When a nuclear plant that supplies 4% of the power to a region shuts down, something must replace it. In New England, natural gas will replace Vermont Yankee nuclear power. However, natural gas prices can spike much higher in the winter, as more people use it for heat.
The pending closure of a 41-year-old nuclear plant located in Vermont will likely affect both natural gas and electricity markets throughout New England. Entergy Corporation’s August 27 announcement of the closure of the Vermont Yankee plant cited economic challenges to continued operations at the 604-megawatt plant, which since 2007 has generated about 4% of New England’s total annual electricity supply. The shutdown is expected in fourth-quarter 2014.
The aging Vermont Yankee nuclear plant is way past its recommended lifetime. There have been continuing protests calling for it to be shut. William Boardman has written a series of articles about it here at Polizeros.
In a surprise announcement, Entergy says the plant will operate until 4th quarter 2014, then be decommissioned
Making the decision now and operating through the fourth quarter of 2014 allows time to duly and properly plan for a safe and orderly shutdown and prepare filings with the NRC regarding shutdown and decommissioning. Entergy will establish a decommissioning planning organization responsible for planning and executing the safe and efficient decommissioning of the facility. Once the plant is shut down, workers will de-fuel the reactor and place the plant into SAFSTOR, a process whereby a nuclear facility is placed and maintained in a condition that allows it to be safely secured, monitored and stored.
For the better part of a year, Vermont Yankee, Vermont’s only nuclear power plant which is owned by the Entergy Corporation of Louisiana, has operated unlawfully, without the necessary “certificate of public good” it needs from the state’s Public Service Board (PSB).
On December 4, the New England Coalition on Nuclear Pollution (NEC) filed a complaint with the Vermont Supreme Court, asking the court to issue an injunction that would shut down with Vermont Yankee immediately and keep it shut down until such time as Entergy complies with PSB orders and acquires a valid certificate of public good.
Both Entergy and the State of Vermont filed responses to the NEC motion, seeking its dismissal. On Wednesday, January 16, the Supreme Court has scheduled a half-hour hearing on the motions to dismiss. The docket lists two attorneys for the NEC and 17 for the other side.
If the court dismisses the NEC complaint, that will be the end of this case, although there are other Vermont Yankee cases pending before the PSB, as well and state and federal court. If the court does not dismiss the complaint, it will schedule a hearing on the merits of the NEC claim, and could then shut down Vermont Yankee.
Undisputed: Vermont Yankee Operates Unlawfully
The basis for the shut down, as presented by NEC attorneys Jared Margolis and Brice Simon, is relatively simple and direct in summary:
In June 2002, the PSB issued an order in connection with the sale of Vermont Yankee to the Entergy Corporation (PSB docket 6545). Â This order is referred to in the pleading as the “Sale Order.”
Condition 7 of the Sale Order gives Vermont Yankee a certificate of public good “to expire on March 21, 2012.”
Condition 8 of the sale order says that Vermont Yankee is “prohibited from operating” after March 21, 2012, without either a new or renewed certificate of public good.
To date, Vermont Yankee does not have either a new or renewed certificate of public good.
Based on these undisputed facts, the NEC argues, Vermont Yankee should be shut down.
Seeing this problem coming, Entergy had asked the PSB to amend the Sale Order to provide a certificate of public good that would allow it to keep Vermont Yankee running lawfully after March 21, 2012. On November 29, 2012, the PSB) handed down a 30-page decision that denied Entergy’s request to modify the 2002 Sale Order, pointing out that any hardship Entergy was suffering was of its own making.
Five days later, the NEC filed for an injunction to shut Yankee down.
In early 2008, Entergy had also filed for renewal of its certificate of public good (docket 7440), but that request is still pending.
Entergy and State Object to Law Enforcement
On timely fashion, Entergy asked the Vermont Supreme Court to dismiss the NEC complain, as did the Vermont Department of Public Service.
