avatar
Entergy’s Case against Vermont is Seriously Flawed


                                  Entergy’s Case against Vermont is Seriously Flawed
                                                              by James Marc Leas
 
Implementing a two-pronged attack, Entergy is combining court action with a massive public relations campaign to keep its Vermont Yankee nuclear plant operating after March 21, 2012. The effort to win over public support–or at least prevent a landslide of opposition to its suit in Vermont–is an essential part of Entergy’s legal strategy. The public relations campaign is especially important in view of Entergy’s case against Vermont state officials being so incredibly weak.
 
Entergy’s suit in federal court against Vermont [1] seeks an injunction to prevent enforcement of Vermont law regarding the extended operation of Vermont Yankee and to prevent state officials from taking any steps to shut down Vermont Yankee on its scheduled closing date of March 21, 2012.
 
Entergy also wants the court to issue a judgment that federal law preempts Vermont officials from requiring Entergy to have any kind of state approval of a certificate of public good to operate the plant or store spent fuel there. The suit also seeks a court judgment that federal law preempts Vermont officials from conditioning operation of the plant after March 21, 2012 on Entergy’s agreement to provide below-market electricity rates to Vermont.
 
One day after filing its suit Entergy published full page ads in newspapers around the state with a folksy sounding letter to Vermonters [2] signed by J. Wayne Leonard, Entergy’s Chairman and CEO. 
 
Leonard’s letter asserts that Entergy’s rights are being violated by Vermont. Leonard acknowledges that Entergy “entered into an agreement with the state [3] that we would secure a Certificate of Public Good from the Vermont Public Service Board if we wanted to extend the license of the plant beyond March of 2012.” But Leonard says that in 2006 the General Assembly “substantially changed our agreement with the state and deprived us of certain critical rights that we relied upon in purchasing the plant.” The letter recognizes that many Vermonters do not agree with extending operation of Vermont Yankee past 2012, but Leonard appeals to the fair mindedness of Vermonters and seeks to persuade us that Entergy has law on its side and its cause is just.
 
Specifically, Leonard charges that Act 160, the law passed by General Assembly in 2006 [4] (unanimously in the House, 18-5 in the Senate, and signed by Governor Jim Douglas) denied Entergy its rights.
 
Act 160 provided that Vermont Yankee could not operate beyond the date permitted in its certificate of public good, March 21, 2012, unless the Vermont legislature approved and until the public service board issued a certificate of public good.
 
On February 24, 2010 the Vermont Senate voted down S. 289 [5] by a vote of 26-4. The bill, if passed, would have approved the continued operation of the VYNPS and the storage of spent nuclear fuel derived from the operation of the VYNPS until March 21, 2032.
 
Leonard claims that Entergy’s rights were denied because:
 

each of the bills introduced over the past year to grant such approval has either been voted down or allowed to languish. Whether it’s a “no” vote, or no vote at all, the effect is the same. The legislature has denied Entergy the opportunity to secure a Certificate of Public Good (CPG) from the Public Service Board.

 

This is obviously entirely different from what we agreed to back in 2002. We agreed to a process in which an independent expert agency would decide Vermont Yankee’s future based on evidence and facts developed through an impartial process with the possibility, if necessary, of court review. We did not agree to a process involving the Legislature, which is inherently political.

 
The Senate vote was indeed political in the sense that it conformed to the will of a majority of the people of Vermont. For example, it was consistent with town meeting votes in 51 Vermont towns in 2009 and 2010 that asked the legislature to “(1) deny approval for the operation of Vermont Yankee after March of 2012, which marks the end of its 40 year design life; (2) require that the Entergy Corporation of Louisiana fulfill its pledge to fully fund the cleanup and decommissioning costs of closing Vermont Yankee; and (3) seek safe, renewable, regional sources of electricity combined with efficiency and conservation measures to replace the power presently provided by Vermont Yankee.”
 
The Senate and town meeting votes were affirmed in the gubernatorial election when the candidate most clearly calling for Vermont Yankee to close on schedule won a primary election and the general election.
 
The agreement Leonard says that Entergy entered into with the state is called a “Memorandum of Understanding” (MOU). Along with three Vermont utilities (GMP, CVPS, and VYNPC) and the Vermont Department of Public Service (DPS) two Entergy-owned companies (called ENVY and ENO) that now own and operate Vermont Yankee signed the MOU on March 4, 2002. VYNPC is the Vermont Yankee Nuclear Power Corporation, the company that previously owned and operated the plant and sold the plant to Entergy. The DPS is an executive branch agency that supported Entergy’s offer to buy Vermont Yankee based on Entergy signing the MOU. Also mentioned in the MOU is the VYNPS which is the Vermont Yankee Nuclear Power Station. “The Board” is the Vermont Public Service Board.
 
