BRATTLEBORO — Judge J. Garvan Murtha's recent decision against the state of Vermont in the Entergy case was greeted with stunned silence as the parties took time to rethink strategy.
The state contemplated an appeal, on which they have now decided, but with a poor track record and a well-reasoned original decision, its position is difficult. Entergy, on the other hand, is pressing its advantage by asking that Vermont pay millions of dollars of its legal bills.
There was a temporary pause in argument while the parties awaited a favorable decision, but that is now over. The surrogates and advocates are ginning up their communication machines and polishing up the arguments they have been using for more than 40 years.
Even those of us who have been watching this battle for just a few years can sense the increasing conflict.
Judging from the tone on both sides, escalation is in the air; disappointment is fueling stronger language and more dramatic actions.
From the sidelines, one can sense that the casualties and costs will be higher as well.
Watching the parties as they circle for advantage brings two things to mind: first, the wise observations of Carl von Clausewitz, German military strategist of the early 19th century, and second, the terrible lessons from our own wars.
Clausewitz is famous for his observation that “war is the continuation of diplomacy by other means.” His insight described the very thin veil that separates diplomacy (disciplined policy discussion) from war (the intent to do real damage to your opponent). Diplomacy suggests control, negotiation, give and take, and desire for a solution short of violence.
The notion that war continues diplomacy suggests the terrible ease with which a state or nation can slip from diplomatic conversations to armed violence, centered on winning, rather than agreeing.
Over the past couple of years, we have seen this process at work, as each side in the Vermont Yankee/nuclear energy debate slowly introduced stronger words and sharper criticisms, then legislative action followed by federal lawsuits.
“War,” wrote Clausewitz, “is an act of violence to compel our opponent to fulfill our will.” Exactly. The Vermont debate has moved from a policy discussion about nuclear power to a desire to make Entergy do what we want: to compel them to our will. That seemingly small step raises the specter that the final costs will be, as in war, far greater than we know.
There is a moment in disputes, as disagreement builds to conflict and the parties begin to lose interest in costs, to focus on the possible unintended consequences and remind ourselves that the conflict could cause more damage than we can tolerate.
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That brings me to the second point, and to George Santayana's observation that “those who cannot remember the past are doomed to repeat it.”
In Vietnam, Iraq, and Afghanistan we learned again and again, to our continued horror, that the costs of going beyond diplomacy into violence are borne not just by the warriors but also by the people.
I recall, now showing my age, when the term “collateral damage” entered the Vietnam discussion to explain the awful costs in civilian lives as the United States tried to end a popular insurgency. Our judgment got worse as our frustration grew.
What might be the collateral damage in Vermont's war with VY?
Well, one casualty has been policy consistency. Vermonters are not against nuclear power - if we were, we would not approve buying power from nuclear power plants. We just do not approve of purchasing power from ones located in Vermont.
But consistency is a small victim; a far larger one is Vermont's reputation as “open for business.”
We said that we are a business-friendly state loud and clear after Tropical Storm Irene. How do we square that cry with the louder and more expensive fight to expel a business from the state?
We have spent more to fight Entergy than we spend to attract tourists. We have certainly been focused. The Legislature voted against VY; it has seldom if ever taken a similarly high profile vote in favor of our manufacturers and employers.
We have spent, collectively, more time and money, more attention and energy on driving a large employer out of the state than trying to build our economy and stock of good jobs.
Employers might begin to question making major investments in Vermont knowing that the state might take a politically popular decision to work against them or take actions that will raise the costs of doing business.
That is the collateral damage, the unintended consequence of a 48-year fight against VY.
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As in a war, our energy has been poured into defeating one enemy, while we have lost track of the larger picture. The decision of the court is a wake-up call to de-escalate the rhetoric and the conflict, and to minimize the collateral damage to Vermont.
For the time being, we have lost the opportunity to negotiate with Entergy on the shape of a post-VY future. This kind of collaboration on a soft landing for nuclear plants and their communities has happened in most other instances of closings, but as long as the war of litigation continues, it's not likely here.
So rather than support for mitigating the sharp economic impact on Windham County (such as immediate decommissioning instead of SAFSTOR), we're on our own.
What might the alternative be? To continue the war metaphor, wars end in one of two ways: total victory by one side or the other, which then gets to dictate terms, or a negotiated peace - effectively a return to diplomacy - in which each side gives up something. But often, both sides are better off than in a protracted conflict.
Perhaps a negotiated settlement here could look something like this: Entergy gets to operate the plant for some specified period (perhaps less than 20 years).
In return, Vermont would get a fully funded and immediate decommissioning at the end of that period, and economic assistance to mitigate the effects of the shutdown.
Isn't that preferable to total victory by Entergy or by Vermont, either of which would almost certainly leave the plant mothballed for longer than the life expectancy of most Vermonters, and no funding for mitigation?