MONTPELIER — The Vermont Yankee nuclear power plant can continue to operate beyond March, a federal judge ruled Thursday, slapping down a state law that tried to shut down the facility.
The ruling, which all sides saw as a victory for Vermont Yankee and a defeat for the state, still leaves some decisions about the plant’s future in the hands of the state Public Service Board, legal experts said.
U.S. District Court Judge J. Garvan Murtha, who heard the case in September in Brattleboro, agreed with Vermont Yankee owner Entergy Corp.’s arguments that federal law pre-empts the state from regulating a nuclear power plant over safety concerns. Vermont’s efforts, Murtha said, were replete with references to safety.
“There is evidence the statute was motivated by and grounded in radiological safety concerns,” Murtha wrote in his 102-page decision. Murtha rejected state claims that safety wasn’t the primary issue when lawmakers tried to shutter the facility.
“While this Court is aware that a legislature’s stated reasons will generally get deference, a Court cannot be so naive in its purpose inquiry to accept any transparent claim,” Murtha noted, quoting snippets of other court rulings.
The judge also ruled that the U.S. Constitution’s interstate commerce clause precludes the state from conditioning Vermont Yankee’s operation on favorable power prices. And he tossed out a provision of state law that would have required Vermont Yankee to seek new permission to store radioactive waste after March.
“We’re pleased with the decision,” Entergy spokesman Chanel Lagarde said in a written statement.
“A disappointment,” Vermont Attorney General William Sorrell said. The state has 30 days to decide whether to appeal, he noted. “We’ll take our time making our decision.”
Gov. Peter Shumlin, who led the fight to close Vermont Yankee when he was state Senate leader, said Thursday in a statement, “I continue to believe that it is in Vermont’s best interest to retire the plant.” He added, “Entergy has not been a trustworthy partner with the state of Vermont.”
Shumlin said he would await Sorrell’s review of the decision.
The 40-year-old nuclear power plant located in Vernon has won permission from the U.S. Nuclear Regulatory Commission to operate for another 20 years beyond its original license, which expires March 21.
The state Legislature, however, had passed a law — Act 160 — in 2006 requiring lawmakers’ approval before the state Public Service Board could consider renewing Vermont Yankee’s state certificate of public good. In 2010, the Senate, under Shumlin’s leadership, voted against granting that approval — just as Vermont Yankee was dealing with a leak of radioactive tritium and concerns about the accuracy of testimony company officials provided.
Murtha said evidence indicated that that law was based entirely on the plant’s safety, despite lawmakers’ attempts to claim otherwise. He cited numerous references legislators made to safety as they debated the bill, and the word “safety” appears 194 times in the ruling.
“It’s a stinging defeat for Vermont,” said Pat Parenteau, a Vermont Law School professor who has followed the case.
Parenteau noted, however, that Murtha narrowly tailored his decision to Vermont’s legislative actions, meaning it does not necessarily set a national precedent for states’ involvement in regulating nuclear power plants.
Murtha wrote that his decision was not a reflection on the rewards and risks of nuclear power. He also noted that his ruling allows Vermont to refuse to grant a state operating license to the reactor on non-safety grounds.
Vermont is the only state where the Legislature has a say in the relicensing of nuclear power plants.
In this case, Murtha noted, the Atomic Energy Act prevents the state from shuttering Vermont Yankee over safety concerns.
“This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state,” Murtha wrote. “Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not pre-empted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices.
“The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority,” Murtha continued, “that are unnecessary to the resolution of the federal claims presented here.”
Reaction
Vermont Yankee supporters hailed the decision as vindication.
“The news of Judge Murtha’s decision rings for truth and justice throughout Vermont,” said Jeff Wimette, business manager for the IBEW Local 300 union that represents some Vermont Yankee workers.
All three members of Vermont’s congressional delegation joined Shumlin in expressing disappointment in Murtha’s decision.
“This issue was settled in Vermont until Entergy reneged on its agreement to give Vermonters a voice in relicensing Vermont Yankee,” said Rep. Peter Welch, D-Vt., who was state Senate leader from 2003 to 2006.
The agreement to which Welch referred was a 2002 memorandum of understanding between Entergy and Vermont to abide by the Public Service Board’s decision on whether Vermont Yankee could continue providing power after March 2012.
The state relied heavily on that agreement in its court case and accused Louisiana-based Entergy of going back on its word. Murtha rejected Vermont’s claim, ruling the agreement was limited, and the Legislature changed procedures with its 2006 decision to give lawmakers a vote on whether the Public Service Board could pursue the matter.
The 2002 agreement, Murtha ruled, “did not expressly waive exclusive federal jurisdiction over radiological safety and public health, or waive any and all pre-emption challenges to state law, or amount to a general promise not to sue.”
Parenteau said Murtha’s comments about the MOU surprised him. “He gave Entergy the benefit of the doubt, big time,” he said.
Appeal?
Whether Vermont has fertile ground for appealing the decision was unclear Thursday as legal experts scrambled to analyze the late-afternoon ruling.
Two Republican legislators called on Shumlin not to pursue the case. Rep. Mike Hebert, whose Vernon district includes Vermont Yankee, said the effort has already cost the state millions of dollars.
Vermont Law School professor Cheryl Hanna said she likely would appeal if she were Sorrell, but she added, “It’s going to be a hard appeal to make.”
Parenteau noted that Murtha tied much of his decision to legislative history, something that could be challenged on appeal. Although legislators sometimes talked about safety in the debate, the bill they passed didn’t impose any new requirements on Vermont Yankee regarding safety, he said.
That’s what should matter, he argued, not their conversations.
Public Service Board
Several observers said they look next to see what might happen before the Public Service Board. Murtha’s rejection of Act 160 means the state Legislature no longer can keep the Public Service Board from acting on Entergy’s request for a certificate of public good.
Murtha ruled that the state can’t regulate Vermont Yankee over safety concerns or an advantageous energy price, but the board still has the authority to deny a certificate of public good over other issues.
One of those, Parenteau suggested, could be water quality. The Public Service Board might rule, for example, that Vermont Yankee can’t release heated water into the Connecticut River as it has been allowed to, he said.
Parenteau said he wonders if Entergy will try to block the Public Service Board action, claiming that the company won’t get a fair hearing.
Sandra Levine of the Conservation Law Foundation, which supported the state’s arguments in the case, called the decision a “setback for Vermont and clean energy.”
Although anti-nuclear advocates had once looked at the state Public Service Board with distrust, she said she now hopes the board could keep the plant from operating.
Free Press Staff Writer Adam Silverman contributed to this report. Contact Terri Hallenbeck at 651-4887 or thallenbeck@burlingtonfreepress.com. Follow Terri on Twitter at www.twitter.com/
Article source: http://www.burlingtonfreepress.com/article/20120119/NEWS07/120119032/Federal-judge-State-can-t-shut-down-Vermont-Yankee-March?odyssey=nav%7Chead
In the UK? Click HERE