Only one paragraph of the MOU is relevant to permission for operation of Vermont Yankee after 2012. Here is the full text of this paragraph:
 

12. Board Approval of Operating License Renewal: The signatories to this MOU agree that any order issued by the Board granting approval of the sale of VYNPS to ENVY and any Certificate of Public Good ("CPG") issued by the Board to ENVY and ENO will authorize operation of the VYNPS only until March 21,2012 and thereafter will authorize ENVY and ENO only to decommission the VYNPS. Any such Board order approving the sale shall be so conditioned, and any Board order issuing a CPG to ENVY and ENO shall provide that operation of VYNPS beyond March 21,2012 shall be allowed only if application for renewal of authority under the CPG to operate the VYNPS is made and granted. 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.

 
The Vermont General Assembly was not a party to the agreement. Nothing in this paragraph says that democratic decision making is barred in Vermont or that decisions must only be made by “an independent expert body.”
 
In exchange for Entergy’s agreement to the MOU, Entergy got crucial DPS support for the Board to approve Entergy’s offer to purchase and operate Vermont Yankee. The Board approved the purchase based on the supporting recommendation from the DPS. Since its 2002 purchase, Entergy has raked in billions of dollars of revenue from the sale of electricity from Vermont Yankee. If Entergy manages to keep Vermont Yankee running, Entergy would take in another $6 billion from electricity sales over the next twenty years at current 6 cents/kW-h market prices.
 
“Expressly and irrevocably agrees”
Though Leonard mentions the 2002 agreement in his letter, he omits mentioning that the agreement uses the especially strong phrase–“expressly and irrevocably agrees” concerning the last two of its terms.
 
Interestingly, even in Entergy’s 57 page filing with the federal court, while Entergy does quote extensively from the paragraph, somehow Entergy entirely omits mentioning the phrase “expressly and irrevocably agrees.”
 
Entergy’s thinking on leaving this phrase out of its complaint is not hard to fathom. Entergy may well be right if it is thinking that when you let a court know that you expressly and irrevocably agreed to something, your agreement was absolute and that nothing that happened later could change it. However, by leaving out the full text of the agreement that it needs the court to overturn, Entergy may be inadvertently illustrating for the federal court the serious problem Entergy has with telling the truth that was among the factors that led the Vermont Senate to overwhelmingly vote down approval of S. 289, the bill that would have authorized the PSB to issue a CPG if passed.
 
Entergy’s case before the federal court is based on its claim that federal law preempts state law, including jurisdiction of the Public Service Board. One of the things that Entergy “expressly and irrevocably” agreed in the MOU was that it waives any claim that federal law preempts the jurisdiction of the Board. Entergy’s failure to let the court know that it did in fact expressly and irrevocable agree to waive such a claim may indicate that Entergy desperately wants to downplay these words and this commitment.
 
When the Attorney General submits its response to the Entergy lawsuit we will know what the AG considers to be the state’s strongest legal arguments. In the meantime, in an effort to counter Entergy’s massive public relations campaign, I present here some of the facts and law that may be raised. Readers will see that Entergy is in an incredibly weak position and the public should not lose heart or feel overwhelmed by its corporate money and power and its lavish public relations campaign.
 
Entergy is correct that public sentiment is an important factor, and public participation in visible action to defend the state against Entergy, such as letters to the editor, attending the trial, and participation in other public events, will help immeasurably to counter Entergy’s two-pronged attack. 
 
Let’s review, in plain language the five things Entergy agreed to in the relevant paragraph of the MOU quoted above:
 

  • Entergy agreed that the certificate of public good (CPG) issued by the Board in 2002 would authorize Entergy to operate the plant only until March 21, 2012.
  • Entergy agreed that the CPG issued by the Board in 2002 would authorize Entergy only to decommission the plant after that date
  • Entergy agreed that operation of the plant beyond March 21, 2012 shall be allowed only if an application for renewal of authority under the CPG to operate the plant is made and granted.
  •  Along with the utilities, Entergy further “expressly and irrevocably” agreed (a) that the Board has jurisdiction under current law to grant or deny approval of operation of Vermont Yankee after 2012.
  • Along with the utilities, Entergy further “expressly and irrevocably” agreed (b) to waive any claim that federal law preempts the jurisdiction of the Board.

