In VY Loss, Sorrell Sees Political Redemption — and Jabs Donovan

1. And so we’re clear here, it was Entergy who sued Vermont; not the other way around. Had Sorrell not appealed we’d be on the hook for big money. As it is now, Entergy has cost the state $1 mil vs a possible $7 mil. Thank you Bill Sorrell.

2. As is often the case with your posts you are patently wrong. The legislature receives council from its attorneys who felt that the laws that they passed were on safe ground. Remember, Entergy supported and benefitted from these laws.
   Shumlin wasn’t even in office when these laws were passed so to say that this action was done so he could run for governor would lead those of us who know the truth to think that either you A) don’t have a clue as to what you’re talking about; or B) are nothing more than a partisan flinging dung at the wall in hopes that some of it will stick.
   Either way you’re wrong.

3. Four independent federal judges called out the Vermont legislature for illegally attempting to shut VY down for alleged safety reasons, in blatant violation of federal law, and also attempting to disguise what they were doing. The Vt. legislature acted disgracefully and Sorrell shows his cabal’s defensiveness by calling the Second Circuit’s opinion “insulting.” That’s like the Mafia saying it is “insulted” when it is accused of engaging in organiized crime.

4. Bob is quite right, JCarter.
   The laws in question were passed in 2005 & 2006 when Shumlin was out of office. The courts explicitly chose NOT to consider the 2010 senate vote, but focused instead on 2 of the laws which called for a vote in the first place (Acts 74 & 160).. The 2 laws which were overturned were signed into law by — wait for it– Governor Jim Douglas and passed both houses of the legislature with overwhelming majorities. Act 160 passed the House unanimously.
   Neither law mentions safety, and it is also at least worth considering the idea that the Appeals Court, like the District Court before it, is simply wrong as to the meaning of these enactments.

5. Once again, Mr. Carter, you’re wrong. It was Gov. Jim Douglas who was insisting that the legislature hold the vote on the continued operations of VY. Shumlin called for the vote after we learned that VY executives had lied to the PSB; at which time Gov. Douglas then flipped 180 degrees and said we shouldn’t have a vote.
   Now, was it political. You’re damned right it was, but look at the vote in the Senate. Even Randy Brock voted against the continued operations of the plant, because he agreed that Entergy could not be trusted.
   I’m now retired and not paid by anyone to do anything. Not that it would matter much, because I’ve always had a tendency to call them as I see them. In this case, I was in the building when all this was going down. You weren’t. I know what really happened. You don’t. I will refrain from calling you ignorant; you just don’t know, because you weren’t there.
   No one would have ever expected that the laws that Entergy previously supported, and benefitted from, would have been overturned. No one really thought that Entergy was that sleazy. Now we know. And now that we know what kind of people run this company there is no reason to ever do business with them again. That is unless you’re really dumb.

6. No it’s not like your Mafia statement. What you fail to remember is that Vermont has never, ever passed a law regulating safety. Ever. This was lost on Murtha and apparently lost on the 2nd Circuit. Did they talk about safety? Sure. Did witnesses talk about safety. You bet. Did the legislature; any legislature, ever pass a law regulating safety. No. It’s that simple.
   For the courts to delve into legislative intent is a big mistake. That issue was decided in the PG&E case, but for whatever reason those sitting in judgment didn’t take that into consideration.
   The Vt. Legislature never acted disgracefully. The laws they passed were supported by Entergy, because Entergy realized great financial benefit. Once they got their benefits, they sued us. Nice people.
   I look forward to the day when people like you post comments when you actually know what you’re talking about.

