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To intervene, or not to intervene?

Sanders says DOJ won’t get involved in Entergy lawsuit, but DOJ says it hasn’t decided yet

BRATTLEBORO—Sen. Bernard Sanders, I-Vt., released a press release on June 30 celebrating the U.S. Department of Justice’s (DOJ) decision to not intervene in the Entergy v. Shumlin court case at this time.

In an interview the next day, the DOJ said that wasn’t necessarily so.

“While I recognize that it is the responsibility of the Department of Justice to monitor developments in all ongoing litigation, I am pleased that they have no plans to intervene and I am confident that the Department will see no reason to intervene in the future,” Sanders said in the press release.

Sanders criticized the commissioners of the U.S. Nuclear Regulatory Commission (NRC) in a hearing last month of the Senate Environment and Public Works Committee, which oversees the Nuclear Regulatory Commission..

The senator alleged that commissioners voted 3-2 in secret to urge the DOJ to intervene on Entergy Nuclear’s behalf.

According to the press release, Sanders also urged Attorney General Eric Holder to stay out of a lawsuit filed in federal court in Vermont by Entergy Nuclear over the fate of its almost-40-year old Vermont Yankee nuclear power station in Vernon.

However, in a July 1 interview, Charles Miller, civil division spokesman at the DOJ, disagreed with Sanders’ statements.

The DOJ still had “not made a determination as yet” on whether to intervene, he said.

The decision is still “under consideration,” and there is no deadline for making a decision, Miller said.

When asked what triggered the DOJ’s interest in the case, Miller answered that “we don’t discuss process.”

In response to Miller’s comments, Sanders’ office replied, “Our understanding is that the Justice Department has no plans to intervene at this time, and the senator is confident that they will see no reason to in the future.”

As part of Sanders’ fight with the NRC over the commissioner’s secret vote, he recently placed a procedural hold on the confirmation of NRC commissioner nominee William C. Ostendorff to continue serving on the panel. Ostendorff's original term expired June 30.

“The NRC’s legally defined mission is to ensure the safety of our nation’s 104 nuclear power plants, and the law is clear that states retain the authority to regulate based on economic and other considerations,” Sanders said in a press release.

“What the NRC did demonstrates poor judgment and a recommendation to radically expand federal authority. I cannot support the nomination of any commissioner who may have voted to make this recommendation, which is why I have placed a hold on the nomination of William Ostendorff,” Sanders said.

Sanders said he would wait for a decision from the DOJ as to whether it would intervene on behalf of Entergy or “do the right thing and allow the courts to decide this matter without federal interference.”

Last Thursday, the U.S. Senate confirmed Ostendorff’s nomination after Sanders lifted the procedural hold. The senator said he had received “assurances” from the DOJ that the department would not intervene.

“Bernie Sanders is an extraordinary champion of Vermonters and our state’s best interests, and I am very grateful for his efforts here,” said Vermont Gov. Peter Shumlin.

“I am gratified to hear that Attorney General Holder and the Department of Justice have declined to intervene in this case. That position is consistent with the many, many statements from the Nuclear Regulatory Commission confirming that states have their own jurisdiction over matters that don’t relate to radiological safety. I believe strongly that our state has proper authority over Vermont Yankee’s continued operation, and that Entergy Louisiana is not above the law and should have kept the promises it made to Vermonters to comply with our laws,” Shumlin said.

Entergy’s lawsuit claims Vermont overstepped its authority to regulate nuclear plants.

Vermont Yankee’s current operating license expires March 2012. The NRC has renewed its license to 2032, but the Vermont Senate last year voted 26-4 not to let the Public Service Board renew the reactor's state Certificate of Public Good.

Entergy and the state appeared in federal court last week. The company is seeking a preliminary injunction to continue operating the plant while the lawsuit moves through the courts.

During the preliminary injunction hearings, Entergy said three Vermont statutes — Act 74, Act 160, and Act 189 — should be overturned.

Sanders has described the plant as “problem-plagued.”

“If Vermont chooses an energy future that does not include a 40-year-old, problem-ridden, nuclear power plant and that emphasizes energy efficiency and sustainable energy, it is certainly our right, and the federal government has no role to play in that decision,” Sanders said.

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Originally published in The Commons issue #108 (Wednesday, July 6, 2011).

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