 
In its complaint with the federal court, Entergy argues that
 

Vermont later repudiated the MOU, breaching that agreement and excusing ENVY's and ENOI's obligation to furthercomply with its conditions (specifically, the waiver provision) by enacting statutes eliminating the PSB's "jurisdiction under current law" as set forth in the terms of the MOU and instead requiring the  direct approval of the Vermont General Assembly before the PSB could issue a CPG for the Vermont Yankee Station's post-March 21, 2012 operation or for the storage of spent nuclear fuel derived from post-March 21, 2012 operation.

 
First, Entergy takes the phrase, "jurisdiction under current law" out of context. In the MOU the phrase is merely a statement of the agreed upon fact that the Board has jurisdiction under current law to grant or deny approval of operation of Vermont Yankee after 2012. In its filing with the court Entergy attempts to rewrite that statement of agreed fact as a condition.
 
Second, nothing about the 2006 Vermont law changed Board jurisdiction to grant or deny a permit once the General Assembly voted its approval. Act 160, the law that was unanimously passed by the Vermont House, was consistent with the Board having jurisdiction to grant a CPG and recognized the Board as having that jurisdiction. The law provided that the Board could initiate its investigation before the legislature acted. The law merely added the favorable vote by the General Assembly as a condition before the Board could issue a final order or grant a CPG.
 
In a sense Act 160 put the Vermont legislature on an equal footing with Entergy. Under the MOU, Entergy had the choice whether or not to make an application for renewal of authority under the CPG to operate after March 21, 2012. Entergy had discretion based on business considerations as to whether or not to apply to initiate consideration by the PSB. Act 160 similarly gave the elected legislature discretion based on any of the considerations not preempted by federal law before the PSB could finalize its decision. Act 160 thus put the elected representatives of the people of Vermont and the Entergy Corporation on an equal footing.
 
When considering the MOU in 2002, Entergy knew that Vermont was a democracy and that the people of Vermont, through their citizen legislature were free to pass laws. With significant public opposition to a 20 year extension in Vermont, and with the precedent of the citizens of Sacramento, California voting to close the  Rancho Seco nuclear plant [6] in 1989, it was foreseeable that among the laws the legislature could pass was one adding an additional condition, such as a favorable vote in the legislature before the PSB could issue a final order or grant a CPG.
 
Furthermore, Entergy knew that Vermont has three branches of government that have separate powers and that provide checks and balances on each other. Entergy knew that the DPS, the state agency that signed the MOU, was a part of the Executive Branch. Entergy knew that the Vermont legislature was not a party to the 2002 agreement. Entergy’s argument that the state of Vermont breached the agreement fails to recognize that only the executive branch was a party to the agreement and that the legislature was responsible to exercise its proper function to check and balance.
 
Furthermore, Entergy knew that Vermont’s citizen legislature might be responsive to the views of the people of Vermont as expressed in polls, town meeting votes, elections, and civic participation. Entergy’s massive public relations campaign illustrates Entergy’s knowledge that public support for Vermont Yankee to operate after its 40 year design life ends in 2012 is important. Thus, Entergy should have known that operating the plant prudently, including avoiding taking maintenance risks, was important to obtaining a positive vote in the legislature.
 
Entergy took such risks, with the result that a fire broke out adjacent a transformer in 2004 and its cooling towers collapsed in 2007. Failing to learn from that event, Entergy continued to take such risks and tritium and strontium 90 leaked from underground pipes into Vermont groundwater in 2009 and safety valves designed to pump water into the reactor core to cool it during an accident were found to be inoperable during a refueling outage in 2010.
 
When Entergy chose not to do the preventive maintenance that would have prevented those problems and when Entergy chose to make false statements under oath to the Public Service Board considering its request for a twenty year extension, Entergy took on the responsibility that it would discredit itself as a prudent, capable, and honest operator worthy of trust, respect, and admiration. It was Entergy that made the choices that led to its foreseeable loss of the public support that its own massive public relations campaigns demonstrates it knew was necessary in a democracy for approval for operation after 2012.
 
Furthermore, Entergy demonstrated that it knew how to handle such foreseeable circumstances in the MOU. The MOU includes at least 6 conditional provisions, including ones that allow Entergy freedom of action if certain conditions are not met. One of those provisions provides:
 

in the event that the Board fails to approve this agreement in its entirety or acts to overrule or disapprove any portion hereof, each such party agrees that their agreement set forth herein may terminate, if such party so determines in its sole discretion, and each shall have the same rights as each would have had absent this Memorandum of Understanding.