The arguments for dismissal included a preference for following the process for appeals laid out in the Vermont Rules of Appellate Procedure, rather that appealing to the Supreme Court in the basis of a Vermont statute, as NEC had done. The statute used by NEC states, in full (30 VSA 15):Â
30 V.S.A. Â§ 15. Decree of public service board; enforcementÂ
Â§ 15. Decree of public service board; enforcement
A party to an order or decree of the public service board or the board itself, or both, may complain to the supreme court for relief against any disobedience of or noncompliance with such order or decree. In such proceedings and upon such notice thereof to the parties as it shall direct, the supreme court shall hear and consider such petition and make such order and decree in the premises by way of writ of mandamus, writ of prohibition, injunction, or otherwise, concerning the enforcement of such order and decree of the public service board as to law and equity shall appertain. (Amended 1959, No. 329 (Adj. Sess.), Â§Â 39(b), eff. March 1, 1961.)Â
The NEC is a party to the Sale Order, which is “an order or decree” of the PSB. Since there is “disobedience or noncompliance” with the Sale Order, the NEC argues that the plain language of the status gives it the right to “complain to the supreme court for relief.”Â The plain language of the statute also appears to require the Supreme Court to act (“shall hear and consider”¦ and make such order and decree”¦.”)
Given the plain language of the statute, the PSB itself has the right to petition the Supreme Court for enforcement of its own orders. In this case it has not sought to enforce the terms of the Sale Order, even though it has ruled that Entergy is violating Condition 8 of that order.
Other Excuses for Not Enforcing PSB Order
Another argument for dismissal of the NEC complaint, as expressed by the state, is that “other reasonable relief is available in pending proceedings before both the Board [PSB] and the [U.S.] Second Circuit Court of appeals.”Â Neither of these actions deals directly with the question raised by NEC of Yankee’s unlawful operation after March 21, 2012, although the PSB is considering whether to grant Yankee a new certificate of public good that would make continued operation legal for another 20 years, and perhaps retroactively.
The state argues that, because the PSB did not seek to enforce its own order in November, when it refused to amend that order (the Sale Order), that means that the NEC should be deprived of its independent right to seek enforcement as allowed by statute. Â Â The PSB has not been asked by any party to enforce the terms of the Sale Order. Â In its response to the state’s motion, the NEC wrote in part:
“What the Department apparently fails to understand is that whether Entergy must abide by the conditions in the sale order is NOT currently under review by the Board [PSB] or the Federal Court.”Â [emphasis added]Â
Once the Vermont Supreme Court has heard arguments from both sides, it will decide whether to dismiss the NEC’s request for enforcement, or to take evidence at a later date and decide what, if anything, it should do about the unlawful operation of Vermont Yankee. Meanwhile, that operation will continue.
The simple, and perhaps temporary reality is that the owner of the Vermont Yankee nuclear power plant, the Entergy Corporation of Louisiana, continues to operate the 40-year-old facility illegally. A complaint presently before the Vermont Supreme Court seeks an injunction ordering the plant to shut down immediately and to remain shut down until it is in full compliance with the law.
The New England Coalition on Nuclear Pollution (NEC) filed the complaint for injunctive reliefÂ against Entergy with the Supreme Court on December 4, based on an earlier 30-page decision issued by Vermont’s Public Service Board (PSB) on November 29. The PSB denied Entergy’s request to modify a 2002 agreement it had chosen to violate, pointing out that any hardship Entergy was suffering was of its own making.
Vermont Yankee has been controversial since before it went online in 1971 and grassroots efforts to shut it down have been joined over the years by the Vermont legislature, the governor, the attorney general and a variety of environmental organizations. Opposition increased after the melt-downs at Fukushima, where the reactors had the same generic General Electric design as Yankee.
This latest development in the legal entanglements of Vermont Yankee has its roots in the agreements Entergy made in 2002 when it bought the nuclear plant. At that time, the PSB’s final order in docket #6545 approving the purchase included several conditions, among which number 8 stated:
“Absent issuance of a new Certificate of Public Good or renewal of the Certificate of Public Good issued today, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. are prohibited from operating the Vermont Yankee Nuclear Power Station after March 21, 2012.” Â Â [emphasis added]
At present, Vermont Yankee is operating without any Certificate of Public Good, since the PSB has neither extended the original one nor approved a new one. Â In its November 30 order, the PSB noted that Entergy had chosen to continue operating Vermont Yankee even after the PSB pointed out that the explicit terms of continued operation had not been met. Â The PSB is expected to decide the Certificate of Public Good question in the latter part of 2013.
