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So Much for State's Rights

Court to Vermont: “Drop Dead”

by HARVEY WASSERMAN

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

The fight will almost certainly now go to the US Supreme Court. At stake is not only the future of atomic power, but the legitimacy of all deals signed between corporations and the public.

Chief Justice John Roberts’ conservative court will soon decide whether a private corporation can sign what should be an enforceable contract with a public entity and then flat-out ignore it.

In 2003 Entergy made a deal with the state of Vermont. The Louisiana-based nuke speculator said that if it could buy and operate the decrepit Vermont Yankee reactor under certain terms and conditions, the company would then agree to shut it down if the state denied it a permit to continue. The drop dead date: March 21, 2012.

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

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

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

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

To allow VY to continue fissioning, Judge J. Garvin Murtha latched onto Entergy’s argument that the state legislature committed the horrible sin of actually discussing safety issues. These, by federal law, are reserved for Nuclear Regulatory Commission. He chose to ignore the serious breach of contract issues involved.

As Deb Katz of the Citizens Awareness Network puts it: “Entergy’s lawyers cherry-picked legislators’ questions about safety” from a previous debate relating to nuclear waste. “Judge Murtha supported the corporation over the will of the people.”

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

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

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

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

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

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

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

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

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

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

Harvey Wasserman, a co-founder of Musicians United for Safe Energy, is editing the nukefree.org web site. He is the author of SOLARTOPIA! Our Green-Powered Earth, A.D. 2030, is atwww.solartopia.org. He can be reached at: Windhw@aol.com