We can't say we were surprised by the words of Entergy CEO J. Wayne Leonard last week when he threatened to take Vermont to court to challenge whether the state has the right to decide whether the Vermont Yankee nuclear power plant should be relicensed for another 20 years of operation.
“We strongly believe that this is federal jurisdiction,” Leonard said during a conference call with investment analysts. “We have choices that need to be made, and we'll make them at the appropriate time."
Vermont is the only state in the country that has an oversight role in the nuclear relicensing process. As a result, Entergy needs approval from both the state House and Senate to receive a Certificate of Public Good to operate.
However, Leonard believes that only the Nuclear Regulatory Commission should have the final say.
What Leonard seems to have forgotten is that the right of oversight was given to the state by Entergy itself. It was a condition of Entergy's purchase of the Vernon plant in 2002. It was a commitment the company made under oath to the Vermont Public Service Board.
Michael Dworkin was the head of the PSB when it approved the sale of Vermont Yankee to Entergy. As he told Vermont Public Radio last week, Entergy expressly agreed to state oversight, and a court challenge would go back on that agreement.
“I think if you review the transcripts of what they said in the hearing room under oath at the time, you'll see that they said repeatedly that this was a commitment that was binding, that they would not break it, and that it could not be reversed by going to federal court,” Dworkin told VPR. “To break that commitment would raise doubts about who has the right to those revenues, and would certainly raise doubts about whether Entergy's corporate officers could be trusted in any other statements in any hearing room in any state utility commission around the country.”
And in a Vermont Public Service Board Memorandum of Understanding signed on March 4, 2002 by representatives of all parties involved in the sale of Vermont Yankee to Entergy, including Michael R. Kansler, the company's senior vice president and chief operating officer, each party agreed “expressly and irrevocably” that “(a) that the [Public Service Board] has jurisdiction under current law to grant or deny approval of operation of [Vermont Yankee] beyond March 21, 2012 and (b) to waive any claim each may have that federal law preempts the jurisdiction of the Board to take the actions and impose the conditions agreed upon in this paragraph to renew, amend or extend the ENVY CPG and ENO CPG to allow operation of the VYNPS after March 21, 2012, or to decline to so renew, amend or extend.”
Translated from legalese into English, this passage means that Entergy agreed not to do exactly what they're doing.
It seems clear that Entergy is willing to take this risk. Given that the NRC has not refused a license renewal, the company naturally assumes that Vermont Yankee will get the 20-year extension to run past the expiration of its current 40-year license in March 2012.
And if, by then, the NRC hasn't given Entergy its extension, the plant can still operate while its application is under review.
That may explain why Entergy is still negotiating power deals with Vermont utilities while, at the same time, shopping Vermont Yankee around to potential buyers. Entergy hopes it can keep the clock running by using the federal courts to block Vermont's attempt to have the plant close on schedule.
Perhaps Entergy doesn't want Vermont Yankee to be a test case for other states who want to close the nuclear plants they now host.
Because of the vigorous oversight by antinuclear groups such as the New England Coalition, Safe and Green, Citizens Awareness Network and the Vermont Public Interest Research Group, Entergy and Vermont Yankee have received the sort of scrutiny that governmental entities such as the PSB and NRC should have been giving.
As we've seen from Entergy's reaction to this scrutiny over the years, they aren't used to it and do not react well to it. The questions about the age and reliability of Vermont Yankee are legitimate concerns, and Entergy has done little over the past couple of years to allay those concerns.
Given these facts, litigation seems inevitable. But we think Vermont will prevail. The facts are on its side. Entergy entered into a binding commitment with the state to give it the final say on relicensing. As Dworkin pointed out, reneging on that commitment would set a dangerous precedent.
And then there is the long list of mishaps over the past few years, from missing fuel rods, to collaping cooling towers, to transformer fires, to leaks of radioactive materials from pipes that plant officials had denied under oath even existed.
The Shumlin administration is doing the right thing. It's time to plan for the eventual shutdown of Vermont Yankee next year, and to prepare for an orderly transition for the plant's employees and the Windham County economy in the post-Yankee era.
If Entergy wants to sue the state, it is merely delaying the inevitable. Such a gambit would illustrate with stunning accuracy what the plant's opponents, including Gov. Shumlin, have said for years - that the company is untrustworthy and ethically bankrupt.
The true measure of Entergy as a good neighbor is not in the amount of corporate largesse to area nonprofits or in the heft of its payroll, but the value it puts in honoring its legal business agreements. If its employees say “I Am VY,” is this really the VY they would want to be?