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Not-for-Profit, Award-Winning Community News and Views for Windham County, Vermont • Since 2006

Local lawmakers say VY case is far from over

Alan Panebaker of VTDigger.org contributed to this report.

BRATTLEBORO—Local lawmakers said Monday that while last Thursday’s ruling by U.S. District Court Judge J. Garvan Murtha in the Entergy v. Vermont case was a significant setback to the state’s efforts to regulate nuclear energy, the case is far from closed.

At a meeting with the Brattleboro Selectboard, Rep. Sarah Edwards, P-Brattleboro, said there are other areas governing the operation of Entergy’s Vermont Yankee nuclear power plant in Vernon that fall under the state’s purview.

Chief among those areas is the Certificate of Public Good (CPG) that is issued by the Vermont Public Service Board (PSB). VY needs that certificate to operate, according to state law.

Entergy will need to demonstrate that keeping Vermont Yankee open is in the general good of the state. If the board denies a CPG, Entergy could appeal that decision to the state Supreme Court.

The Vernon plant’s current CPG expires on March 21, and Murtha’s decision requires Entergy to go back to the PSB for a determination that continued operation of the 40-year-old plant will, in fact, serve the public good.

At the same time, Murtha prohibits the PSB from denying Entergy a CPG based on radiological safety concerns, because only the U.S. Nuclear Regulatory Commission has that authority.

The PSB is also prohibited from using the lack of a favorable power purchase agreement with Vermont’s electric utilities as a reason to deny a CPG, because this requirement violates the Commerce Clause of the U.S. Constitution, which prohibits states from placing an undue burden on interstate commerce.

But Edwards, who serves on the House Natural Resources and Energy Committee, said that the PSB can block a CPG on economic and environmental grounds.

The PSB has open dockets on water-quality issues and thermal pollution from the plant, Edwards said.

“There are a lot of balls still in the air,” said Edwards. “It may be out of the Legislature’s hands, but a decision is definitely in the PSB’s hands now.”

Edwards’ committee is also considering a new tax on the storage of spent nuclear fuel at VY, but she said that effort will be put on hold pending a decision by the PSB on the plant’s future.

But if Vermont Yankee stays in operation past March 21, Edwards said, she want to make sure that Windham County gets a cut of the spent fuel tax revenues.

“I will be the fiercest supporter for the county,” she said. “I can assure you that Windham County will have a very loud voice.”

State Sen. Peter Galbraith, D-Windham, agreed, saying that if Vermont Yankee stays in operation, the state will see “substantial revenues” from such a tax and the county “can make a strong case that we should share in those revenues.”

Brattleboro Town Manager Barbara Sondag cautioned that it should not be forgotten that Entergy could decide at any time to close VY.

“We need to focus on that,” she said. “What will the county look like when a major employer like Entergy leaves?”

Sondag, together with Brattleboro Development Credit Corp. executive director Jeff Lewis, heads up the Southern Vermont Economic Development Strategy (SEVEDS) panel, which is studying ways to boost the region’s economy.

Edwards praised their work, saying that without it, it “weakens our hand” in making the case for state aid to cope with an eventual VY shutdown.

“There’s great receptivity to additional support for Windham County,” said Galbraith, “but the state needs to know what we need.”

Galbraith, who serves on the Economic Development committee, had the panel come to Brattleboro last year to take testimony on the impact that a VY shutdown would have on Windham County’s economy. He said the committee plans another hearing in Brattleboro later this year.

“Last year’s hearing had a big impact on committee members,” he said.

Other reactions

People on both sides of the nuclear issue have weighed in over the past few days on Murtha’s decision.

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.”

The state is expected to appeal the decision to the 2nd U.S. Circuit Court of Appeals in New York, and it has 30 days in which to decide whether to appeal.

“The court found the laws were invalid because they were prompted by concerns for radiological safety and consequently should be struck down,” Vermont Attorney General William Sorrell told VTDigger.org last week. “There wasn’t deference to the legislature, and we’re disappointed in that.”

Sorrell said the court read too much into the legislative history. “To take statements during legislative hearings of a few legislators and say all or a majority of legislators were in fact motivated by safety concerns is a leap,” he said.

The legislative history produced by Entergy attorneys includes statements of experts hired by legislative counsel informing lawmakers they cannot base a law on radiological safety. Entergy used these statements to imply an impermissible purpose.

“You can argue lawyers were trying to create a sham situation for the legislature,” Sorrell said. “On the other side of the coin, lawyers are trying to protect the integrity of the legislative process and make sure the legislature didn’t break the law. It only seems prudent that the legislature receive advice about how to do it properly.”

Jared Margolis, the legal counsel for the New England Coalition (NEC), an anti-nuclear group, 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.”

Raymond Shadis, senior technical advisor for the NEC, said last 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 container vessel design as the Fukushima reactors that were heavily damaged by an earthquake and a subsequent tsunami.

The Conservation Law Foundation filed a brief as amicus curiae supporting the state in Entergy v. Vermont. According to Sandra Levine, a senior attorney for the organization, the good news for environmentalists who support closing VY is what Murtha’s opinion did not say.

“The good news is that much of what has been accepted as state regulation remains in place,” she said.

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Originally published in The Commons issue #136 (Wednesday, January 25, 2012).

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