Can’t Meet the Standard?Â Change the Standard!Â
In response to the PSB order, Entergy officials told Reuters the decision would have no immediate impact on the operation of Vermont Yankee. Tacitly acknowledging Yankee’s non-compliance with PSB orders, James Sinclair of Vermont Yankee said, “We had asked for amendments [of PSB orders] so that our operations would conform to those orders.”
As a party to these PSB proceedings, the NEC has the right under Vermont law to seek relief directly from the Supreme Court. The NEC has asked the court to hold an expedited hearing on the injunctive relief, calling continued non-compliant operation “entirely egregious.”Â In its complaint, the NEC states:
“The Court should find that Entergy is operating the plant in direct violation of Condition 8 of the Sale Order in Docket 6545”¦Â and enjoin Entergy from continuing to operate the Vermont Yankee plant until the Board [PSB] has rendered a decision on Entergy’s application for a new or amended CPG [Certificate of Public Good].”
The PSB noted in its order of November 30 that its 2002 order had already been amended once to authorize Entergy “to own and operate Vermont Yankee beyond March 21, 2012, solely for the purpose of decommissioning.”Â [emphasis added]
That PSB order also addressed on-site storage of spent nuclear fuel. Nuclear plants across the country are generating more spent fuel the longer they keep running, and some are running out of storage space. They have nowhere to send it.
The Board denied Entergy’s motion to amend the previous order under docket #7082, which has conditions that “limit the amount of spent nuclear fuel that Entergy VY may store at the Vernon site to amounts generated from operation up to March 21, 2012.”Â Any spent fuel generated after that date and stored at Vermont Yankee would be a violation of the order.
Vermont Yankee’s Other Legal and Regulatory Issues
While people don’t seem to keep score on these things, if Vermont Yankee isn’t one of the most harried nuclear power plants in the country, then others must be all but smothered. A sampling of Vermont Yankees issues and challenges includes:
Operating without a discharge permit for the hot water it dumps regularly into the Connecticut River. Yankee continues to operate under a permit that expired in 2006, but is considered valid while litigation and federal rules-making processes play themselves out;
Listed as one of New England’s worst polluters in 2012. Yankee made the Toxic Action Center’s “Dirty Dozen” list for the fourth time in a decade. Also on the list are the Pilgrim nuclear power plant in Massachusetts, the Public Service Company of New Hampshire, and the Enbridge Tar Sands Pipeline that runs through Maine, New Hampshire, and Vermont.
In another regulatory proceeding, Vermont Yankee is seeking permission from the Nuclear Regulatory Commission to build a diesel generator on site at the nuclear power plant to provide backup power in the event of a power failure. Â Its contracts with current backup providers expire in 2013, with little chance of being renewed.
Although Entergy won a federal lawsuit against the state of Vermont in January, the state has appealed and the case is waiting for a hearing.
In September, Entergy Â sued the state again in federal court over a tax hike that passed the legislature and put Yankee’s tax rate closer to other electricity generators. That case was dismissed.
Waiting for the Vermont Supreme Court to Weigh In
At the Conservation Law Foundation, which is one of the many parties to the Yankee proceedings before the PSB, senior attorney Sandy Levine recently summed up her perspective on Entergy’s northernmost holding, under the headline, “Vermont Yankee is in a Tight Box” —
“Entergy knew and agreed to the commitment not to operate after March 2012 and had ample time to challenge or seek amendment earlier. Entergy didn’t.
Instead, Entergy chose to defy the Board’s orders, walk away from its commitments, thumb its nose at Vermont and just continue to operate. It then asked the Board to change the prior orders, claiming hardshipÂ and that being held to its prior commitments was somehow unforeseeable.
The Board roundly rejected each of Entergy’s claims. Any hardship is Entergy’s own making based on its own tactical decisions, andÂ does not justify changing the rules after the fact.
Entergy’s in a very tight box. It cannot prove to the Board that it is a trustworthy operator when at the same time it is operating in bold defiance of the same Board’s orders.”
