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A federal judge has told the people of Vermont that a solemn contract between them and the reactor owner Entergy need not be honored.

The fight will almost certainly now go to the US Supreme Court. At stake is not only the future of atomic power, but the legitimacy of all deals signed between corporations and the public.  Chief Justice John Roberts' conservative court will soon decide whether a private corporation can sign what should be an enforceable contract with a public entity and then flat-out ignore it.

A federal judge has told the people of Vermont that a solemn contract between them and the reactor owner Entergy need not be honored.

The fight will almost certainly now go to the US Supreme Court. At stake is not only the future of atomic power, but the legitimacy of all deals signed between corporations and the public.  Chief Justice John Roberts' conservative court will soon decide whether a private corporation can sign what should be an enforceable contract with a public entity and then flat-out ignore it.

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. The drop dead date: March 21, 2012.

In the interim, VY has been found leaking radioactive tritium and much more into the ground and the nearby Connecticut River. Under oath, in public testimony, the company had denied that the pipes that leaked even existed.

One of Yankee's cooling towers has also collapsed...just plain crumbled.

One of Yankee's siblings---Fukushima One---has melted and exploded (VY is one of some two dozen Fukushima clones licensed in the US).

In the face of these events, the legislature, in partnership with Vermont's governor, voted 26-4 to deny Entergy a permit to continue. But the company is determined to continue reaping huge profits on a 35-year-old reactor -- long since amortized at public expense -- with very cheap overhead based on slipshod operating techniques where safety always comes second. Along the way Entergy has also tried to stick Vermont Yankee into an underfunded corporate shell aimed at shielding it from all economic liabilities.

To allow VY to continue fissioning, Judge John Murtha latched onto Entergy's argument that the state legislature committed the horrible sin of actually discussing safety issues. These, by federal law, are reserved for Nuclear Regulatory Commission. He chose to ignore the serious breach of contract issues involved. As Deb Katz of the Citizens Awareness Network puts it: "Entergy's lawyers cherry-picked legislators' questions about safety" from a previous debate relating to nuclear waste. "Judge Murtha supported the corporation over the will of the people."

The surreal nature of telling a state it can't vote to shut a reactor because it dared to consider the public health dates to the Atomic Energy Act of 1954. To paint a happy face on the atomic Bomb, Congress essentially exempted the nuclear power industry from public accountability. It gave the Atomic Energy Commission sole power to both regulate and promote its "too cheap to meter" technology.

Some 67 years later, Judge Murtha says the legislature's encroachment on the province of safety means Entergy can violate its solemn legal agreement with the people of Vermont.

In practical terms, this could mean that any corporation can bust any public trust on even the flimsiest pretext. Let the corporate lawyers find some pale excuse and the company can skirt its contractual obligations. In the hands of the supremely corporatist Roberts Court, this case could join Citizens United in a devastating one-two punch for the unrestrained power of the private corporation.  

It would also put the reactor industry even further beyond control of the people it irradiates.

Thankfully, the judge did not entirely rule out the possibility of the state taking some kind of action. Vermont's Public Service Board still has the right to deny Entergy an extension. Perhaps the commissioners will ban the word "safety" from all proceedings. If they do say VY must be shut, Entergy's legal team will certainly even newer, more creative ways to appeal.

Vermonters will stage a shutdown rally March 21. Local activism against the reactor continues to escalate.

No US reactor has been ordered and completed since 1973. Shutting Vermont Yankee or any other of the 104 American reactors now licensed might well open the floodgates to shutting the rest of them, as Germany is now doing.

Karl Grossman has suggested Vermont use eminent domain to shut VY, as New York did 20 years ago to bury the $7 billion Shoreham reactor, which was stopped from going into commercial operation.

However it happens, the people of Vermont are in a race against time to prevent another Fukushima in their back yard---which is also all of ours.

"When this rogue corporation is again rejected," says Katz, "the will of the people and democracy will be upheld. Lets commit to doing whatever we can to at last make a nuclear corporation keep its word."

HARVEY WASSERMAN edits www.nukefree.org.  His GREEN POWER & WELLNESS SHOW air 2-3pm EST, Tuesdays, at www.progressiveradionetwork.com.  SOLARTOPIA!  OUR GREEN-POWERED EARTH is at www.harveywasserman.com.  

Originally posted to harveywasserman on Tue Jan 24, 2012 at 02:14 AM PST.

Also republished by Kosowatt, Nuclear Free DK, and These Green Mountains.

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  •  Tip Jar (245+ / 0-)
    Recommended by:
    Horace Boothroyd III, kestrel9000, Cedwyn, hannah, radarlady, eeff, skohayes, Sue B, DerAmi, jcrit, Historicus, SneakySnu, Statusquomustgo, edsbrooklyn, commonmass, VictorLaszlo, Geenius at Wrok, grannysally, Clive all hat no horse Rodeo, 4CasandChlo, concernedamerican, luckylizard, Tool, GeorgeXVIII, bronte17, Showman, ogre, drewfromct, sodalis, Big River Bandido, ChemBob, itzik shpitzik, Gooserock, qannabbos, Kinak, Crazy like a fox, haremoor, RW, Dallasdoc, S M Tenneshaw, Dr Erich Bloodaxe RN, gerrilea, No one gets out alive, ladybug53, Skennet Boch, missLotus, flowerfarmer, psnyder, majcmb1, Thomas Twinnings, Habitat Vic, jim283, glorificus, ER Doc, expatjourno, Jake Williams, Leftcandid, ebbet, mikeconwell, ridemybike, SallyCat, pioneer111, lunachickie, filkertom, zerelda, Actbriniel, detroitmechworks, tb mare, Debs2, lineatus, Setsuna Mudo, DRo, MartyM, Sychotic1, Ozzie, dmhlt 66, real world chick, Executive Odor, Prof Haley, glendaw271, claude, yet another liberal, Caddis Fly, kimoconnor, dlemex, middleagedhousewife, macdust, Russgirl, janmtairy, Lujane, FrY10cK, enemy of the people, Late Again, Crabby Abbey, cotterperson, entrelac, artisan, Empower Ink, Mac in Maine, raptavio, dance you monster, Arahahex, anyname, Fe, Siri, The grouch, Its any one guess, J M F, jack 1966, Debby, Keone Michaels, Ken in MN, weck, mslat27, mkfarkus, gizmo59, Evolutionary, hubcap, CS11, Tinfoil Hat, Onomastic, freshwater dan, importer, I C Mainer, Ptown boy in NC, aerie star, Iberian, OLinda, Joieau, Rogneid, Eddie L, ORDem, WheninRome, JuliaAnn, Anthony Page aka SecondComing, MNGlasnant, cai, marina, praying manatheist, blueintheface, marleycat, imsodizzy, m00finsan, confitesprit, democracy inaction, deep, MrJayTee, flitedocnm, Preston S, BobBlueMass, revsue, Radical def, lissablack, SanFernandoValleyMom, dotsright, redlum jak, dagnome, tacet, Losty, science nerd, Just Bob, tapestry, anodnhajo, DeminNewJ, Marihilda, nailbender, roses, PBen, 420 forever, loftT, JimWilson, Emerson, antimony, Cassandra Waites, glitterscale, The Hindsight Times, wu ming, greycat, vacantlook, IL clb, semiAdult, asterkitty, wordfiddler, Isara, ColoTim, 4Freedom, Haningchadus14, petulans, LillithMc, Desolations Angel, Ana Thema, 313to212, wayoutinthestix, john from vermont, greenbastard, Friendlystranger, angelajean, wagdog, Alice Venturi, scooter in brooklyn, cpresley, Sean Robertson, ceebee7, deltadoc, trumpeter, Mrs M, albrt, Bcre8ve, Blueslide, shaharazade, MKinTN, trivium, blueoasis, terjeanderson, seefleur, happymisanthropy, cybersaur, Xapulin, randallt, ichibon, Angie in WA State, StrayCat, sb, vigilant meerkat, Matt Z, uciguy30, maybeeso in michigan, joanbrooker, Ecclesiastaverbs, FarWestGirl, NYFM, doingbusinessas, legendmn, carolyn urban, Laughing Vergil, sen bob, onionjim, terabytes, oceanview, madgranny, GreyHawk, Andhakari, Funkygal, kaliope, sonorelli
  •  An appeal (123+ / 0-)

