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It’s time to say, ‘Enough’

Public Service Board has ample authority to deny a permit to Entergy

JOHN GREENBERG owns and operates The Bear Bookshop in Marlboro and has worked on Vermont Yankee issues for over 25 years; he points out emphatically that he is not an attorney. He writes this piece as an open letter to the Vermont Public Service Board.


Defiance of a duly-constituted governmental authority clearly falls outside of any defensible conception of the “general good of the state;” in fact, the only acceptable response to this behavior is outrage.

Just days after appearing before the Public Service Board (PSB), Entergy openly declared to Judge J. Garvan Murtha: “In the event that the PSB ultimately disagrees, Plaintiffs will be forced either to cease operating or, if they defy the PSB by continuing to operate, to face the prospect of a diminished credit rating, a loss of crucial employees, and a demerit in the PSB’s consideration of Plaintiffs’ petition for a new CPG.”

Entergy’s insolence is glaring. Not ashamed about violating its basic social contracts, the company’s first concern is that its defiance might entail higher borrowing costs (the likely consequence of a “diminished credit rating”). This statement is the corporate equivalent of a mafioso saying, “I’d shoot ya, but I don’t want your blood on this here new suit.”

* * *

Were this an isolated instance, one might overlook it. Alas, no. It is the most recent statement of a company which, since coming to Vermont, has repeatedly proven that its sworn word means nothing.

In 2002, as part of the purchase of Vermont Yankee, Entergy signed a memorandum of understanding “expressly and irrevocably agree[ing] (a) that the Board has jurisdiction ... to grant or deny approval of operation of [Vermont Yankee] 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 [...] CPG to allow operation of [VY] after March 21, 2012, or to decline to so renew, amend or extend.”

The MOU also expressly states that the document “is governed by Vermont law and any disputes under this Memorandum of Understanding shall be decided by the Board.”

Yet, on April 18, 2011, Entergy filed a complaint, urging the federal court to issue a declaratory judgment that “federal law preempts [Vermont] from requiring [Entergy] to receive legislative or regulatory approval of a CPG in order to operate.” (Emphasis added.)

Since then, Entergy has repeatedly changed its position vis-à-vis the board’s authority as convenience and circumstance dictate.

Entergy’s verbal pas de deux hoodwinked Judge Murtha. Obviously neglecting the plain language I just quoted, Murtha declared: “Entergy’s suit does not maintain that the resting of jurisdiction in the Board to grant or deny a CPG for continued operation is preempted.”

If Entergy had any respect for its own word or for the rule of law, it would have presented whatever case it thought it had and resolved this controversy in the appropriate venue: namely, before the Public Service Board, as required by the explicit terms of the MOU.

Instead, Entergy took it upon itself effectively to decide its own case against the state in absentia, blaming the Legislature for breach of contract.

Having thus absolved itself from any further obligation under the MOU, Entergy petitioned the federal court as though it had never agreed that “any disputes under this Memorandum” were to be “decided by the Board.”

This is renegade behavior by an outlaw organization, not a corporate citizen acting in the “public good.”

Clearly, Entergy is out of compliance with its MOU. This issue remains unresolved and deserves the Public Service Board’s attention.

* * *

Between these two bookends, there is the equally appalling instance of two high-ranking ENVY officials presenting patently false testimony to the Public Service Board, and then leaving the record tainted until they were caught in the act by leaks in the pipes they swore under oath did not exist. Further examples of Entergy’s patently unconscionable behavior are provided in NEC’s brief and in the State’s federal court filings.

Just as we give no quarter to the bullying and self-serving behavior of criminals, so too we should give none to a corporate bully demanding permission to operate in our state, while threatening to ignore its laws.

It’s time for the board to say clearly, but simply: Enough. We will not tolerate an enterprise which breaks its word, lies under oath, and threatens to defy the legitimate authority of the state.

The board should flatly deny Entergy any of the permits it is seeking and, given the reasons enumerated, it clearly has un-preempted authority to do so.

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Originally published in The Commons issue #144 (Wednesday, March 21, 2012).

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