One of Entergy’s more immediate tasks now is to respond to the New England Coalition’s request for an injunction. Â According to Vermont Public Radio, “An Entergy spokesman said the company is evaluating the New England Coalition motion and will file a response with the court. The company said it’s focused on operating Yankee in a safe and reliable manner.”Â But unless Entergy is more persuasive than it was before the Public Service Board, the Vermont Supreme Court could shut down Vermont Yankee at least for the time being.
They were arrested at a nuclear power protest at the Vermont Yankee plant. The Vermont justice system may have wanted just another routine jury trial on charges of criminal trespass, but for the accused six grandmothers the day-long trial was also an opportunity to bear witness, each in her own polite way, that they had acted out of conscience to protect themselves and others against the dangers of an aging nuclear power plant in particular and against the general danger of nuclear power to the planet.
That’s the rather strange context for a day-long trial in Windham County Superior Court in Brattleboro on November 27, when six Massachusetts women, aged 64-93, faced possible jail time and fines up to $500, if convicted, for padlocking shut the gate to the Vermont Yankee nuclear power plant and then chaining themselves to that gate on August 30, 2011. The women, who have been arrested often in at least 21 other protests against Vermont Yankee since 2006, freely admitted these alleged acts, denied they were trespass, and welcomed the opportunity to explain why they acted.
Superior Judge John Wesley interpreted the women’s position to be an assertion of the “necessity defense” (see below) and ruled that that defense was not allowed. But he also took notice that the women were representing themselves, without attorneys, and that as pro se parties they would have unusual leeway in their testimony.
The resulting courtroom scene was only part legal proceeding. It was also part political theatre, part group therapy, and part something of a spiritual teach-in, with an audience of dozens of supporters for the women who are part of the Shut It Down Affinity Group, a bi-state association of activists focused on Vermont Yankee. Â One of the supporters, Dusty Miller, described her response to the trial of what she called “actions motivated by conscience”:
Yesterday, I spent the day in a Brattleboro courtroom, witnessing the trial of six white-haired grandmothers who were charged with trespassing at the gates of Vermont Yankee”¦.
Yesterday, I was repeatedly moved to tears. I was inspired and challenged by the actions and the courage of the women I was there to support.
Most important, I felt hope again, hope that ordinary citizens can take a stand against corporate powers who pollute our earth and water with impunity.
Vermont Yankee is located on the Connecticut River in southeast Vermont, close to both the New Hampshire and Massachusetts borders. There has been regional grassroots resistance to the plant since before it opened in 1972. That resistance has increased significantly in recent years as Vermont’s governor, attorney general, and legislature have all joined in the effort to close the plant. Â Vermont Yankee’s safety record has been uneven and deteriorating, including releases of radioactivetritium that has reached the Connecticut River.
Even Vermont law enforcement, particularly the Windham County State’s Attorney Â (county prosecutor) whose jurisdiction includes Vermont Yankee, has taken a soft approach to protestors at the site – arresting hundreds of people in recent years, often including these women, but prosecuting none – until this case.
When the six grandmothers set out from Massachusetts on August 30, fifteen months ago, they were aware that Tropical Storm Irene had passed though New England and that it hadn’t had much impact where they lived. In retrospect, one of them, Mary Kehler, 64, of Colrain, said that they would have re-scheduled their long-planned protest if they had realized how hard parts of Vermont had been hit by Irene.
Not knowing, they proceeded with their plan to block Vermont Yankee’s main gate with non-violent civil disobedience, chaining themselves to the gate and shutting it down till they were arrested, while causing only minor disruption to the plant’s operation. This was not the first time any of them had been arrested at Vermont Yankee. They have demonstrated there several times since, most recently on October 17, when police arrested 12, including four of the defendants.
The Shut It Down Six include a professor, social worker, mediator, and psychologist, and each woman told her story in her own way as well as in coordination with others. Given great latitude by the judge, the women’s testimony drew frequent objections from the state, some of which were upheld, some not. Deputy state’s attorney Steven Brown prosecuted the charges on behalf of the State of Vermont and kept his presentation narrowly focused on the facts, which were undisputed.