    is by no means certain. The issue is being kicked around in Sorrell's office. He isn't sure it can succeed.  At any rate, another way or two to get Yankee shut down is being considered. The Public Service Board, as you noted could deny a certificate of public good based on the fact that the bulk of Yankee's output will be shipped out of Vermont.

    Also, as you noted, being considered is the use of eminent domain.

    Cooling tower failure at VY

    "That the people have a right to bear arms for the defence of themselves and the State ..."- Vermont Constitution Chapter 1, Article 16

    by kestrel9000 on Tue Jan 24, 2012 at 03:01:24 AM PST

    •  As an native Vermonter (1+ / 0-)
      Recommended by:
      NYFM

      and a resident up to 2000, I have to ask:
      1.  What is the cost of the electricty?  how does it compare with other source.
      2. Is Vermont really that anit-nuke.

      I have been hearing that Vermont Yankee was going to be a disaster since 1978.  This is going to go down well, but the anti-nuke people in Vermont have been crying wolf over VY for nearly 4 decades.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Tue Jan 24, 2012 at 07:22:38 AM PST

      [ Parent ]

      •  It was young then (2+ / 0-)
        Recommended by:
        ColoTim, lonespark

        Sure, the anti-nuke crowd may have been crying wolf about a new reactor, but now it's an old reactor. Problems that weren't real 40 years ago may become real now.

        On the other hand, I hope we've heard the last of "split wood not atoms" now that there's scientific consensus on man-made global warming.

        "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

        by Alice in Florida on Tue Jan 24, 2012 at 07:55:54 AM PST

        [ Parent ]

      •  Why do you believe (7+ / 0-)

        the people of Vermont shouldn't be allowed to make their own decision about this rustbucket?

        VPR aired a program this week with former governor Madeleine Kunin talking about her experiences with VY and the NRC. It's definitely worth a read.

      •  consider that Vermont Yankee is the exact same... (13+ / 0-)

        ... reactor design as Fukushima -- a GE Mark 1.

        After seeing what happened in Japan, it should be obvious to all that the exact same thing could happen at Vermont Yankee.  While a Tsunami obviously couldn't reach Vermont, any other type of natural disaster that knocks out off-site power and disables the emergency diesel generators would have the same result.

        Vermont Yankee has operated for 35 years, which is beyond the original design lifespan.  Time to shut it down.

      •  I'm not sure I understand (3+ / 0-)
        Recommended by:
        Joieau, asterkitty, shaharazade

        your first question.  Why does it matter what the cost of electricity is or how it compares with other sources?  Is your argument that if it's cheap, the plant should be kept open?

        Because if that is really your argument - i.e. cheaper is better irrespective of why it is cheaper - it severely conflicts with your signature.

        Furthermore, I can't get my head wrapped around your statement that people in Vermont have been "crying wolf over VY for nearly 4 decades."  Considering that this reactor is a clone of Fukushima and no one expected what happened at Fukushima to ever happen (except for the anti-nuke folks that you're so keen to denigrate), how exactly is that "crying wolf?"

        All I see you doing here is apologizing for the nuclear industry.  Do you have some vested interest in the nuclear industry or are you apologizing for the nuclear industry free-lance?  I really don't understand why you are here trying to marginalize very real and empirical concerns about nuclear safety.

        Arrrr, the laws of science be a harsh mistress. -Bender B. Rodriguez

        by democracy inaction on Tue Jan 24, 2012 at 08:52:11 AM PST

        [ Parent ]

        •  Not a clone. I'ts been upgraded to Mk II (1+ / 0-)
          Recommended by:
          NYFM

          and has more safety systems than Fukushima ever did, in fact, it's better than the upgraded Fukushima Denai plant that did not suffer a meltdown despite being with the same wave.

          The fast is that the faster we can build Gen III reactors that have walk-away safety passive cooling, the better we will be and we can begin phasing out these Gen II BWRs like VY. They should build two brand new AP1000s on the same site and end this discussion.

          Now...a HUGE fight over wind is still going on, splitting the anti-nuke forces as big energy companies impose wind on the mountain ridges with farms and townfolks now in hugely passionate opposition to wind. Rich liberals want to see wind grow in Vermont, it appears wind, which rips up moutain tops and millions of tons of top soil to build roads, has these Green Mountain Boys up in ire against Green Mountain Energy.

          Dr. Isaac Asimov: "The most exciting phrase to hear in science, the one that heralds new discoveries, is not 'Eureka!' but 'That's funny ...'"

          by davidwalters on Tue Jan 24, 2012 at 11:02:17 AM PST

          [ Parent ]

          •  The farmers here (1+ / 0-)
            Recommended by:
            Russgirl

            in Eastern Oregon like the wind and helped get them past the Air Forces opposition. You are a nuke guy right? Fukushima has really made it harder to push nukes, with any credibility, let alone plants like this one that are way past their expiration date. That picture alone makes it clear that this should be closed. Talk about insanity, after what happened in Japan why should anybody be on the side of this dangerous and lethal method of energy.      

            •  it hasn't really stopped any new builds except in (0+ / 0-)

              Japan itself and even that is open to question. After Japan? You mean the doubling off GHG emissions since they closed more of their nukes? Or Germany's? I wonder. The world generally understands that most of the world is not subject to tsunamis; that nuclear provides baseload carbon-free energy and that to oppose it means relying on natural gas other other fossil fuels.

              In Vermont farmers are increasingly opposed to wind, it seems.

              Dr. Isaac Asimov: "The most exciting phrase to hear in science, the one that heralds new discoveries, is not 'Eureka!' but 'That's funny ...'"

              by davidwalters on Tue Jan 24, 2012 at 01:52:17 PM PST

              [ Parent ]

              •  Bullsh*t (1+ / 0-)
                Recommended by:
                Russgirl
                The world generally understands that most of the world is not subject to tsunamis; that nuclear provides baseload carbon-free energy and that to oppose it means relying on natural gas other other fossil fuels.
                What is it with all the nuclear industry apologists here?  That is pure, unadulterated bullshit.

                Most of the world may not be subject to tsunamis but a tsunami is not the only natural disaster that can cause the same kind of unexpected devastation like what happened at Fukushima.  An earthquake can cause the same or worse damage and there isn't a place on this earth that doesn't shake from time to time.  There isn't a place on this earth that lightning doesn't strike from time to time or that doesn't suffer other severe weather anomolies from time to time.

