Violating the Public’s Trust, and the Public Trust

The following piece first appeared in the January 27, 2010 edition of the Montpelier-Barre Times Argus

The recent news that Entergy officials misled Vermont regulators about the existence of underground pipes at the company’s aging nuclear reactor in Vernon demonstrates a major breach of trust. Even people within the Douglas administration, which has supported relicensing the plant, say the development is “very disturbing” and have said they will not support the relicensing of the plant until the questions are cleared up.

Whether Vermonters will ever forgive this transgression, this repeated mischaracterization of possible threats, is anybody’s guess. But it is important to note that Entergy may have also breached the public trust in another sense: by the very act of fouling Vermont’s groundwater (and now surface water, too) with dangerous radioactive tritium.

Surface waters, like the Connecticut River, have been considered public trust resources nation wide since 1892. That means they are resources collectively owned by all Vermonters.

In 2008, the Vermont Legislature passed, and Gov. Douglas signed, a bill declaring groundwater — our underground aquifers which provide two-thirds of Vermonters drinking water supply — to also be a public trust resource. This means that Entergy, a Louisiana-based corporation, has placed in serious jeopardy a vital, finite, life-sustaining resource that is held in trust for all Vermonters by failing to keep radioactivity from leaching into our groundwater.

Vermont’s public trust designation means that groundwater legally belongs to all of us and must be managed by the government in the best interest of all Vermonters. Radioactive isotopes like tritium in our drinking water are clearly not in anyone’s best interest.

Adding insult to injury is Entergy’s reaction to the news of the leaks. An Entergy spokesman says the Vermont Yankee monitoring wells are not drinking water wells, but merely testing wells. He also says the pollution appears to be migrating toward the Connecticut River and not toward drinking water resources. We all know groundwater is a system, and testing wells are often connected to drinking water wells and even to surface water, like the Connecticut River. So Yankee’s reaction to this new water pollution should be cold comfort to Vermonters, and it demonstrates an apparent dismissive approach to Vermont’s precious natural resources and public health. When you pollute water, even if it’s not directly or currently drinking water, that pollution is a violation of Vermont’s public trust.

This latest problem for the nuclear plant goes beyond the cracks and other danger signs indicating Vermont Yankee is deteriorating and posing a serious danger to Vermonters. It is evidence that the 38-year-old facility has put at immediate risk this public trust resource.

While the state and federal investigation into the extent of groundwater contamination from Vermont Yankee is not complete, it is clear that it is not only a violation of the public trust doctrine to allow Vermont Yankee to leak radioactive waste into Vermont’s groundwater but also a violation of the public’s trust to obfuscate and misrepresent the facts leading up to this revelation.

The state must live up to its obligation under the 2008 law to manage groundwater in the interest of all Vermonters and follow through on its investigation of this contamination. While we at the Vermont Natural Resources Council will certainly do our part to hold Vermont officials’ feet to the fire on this particular issue, the news finally and clearly demonstrates that the myriad risks of continuing to operate Vermont Yankee are far too great.

Jon Groveman wrote this piece as general counsel and co-director of the Water Program at the Vermont Natural Resources Council.

UPDATE: In early February, VNRC made a motion to intervene in the Public Service Board proceedings on Vermont Yankee because of our interest in groundwater. Find more information about this here.