Judge Bars Use of Necessity Defense
While Judge Wesley denied the women the right to argue a necessity defense that they had not formally asked for, he allowed them to testify expansively, between objections, so that the jury of four men and eight women ended up hearing testimony that partly supported a necessity defense without actually clarifying it directly. Â Â In essence the necessity defense involves the admission of a crime, but argues that the crime was necessary to avoid a greater crime or a greater harm.
Perhaps the best-known use of “necessity” in Vermont is the 1984 case of the “Winooski 44,” in which opponents of arms sales to the Nicaraguan contras staged a three-day sit-in that obstructed Republican Senator Robert Stafford’s office. Twenty-six people were arrested on trespass charges in March and at their November trial they presented a necessity defense, complete with expert witnesses including historian Howard Zind and former U.U. Attorney General Ramsey Clark. Â The jury acquitted all 26 defendants and the state did not appeal.
In the Winooski 44 case, the trespass at the Senator’s office was justified by defendants as making it more difficult for him to support the Reagan Administration’s covert and illegal war in Nicaragua. By comparison, the Shut It Down Six argued that they were trespassing in order protect themselves and their neighbors downstream, and sometimes downwind, from Vermont Yankee which continues to generate lethal radioactive waste as long as it remains open.
Judge Wesley, in ruling against a necessity defense, cited a 1979 Vermont Supreme Court case, State of Vermont v. John Warshow et al., which stemmed from an earlier protest at Vermont Yankee. Â That case, apparently wrongly decided, comprises three distinct opinions from the court’s five justices, with the majority upholding the trial court’s denial of the necessity defense primarily because the defendants had not shown any example of an “imminent danger classified as an emergency sufficient to justify criminal activity.”Â Â But Justice Frederick Billings, in dissent, wrote that defendants had warned that re-starting Vermont Yankee would lead to an immediate meltdown. Someone got it wrong.
Any case with this great a discrepancy in perceived facts generally goes to a jury. As Chief Justice Paul Reiber wrote in a more recent dissent in a drug case,
Ultimately, this is a case in which the necessity defense should be heard by a jury. Indeed, it is a case where defendant’s actions cannot be explained in any way other than through a presentation of the necessity defense”¦.
Ascertaining the “ultimate truth or falsity” of defendant’s necessity defense is “the principal mission of the jury,” and the trial court should have squarely presented the defense to the jury so that they could “confront it, consider it, and resolve its truth or falsity by their verdict.”Â Â State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58 (1955)Â
Â With a Full Courtroom, the Trial Had an Unusual Texture
It is not clear that the Shut It Down Six could have met the test for a necessity defense, had they had to address it formally. But they didn’t request it, though they mentioned it and referred to Warshow, and the judge denied it, while still allowing much of their testimony, so the jury still heard enough evidence to consider it, although the judge instructed them not to. Regardless of whatever legal confusion there may have been, as one observor put it, “the whole atmosphere in the court room – at least until the closing arguments and sentencing – was of mutual respect and kindness; there was a good deal of humor as well.”
During the trial, Frances Crowe, a 93-year-old Quaker from Northampton, started to discuss the inherent danger of the crowded spent fuel pools at Vermont Yankee. Prosecutor Brown objected and Judge Wesley ordered her to stop. Â One observer noticed what she thought was a pattern, that the judge would allow no discussion of fuel rods, tornados, or Fukushima.
At one point, Harriet Nestel, 73, of Athol, commented about Vermont’s efforts to control the behavior of the plant’s owner, Entergy Corporation of Louisiana:Â Â “They are operating illegally. They are the trespassers, and we are the enforcers of the state’s will.”Â Â She could not make the further argument that her crime of trespassing was a lesser harm than the continued illegal operation of Vermont Yankee.
At another point, reinforcing his ruling against any necessity defense, Judge Wesley said, “This trial is not about the legality of Vermont Yankee’s continued operation.”
Although the women said their activism had intensified since the melt-downs at the Fukushima plant in Japan in March 2011, they couldn’t present evidence that those four failed reactors in Japan have the same generic General Electric design as Vermont Yankee’s reactor.