7. Mr. Carter, apparently you weren’t there. I was. Gov. Douglas was calling for a vote for almost a year. He abruptly reversed his request when we all learned that Entergy execs had lied to the PSB. Once the dynamics changed, Shumlin was more than happy to oblige.
   Was politics involved? Duh. Of course, but it was Gov. Douglas who was initially calling for the vote, because he thought he could win it. When he realized that he was going to lose, then he stopped calling for the vote.
   Shumlin called for the vote because Douglas did not want the vote. Just about every vote taken in that building over the past 200 years has been political. You see, that’s why they call it politics. Douglas was being political; so was Shumlin.
   The loss was not predictable. Once again you’re wrong. Inasmuch as Vermont had never, EVER, passed a law regulating safety it was assumed the state was on firm ground. It was only when the courts looked to the statements of a few legislators that they made the leap. Trying to determine legislative intent for an entire General Assembly is a very slippery slope, which is why the US Supreme said we can’t do so (PG&E), yet two lower courts have gone against this decision. I would suggest we appeal it to the US Supreme Court to see if this court will uphold its previous decision.
   Probably that suggestion will make your head explode so there’s no need to respond. Frankly, I find you a little boring anyway, because you don’t know what you’re talking about

8. No Mr. Carter, it’s not getting deep. You don’t know the facts, yet for some reason feel compelled to espouse your lack of knowledge practically daily on these sites.
   Like my dad used to say; “You’re better off sitting in silence and letting others guess whether or not you’re an idiot as opposed to opening your mouth a proving it”.

9. Sorry, Jcarter1, but you don’t know what you’re talking
   about.

   1) “The point of my post was that Shumlin was responsible
   for the $7 Mil in attorney fees that Sorrell whittled down to 1Mil for causing
   the lawsuit, not Entergy for filing the lawsuit.”

   First, $7M. The
   figures, as I know them, are as follows. Entergy spent $4.5 million in the district
   court, while Vermont
   spent around $400,000. I assume, from
   the statement in the article, that Vermont
   spent somewhere in the $500-600,000 range on the appeal, but to my knowledge,
   Entergy’s expenditures on the appeal are not publicly known. (The $4.5M figure
   comes from a filing in Murtha’s court after winning round 1).

   Second, the reason that Vermont COULD have been liable for
   Entergy’s expenditures was NOT the legislative counts (preemption) in the
   lawsuit, but Entergy’s suggestion, with which Murtha agreed, but which the
   appellate court rejected, that Vermont had attempted to coerce Entergy into a
   PPA which would have (somehow) raised the costs for out-of-state power buyers
   and thereby violated the Commerce clause.
   The Appeals Court
   rejected the claim on the basis that it wasn’t “ripe” for judicial review since
   no PPA exists.

   Had Entergy prevailed on this count, it could have sued (as
   in fact, it had already begun to do) to collect ITS legal fees from the State. Sorrell didn’t “whittle down” anything. When the Appeals Court overturned this count,
   Entergy’s right to sue for legal fees disappeared. No similar right exists in preemption cases.

   2) “If Shummy hadn’t used the Senate vote for political gain
   and grandstanding, and allowed the PSB to issue a ruling there would not have
   been a lawsuit.” I can’t prove with
   certainty that this is wrong, since there was, in fact, a vote, but ALL of the
   evidence suggests the opposite.

   First, the need for an affirmative vote was established in
   Vermont law in 1977, when the legislature decided that “No facility for
   deposit, storage, reprocessing or disposal of spent nuclear fuel elements or
   radioactive waste material shall be constructed or established in the state of
   Vermont unless the general assembly first finds that it promotes the general good
   of the state and approves, through either bill or joint resolution, a petition
   for approval of the facility.” (VSA Title 10, Section 6501a) Since VY’s spent
   fuel pool is full, it requires dry cask storage to continue to operate. Without it, the plant would have to shut down.
   Act 74 confirmed this requirement for the period after March 21, 2012. Act 160, enacted in 2006, stated that a vote
   on continued operations be combined with the vote on spent fuel storage, and
   that all of this take place before a CPG or “final order” could be issued by
   the PSB. So Shumlin or no Shumlin, an
   affirmative legislative vote was required.

   As Bob Stannard notes above, the TIMING of the vote was
   clearly political: Jim Douglas and Entergy begged for the vote beginning in 2008,
   and then, after the tritium leaks, begged to postpone it. Shumlin, as Senate majority leader, decided
   to hold the vote shortly after the tritium leaks. The timing, in all cases, was
   clearly “political.”