 
Entergy could have included a similar provision concerning an act by the legislature that added an additional step, such as the one actually passed by the legislature. Notably, even with regard to the Board, Entergy did not include a termination condition if the Board decided to add an additional step. The fact that the agreement includes an express termination condition if a provision is overruled or disapproved means that any other event, such as an additional step added by the Board, is not grounds for termination. Similarly, in view of the actual termination provision included in the agreement, an additional step added by the legislature is even more unlikely to be found to be grounds for termination.
 
Entergy could have included a condition on its promises if anything about the law regarding Board approval changed. Instead, Entergy did the exact opposite when it "expressly and irrevocably" agreed that the Board had jurisdiction and that it waives a claim to federal preemption. That phrase meant that its agreement on those two points was absolute.
 
Furthermore, it is worth mentioning that while the phrase “under current law” appears in jurisdiction point (a) of the provisions that Entergy “expressly and irrevocably agrees,” a phrase about current law does not appear in the separate waiver provision (b).
 
Assuming, for the moment, that the reference to current law in jurisdiction point (a) could be construed as a condition, the fact that “current law” was expressly cited under point (a) must be because there was no automatic presumption that point (a) was subject to “current law.” Because the agreement does not include anything about current law expressly in the separate point (b), the MOU should be interpreted as meaning that only point (a) is subject to a current law condition and that point (b), contrary to point (a), is not subject to the law that was current at the time the MOU was entered into.
 
Had the parties to the agreement intended that waiver point (b) was dependent on current law in any way, or indeed subject to any other contingency, they could and should have expressly stated that in point (b), just as Entergy contends they did in point (a). The parties did not, and so should be held to what they actually did undertake in point (b), namely an ABSOLUTE waiver of ANY claim regarding federal preemption.
 
However, even with regard to point (a), in adopting act 160, the legislature did not change the law regarding jurisdiction by the board. The board had jurisdiction under current law in 2002 and it has jurisdiction under current law in 2011. At most act 160 added the legislature into the process as a step before the board could issue its final order. Entergy cannot argue that act 160 took jurisdiction away the Board.
 
Thus, Entergy’s case that Vermont “repudiated the MOU” appears to hinge on tenuous propositions, including:
 

  • the idea that a body that is not party to an agreement can breach the agreement
  • the idea that the legislature might pass a law adding itself to the approval process “could not have been predicted when Entergy purchased Vermont Yankee”
  • the idea that the law changed the jurisdiction of the PSB
  • the idea that Entergy “expressly and irrevocably” agrees (b) to waive any claim to federal preemption is not in force because point (a) about jurisdiction included a phrase about current law

 
Entergy may not like the terms of the agreement it signed but they have only themselves to blame for the terms they negotiated, drafted, and agreed to.
 
Even if Entergy succeeds in showing that the MOU was repudiated by the state, Entergy will still have to prove its claim that the federal government preempted the entire field of nuclear power to make its case that Vermont law be overturned, that Vermont participation in the decision about operation of Vermont Yankee after 2012 is illegal, and that based on federal approval alone Entergy can continue to operate Vermont Yankee past 2012. Entergy may also have to contend with motions by the Attorney General to dismiss one or more of Entergy’s requests. Among those motions may be one to dismiss Entergy’s request for a temporary and permanent injunction based on the fact that Entergy engaged in bad acts. Another may be a motion to dismiss based on Entergy having sat on its right to assert that the state repudiated the MOU for too long and/or that federal law preempts state law.
 
 
Preemption
Entergy’s complaint states:
 

The AEA [Atomic Energy Act] vests in the NRC exclusive jurisdiction over the licensing and operation of nuclear facilities. State laws and regulations requiring a state license for plant operation or otherwise having a direct and substantial effect on plant operation are preempted under the Supremacy Clause, U. S. Const. Art. VI.

 
Entergy provides no authority for this assertion.
 
However, in a unanimous decision, the US Supreme Court addressed the preemption issue in a 1983 case [7] affirming that “the Atomic Energy Act constituted authorization for States to regulate nuclear power plants for purposes other than protection against radiation hazards.” The Supreme Court held:
 

(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California's avowed economic, rather than safety, purpose as the rationale for enacting § 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 461 U. S. 205-216.

 
Entergy’s position is inconsistent with this unanimous Supreme Court decision.
 