Nor could the women introduce evidence that Vermont Yankee, by virtue of its riverside site, is one of 34 American plants that the Nuclear Regulatory Commission (NRC) specifically considers at risk of flooding due to upstream dam failure. Â The NRC suppressed a report with those findings until a whistleblower recently released them, indicating that Vermont Yankee is a potential American Fukushima. Â According to NRC risk engineers, although the likelihood of an upstream dam failure may be low, if there is a dam failure, then the likelihood of a melt-down at the downstream nuclear plant is close to certainty.
Â Was Protestors’ Real Crime a Tropical Storm?
During the trial, Prosecutor Brown stayed tightly focused on the trespass itself, mostly avoiding motivation and context. But after the jury returned with a verdict and it was time for sentencing, Brown argued for a suspended sentence of 30-45 days, on the condition of no further protests and the completion of 100 hours of public service. He justified the difference between this request and the hundreds of similar cases that were not prosecuted by blaming the six women for taking law enforcement personnel away from post-Irene response.
As the Rutland Herald’s Susan Smallheer reported it:
The case was unusual because it was prosecuted, while hundreds of other, identical cases have gone unprosecuted. But after the women were convicted, and set for sentencing, Windham County Deputy State’s Attorney Steve Brown said the women’s timing — and the fact that they pulled away needed resources from the police response to Tropical Storm Irene — needed to be computed into their sentence”¦.
Windham County prosecutors have, for the last 12 years or so, routinely declined to prosecute any protester cases, saying it was a misuse of limited court resources.
The evidence had shown that these women were well known to local authorities and that they required no special police handling. Brown did not establish that any personnel were actually needed elsewhere when they were arresting the Shut It Down Six, he did not establish how many personal were needed for the arrests, or whether the women could have been left chained to the fence until it was convenient for police to collect them.
Because he took no questions afterwards, prosecutor Brown could not be askedÂ whether this case constituted selective prosecution. Associated Press reporter Dave Gram raised this issue with the prosecutor’s office pre-trial, but got no explanation. Nor apparently did the judge inquire as to why these women were prosecuted when hundreds of other protestors similarly situated legally, had all had their charges dropped – even some of these defendants on other occasions.
For their part, the Shut It Down Six rejected community service, arguing that trying to shut down Vermont Yankee was itself community service. At least some of them invited Judge Wesley to send them to jail. The Judge refused.
How Does a Criminal Court do Justice to Nuclear Risk?
During the trial, as Dusty Miller wrote later:
Paki Wieland asked Vernon police Chief Mary Beth Hebert if, after the many times she had been called to Vermont Yankee to arrest these aging activists, “do you see us as unrepentant recidivists or persistent women?”Â
Officer Hebert smiled warmly, answering in an unmistakably affectionate tone “you are persistent!”
As the women masterfully conducted their own defense, spectators in the court room heard from police officers -Â and even VY’s head of security -Â that the protestors had been consistently respectful and non-violent. Here was another lesson in the patience and courage it takes to act from conscience.
Also during the trial, as the Brattleboro Reformer’s Mike Faher reported, Brown had intervenedÂ on the women’s behalf and “pointed out that it was allowable for the women to ask each other questions as cross-examination. [Judge] Wesley agreed and praised Brown’s ethics, and the courtroom audience erupted in applause.”
In addition to Crowe, Kehler, and Nestel, the other defendants were Nancy First, 82, and Paki Wieland, 68, both of Northampton, and Ellen Graves of West Springfield. The Shut It Down Six have 30 days from the verdict to appeal.
As the judge thanked the jury for struggling with the case, he commented: “This has been a difficult trial with difficult issues of conscience” — even if he hadn’t allowed the Shut It Down Six to argue those issues conscientiously. Â The judge also commented that: “There are certain criminal behaviors for which the criminal justice system is a pretty crude instrument.”
For all its relevance to serious, intractable public issues, substantive media coverage of this trial was largely limited to the Rutland Herald’s Susan Smallheer and the Brattleboro Reformer’s Mike Faher. A brief Associated Press report with little context or detail was picked up by news media around the country
What the rest of the country learned was that the judge fined the women $350 each for trespassing. What the rest of the country did not learn was that the Shut It Down Six told a reporter they wouldn’t pay the fine, and that the prosecutor said that if they didn’t pay, the matter would be turned over to a collection agency.