                Nuclear sounds great the way you talk it up, with all the "baseload carbon-free energy" jargon, except nuclear is not all upside as you imply.  There is the small matter of nuclear waste.  With fossil fuels, there is only so much we can pull out of the ground.  With nuclear, there is only so much waste that we can put into the ground before we start running out of sufficiently populace-free areas to put it.  Both are time-limited means of energy production and neither is "clean."  Nuclear may be "clean" from a carbon perspective but definitely not from a radioactive waste perspective.

                There is also the matter of consequences when something does go wrong as it always inevitably will.  There are large swaths of Japan that will never again be inhabitable by humans.  There are people still dealing with the fallout from Chernobyl as there will be with Fukushima for decades to come.  There will be a surge of cancer and other fallout-related sickness and death in the surrounding areas.  I don't care how cheap and "baseload carbon free" it is, it is simply not worth the enormous risk to humanity.

                Lastly, to oppose nuclear does not mean "relying on natural gas other other fossil fuels," that's unfounded bullshit that you pulled out of your ass.  It's a nice talking point for the nuclear industry and their apologists though, despite the fact that it isn't true.

                Arrrr, the laws of science be a harsh mistress. -Bender B. Rodriguez

                by democracy inaction on Tue Jan 24, 2012 at 04:07:37 PM PST

                [ Parent ]

                •  ditto x10000 pro-nukers spin. n/t (1+ / 0-)
                  Recommended by:
                  democracy inaction
                •  I support nuclear after having been (0+ / 0-)

                  actively opposed to it for 30 years because it's the largest source of carbon free energy there is, right NOW in fact. This is not 'jargon' it's facts. Deal with it.

                  This is all part of the discussion which is interesting and serious and necessary. Little of what you wrote above, democracy inaction, bears much to the truth. I am totally willing to discuss this with you. I don't think you are at all correct but I don't think you are bullsh*tting either.

                  The biggest problem with anti-nuclear opinionators is the hubris with which they think they can't be contradicted and then get upset even reading an opposing

                  opinion (like democracy inaction above).

                  Dr. Isaac Asimov: "The most exciting phrase to hear in science, the one that heralds new discoveries, is not 'Eureka!' but 'That's funny ...'"

                  by davidwalters on Wed Jan 25, 2012 at 07:37:42 AM PST

                  [ Parent ]

                  •  asdf (1+ / 0-)
                    Recommended by:
                    shaharazade
                    I support nuclear after having been actively opposed to it for 30 years because it's the largest source of carbon free energy there is, right NOW in fact. This is not 'jargon' it's facts. Deal with it.
                    You're making a strawman argument here, I didn't say that nuclear wasn't "the largest source of carbon free energy there is," my problem is, at what cost?  Here is what I did say:
                    Nuclear may be "clean" from a carbon perspective but definitely not from a radioactive waste perspective.
                    Note that I am not disagreeing with you regarding nuclear from a carbon perspective.
                    Little of what you wrote above, democracy inaction, bears much to the truth.
                    Okay, like what?  Is nuclear waste not an issue?  Are there places a nuclear plant can be built that can be totally and completely insulated from natural disaster and if so, where?
                    The biggest problem with anti-nuclear opinionators is the hubris with which they think they can't be contradicted and then get upset even reading an opposing opinion (like democracy inaction above).
                    First of all, because I called you on your BS doesn't mean that I am "upset."  Second, some things - like the truth - can't be contradicted without abandoning intellectual honesty.

                    Arrrr, the laws of science be a harsh mistress. -Bender B. Rodriguez

                    by democracy inaction on Wed Jan 25, 2012 at 12:54:35 PM PST

                    [ Parent ]

                •  Press release from January 16, 2012 (1+ / 0-)
                  Recommended by:
                  democracy inaction

                  These little things called "facts" drive them crazy, lol. So much nonsense/propaganda, so little time...

                  Joint press release with Germany's Federal Ministry for Environment, Nature Conservation and Nuclear Safety

                  Röttgen: Greenhouse gas reduction efforts a great success
                  Emissions down by 25 percent over 1990 levels
                  Germany continued to meet its Kyoto Protocol commitments during the 2010 economic recovery period. Based on the 1990 index year, Germany’s greenhouse gas emissions had sunk by nearly 25 percent in 2010. Some 295 million tonnes CO2 less were emitted in 2010 than in 1990. “Germany’s success in climate protection is exemplary on both international and European scale. We have demonstrated that economic growth and climate protection can go hand in hand. We hope to continue in this way and achieve a 40-percent reduction by 2020. We are almost two-thirds of the way there, and we see that our climate protection policy has provided strong incentive for economic growth, innovation and employment“, said Federal Minister for Environment Dr. Norbert Röttgen.
                  http://www.umweltbundesamt.de/...

                  Certainly, the CO2 emissions continue to be too high, but are still about 50% less per capita than the US figures. There's a lot of work yet to be done, but Germany is well on track to becoming the first wholly green-energy-based industrialized country by 2050. That gives the pro-nuclear contingent the vapors.

                  „Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.“ - Bertolt Brecht

                  by translatorpro on Wed Jan 25, 2012 at 08:09:24 AM PST

                  [ Parent ]

                  •  Huh? (0+ / 0-)
                    Certainly, the CO2 emissions continue to be too high, but are still about 50% less per capita than the US figures. There's a lot of work yet to be done, but Germany is well on track to becoming the first wholly green-energy-based industrialized country by 2050. That gives the pro-nuclear contingent the vapors.

                    Why the hell would you think that?

                    First of all, Germany's per capita emissions are not "50% less" than the US. The number is actually about 46%. But more importantly, what the does that have to with nuclear power?! The statistics I cite above are for 2009, the last year for which the IEA has published statistics on the web. At that time, Germany was more nuclear than the US, generating 23% of its electricity from nuclear, whereas the US managed less than 20%.

                    Why didn't you compare Germany's per capita emissions to a real nuclear country, like its neighbor France, which generated three-quarters of its electricity from nuclear that year? That might have been a comparison that could have given "the pro-nuclear contingent the vapors" ... except that nuclear-heavy France's per capita emissions are 40% less than Germany's.

                    Keep dreaming, bub. Frankly, I have no confidence in any plan that begins with "we hope."

                    Crowing about "emissions down by 25 percent over 1990 levels" is more pathetic than impressive. For most of 1990, Germany was still two countries, one of which was run by a communist government that had an absolutely abysmal environmental record, with many old, inefficient plants burning coal. Those plants were shut down shortly after reunification, which makes up a substantial part of that 25% that the Federal Ministry for Environment, Nature Conservation and Nuclear Safety is so proud of.

                    I'll wait to be impressed when Germany's emissions are comparable to France's. France has a higher electricity consumption per capita, but its emissions per GDP are 36% lower than Germany's.

                    Only two things are infinite, the universe and human stupidity, and I'm not sure about the former.
                    -- Albert Einstein

                    by bryfry on Wed Jan 25, 2012 at 12:03:43 PM PST

                    [ Parent ]

                    •  Of about 330,000 registered users on (1+ / 0-)
                      Recommended by:
                      shaharazade

                      Daily Kos, there are perhaps 5 (or less) who give a fig about what you think. As you know, I'm not among those elite few, and I'm sure you don't give a fig about me, either, which is a compliment in my book. I doubt you are even a Democrat, or even remotely interested in progressive politics, but only here to stir things up on the pro-nuke/anti-nuke threads.