Bad Acts
Entergy’s bad acts include making a false statement under oath to the Vermont Public Service Board in the proceeding concerning Entergy’s petition for a CPG to operate for twenty years after March 21, 2012. The false statement was that there were no underground pipes that could leak tritium. The PSB issued an order [8] that levied a fine on Entergy for making the false statements in June 2010. The fine is to be paid to intervening public interest groups for the costs those groups incurred in addressing Entergy’s false statements. The company acknowledged the false statements and removed Executive Vice President Curt Herbert and several other company officials, including site Vice President Jay Thayer.
 
In the part of its order responding to a request by the public interest organizations to dismiss Entergy’s petition for authority to continue operation after 2012 because of the false statement the PSB noted that “Entergy VY maintains that dismissal with prejudice would amount to a final order on the relicensing petition, and as such is barred by 30 V.SA. § 248(e)(2) [the 2006 law, Act 160] until the General Assembly has itself made a decision on the relicensing question.”
 
In Leonard’s letter and in its lawsuit against Vermont, Entergy asserts that the 2006 law prevented the Board from approving its petition to operate after 2012. However, Entergy should get down on its knees and thank the legislature for passing Act 160 in 2006 since the record of the Board proceeding shows, to the contrary, that Entergy actually successfully relied on the 2006 law, Act 160, to avoid having its petition dismissed by the PSB because of its false statement to the Board.
 
Bad acts in the proceeding may disqualify the company from being considered for such equitable relief as an injunction. Guidance on this issue was supplied by the US Supreme Court that affirmed a lower court dismissal of a complaint by a company that had made false statements to the patent office to obtain the patent it was seeking to enforce. The Supreme Court said:

The guiding doctrine in this case is the equitable maxim that "he who comes into equity must come with clean hands." This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be "the abetter of iniquity." 

[o]ne's misconduct need not necessarily have been of such a nature as to be punishable as a crime or as to justify legal proceedings of any character. Any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the maxim [that "he who comes into equity must come with clean hands."] . . .

Moreover, where a suit in equity concerns the public interest, as well as the private interests of the litigants, this doctrine assumes even wider and more significant proportions. For if an equity court properly uses the maxim to withhold its assistance in such a case, it not only prevents a wrongdoer from enjoying the fruits of his transgression, but averts an injury to the public. The determination of when the maxim should be applied to bar this type of suit thus becomes of vital significance. [9] US Supreme Court decision: Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (1945)

 
When testifying on this issue of vital public interest to the PSB in the proceeding to extend operation for twenty years after 2012, Entergy officials knew or should have known that its plant had the underground piping. Entergy only got caught in its false statement when that piping began to leak tritium and other radioactive nuclides into Vermont groundwater.
 
The false statements under oath in the relevant proceeding could well be sufficient to bar Entergy from getting the injunction it needs to continue operation after March 21, 2012 without Vermont state approval.
 
But in this case it was more than a matter of false statements. Entergy knew that many other nuclear plants had leaked tritium from underground pipes, the issue was identified as an item for investigation in a 2008 Vermont statute, as Entergy acknowledges in its complaint (paragraph 71), and Entergy had dug several wells to monitor for leaks from underground piping. Yet, Entergy did not take action to inspect its underground piping and replace defective or damaged sections before they leaked. Instead Entergy relied on monitoring for leaks, and only after a leak was found did it search for and repair just those leaky sections. Thus, Entergy did not just make false statements to state officials to improve its position with regard to the certificate of public good it sought for extending operation of the plant for 20 more years. Entergy is continuing to knowingly leave Vermont vulnerable to more leaks into its land and groundwater. This is an ongoing bad act.                                                                     
 
A good case could be made that Entergy’s bad acts disqualify it from having the equitable relief of an injunction against the state of Vermont approved by a court. As the US Supreme Court said, the doors of the court should be closed against them.
 
Laches and Acquiescence
An explanation of the law regarding the equitable defense that applies when a party demonstrates a lack of diligence in enforcing a right and the party asserting the right is harmed by the delay is provided in US Supreme Court cases from 1929 and 1904 [10] and in a Court of Appeals for the Second Circuit case from 1976.
 
Entergy now claims that it has the right to operate Vermont Yankee after 2012 based on federal preemption and Entergy seeks an injunction to prevent operation of Vermont law and to stop Vermont officials from acting to close the plant on March 21, 2012. However, not only did Entergy fail to assert its alleged right to federal preemption for the past ten years, and not only did Entergy acquiesce to the alleged wrong for all that time, Entergy actively engaged from 2001 (before it even bought the plant) until now with the Vermont Department of Public Service and the Vermont Public Service Board and got vast benefit from its engagement. Its undue delay in asserting its alleged right to claim federal preemption could mean that Entergy gave up on its right, if indeed it ever had one.
 
