit to build a two car garage, on his own land, for his own use.  And he had to get a permit to build a back deck, again for private use, not public and both structures had to be inspected by the State during and prior to completion.

          The builders here are not required to get permits but the land owner is.  And that land owner then must employ someone whom is licensed with the State.  Or in many cases, as reality is, most don't tell the State what they are doing on their own property and may contract with a "friend" or someone else whom may not actually know what it is they are doing.

          Officially, I'm not allowed to fix my own electric say putting in a ceiling fan or light switch or changing a wall outlet, unless I get approval first then pay to have the State, City or Town Inspector come in before walls are sealed up.

          The underlying claim by the State or governmental agency is "public safety".

          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

          by gerrilea on Tue Jan 24, 2012 at 07:57:11 AM PST

          [ Parent ]

          •  Yes, enforcing permits is a problem. (1+ / 0-)
            Recommended by:
            gerrilea

            That's probably why it's best not to invent too many demands, but people like to give orders and lots of people are convinced that governments are set up to tell people what to do, instead of just keeping them from doing wrong, again.  The first time is impossible to avoid. Which is why much crime prevention is a crock.

            Anyway, when it comes to safety and how many people are injured, that's a real problem because, so far, very few people have been injured as a result of nuclear power accidents, even as 40,000 are killed every year by automobiles.  Never mind how many are maimed and injured.

            The on-going contamination of the natural environment is probably a better base from which to argue, but, until now Mother Nature is supposed to be our toilet and animals have no right not to get injured.  After all, we eat them.

            Of course, that's why animal rights activists cause such consternation.  I figure when animals get rights, maybe humans will get them, too.

            People to Wall Street: "LET OUR MONEY GO"

            by hannah on Tue Jan 24, 2012 at 08:21:33 AM PST

            [ Parent ]

    •  Since "certificate of public good" (5+ / 0-)

      can't usurp Federal authority, how about denying it on the grounds not of safety but of the general untrustworthiness of the owners, who signed the contract granting the state authority to revoke their license and subsequently nullified the agreement in Federal court?

      It's not just the plant that gets the certificate. It's the owner, too.

      •  Again, we run into the presumption of (3+ / 0-)
        Recommended by:
        Samer, Joieau, macdust

        probity or good, the partner of the presumption of innocence when someone is suspected of having done a wrong.  
        While the presumption of innocence has often been transformed into a mere starting point for a trial, it's still a valid principle.  Conservatives hate it because it asserts that uncertainty and insecurity are a given.  It there's anything conservatives want it's to be sure.  That's why they favor 'no.' No is definite.  Yes implies the potential of failure and 'maybe.'

        At the same time, it's conservatives who are so risk averse who have gravitated towards the artificial person or corporation, making it virtually immortal and immune--i.e. giving it an artificial certainty--which unimaginable threats to everyone's safety, but they don't have to recognize it, or can't, because corporations, not being able to be held accountable, can do no wrong.  See, if one can't be blamed (if one obeys), then one can do no wrong.

        That makes no sense if one assumes that blame follows (comes after) the deed, but conservatives don't think sequentially.  So, they have no problem thinking backwards and concluding that no blame means no wrong occurred.
        For an example, recollect Richard Nixon's argument that "when the President does it, it's not a crime" (which was never tested in court, btw).  What he was saying was because he was presumably acting on behalf of the nation, a presumption that went with his position, no blame or judgment of wrong could attach to his actions--the President, having taken an oath of office, has been rendered immune from error.  It's a secular version of what Catholics claim for the Pope. And, indeed, when Nixon entered into public life, that was the status of the law.  All public officials enjoyed "sovereign immunity" in the conduct of their official positions, as long as they did not benefit themselves personally. So, since Nixon ordered the offices of a psychiatrist to be burgled for the good of the party/country, he considered himself immune, but the law had changed in 1947.  That he tried to buy off the burglars was another matter. Then it became personal in that he was trying to avoid embarrassment.
        It was a mistake to let him resign. Bigger one to give him a pardon.

        People to Wall Street: "LET OUR MONEY GO"

        by hannah on Tue Jan 24, 2012 at 08:12:28 AM PST

        [ Parent ]

    •  the monster is among us (7+ / 0-)

      long before Citizens United, corporations have morphed into systems beyond the people in them.

      it's like a hive, or a shitload of ants...

      the question is: what is our strategy now? go smaller, i'd think. deconstruct the monoliths.

      as for this situation, i'd look for other judges who might be able to step in... or go to the legislature, if they are sympathetic.

    •  This just isn't so (1+ / 0-)
      Recommended by:
      Joieau

      As to the second of your three points, the reality of our law is ratger different   Administrative law is rooted in the authority of the people to regulate activities that harm the public good.  Can't do it safely, no permit, therefore no authorization from the representatives of the people issues and the project stops

      This is an interesting notion, But it doesn't conform to the actual practice.  

      As to your third point that we need to treat corporations differently, we do that to, but in the wrong direction.  Ultimately, incorporation is designed to allow bad actors escape consequences.  Thus, they do and act accordingly. On your key point, you've nailed it

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