                      I resolved to ignore you a while ago, but am making this one comment as an exception so you don't have to waste time in countering anything I say again, because I will disregard you (again) henceforth. But if you are into masochism, go ahead and waste your time here as much as you want. In case you hadn't noticed, you and your pals are becoming increasingly irrelevant and marginalized, and not in a small way because of your arrogance and rude behavior. You just are too full of yourself to notice.

                      Go ahead and keep tilting at the windmills and trying to tear them down. You can't win this one. Nuclear energy was yesterday, renewables are the future, and nothing you say will change that.

                      „Wer kämpft, kann verlieren. Wer nicht kämpft, hat schon verloren.“ - Bertolt Brecht

                      by translatorpro on Thu Jan 26, 2012 at 06:35:08 AM PST

                      [ Parent ]

                      •  Cute (0+ / 0-)

                        And you thought that I was writing that comment for you.

                        I think that it's funny that you should write, "That gives the pro-nuclear contingent the vapors," and not expect a response, or at least a correction of your misinformation and bogus comparisons. It is not surprising (and rather telling) that, instead of addressing any of the content of my comment, you immediately launched into a personal attack against me.

                        If I thought that you were going to be the only person to read the response, I doubt that I would bother. After all, as a self-proclaimed expert on everything German, your arrogance and close-mindedness are legendary. However, somebody else might be interested in a little more perspective, and although this is perhaps a long-dead diary, comments stick around, and I can refer to this information in the future without having to type out all of the details again.

                        If you want to take your toys and go home, that's your choice to make, but with an attitude like that, perhaps you shouldn't hang out in the playground too much.

                        In the future, however, please don't think that I'm writing anything for your sake, and please don't assume that I give a damn about what you think. Thanks.

                        Only two things are infinite, the universe and human stupidity, and I'm not sure about the former.
                        -- Albert Einstein

                        by bryfry on Thu Jan 26, 2012 at 11:02:05 AM PST

                        [ Parent ]

      •  But look at that picture. (1+ / 0-)
        Recommended by:
        Joieau

        Surely VT would prefer that the plant be intact and well maintained.

        And, in fact, it looks like the VT legislature just voted to close it, so unless you're saying that VY represents the people of Vermont more than the Vermont legislature does, I'd say yes, VT is anti-nuke at this point--or at least anti- this nuke.

        Being ignored is the difference between being a one percenter and an American.--sweeper

        by SouthernLiberalinMD on Tue Jan 24, 2012 at 12:20:00 PM PST

        [ Parent ]

    •  Mon frickin' Dieu. (8+ / 0-)

      I find the judge's decision mind-boggling. The cynical part of me thinks there is money to be followed here somewhere.

      Just because it's made up doesn't mean it isn't true.—Plan 10 from Outer Space

      by mofembot on Tue Jan 24, 2012 at 07:33:00 AM PST

      [ Parent ]

      •  What a tangles mess this has been ..... (2+ / 0-)
        Recommended by:
        mofembot, carolyn urban

        To recap: this plant opened in 1972 with a 40-year operating license, which would expire this year. And as noted, the Legislature made it clear that any extension would have to pass muster with them.

        But when Entergy bought the plant ten years ago, they made a presumption .... that the Nuclear Regulatory Commission (NRC) would approve an extension of the operating license. And since the NRC has never turned down a single extension, it proved to be an astute purchase ... as the NRC approved a 20-year extension.

        And in February 2010, the Vermont Senate voted 26 to 4 against re-certifying the plant, citing radioactive tritium leaks, misstatements in testimony by plant officials, a cooling tower collapse in 2007, and other problems.

        Interestingly, the state of Vermont's utilities had already made other power contract arrangements, based upon the original 2012 end date. So any future power generated wouldn't go directly to Vermont ratepayers: it would simply go into the regional grid (although it could then be bought on the spot market, and used in the state as needed).

        The upshot? The company probably feels bullet-proof, now. Since nothing they did prevented a license renewal: if the license renewal goes on without any notable state restrictions, they could confidently run their operations without any concern (other than on a public relations basis).

        And similar to those old Midwestern coal plants exempt from the Clean Air Act because it was assumed they'd be mothballed - but for which utilities wound up extending their life on a continuous basis, to preserve their $ advantage - well, who's to say that Entergy won't decide twenty years from now to seek another extension (although perhaps for a shorter period) if the NRC maintains its perfect score? Their return-on-investment just keeps getting better-and-better.

        I tend to be not as anti-nuclear as others ... but this development has me quite angry. The best statement came at that February, 2010 vote not from a "No Nukes" type, but a Vermont state senate Republican who was a nuclear advocate:  

        State Sen. BROCK: If its board of directors and its management were thoroughly infiltrated by anti-nuclear activists, I do not believe they could have done a better job destroying their own case.

        (Soundbite of laughter)

         The dissembling, the prevarication, the lack of candor have been striking.

         

        "We should pay attention to that man behind the curtain."

        by Ed Tracey on Tue Jan 24, 2012 at 01:56:31 PM PST

        [ Parent ]

    •  sounds like a NAFTAesque situation (3+ / 0-)

      where there is no way out...

      the legislature can do something about this because this is not a constitutional issue... they should be able to legislate an out to this, if they are clever enough.

    •  If they exercise eminent domain, do they not (0+ / 0-)

      take on any of the liability created by the plant and its slipshod operation?

      I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

      by bobdevo on Tue Jan 24, 2012 at 10:10:53 AM PST

      [ Parent ]

    •  They could also dig up the roads (1+ / 0-)
      Recommended by:
      Joieau

      surrounding the plant, forcing it to close.

      "Maintenance, you know" :)

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      by twigg on Tue Jan 24, 2012 at 10:52:19 AM PST

      [ Parent ]

    •  Vermonters! Call your rep and senator! All calls (1+ / 0-)
      Recommended by:
      carolyn urban

      are important. The House Speaker said last year that if he receives six calls on an issue it's a big deal. And this is the biggest deal to come along in Vermont politics since we passed the equal marriage law.

      If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter. ~ George Washington

      by 4Freedom on Tue Jan 24, 2012 at 12:19:05 PM PST

      [ Parent ]

  •  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

  •  This is like the Dover PA creationism case (10+ / 0-)

    You know, the one where the judge, a Reagan nomination, mocked the school board for claiming it was inserting creationism into the curriculum out of a concern for airing both sides of the issue, when the public record was clear that they did it out of religious dogmatism.  In this case Vermont claims a variety of reasons for not renewing its approval, but the public record is clear that their overriding reason is the one they're not allowed to invoke under our federalist division-of-labor.  They should have been more discreet!

    But nobody's buying flowers from the flower lady.

    by Rich in PA on Tue Jan 24, 2012 at 03:39:30 AM PST

  •  They should get the governor to declare the area (26+ / 0-)

    ...around the reactors to be a disaster zone and public health hazard, and thus the exclusive province of the Vermont National Guard to secure and shut down.  I'm pretty sure that power still rests with the state, if nothing else does.  So where is the righty "states' rights" contingent now?  Chirp, chirp go the crickets...

    •  I'm sure the "Sates Rights" crowd (13+ / 0-)
      So where is the righty "states' rights" contingent now?  Chirp, chirp go the crickets...
      is cowering in a darkened, soundproof room, hunkered down with the "Rogue Activist Judges" whiners of wingnuttia.

