At one point, Harriet Nestel, 73, of Athol, commented about Vermont's efforts to control the behavior of the plant's owner, Entergy Corporation of Louisiana: "They are operating illegally. They are the trespassers, and we are the enforcers of the state's will." She could not make the further argument that her crime of trespassing was a lesser harm than the continued illegal operation of Vermont Yankee.
At another point, reinforcing his ruling against any necessity defense, Judge Wesley said, "This trial is not about the legality of Vermont Yankee's continued operation."
Although the women said their activism had intensified since the melt-downs at the Fukushima plant in Japan in March 2011, they couldn't present evidence that those four failed reactors in Japan have the same generic General Electric design as Vermont Yankee's reactor.
Nor could the women introduce evidence that Vermont Yankee, by virtue of its riverside site, is one of 34 American plants that the Nuclear Regulatory Commission (NRC) specifically considers at risk of flooding due to upstream dam failure. The NRC suppressed a report with those findings until a whistleblower recently released them, indicating that Vermont Yankee is a potential American Fukushima. According to NRC risk engineers, although the likelihood of an upstream dam failure may be low, if there is a dam failure, then the likelihood of a melt-down at the downstream nuclear plant is close to certainty.
Was Protestors' Real Crime a Tropical Storm?
During the trial, Prosecutor Brown stayed tightly focused on the trespass itself, mostly avoiding motivation and context. But after the jury returned with a verdict and it was time for sentencing, Brown argued for a suspended sentence of 30-45 days, on the condition of no further protests and the completion of 100 hours of public service. He justified the difference between this request and the hundreds of similar cases that were not prosecuted by blaming the six women for taking law enforcement personnel away from post-Irene response.
As the Rutland Herald's Susan Smallheer reported it:
case was unusual because it was prosecuted, while hundreds of other, identical
cases have gone unprosecuted.
But after the women were convicted, and set for sentencing, Windham County Deputy State's Attorney Steve Brown said the women's timing -- and the fact that they pulled away needed resources from the police response to Tropical Storm Irene -- needed to be computed into their sentence".