VERNON — In a 102-page document released on Thursday, U.S. District Court judge has ruled in favor of Entergy in the company's lawsuit against the state.
“Act 160 and a single provision in Act 74 – requiring affirmative legislative approval for storage of spent nuclear fuel after March 21, 2012 – are held to be preempted by the Atomic Energy Act,” Judge J. Garvan Murtha wrote in his long-awaited ruling.
With Murtha's decision, the state is effectively barred from ordering Vermont Yankee to close down in March, because the federal rules governing nuclear energy take precedence over state law.
“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,” he 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 preempted 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,” Murtha continued. “There is evidence the statute was motivated by and grounded in radiological safety concerns.”
Vermont is the only state with legislation that gives it a say in nuclear relicensing.
Reactions mixed
In a statement issued from Entergy headquarters in New Orleans on Thursday, they said that they “are pleased with the decision, which Judge Murtha issued after a thorough review of the facts and the law. The ruling is good news for our 600 employees, the environment and New England residents and industries that depend on clean, affordable, reliable power provided by Vermont Yankee.”
Vermont Gov. Peter Shumlin, whose administration opposed the continued operation of the plant, said that “Entergy has not been a trustworthy partner with the state of Vermont. Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March, 2012. I continue to believe that it is in Vermont's best interest to retire the plant.”
U.S. Sen. Bernie Sanders called the decision “wrong on the merits and ripe for appeal,” He added that he believes “the law is very clear, and that states have the right to reject nuclear power for economic and other non-safety reasons.”
And U.S. Rep. Peter Welch said that “this is a major setback for Vermont and for all states with nuclear power plants. It simply defies common sense that a state cannot have a say in its energy future. This issue was settled in Vermont until Entergy reneged on its agreement to give Vermonters a voice in relicensing Vermont Yankee.”
Jared Margolis, the legal counsel for the anti-nuclear group the New England Coalition (NEC), said that Murtha's decision “allows Entergy to continue to operate [VY] past the scheduled March 21, 2012 closing date for what could be several years of higher court reviews. This is very disappointing, especially given that the state Legislature has already determined that continued operation of the plant is not in the best interests of Vermont.”
Vermont Yankee once supplied as much as one-third of Vermont's electricity. However, Vermont utility companies have sought alternatives to VY in the wake of the uncertainty surrounding the plant stemming from the lack of a long-term power purchase agreement. As a result, VY will be selling nearly all of its power to out-of-state utilities.
The case up to now
The U.S. Nuclear Regulatory Commission (NRC) granted Entergy a 20-year license extension for the 605-megawatt plant last March, but the state has refused to issue the Certificate of Public Good that is required for electric generation plants after the Vermont Senate voted 26-4 in February 2010 to not support VY's continued operation.
Last April, Entergy filed a lawsuit challenging the state's actions in federal court. In a three-day trial in Brattleboro in September, Entergy argued that the state had overstepped in regulatory authority, and that the NRC is the sole arbiter of nuclear safety.
In particular, Entergy's legal team singled out Act 160, passed by the Vermont Legislature in 2006, that required lawmakers to approve the continued operation of the plant before the state Public Service Board (PSB) could consider renewing Vermont Yankee's state Certificate of Public Good (CPG).
Entergy had previously agreed to Act 160, in exchange for being granted the authority to expand its storage of nuclear waste at VY.
In Murtha's ruling, he wrote that there was ample evidence that Act 160 was based upon safety concerns, despite claims to the contrary by lawmakers.
He wrote that that nearly 200 references from legislative records “reveal legislators' radiological safety motivations and reflect their wish to empower the Legislature to address their constituents' fear of radiological risk.”
What's next?
The state is expected to appeal the decision to the 2nd U.S. Circuit Court of Appeals in New York, but Shumlin said no decision to move forward is expected until Attorney General William Sorrell has had a chance to review the decision.
The state has 30 days to decide whether to appeal.
Vermont had not had a good track record in recent years in federal court. In 2006, the U.S. Supreme Court struck down Vermont's campaign finance laws as being too restrictive. Last year, it struck down rules aimed at curbing data collection by pharmaceutical companies in the marketing of prescription drugs.
A wild card in the case remains the certificate of public good. That is the central element of Act 248, which Murtha left untouched.
While the Legislature can longer prevent the Public Service Board from acting on Entergy's request, Murtha ruled that the PSB still has the authority to deny a certificate of public good over other issues, such as water quality.
NEC senior technical advisor Raymond Shadis said Thursday that the organization has not given up on finding a legal means to close the plant.
“We are, with the help of the Conservation Law Foundation, challenging the NRC's VY license renewal in federal appeals court. We have laid the foundation for raising Fukushima-related VY safety issues at NRC, and we are preparing a broad public education initiative on VY's deadly and growing legacy of nuclear waste. NEC will be also joining Connecticut River Watershed Council and others in challenging Entergy's proposed renewal of Connecticut River water use and discharge permits.”
The Fukushima nuclear disaster in Japan last March looms over VY's continued operation, said NEC president Ned Childs, adding that the group has joined with more than 30 other groups nationally to call for the immediate retiring of all 23 Fukushima-type GE Boiling Water Reactors because of inherent design flaws long recognized by the industry.
Vermont Yankee, which opened in 1972, shares the same reactor design as the Fukushima reactors that were heavily damaged by an earthquake and a subsequent tsunami.