      If I played a game where I had to take a drink for every instance of blatant and utter Regressive hypocrisy, I'd have died of liver failure long ago.

      Al Qeada is a faith-based initiative.

      by drewfromct on Tue Jan 24, 2012 at 05:18:16 AM PST

      [ Parent ]

    •  But its not. It would be lying to say so, simply (1+ / 0-)
      Recommended by:
      NYFM

      TO feed fear. There is absolutely no danger from this plant based on what has happened. Entergy lying per se isn't the guide to use.

      You seem to forget that there are hundreds of plant power operators running this site all of whose families live within 15 miles of the plant. That the every single instance of safety malfeasance has been minor  and not life or health threatening, including the tritium. Should they aggressively enforce the existing rules? Yes, they should. Criminal penalties should be handed out. Jail time if needed on VY mgt. This should be the way to move forward on VY and any power plant.

      Dr. Isaac Asimov: "The most exciting phrase to hear in science, the one that heralds new discoveries, is not 'Eureka!' but 'That's funny ...'"

      by davidwalters on Tue Jan 24, 2012 at 11:17:50 AM PST

      [ Parent ]

      •  You do it in an overtly legalistic way. (0+ / 0-)

        You won't seed fear if you use the device, and it's clear you're using the device, to close down a plant that has been deemed to be a hazard of unknown potential.  It's not necessary to lie about the fact that you're using the declaration as a trump card, and I doubt you'll create panic by doing so.  They've shown a desire to deny the state its right to determine the quality of its citizens' environment, contra signed contract, so I'd say this is a rather significant and emergent situation.

        •  Nothing has been "deemed to be a haxard" (0+ / 0-)

          It's the opinion only of those ideologically disposed to want to shut it down, that's all. Every single plant in the US faces the exact same kind of legalistic nonsense.

          That plant closes and it will immediately cause an increase in GHG emissions as it has in Japan where every MW not produced by closed nuclear is now being made up by...dangerous LNG and diesel and oil.

          AT the end of the day, this is what are advocating for, "Legalistically" or not.

          Dr. Isaac Asimov: "The most exciting phrase to hear in science, the one that heralds new discoveries, is not 'Eureka!' but 'That's funny ...'"

          by davidwalters on Wed Jan 25, 2012 at 07:40:48 AM PST

          [ Parent ]

  •  Here's the actual decision (16+ / 0-)

    Folks can read it for themselves.  Essentially, the diarist supports a "states rights" argument that Vermont can pass laws regarding nuclear power superseding the federal restrictions.

    •  No that's not what the Vermont law does. (11+ / 0-)

      States do have lots of rights and regulatory authority regarding nuclear plants. The one area where the federal government supercedes states is in nuclear safety. States can and do regulate other environmental and economic matters relating to nuclear plants.

      In this case, whether one agrees with him or not, the judge found that in their action, the Vermont Legislature crossed the line and was motivated by nuclear safety issues. That can be debated, but the fact is, Vermont Yankee's renewal of its Certificate of Public Good now will be considered in a pending docket before the Public Service Board. The court did not challenge the PSB's authority.

      With that said, the "solemn contract" referred to by the diarist that Entergy broke is in fact a Memorandum of Understanding, signed as a condition of the sale of the plant to Entergy in 2002, that the company would abide by, and not challenge, Vermont's ability to approve or deny continued operation. So, all other issues aside, Entergy lied.

      "So, am I right or what?"

      by itzik shpitzik on Tue Jan 24, 2012 at 05:47:47 AM PST

      [ Parent ]

      •  I'm not sure what you're saying (4+ / 0-)
        Recommended by:
        campionrules, HeyMikey, marleycat, Losty

        You seem to be reading Adam B as implying that "Vermont can['t] pass laws regarding nuclear power." But I don't think the last phrase can be severed: the judge found that Vermont can't pass laws regarding nuclear power that supersede the federal restrictions. Is that wrong?

        Thanks for clarifying the premise of the diary, which wasn't clearly stated. I suppose Entergy has an account of why this lawsuit is completely consistent with the memorandum?

        Oh, I see.

        In 2006, the Vermont General Assembly passed a law that invalidated a key provision of a 2002 Memorandum of Understanding signed by ENVY, ENOI and Vermont officials when the company purchased Vermont Yankee. Under that provision of the MOU, Entergy’s two subsidiaries had agreed to seek a certificate of public good from the Vermont Public Service Board if it sought to operate the plant beyond March 21, 2012. This was in accordance with the process and standard for securing the state certificate in effect at that time. As the complaint alleges, Vermont repudiated the MOU, breaching that agreement and excusing the two Entergy subsidiaries’ obligation to further comply with that specific provision.

        “The 2006 state law took the decision about Vermont Yankee’s future away from the Public Service Board, a quasi-judicial expert decision-maker, independent of legislative control,” said Smith. “It instead placed Vermont Yankee’s fate in the hands of political decision-makers, namely the state General Assembly and governor who could deprive Entergy’s two subsidiaries of the opportunity to operate the Vermont Yankee plant beyond March 21, 2012, for unsupported or arbitrary reasons. This is not what we signed up for in 2002.”

        link to safecleanreliable.com

        That sure does sound like corporate PR, and it makes me want to read the memorandum. I found it here. What seems to be the relevant part is in point 12:

        Each of VYNPC, CVPS, GMP, ENVY and ENO expressly and irrevocably agrees: (a) that the Board has jurisdiction under current law to grant or deny
        approval of operation of the VYNPS beyond March 21, 2012 and (b) to waive any claim each may have that federal law preempts the jurisdiction of the Board to take the actions and impose the conditions agreed upon in this paragraph to renew, amend or extend the ENVY CPG and ENO CPG to allow operation of the VYNPS after March 21, 2012, or to decline to so renew, amend or extend.

        That seems to say that Entergy can't challenge the Public Service Board's jurisdiction, not that it can't challenge the legislature's jurisdiction. Am I missing something? I haven't followed the legal arguments at all, and I've barely skimmed the decision. But maybe Entergy does have the better of this particular set of arguments. (You didn't express an opinion on that, and I know I'm in no position to have one.)

        •  All authority of the PSB in this and any other.... (7+ / 0-)

          ...matter derives from the Legislature.  The Legislature empowers and authorizes the PSB as well as restricting and directing it. Vermont can pass laws regulating nuclear power, except it can't preempt federal law and regulation regarding nuclear safety specifically.

          "So, am I right or what?"

          by itzik shpitzik on Tue Jan 24, 2012 at 06:39:34 AM PST

          [ Parent ]

        •  Basically - If I understand the Opinion correctly: (1+ / 0-)
          Recommended by:
          Adam B

          The judge ruled that the MOU was too limited in it its scope and did not, in fact, cover the claims brought by Entergy - particularly the preemption aspect.

          Additionally, he goes on to say that even if the MOU had been more sweeping - and not just covered the Board's ability to grant CPG's - it would have likely still failed as the judge believes that the Federal right to govern Nuclear safety has supremacy over any State Legislature.  

    •  States rights is ALWAYS an argument of convenience (0+ / 0-)

      One of the main desires of those Southerners so deeply committed to "states rights" before the Civil War was a strong, federal Fugitive Slave Law.

      We have many competing sovereignties in our system of government (federal, state, county, municipality, tribal sovereignties).  99% of the time, people's preference for one or the other is based on what they believe will give them concrete goals they desire.

