The petition was submitted by the New England Coalition, which contended Entergy, the owner of Yankee, had violated the sales order authorizing Entergy to buy the plant in 2002. NEC filed the petition in December, contending a condition of the sales order stipulates Entergy have a new certificate of public good to continue operating the plant past March 21, 2012.
Entergy has an application before the Public Service Board for a new CPG, but the process was delayed due to a legislative action that resulted in a lawsuit filed by Entergy against the state. In January 2012, a federal judge ruled the state Legislature had trespassed into federal jurisdiction when it created legislation giving itself the power to forbid the PSB from issuing a certificate of public good.
The Public Service Board is taking testimony and evidence and is expected to make its decision sometime in August. In the meantime, the PSB said even though Entergy is in violation of the sales order, it can continue to operate the plant under the expired certificate.
In its decision, the Vermont Supreme Court ruled that NEC had failed to prove it had exhausted its administrative remedies and had not other legal remedy to call for the closure of Yankee.
"NEC has not requested, nor has the Board issued, an order directing Entergy to cease operating Vermont Yankee on the grounds advanced by NEC here," wrote the court.
In addition, noted the court, it has not yet been determined whether the board's enforcement of the condition of the sales order "would necessarily be covered by the federal injunction" preventing the Legislature from getting involved in the CPG process.
The court also noted that after the PSB denied a request by Entergy to amend the condition, it appealed the PSB's decision to the supreme court.
"The Board developed a record in those cases, and the merit of the Board's actions can be determined in the appeals now before this Court," wrote the justices. "It would make little sense for this Court to retry the background of those orders in the context of an action to enforce Condition 8 in a separate proceeding ..."
After the federal court ruled in Entergy's favor regarding the Legislature's role in the continued operation of the plant, the state appealed to the Second District Court in New York City. That court took oral arguments this year, but it is unknown when it might issue a decision.
In March 2011, the Nuclear Regulatory Commission issued a new 20-year license to the plant, allowing it to continue to operate until 2032.
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.