Furthermore, five years ago the legislature adopted Act 160 which Entergy now says revoked its obligations under the MOU. At the time Entergy did not oppose the legislation, it passed the House 130-0, and Governor Jim Douglas signed. Entergy made no announcement that the legislation repudiated the MOU. Entergy took no legal action to secure its alleged right to be free of the conditions in the MOU from 2006 until now. During this time Entergy continued to participate in PSB and legislative hearings.
 
Also during this time the legislature, voters in Vermont towns, agencies, such as the PSB, and public interest organizations and civic minded individuals spent countless hours working to close Vermont Yankee in reliance on the enforceability of the MOU, in reliance on the enforceability of the 2006 statute, and in reliance on the state of Vermont having a say in all but safety matters.
In view of its inaction to assert and defend both its supposed right to federal preemption and its supposed claim that the state had repudiated the MOU in 2006, and in view of the reliance on the MOU and the 2006 statute by state officials and members of the public that the state has authority over non-health related matters at Vermont Yankee nuclear plant, Entergy may have a difficult time explaining why it did not give up its right to claim that the state has no authority when it waited so long to assert this claim.

Conclusion
Entergy’s lawsuit is entirely without factual or legal basis. Its arguments are about as leak-tight as its tritium-spewing Vernon nuclear plant. Its public relations campaign is as honest as its testimony to the Public Service Board about the existence of underground piping. The strongest element in Entergy’s case is that it is a multi-billion dollar corporation, and the courts have been carving out inordinate rights for corporations that demolish the rights of ordinary people. But we the people of Vermont can counter even this unfair advantage using the methods handed down to us by those who founded this state and this country and those who helped expand democracy and equal rights: pulling  together, building a visible grassroots campaign, and using our unlimited resource of love, compassion, faith, and courage to demand that the court dismiss Entergy’s bogus law suit and to support the excellent legal work we expect from the attorneys defending our state in the Vermont Attorney General’s office.
 
James Marc Leas is a patent lawyer in private practice in South Burlington. He served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island.
__________________________________
[1] The complaint filed by Entergy in its April 18, 2011 suit in federal court in Vermont:
http://www.entergy.com/content/investor_relations/pdfs/4-18-11_complaint.pdf
 
[2] J. Wayne Leonard’s letter to Vermonters: http://www.safecleanreliable.com/20110419.html
 
[3] The Memorandum of Understanding:  http://www.leg.state.vt.us/jfo/envy/6545 MOU.pdf
 
[4] Act 160, passed by General Assembly in 2006: http://www.leg.state.vt.us/jfo/envy/ACT160.pdf
 
[5] S. 289, the authorization for extended operation voted down by the Vermont Senate on February 24, 2010:  http://www.leg.state.vt.us/docs/2010/bills/Intro/S-289.pdf
 
[6]Time Magazine article about the vote to close Rancho Seco nuclear plant in California: http://www.time.com/time/magazine/article/0,9171,957975,00.html
 
[7] Preemption: In the U.S. Supreme Court, PG & E v. State Energy Comm'n, 461 U.S. 190 (1983), Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission: http://supreme.justia.com/us/461/190/case.html
 
[8] PSB order levying a fine on Entergy and rejecting a request to dismiss Entergy’s petition to extend operation of Vermont Yankee for 20 years because of its false statement about underground pipes in the proceeding, “ORDER RE: REQUESTS FOR SANCTIONS AND ATTORNEY'S FEES AND COSTS,” June 4, 2010: http://psb.vermont.gov/sites/psb/files/orders/2010/7440OrderReAttorneysFees.pdf
 
[9] Unclean Hands: In the U.S. Supreme Court, Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (1945) http://supreme.justia.com/us/324/806/case.html
 
[10] Laches and acquiescence: In the U.S. Supreme Court, Ancient Egyptian Arabic Order v. Michaux, 279 U.S. 737 (1929) http://supreme.justia.com/us/279/737/case.html
Patterson v. Hewitt, 195 U.S. 309 (1904) http://supreme.justia.com/us/195/309/case.html
and at the United States Court of Appeals, Second Circuit, Rochester v. U.S. Postal Service 541 F.2d 967 http://ftp.resource.org/courts.gov/c/F2/541/541.F2d.967.76-6065.1187.html

Leave a comment