      Those usually most strongly in favor of "states rights" today also tend to have a very broad view of the federal 2nd Amendment and believe it should be incorporated to the states.

      Tunis...Cairo...Tripoli...Wall Street

      by GreenSooner on Tue Jan 24, 2012 at 06:07:35 AM PST

      [ Parent ]

    •  After reading - or rather skimming - the opinion (5+ / 0-)

      I'm not sure what Vermont can do in this situation.

      There was not any kind of 'solemn contract', it was a Memorandum of Understanding that apparently had a very limited scope.

      Plus, the court seems to believe that Federal oversight of nuclear safety supersedes what a State government can demand.

      Putting all of that aside - what does Vermont plan on doing if they are successful in shuttering the plant? If it provides one third of all power for the state and they sell off almost half of it - will the state then have to buy energy to supplement the loss of the plant?

      Are there coal fired plants in progress? Solar or Wind?

      What a giant mess.

    •  I must ask this, where do you stand on public (2+ / 0-)
      Recommended by:
      Sychotic1, Joieau

      safety? It's clear this corporation is a danger to hundreds of thousands of people.  Since the Federal Government has abdicated their responsibilities here, why wouldn't the State then have the authority to step in and protect the people?

      The duality of our governmental system allows for "congruent powers", does it not?  People can be prosecuted by the State and the Federal government.

      And haven't many laws been written that acknowledge this? NY had raised the minimum wage long before the Federal Government stepped in.

      What's so special here? I'm missing your point. Or have we irreversibly gone down the path of Federalism as defined by Bush & Cheney? Didn't they say that if the FDA approves a drug, that's it, no one can sue for damages even if said drug's approval was based on false studies???

      This corporation lied (or failed to meet their contractual obligations), can they not then be held accountable as per their agreement?

      -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 06:38:01 AM PST

      [ Parent ]

      •  This is dangerous ground (9+ / 0-)

        Not just for the fact that this site may be in fact a severe health risk - and therefore should likely be remedied as quickly as possible.

        However, the argument that you make is also dangerous:

        Since the Federal Government has abdicated their responsibilities here, why wouldn't the State then have the authority to step in and protect the people?

        Word for word, that is the argument utilized by right wing state governments when it comes to instituting various laws that they would like - such as immigration laws like in Arizona.

        Not disagreeing with you - just pointing out where that road may end.

        •  Disgusting isn't it? (0+ / 0-)

          We're dammed if we do and dammed if we don't.

          -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 08:21:26 AM PST

          [ Parent ]

      •  Why must you ask? (6+ / 0-)

        Because Adam volunteered up the actual legal document that forms the basis for this horribly written diary, and offered a lawyer's interpretation of what the opinion means, you challenge his progressive cred?

        •  What??? (0+ / 0-)

          So, you disagree on the premise or the writing style of the diarist, fine but me asking a question to illicit a better understanding is challenging "his progressive cred"?

          I've pointed out why I asked my questions. Why is it okay in one venue  (labor law) for the State to mandate stricter standards than the Federal Government, but in this area it is not?

          Maybe you cannot understand the dichotomy and inconsistencies here, but I see it as plain as day.

          -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 08:10:40 AM PST

          [ Parent ]

          •  The answer to your question (7+ / 0-)
            I've pointed out why I asked my questions. Why is it okay in one venue  (labor law) for the State to mandate stricter standards than the Federal Government, but in this area it is not?

            is in the doctrine of federal preemption.  See a brief explanation here.

            Basically, Congress can pass laws that indicate an intent to be the final and only word on the subject -- an intent to preempt state law.  Congress does that where it determines that it is necessary to have single legal standard throughout the country.  Here's another discussion, with some examples.  

            •  Thank you, I'm getting it, very dangerous (0+ / 0-)

              proposition that can be used to strip us all of so many things.

              It occurred to me that congress could pass laws preempting every State law in existence.  Bush & Co could have said that the Federal Minimum wage laws were now superior to any and all State requirements.

              I shutter at the prospect of this idea and the potential for abuse and tyranny.

              -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 09:03:37 AM PST

              [ Parent ]

              •  You, perhaps unintentionally, sound a bit like (4+ / 0-)

                Ron Paul, who decries federal power at the expense of state authority, for precisely that reason -- the potential for abuse and tyranny.

                "I shudder at the prospect of this idea [federal preemption of state authority and power] and the potential for abuse and tyranny."

                •  ROFL, maybe I do, but it's not intentional (0+ / 0-)

                  just a bit of reality checking and self awareness.

                  I don't decry federal authority but we have to understand that the best laid plans of mice and men DO go awry. And the road to hell is paved with good intentions.

                  ;)

                  In all seriousness, I label myself as a Progressive Libertarian.  My definition: Make the words and ideals of the Declaration of Independence apply to everyone in this country. No special classes, no exemptions if you are a member of Congress or a corporation, no waivers from equality and justice.  All must be equal to and accountable under the law. If the second document we created (our current constitution) is deficient, amend it through Article V.

                  -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 09:37:39 AM PST

                  [ Parent ]

      •  preemption is an old doctrine (2+ / 0-)
        Recommended by:
        gerrilea, charliehall2

        In areas of the Constitution given to Congress, congress can regulate to the exclusion of all state authority.  Congress can also delegate back to the states (see the Clean Air Act). The ability of states to ignore federal law was one of the issues fought over in the civil war. In short the supremacy clause gives Congress the right to regulate commerce (including electric power) and push out the states if it chooses as it seems to have done here. It is an all eggs in one basket approach that can fail as it did here

        •  Thanks, I have reservations on some of this (1+ / 0-)
          Recommended by:
          Joieau

          http://law2.umkc.edu/...

          It seems that "preemption" idea is in flux and open for debate.

          SILKWOOD v. KERR-McGEE CORP.

          We do not suggest that there could never be an instance in which the federal law would pre-empt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, pre-emption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. We perceive no such conflict or frustration in the circumstances of this case.

          -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 08:52:44 AM PST

          [ Parent ]

          •  Not so much in flux as very complex (2+ / 0-)
            Recommended by:
            gerrilea, Adam B

            There are at least three flavors. Where Congress intends to be the exclusive authority and push out the states, then a doctrine called field preemption applies.  Otherwise, states are preempts only to the extent that they can't pass conflicting laws (your quote here says the court decided that this was a conflict preemption case not a field preemption case).  Also, the commerce and other clauses limit the states without federal action to prohibit certain state laws that reach into federal areas like interstate commerce or military affairs or foreign affairs.  

            Here it sounds likebthe court determined that the authority of the NRC preempts the entire field of nuclear safety regulation so the state isn't allowed to shut the plant down for safety reasons only for economic or grid integrity reasons

    •  So far they have not succeeded in winning that.... (2+ / 0-)
      Recommended by:
      Joieau, happymisanthropy

      argument.

      While I understand federal law is the issue here, it is important for us all to understand the limits states have in regulating these plants.

      Frankly, after this ruling I cannot imagine any state approving any NEW plants in the near future.

      Where ignorance is our master, there is no possibility of real peace. - Dalai Lama

      by kimoconnor on Tue Jan 24, 2012 at 07:10:05 AM PST

      [ Parent ]

      •  From what I've gathered here so far (0+ / 0-)

        The State does not have any authority to stop them from being built.  If we are to accept the ruling that only the federal government can regulate them.