   But having acknowledged that doesn’t get even close to
   making your case. First, Shumlin was the
   majority leader of the Senate. At most, he controlled SOME Democratic votes,
   though it’s hard to believe that he controlled those of the candidates who were
   opposing his candidacy for governor in the Democratic primary. It’s even harder to believe that he controlled
   any Republican votes in the senate, but Rs voted overwhelmingly against VY as
   well (5-2). Remember, the final senate
   vote was 26-4, with the 4 consisting of 2 Ds and 2 Rs.

   But even if we grant you that, through some miracle, Shumlin
   controlled the entire Senate vote, the problem with your argument is that an
   affirmative vote by the Senate would NOT have settled the issue. An affirmative vote of the House was also
   required, and when I told a knowledgeable House member at the time that I
   though we would have 100 “no” votes in the House, he told me that I was way too
   low, and that the number would be closer to 120. (For what it’s worth, my count in December of
   2009 was 20 certain no votes in the Senate, 2 certain yeses, and most of the
   remainder leaning towards no. That’s
   BEFORE the tritium leaks were announced.)
   In short, there’s really no reason to believe that Shumlin’s
   political decision-making and/or scheming made ANY difference in the outcome.

   3) “See, it’s entirely plausible that the PSB doesn’t issue
   a CPG. Then do we have a lawsuit? Nope, ….”
   Sorry, jcarter1, that ship sailed a LONG time ago.

   Entergy has already brought 2 lawsuits against the PSB. The first, which was eventually dropped,
   concerned the PSB’s supposed failure to rule about emergency diesel generators
   by the deadline which Entergy had decided on.
   As usual, Entergy failed to acknowledge its own loss of time in “negotiating”
   with TransCanada or its failure to inform the Board at the outset that the
   generator would be needed even if the plant were to shut down. In any case, when the PSB actually met the
   deadline, Entergy dropped the suit. But
   since this occurred AFTER the State had to respond (I believe the response came
   from DPS), the State DID spend money on the suit.

   The second, still pending, concerns the Board’s decision
   (which Entergy effectively required it to make by filing a motion demanding a
   decision) that Entergy is still bound by various orders surrounding the
   original sale and purchase of the plant and that Entergy is therefore violating Vermont law by
   continuing to operate VY. Even though
   the Board made it clear that it had no plans to enforce its ruling, Entergy has
   sued in the Vermont Supreme Court, which has scheduled oral argument for
   October. Again, briefs have been
   exchanged, and the State (DPS) has spent money defending the suit.

   4) Oh, and while we’re at it, we haven’t mentioned the suit
   that Entergy brought in federal district court against the generation tax
   levied by the legislature. Entergy lost in federal district court, but has
   appealed the decision to the 2nd Circuit. Again, Vermont (AG) is spending money to
   defend the suit.

   So, JCarter1, the common thread is NOT Peter Shumlin, and
   not even the Vermont
   legislature. It’s Entergy’s proclivity
   to sue at every opportunity, thereby requiring responses from the State.

10. Explain to me, and the other readers here, when and how the legislature acted disgracefully. If you are referring to the Senate vote of Feb. 2010 then explain to me why Sen. Randy Brock was acting disgracefully.
    I go back to my dad’s advice. I do generally follow it, but I won’t sit back and listen to someone who knows little or nothing of what they speak going off and trashing people who are elected simply because they are easy targets.
    The folks that I’ve come to know over 3 decades of doing this work are good, caring dedicated people who may simply have different points of view. You try to make it out as though they are evil with evil agendas and that’s simply not true. You may think it is but it’s not. I know that for a fact because I used to work with these folks every day. You don’t know it as a fact because you have never worked with these people. I get that.
    I just don’t feel like you should get away with sweeping statements that are wrong. I hope you get that.
    Enjoy your life.

