Concentration of CO2 in the Atmosphere

Leas: Entergy’s Money v. the People of Vermont

Reprinted from the Opinion | July 25, 2011

Editor’s Note: This op-ed is by James Marc Leas,  a patent lawyer in South Burlington. He served as a staff physicist at the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island.

Last week’s federal court decision to deny Entergy’s motion for a preliminary injunction was an important victory for Vermont. But Entergy can take a great deal of encouragement from many of its parts.

In Judge Murtha’s decision on Entergy’s motion, facts and law prevailed over Entergy’s money argument. But it is a very temporary and tenuous success. The decision is worrisome because the judge signaled that he intends to give Entergy’s money argument greater weight and will give serious consideration to Entergy’s preemption argument and to a permanent injunction at the trial in September.

Winning this case could require more than continued excellent legal work by the Attorney General’s Office. The massive public sentiment in Vermont against further operation of this plant, sustained and made visible, may be needed as a counterweight to Entergy’s money argument, its massive public relations and its highly paid lawyers.

Entergy’s motion for the preliminary injunction was denied because Entergy could not show irreparable harm between now and a number of weeks from now when a final decision on the merits and a permanent injunction can issue after the trial scheduled to begin on Sept. 12. As the judge wrote:

The motion is denied, because Entergy has failed to show that any irreparable harm it may incur between now and a decision on the merits would be, or is likely to be, ameliorated by a preliminary injunction in the short time before this Court decides Entergy’s claims.

Ominously, however, the decision takes seriously Entergy’s preemption argument, stating:

The Court notes, however, that Entergy has raised serious questions regarding its Atomic Energy Act preemption claim [3], warranting further briefing and a prompt full-dress trial on the merits. The Court must carefully consider this claim and whether the statutes are preempted on their face, as applied, or whether they were enacted for a preempted purpose, as well as whether a permanent injunction is warranted, its precise scope, what State actions, if any, would be enjoined, and, if any injunction is issued, how to tailor relief to remedy alleged harms.

Also foreshadowing a possible decision favoring Entergy on the preemption issue, in footnote 3 the decision states that

The Court is aware the challenged statutes contain words that may or may not permit consideration of preempted grounds for granting or denying certificates of public good and that the legislative history of the challenged enactments contains numerous references to ‘safety’. . .

Possibly even more worrisome are the facts that the judge (a) devoted 13 pages of the 18-page decision to detailed consideration of Entergy’s monetary concerns (though he rejected each of them as a basis for a preliminary injunction), while (b) the decision includes not one word about claims by Vermont and the public interest organizations that filed amicus briefs:

o The decision omits mention of the Memorandum of Understanding (MOU) Entergy signed when it bought the plant in 2002. In the MOU Entergy “expressly and irrevocably” agreed to “waive any claim that federal law preempts the jurisdiction of the PSB,” the Vermont Public Service Board.

o Nor does the decision mention Vermont’s claims about Entergy’s latches and acquiescence: Entergy failed to assert its alleged right to federal preemption for the past 10 years. 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.

o Nor does the decision mention Vermont’s claims about Entergy’s  “unclean hands.”  Entergy’s misleading statements to state officials under oath and its other bad acts, such as its failure to do preventive maintenance to prevent leaks, and its reneging on its agreement to waive any claim of federal preemption, were not mentioned.

The failure of the court to even mention issues important to Vermont’s case, while expressly stating that the court will give serious attention to Entergy’s preemption issue and while devoting so much detailed attention to Entergy’s monetary concerns is troubling.

Fortunately, standard federal rules of civil procedure allow the Vermont attorney general to file motions to ensure that the court does not duck the issues important to Vermont’s case. These rules allow Vermont to have its affirmative defenses and issues that can be handled based on undisputed facts to be addressed before a trial on the facts in dispute. Under the standard rules, for example, Vermont could promptly file a motion to dismiss or a motion for summary judgment to ensure that the court addresses the legal issues the Vermont Attorney General thinks are important.

For example, Entergy’s case is based exclusively on the preemption claim it “expressly and irrevocably” agreed in the MOU not to make. Following a motion to dismiss or a motion for summary judgment,  the court would have to consider as a matter of law whether Entergy is entitled to bring the claim it agreed not to bring.

Vermont could also include in its motion grounds, including latches and acquiescence and other affirmative defenses that the state listed in its July 15 Answer to the Complaint filed with the court. Making these motions is important to ensure that the issues are properly addressed in decisions by the court, and any defective rulings can be grounds for an appeal.

Twelve separate times in the decision the judge referred to the fact that trial or final decision in this case is on an accelerated schedule for the purpose of meeting Entergy’s money concerns. But should Vermont be pressured to give up any of its procedural rights as a defendant, including the right to file a motion to dismiss or a motion for summary judgment, merely because Entergy Corp. wants quick action based on its monetary concerns? The zealous pursuit of justice, not speed to save Entergy money, should be Vermont’s only consideration.

Though the state has good facts and arguments regarding preemption, Vermont could win this case on other legal grounds, about which there are no factual disputes, before a trial is held to consider Entergy’s case about preemption and supposed legislative intent. Such an approach could actually be the quickest way to a final decision.

Entergy’s strength is money. While a reading of the decision shows the vast influence Entergy’s monetary dilemmas had on the judge, Vermonters have every right to demand that legal issues raised by the Vermont attorney general and by the amici be given serious attention by the court before Entergy receives further consideration of its bogus preemption claim and its desire for a permanent injunction from operation of Vermont law.

Our strength is the massive public opposition to operation of Vermont Yankee after its 40-year design life comes to an end on March 21, 2012. That opposition was demonstrated in scientific polls, town meeting votes, in hundreds of people coming out for local and statewide actions and in statewide elections.

But legal processes can be a great way to inhibit direct public involvement. When, as happened last week, the preliminary decision appears favorable, the public may be even less inclined to participate–even though the rest of the text of the decision is a strong signal encouraging Entergy. Vermonters may be facing our strength being further demobilized while Entergy is encouraged to pour money into public relations and lawyers.

Crucial is to bring Vermonters together–along with people from neighboring states–to help this court understand that the public continues to be heavily involved and wants the final decision to be firmly based on facts and law and not influenced by Entergy’s money.

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