        Meaning my own State's (New York) push to stop and control fracking is moot.

        -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 08:27:00 AM PST

        [ Parent ]

    •  The diarist misunderstands the case (2+ / 0-)
      Recommended by:
      Adam B, NYFM

      1) Not related to safety at all.
      2) It's a contract case that Entergy is trying to turn into a pre-emption case. Unfortunately, the state did a crappy job in presenting its side of the case.

    •  thanks for doing the diarists job (1+ / 0-)
      Recommended by:
      erush1345

      I'll give it a read but the diary sounds a little tentherish it is true

      Devil is in the details and I wonder if the diarist read the opinion

      •  the point is the court said... (3+ / 0-)
        Recommended by:
        Just Bob, happymisanthropy, Joieau

        vt overstepped its bounds by even considering safety issues.  i think that's crazy....but so is the atomic energy act of 1954, and the use of nuke power altogether.

        •   It depends on the Feds (0+ / 0-)

          It sucks, but that's US law. Here in California we are being forced to use crappy polluting fuels from the rest of the country because too few want to do anything about climate change.  

          As you say, yet more crazy policy

          •  I read something (0+ / 0-)

            awhile back about one of your universities (CalTech? One of the UC's?) developing vertical wind technology that looked promising. Based on the air flow dynamics of flocking birds, each vertical 'screw' tower receives positive help from its neighbors to keep its 'screw' turning. Improving efficiency by something north of 50%. In "Wind Farms" where as many as a dozen units occupy a single acre it looks to be quite conservative land use as well. You could always grow corn or melons in between them if you really wanted.

            Dang... used to keep these links somewhere...

    •  your comments that i remember (0+ / 0-)

      (which are probably only a small sample of your actual comments) always seem to point out that whatever is right (in this instance, democratically elected representatives preserving the safety of their constituents from an evil corporation) is in some way illegal.

      It creates a very disturbing cognitive dissonance for me, because I'm often thinking in other case that the rule of law is paramount, but then you remind me how annoying the rule of law can be when the people who've made the laws were wrong/assholes, which usually leads to me contemplating how our forefathers rebelled against the law of the land, and wondering what is a reasonable threshold for rebellion.

      I think it's clear that this plant should be shut down, ASAP. If the law prevents the state from doing that, and the Feds won't do it, then something has to give. in this case, it should probably be the law that gives the NRC final say over these matters. It should be like CAFE standards, where the federal regulations are the minimum but states can be more restrictive if they please.

      "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

      by joey c on Tue Jan 24, 2012 at 11:26:26 AM PST

      [ Parent ]

  •  We may need nuclear energy (4+ / 0-)

    But we don't need these crappy old reactors.  Shut down the Soviet-Union era plants and build newer safer pebble bed reactors to take up the slack.

    Or better, supplement first with solar, wind, wave, hydro, and geothermal then use new safer nuclear reactors to handle the deficit.

    We get what we want - or what we fail to refuse. - Muhammad Yunus

    by nightsweat on Tue Jan 24, 2012 at 06:03:27 AM PST

  •  Bet they'll stick it to the taxpayers for shutdown (7+ / 0-)

    Who want's to be they wont try to find a way to skip out on the shutdown / decommissioning costs if they lose the lawsuit?

    Fuckers.

    Seize ALL their assets - everywhere.

    The Fail will continue until actual torches and pitchforks are set in motion. - Pangolin@kunstler.com

    by No one gets out alive on Tue Jan 24, 2012 at 06:08:18 AM PST

  •  Is all the spent fuel still there? (2+ / 0-)
    Recommended by:
    itzik shpitzik, Joieau

    I bet it is, and I bet people still get cases of the vapors whenever anyone discusses moving it. to a safer location.

    If Vermont Yankee is in the same bucket as Fukushima, it's mostly because the spent fuel is still stored next to the reactor.

  •  Another day, another legal gymnastics routine. (5+ / 0-)

    It sounds wrong, it feels wrong...

    but it's legal, so everybody go back to your business and let corporate america poison you a little more.  Let em grab a little more power as long as it's on their land.

    and when the Daimyo wants to test his new sword, it's YOUR fault for being on company property at the time.

    /snark

    One of these days, I'm gonna learn that I'm only really good at convincing people when I'm being a wiseass. Reviewtopia.net

    by detroitmechworks on Tue Jan 24, 2012 at 06:34:41 AM PST

  •  UN*UCKINGBELIEVABLE!!! (2+ / 0-)
    Recommended by:
    Russgirl, Joieau
  •  I read they may tax them out (5+ / 0-)
    Recommended by:
    Russgirl, Siri, Joieau, Losty, Cassandra Waites
    While legislative leaders were mulling over the order, one longtime Statehouse lobbyist said Entergy’s political troubles in Vermont most likely are far from over. Two bills would impose new and sharply higher taxes on the plant.

    Kevin Ellis of the firm KSE Partners noted that Democratic Gov. Peter Shumlin, who issued a statement saying he was disappointed in the court decision, has been a staunch foe of Vermont Yankee.

    “Any governor has all sorts of tools at their disposal to make life miserable for entities they don’t like,” Ellis said.

    Washington Post

    Since the Japan incident, nuclear power is back in the forefront. The idea that a state is forced to have a plant (and one that sells the power out of state too boot!) is a problem that needs a solution. In the meantime, I hope the state continues to fight with whatever means they have.

    Where ignorance is our master, there is no possibility of real peace. - Dalai Lama

    by kimoconnor on Tue Jan 24, 2012 at 07:05:13 AM PST

  •  Blog doesn't match facts in Judge's opinion (2+ / 0-)
    Recommended by:
    HeyMikey, bryfry

    Attached is a link to the Judge's actual opinion in the case.

    http://www.vtd.uscourts.gov/...

    There appears to be a large gap between what the judge stated and the author's comments.  Also, he failed to mention Vermont's has been receiving power at less than the cost required to produce electricity - with higher prices being charged to New York and other non-Vermont residents - generating a $61 million dollar windfall for Vermont consumers.

    It is also really interesting that in a 100 page opinion there is no mention of the accidents the author alleges.  And, while I'm no expert the picture of the cascading water on the cooling tower sure looks like it was photoshopped since with the water falling with such force you would expect to see some water exiting at ground level, but it isn't there.

  •  The legislature did NOT vote on anything related (8+ / 0-)

    ... to safety.

    The legislature CANNOT legally vote on anything related to nuclear safety. Federal law prohibits it.

    The legislature DID vote on whether or not the plant is provides a "public good" to the state. This has to do with reliability, cost, and other factors.

    Please don't confuse the factors covered under the contract Entergy signed with factors that are not part of the state's decision. The more people conflate the two, the more difficulty the state will have making the only case it can legally make. Please try not to do so.

    I understand that the plant is NOT safe. However, that is NOT the basis on which the state made its decision.  

    The state has a goal of replacing older forms of energy generation with renewables. Coal, gas, oil, and nuclear do not fit with that goal, and thus are not qualified for "public good" status. In Yankee's case, specifically, the plant already sells most of its power into the New England grid, not into the state, and with the relicensing plans to sell an even larger percentage into the grid. This will cause electric rates to rise, while providing nothing in exchange for that rate increase. The state can get lower rates from more reliable power sources that fit with the state's renewables goal (i.e., Hydro Quebec, etc.).