11. FYI Bob and John,
    This was posted by Mr. Heintz this afternoon
    “Three and a half years ago, Senate President Pro Tem Shumlin heroically
    led his chamber to reject granting Vermont Yankee another 20-year
    license. That political victory led him to the governor’s office — and
    the state to a two-year, million-dollar legal battle. Now that the
    state’s lost at the appellate court level, ol’ Teflon Shummy seems once
    again to be dodging the blame.”
    Sounds an awful like what I was saying. Bob, you should write Paul and tell him how ignorant, idiotic and other those other nice terms you mentioned to me…

12. Four federal judges, on different level of the court system, say that the Vt. legislature passed a law on nuclear safety, but the Great Stannard says that all four judges are wrong. How wonderful. It’s a good thing we have the Great Stannard to set the stupid federal judiciary straight.
    If it’s wrong for judges to look behind the devious, decetitful intent of legislatures that are trying to disguise their attempts top shut down VY for safety reasons, then let’s not second-guess Southern voting legislation, right? All those new voter ID laws being enacted in the red states are not really designed to supress voter turnout. No, LIKE THEIR TITLES AND TEXTS SAY, they’re just designed to “protect voting integrity.” How dare a federal court strike down those laws?! After all, they don’t actually say the words, “vote supression.” And let’s not second-guess restrictive anti-abortion laws sprouting up in all those red states, either. Those laws are not intended to restrict abortion, they’re only protecting babies, LIKE THEIR TITLES AND TEXTS SAY.
    The point, oh Great Stannard, is that the titles and texts of laws do sometimes disguise intent, and we need an independent federal judiciary to prevent state legislatures from running amok, which is exactly what the Vt. legislature did.

13. Your opinion and you’re entitled to it.

14. That’s Paul’s opinion and he’s entitled to it.

15. Sutton Hoo:

    Your analogies go right to the heart of why the courts have
    gotten this wrong. Laws which purport to
    “protect’ against (virtually non-existent) voting fraud are problematic NOT for
    what they say, but for what they do, namely, in your words: “suppress voter
    turnout.” As you point out, it’s not
    their language that’s at issue, it’s their effects.

    In the case of the 2 now-overturned acts passed by the
    Vermont legislature, both the district and appeals courts failed to correctly comprehend
    the effects of the legislation; indeed, they turned it on its head, arguing
    that, by passing these laws, the legislature INTENDED to shut the plant down.

    Were that true, the record quite clearly shows that the
    easiest course for the legislature would have been to do absolutely
    nothing. Title 10, Section 6501a,
    enacted in 1977, requires an affirmative vote from the legislature before establishing
    a facility for disposal of spent nuclear fuel elements. A later (1979) enactment (section 6505) made
    an exception – “This subchapter does not apply to any temporary storage by
    Vermont Yankee Nuclear Power Corporation of spent nuclear fuel elements or
    other radioactive waste at its present site.” But the Attorney General ruled
    that the exception was specific to the company, NOT to the plant (the language
    is, after all, pretty straightforward). In
    the words of the appeals court: “In response,
    Entergy presented proposed legislation clarifying that section 6505 was site-specific,
    rather than owner-specific. This proposal failed to obtain support from the Vermont Legislature,
    however. The Vermont Legislature then began hearings on the bill that would eventually
    become Act 74.” (pp. 7-8)

    Had Act 74 NOT passed,
    Vermont Yankee would have been forced to close. The appeals court effectively acknowledges
    this in discussion the provision of Act 74 which applied to the period
    following March, 2012: “If no such affirmative vote occurred, storage of
    nuclear waste generated from operations after March 21, 2012, would not be permitted.
    Thus, Vermont Yankee would have to shut down.”
    Indeed, it’s quite striking that it failed to recognize that the same
    was true without the passage of an act which it goes on to claim was INTENDED
    to shut the plant down.

