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Entergy v. Vermont trial begins Monday in federal court in Brattleboro

BRATTLEBORO—U.S. District Court Judge J. Garvan Murtha will hear opening arguments from the state and from Entergy attorneys on Monday in a trial that could decide the fate of the Vermont Yankee nuclear power station in Vernon.

Entergy Corp., owner of Vermont’s only nuclear plant, filed suit against the state in April, claiming legislators had pre-empted the federal government’s authority by trying to regulate radiological safety.

The Nuclear Regulatory Commission (NRC) extended VY’s operating license for another 20 years in March.

Vermont, however, requires nuclear plants to obtain a Certificate of Public Good (CPG) from the Public Service Board (PSB) to operate.

In February 2010, the Vermont Senate voted 26-4 against awarding VY a CPG, citing its authority under Act 160, a 2006 law that effectively gives the Legislature veto power over the continued operation of the plant.

Without a new CPG, says the state, VY must close when its current 40-year operating license expires in March 2012.

Entergy has argued that radiological safety motivated the Vermont Senate’s 2010 decision. The company says that only the NRC, the federal agency charged with regulating nuclear plants, has jurisdiction over safety issues.

However, the NRC has so far not taken issue with Vermont’s actions.

Meanwhile, the case has raised questions of states’ versus corporations’ rights.

In June, Entergy requested a preliminary injunction from Murtha to allow the plant to continue operating beyond the expiration of its current license.

Entergy’s legal team, headed by Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, LLP, claimed the injunction would remove the “immediate harm” caused by the plant’s uncertain future.

This uncertain future, said attorneys, was affecting employee attrition and the plant’s ability to negotiate power contracts with energy distributors.

Entergy also claimed that the plant had to decide by July whether to purchase more fuel, at an estimated $110 million, for its scheduled October refueling.

Without the preliminary injunction, attorneys argued, plant leadership would feel that buying fuel was a risky expense and be forced to close the facility ahead of 2012.

The state disputed these claims in its arguments, saying refueling represented a normal business expense and therefore a normal risk.

Also, the state’s counsel argued, only a resolution of the lawsuit would remove the feeling of uncertainty.

Murtha denied the preliminary injunction.

“The motion is denied, because Entergy has failed to show that any irreparable harm it may incur between now and a decision on the merits would be, or is likely to be, ameliorated by a preliminary injunction in the short time before this Court decides” its lawsuit, Murtha wrote.

Refueling was a normal business risk, wrote the judge, who agreed that only the resolution of the case would remove the feeling of uncertainty.

At the same time, according to legal commentators, the judge hinted at concerns in a footnote that perhaps Entergy had a claim to pre-emption.

Murtha also pushed forward the date for the merits case by several weeks.

In July, Entergy purchased the fuel needed for October.

As part of its suit, Entergy has asked the court to overturn three Vermont statutes, which would effectively remove the state’s ability to regulate nuclear plants within its borders.

A U.S. Supreme Court Case, California v. Pacific Gas & Electric, set a precedent for allowing states to regulate nuclear plants for reasons other than radiological safety.

In a previous interview, Attorney General William Sorrell predicted that the September merits case would serve only as a first step in a long court battle.

The losing party will appeal, he predicted.

During the June hearing, anti-nuclear activists lined the street in front of the federal courthouse in silent vigil. They plan a similar vigil on Monday.

This time, though, they will be met by a group of nuclear energy supporters.

Representatives from the Ethan Allen Institute’s Energy Education Project, the American Nuclear Society Vermont Pilot Project, and the Coalition for Energy Solutions organized the counter-vigils.

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Originally published in The Commons issue #117 (Wednesday, September 7, 2011).

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