Nuclear Power Plant Faces Vermont Supreme Court
By William Boardman | 01/22/2013 | Energy and Water, Issues | 7 Comments
Photo: USNRC
For the better part of a year, Vermont’s only nuclear power plant, owned by the Entergy Corporation of Louisiana, has operated unlawfully, without the necessary “certificate of public good” it needs from the state’s Public Service Board (PSB).
On December 4, the New England Coalition on Nuclear Pollution (NEC) filed a complaint with the Vermont Supreme Court, asking the court to issue an injunction that would shut down the Vermont Yankee nuclear power plant immediately and keep it closed until Entergy complies with PSB orders and acquires a valid certificate of public good.
On January 16, the Vermont Supreme Court held a half-hour hearing during which the two sides argued whether the court should dismiss the NEC motion. The docket lists two attorneys for the NEC and 17 for the other side, which includes Entergy and the Vermont Dept. of Public Service.
If the court dismisses the NEC complaint, that will be the end of this case, although there are other Vermont Yankee cases pending before the PSB, as well as state and federal court. If the court does not dismiss the complaint, it will schedule a hearing on the merits of the NEC claim, and could then shut down Vermont Yankee.
The basis for the shut down, as presented by NEC attorneys Jared Margolis and Brice Simon, is relatively simple:
- In June 2002, the PSB issued an order in connection with the sale of Vermont Yankee to the Entergy Corporation (PSB docket 6545). This order is referred to in the pleading as the “Sale Order.”
- Condition 7 of the Sale Order gives Vermont Yankee a certificate of public good “to expire on March 21, 2012.”
- Condition 8 of the sale order says that Vermont Yankee is “prohibited from operating” after March 21, 2012, without either a new or renewed certificate of public good.
- To date, Vermont Yankee does not have either a new or renewed certificate of public good.
Based on these undisputed facts, the NEC argues, Vermont Yankee should be shut down.
Seeing this problem coming, Entergy had asked the PSB to amend the Sale Order to provide a certificate of public good that would allow it to keep Vermont Yankee running lawfully after March 21, 2012. On November 29, 2012, the PSB handed down a 30-page decision that denied Entergy’s request to modify the 2002 Sale Order, pointing out that any hardship Entergy was suffering was of its own making.
In early 2008, Entergy had also filed for renewal of its certificate of public good (docket 7440), but that request is still pending.
If the Supreme Court decides not to dismiss the NEC’s request, it will schedule another hearing to take evidence and decide what, if anything, it should do about the unlawful operation of Vermont Yankee.
Entergy attorney Kathleen Sullivan has consistently argued that, although Vermont Yankee does not have a current certificate of public good from the PSB, law and precedent, as well as the complexity litigation involving the plant in various jurisdictions, all combine make continued operation of the plant legal.
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7 Comments
nuclearcom
01.22.2013
@nuclearcom
Entergy CEO wrote about this some time ago. Here’s an excerpt:
In 2002, our company, Entergy, purchased the power station. When we did, we entered into an agreement with the State that we would secure a Certificate of Public Good from the Vermont Public Service Board if we wanted to extend the license of the plant beyond March of 2012.
That was not a concern to us back in 2002. The Public Service Board is an independent, expert body that uses impartial professional judgment to make such decisions and, its decisions can be reviewed by a court.
But four years later in 2006, Vermont passed a law that prohibited the Public Service Board from issuing a Certificate of Public Good to Vermont Yankee unless the General Assembly first approved the plant’s continued operation. Each of the bills introduced over the past year to grant such approval has either been voted down or allowed to languish. Whether it’s a “no” vote, or no vote at all, the effect is the same. The legislature has denied Entergy the opportunity to secure a Certificate of Public Good from the Public Service Board.
This is obviously entirely different from what we agreed to back in 2002. We agreed to a process in which an independent expert agency would decide Vermont Yankee’s future based on evidence and facts developed through an impartial process with the possibility, if necessary, of court review. We did not agree to a process involving the Legislature, which is inherently political.
The state appears to believe that inserting the General Assembly into the approval process was within its rights. We believe it substantially changed our agreement with the State and deprived us of certain critical rights that we relied upon in purchasing the plant. This change is also inconsistent with United States Supreme Court precedent that held that a state cannot involve itself in areas of licensing, operation and radiological safety of nuclear power plants.
Source: http://www.entergy.com/global/VY/VY_Wayne_letter.pdf
Lucas Eaves
01.22.2013
@lucaseaves
Thank you for the added information. That gives good arguments for the case to be rejected by the Vermont Supreme Court. We will see how the case will be ruled. I will follow this issue.
Alex Gauthier
01.22.2013
@alexg
some great context here. Clearly the issue is very complex and legal lines arent always as clear as day. Will be interesting to see how/when this issue gets resolved.
Clay Turnbull
01.22.2013
@clay_turnbull
J. Wayne did say “But four years later in 2006, Vermont passed a law that…..” as nuclearcom said. What J. Wayne left out is that Entergy fully supported, in fact lobbied for the laws at the time, AND, Entergy could have cleared up all this nonsense by going to the feds back in 2006, or in 2007, or 2008 (etc.) and asked the feds to strike down these Vermont laws. But no, Entergy waited many years to contest the Vermont laws – Entergy waited until 2010. And, why did Entergy wait until 2012 to ask the board amend the CPG? Entergy has screwed themselves (and the people of the region INCLUDING EMPLOYEES) by self-inflicting time constraints due to Entergy’s delay tactics.
Howard Calvin Shaffer III
01.23.2013
@howard_calvin_shaffer_iii
From a citizens point of view, all the sales agreements and PSB orders are binding UNTIL a party to them acts illegaly. The Federal court has found that the State of Vermont acted illegaly and put shutting down the plant on hold, until the legal processes are completed. This seems fair, since the state has given no reason that the plant should be shut down while the legal processes continue.
What is left out in the comments is that Vermont Yankee had to wait until the NRC issued a license extension in 2011. If VY went to court before it was known if the plant would be able to continue under federal licenising, the courts would obviously say, “Wait until we know whether the plant will continue operating. We are not wasting our time until we know that.”
What was also left out was that the PSB finished their CPG review and was ready to release it, but was blocked by the Legislature.
Very soon after VY got their NRC license they went to court to resolve the action of the Legilsature.
The PSB opened a new docket on VY’s CPG. They concluded that the old one mentioned in the article was contaminated by information the federal court found illegal-not in the state’s area of authority.
Clay Turnbull
01.23.2013
@clay_turnbull
Well said Howard, but, all of these arguments have been addressed here http://psb.vermont.gov/sites/psb/files/orders/2012/2012-11/6545-7082-7440OrderReMotionToAmend.pdf
Entergy created this situation all themselves, meanwhile they leave employees in a state of wondering how much more more harm this corporation can inflict on itself. Entergy continues to throw the dice rather than work together with emloyees and the community to develope a responsible transition into shutdown and decommissioning.
Howard Shaffer
01.23.2013
This PSB rejcection of VY’s request to bring its orders in line with the current reality, changes nothing. If the Board changed its orders and admitted VY was operating legally, it might be seen as saying the Legislature was wrong.
The AG, PSB and DPS said that VY can continue to operate while the FEDERAL court process goes to conclusion, didn’t they.