    When Entergy bought Yankee, they bought it with the full knowledge that the state was not planning to continue using it after 2012, and at that time, with that knowledge, they signed a document agreeing to abide by the state's certificate of public good authority.

    Now that they are going to have to shut down as planned, they are trying to breach that contract. I'm guessing they were hoping to have a "friendly" (aka: corrupt and compliant) administration in place in the state when 2012 rolled around.

  •  Who is the judge? Whose payroll is he on? (0+ / 0-)
  •  didn't you get the memo? (5+ / 0-)

    if you criticize nuclear energy you actually want to burn more coal and therefore ensure global warming.  Nuclear is the ONLY way to get the energy w/o fossil fuels!

  •  Regarding the issue of the NRC (3+ / 0-)
    Recommended by:
    Joieau, Just Bob, shaharazade

    If there are indeed another dozen Fukashima-style reactors scattered about the country, why are you arguing this based on a contract with the state of Vermont rather than screaming bloody murder about the failure of the NRC? Nuclear safety is a national issue, and there should be national standards for safety that protect the public in every state.

    "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

    by Alice in Florida on Tue Jan 24, 2012 at 08:08:45 AM PST

  •  Break out the duct tape and the Super-glue (2+ / 0-)
    Recommended by:
    Joieau, shaharazade

    The quarterly reports are coming out shortly.

    Effective activism requires Activists -- Effecting radical change demands Radicals

    by Anthony Page aka SecondComing on Tue Jan 24, 2012 at 08:20:42 AM PST

  •  Tipped for a Great Line: (4+ / 0-)
    It would also put the reactor industry even further beyond control of the people it irradiates.
  •  The diary is misleading (4+ / 0-)
    Recommended by:
    charliehall2, campionrules, NYFM, VClib

    Adam linked to the actual opinion above.

    The opinion is about whether federal regulation of nuclear power preempts state law on the subject.

    This decision turned on federal law being pre-eminent over state law in particular areas where Congress intended to supersede state law, one of those being nuclear power.  

  •  lots of great comments here.... (2+ / 0-)
    Recommended by:
    happymisanthropy, randallt

    let's hope it means people will rally to shut this damn plant, however it can be non-violently done.

    people are dying from vy every day.  it must STOP!!!!

  •  If VT wins this, the anti-immigration laws (2+ / 0-)
    Recommended by:
    thestructureguy, NYFM

    in Arizona and Alabama will be upheld. The same issue applies: Federal pre-emption.

    You can't have it both ways.

    •  so how about... (1+ / 0-)
      Recommended by:
      randallt

      instead of telling people how their quest to avoid nuclear meltdown is horrible because it enables racists to shaft latinos in Arizona, why not use your extensive legal knowledge to come up with a suggestion for shutting down this plant?

      "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

      by joey c on Tue Jan 24, 2012 at 11:32:18 AM PST

      [ Parent ]

    •  no, (0+ / 0-)

      the company voluntarily entered into a contract that required it to obey state authorities.

      If I signed a contract that said my nuclear power plant had to be approved bye Charliehall before I could operate it, it would be absurd to turn around and try to weasel out of that contract.

      Federal preemption is not an issue because the state does not pretend authority -- the company VOLUNTARILY ACCEPTED state authority.

      I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

      by happymisanthropy on Tue Jan 24, 2012 at 01:19:47 PM PST

      [ Parent ]

  •  How about they somehow (1+ / 0-)
    Recommended by:
    happymisanthropy

    shut down the power lines going out of the plant thereby leaving it with no income?

    Force is the midwife of every old society pregnant with a new one. Marx

    by Marihilda on Tue Jan 24, 2012 at 09:36:18 AM PST

  •  Hey! The federal preemption is limited. (3+ / 0-)
    Recommended by:
    randallt, shaharazade, Joieau

    .. That's what this is about.

    Federal law does not preempt states from regulating all things nuclear! The judge did not say that, and in fact, the Vermont Public Service Board docket considering Vermont Yankee's request for a renewed Certificate of Public Good will now proceed. The judge overruled the Legislature's action, whatever one may think of that, but not the state's authority overall.

    Understand: Federal law and regulation preempts the states with regards to nuclear safety issues. It does not preempt states in other areas where they might regulate a nuclear plant.

    "So, am I right or what?"

    by itzik shpitzik on Tue Jan 24, 2012 at 10:03:39 AM PST

    •  There is a Vermont Law School Blog (0+ / 0-)

      devoted to the Vermont Yankee case.

      The consensus seems to be that any legal appeal of the ruling would have a steep uphill climb and the Public Service Board would have to thread a very fine needle to avoid falling into a similar trap. Even if it does a better job of hiding its true motives than the Vermont legislature, any denial of a certificate of public good would have to be based on factors that do not have the effect of preempting federal authority. For instance, it would have to apply standards within the PSB's perview that it has applied consistently to all power generators when determining public good. Applying an arbitrary standard to VY alone would be a recipe for a legal challenge the PSB would probably lose in federal court.

  •  Sacramento (3+ / 0-)
    Recommended by:
    randallt, shaharazade, Joieau

    In the early 1970's Sacramento voted to shut down their nuclear power plant called Rancho Seco.  I don't think anyone ever regretted the decision.

  •  I Used to Work There (8+ / 0-)

    back in the 1990's. I worked with the IT Department.
    Back then, the Owners made a Real effort to keep things
    running properly.

    The Real Problem has ALWAYS been the Bastards
    that work for Entergy. I quit working at Vermont Yankee
    when the Criminals Bought the Place. The First thing they
    did was to cut back on Maintenance and Inspections.

    Think the NRC will step in and make things better ?
    Think Again. Virtually All of the people working at the NRC
    are Former Nuke Plant employees. It is the same revolving
    door that turns former Congressional Staffers into
    Lobbiests.

    Nuclear Energy requires CONSTANT vigilance.
    Constant Vigilance costs a LOT of Money.
    Money that the Insane Owners would rather put into
    their own Pockets.

    I now live less than 100 miles Downwind from my former
    employer. It wouldn't bother me at all if they shut it
    down TOMORROW.

    On Giving Advice: Smart People Don't Need It and Stupid People Don't Listen

    by Brian76239 on Tue Jan 24, 2012 at 10:56:50 AM PST

  •  There are a couple of issues (0+ / 0-)

    First: the decommissioning fund. Entergy has neglected to fund it.

    Second: Transporting nuclear materials, (fueling rods) over State highways...look, a governor could say, "Too dangerous, no nuclear cargo in this state."

    I think there are angles here.  

    Things are more the way they are today than they ever were before. -Jimmy Flynn

    by onionjim on Tue Jan 24, 2012 at 03:12:46 PM PST

  •  On this so called judge, Judge Murtha.. (0+ / 0-)

    Is he from Georgia?
    Thought so.....

  •  I wonder, will this be like Trojan in Oregon? (0+ / 0-)

    Many years ago in Oregon, there was a ballot measure to make a corporation shut down the Trojan Nuclear Reactor at its own expense.  Needless to say, the company fought it tooth and nail, and won, based on arguments about keeping power and jobs.  

    Then...the corporation almost immediately turned around and shut down the reactor anyway, but were therefore allowed to charge the costs to the ratepayers instead of profits.

    So, depending on the financial details of these arrangements, you could still see the backside of this reactor - especially if it is truly falling apart - but have to pay for the privilege.

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