Deb Lazar/The Commons
Judge J. Garvan Murtha presiding over last month’s hearing over Entergy’s request for a preliminary injunction to prevent Vermont from enforcing laws that regulate nuclear power at the Vermont Yankee nuclear station in Vernon.
News editor Randolph T. Holhut contributed to this story.
Originally published in The Commons issue #110 (Wednesday, July 20, 2011).
However, the state has not won either, he said.
When the state comes back to trial, “it better come better armed” to talk about concerns within its jurisdiction like land use, an energy future, water quality, and better energy options, he said.
“[They need to] make it strong, and make it clear, because Entergy is coming at them with everything they’ve got,” said Parenteau.
“If you were like me, you sat there underwhelmed,” said Parenteau of the state’s legal performance at the preliminary injunction trial.
As for Entergy’s preemption claims, Parenteau said that “I think we can be honest that safety was a concern of people. Why wouldn’t it be?”
Federal law does not forbid individuals from raising safety or reliability concerns, said Parenteau, nor does it block lawmakers from raising these concerns in the legislative process. However, the law does forbid nuclear safety regulation by the states.
“That narrow question of control: the answer is the NRC. That may not be good public policy, but it is the law. The NRC will decide if that plant is safe, whether we like it or not,” he said.
Parenteau explained that the U.S. Supreme Court ruled on states’ power to regulate a nuclear power plant in the 1983 Pacific Gas & Electric v. State Energy Commission case. In its ruling, the court stated clearly that states can shut power plants for non-radiological safety reasons.
But Murtha is not “satisfied with the state’s other reasons,” said Parenteau.
If the case migrates up the legal “food chain,” toward the Supreme Court, Murtha will want a solid case record because he knows other courts will be scrutinizing the case’s logic, said Parenteau.
Parenteau said he had a “radical idea” for how the state can help itself.
Shumlin should call an emergency legislative session in August to vote up or down on permitting the Public Service Board to decide whether to issue Vermont Yankee’s CPG, he said, and with that vote, “a real clear crisp statement of state policy about why we don’t want a nuclear power plant” should be included.
Parenteau remains confident that Entergy will order the fuel rods for the next scheduled refueling shutdown in October, but he cautioned that the company may change its mind on the matter.
When Entergy testified in court last month to shut the plant permanently this summer in the event of no preliminary injunction, that gambit represented a strategic way of saying “we want a decision soon,” said Parenteau.
The estimated $60 million that Entergy will spend on refueling is a relatively small amount for the corporation, said Parenteau.
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