    In fact, Act 74’s passage did
    NOT shut the plant down as the courts suggest; precisely to the contrary, it
    was needed to allow the plant to remain open.
    Act 160 didn’t shut the plant down either, but it easily could have, had
    that been the legislature’s intent. Instead,
    the latter act established a detailed process by which the legislature would be
    enabled to make an informed vote (which, by then, was ALREADY required under BOTH
    Section 6501a AND Act 74).

    It’s no coincidence, as
    pointed out above, that most legislative supporters of Vermont Yankee voted FOR
    both of these bills (were the courts’ interpretation even in the ballpark of
    being correct, that fact alone makes NO sense) and a highly supportive governor
    Douglas signed them. Despite suggestions
    made here and elsewhere, Republican politicians overwhelmingly supported these
    laws. It also explains why the passage
    of Act 74 was greeted by Entergy’s Jay Thayer with an email to VY employees the
    subject line of which read “GOOD NEWS.”

    In short, unlike the voting
    and abortion laws you cite which DO preclude the activities they regulate
    (voting and abortions), these laws did NOT have the effect the courts are now assigning
    to them.

    In the case of the voting and
    abortion laws, once a court has established a constitutionally problematic
    effect, the search for intent is needed to determine whether the effects were
    intentional or accidental, and if intentional, whether there is sufficient
    justification for their enactment to satisfy constitutional demands. No such inquiry is needed here, because the
    supposed effects do not follow from the laws as written. Before and after passage of these 2 laws, Vermont law effectively required
    legislative approval for the continued operations of Vermont Yankee. Indeed, it STILL DOES, even now, since both
    courts left section 6501a intact.

    Act 160 DID change the LOCUS of that approval from the PSB
    alone to a combination of legislative and Board approval, but as the Supreme
    Court stated in the Pacific Gas case: “While California is certainly free to
    make these decisions on a case-by-case basis, a State is not foreclosed from
    reaching the same decision through a legislative judgment, applicable to all
    cases.” (p. 215)

    Finally, since there is no
    lack of clarity in the texts of the laws, there is no need for any but the most
    superficial statutory interpretation, which should have determined that the
    laws mean precisely what they say. The courts’ forays into (incredibly
    distorted) legislative history are therefore without justification, a point the
    PG&E court also made on the following page (p. 216).

16. Mr. Greenberg, you are not an attorney or a judge, and we’ve heard enough, ad nauseum, of your dissertations about how everyone is wrong about Acts 160 and 74. No. The four federal judges were right and it you who are wrong.
    You’ve written hundreds of lengthy post here and elsewhere, in particular on VT Digger, since Judge Murtha’s decision, insisting that he got it wrong and expressing your absolute certainty that he was so wrong that the Second Circuit would obviously overturn him.
    Well, guess what. They affirmed him and it is you who are wrong on this issue.

17. Seven Days has some odd policies on posting etc.
    A.) you can see who gave thumbs up but no thumbs down
    B.) you can edit a post but not delete it
    C.) if you edit a post 7Days will just delete it….

18. first two are limitations on all Disqus installations I believe. Last one is slightly incorrect: if you’re involved in a childish pissing match full of personal attacks it will be deleted. Consider this your final warning (and that goes for you, Bob, as well), and also please know that while the pageviews are appreciated, being involved in a 30+ post internet fight is not a good look during those late summer days.

19. Tyler,
    I edited all my posts to eliminate the “pissing match” that was occurring. Oddly those edited posts were what was deleted…and Bob’s posts remained.
    I actually could understand why you deleted the original posts if they were all deleted prior to being edited and if Bobs were deleted as well. But the idea that you went through and deleted posts with a single word in them is just weird.
    Regardless, your site your perrogative… still just weird though

20. Well yeah, we’re going to delete posts that look like accidental posts or spambots gone awry, too. I know it’s unfortunate not to be able to delete your own comments, but, all the more reason to take a breath *before* you post.

21. Actually if you read them all in order they made a sentence, but it makes sense they were deleted as accidental posts I guess. But it couldn’t have been due to personal attacks as you suggest, just for clarification.
    Anyways…

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