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Nuclear Power Plant Faces Vermont Supreme Court

by William Boardman, published
Photo: USNRC

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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