Vermont Yankee nuclear power plant in Vernon (Entergy Corp.)
Vermont Yankee nuclear power plant in Vernon (Entergy Corp.)
Friday September 28, 2012

BRATTLEBORO -- In a pair of briefings filed with a federal appeals court, Entergy Nuclear Vermont Yankee and the Vermont Attorney General's Office are sparring over whether the state's appeal of a district court's ruling should be expedited.

In a document filed on Sept. 21, Entergy contends the AG's use of nearly all of the allowable time available to it to file its appeal stands "in stark contrast" to its request for expedited oral arguments.

In fact, Entergy contends, the state took nearly 130 days to file its notice of appeal and its opening briefs.

In January 2012, a judge in U.S. District Court in Brattleboro ruled the Vermont Legislature had overstepped its bounds when it approved statutes that gave it authority over the continued operation of Vermont Yankee nuclear power plant in Vernon.

The court concluded the Legislature had considered safety, which is entirely under the purview of the federal Nuclear Regulatory Commission, when it forbid the Vermont Public Service Board from issuing a certificate of public good for the plant's continued operation.

The state appealed the decision to the U.S. Court of Appeals for the Second Circuit.

In addition to invalidating the statutes, the district court also permanently enjoined the PSB from refusing to grant a CPG based on any failure on Entergy's part to provide power to Vermont at rates below the market price.

In its motion for expedited oral arguments, the state contended a hastened resolution is necessary to allow Vermont "to move away from nuclear energy toward renewable, environmentally sustainable energy sources."

However, noted Entergy, "resolution of this appeal will have no effect whatever on the State's choice of energy sources" because it currently does not purchase power from Yankee.

The state also contended an expedited resolution is necessary due to the storage of spent nuclear fuel produced by Yankee's continued operation.

That argument "is implausible," argues Entergy, because the storage of nuclear waste is within the exclusive province of the NRC.

To further its opposition to expedited oral arguments, Entergy pointed to the fact that the PSB recently ordered a new proceeding in its efforts to determine whether Yankee should receive a new CPG, depositions for which won't be filed until mid-2013, with a decision to come no sooner than September 2013.

In its reply, the AG's office stated Entergy had failed to identify how an expedited hearing would injure the plant's operation.

In addition, noted the AG, the district court's decision allows Yankee to continue operating past the expiration of its current CPG and issued an injunction that affects the Public Service Board's proceedings.

The district court's ruling "enjoined the members of the Board with respect to a decision they have not made," wrote the AG's office. "Entergy's arguments to the Board about the proper scope of the Board's authority rely substantially on the district court's ruling in this case."

The AG also wrote that Entergy's contention it had used the time allowed by the rules to file its briefs in the appeal, instead of doing it in lesser time, failed to mention two relevant facts.

First, that Vermont had approached Entergy about scheduling and was advised Entergy would not limit the time it would take to file its brief; and second, "That a portion of the State's time for filing its opening brief was consumed by Entergy's multiple post-judgment, post-appeal filings seeking a remand and further proceedings from the district court."

The appeals court should also recognize, wrote the AG, that it took the maximum allowable time to file its briefs due to the case's complex nature, which provides "no basis for denying the request to expedite oral argument."

The state asked the appeals court to allow oral arguments as soon as possible following the completion of the filing of briefs on Nov. 2.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.