Wednesday August 14, 2013

BRATTLEBORO -- In a 54-page decision, a federal appeals court agreed in part with a district court decision that slapped down a Vermont law that regulated the continued operation of Vermont Yankee nuclear power plant in Vernon.

"We conclude that Vermont legislators and regulators have undertaken a sustained effort to shut down Vermont Yankee ..." stated the judges of the U.S. Court of Appeals for the Second Circuit in their decision issued Wednesday morning. "We have considered the legislative history ... and found that it contains innumerable expressions of concern for radiological safety ..."

In January 2012, Judge J. Gavan Murtha, a federal district court judge in Brattleboro, ruled Vermont legislators had overstepped their bounds when they discussed and approved legislation that gave them the authority to prohibit the continued operation of Yankee beyond March 21, 2012. The state appealed Murtha's decision.

Murtha, and the appeals court affirming his decision, stated radiological safety issues are the sole province of the Nuclear Regulatory Commission under federal law.

A spokesman for Yankee, which is owned and operated by Entergy, said the decision was appropriate.

"We have felt strongly for a long time now that the state of Vermont's Acts 74 and 160 were pre-empted by federal law and are very pleased with today's decision," said Jim Sinclair.

Vermont Attorney General Bill Sorrell said he's disappointed by the decision, but added there's a silver lining in the decision: The court rejected Entergy's bid to collect more than $5 million in legal fees from the state of Vermont.

Vermont Gov. Peter Shumlin said while the decision blocks the Legislature's efforts to close the plant it does not halt review of the Vernon reactor's operations by the state Public Service Board.

The board is slated to rule later this year on whether Vermont Yankee should get a certificate of public good to operate until 2032. In 2011, Entergy received a new 20-year license from the Nuclear Regulatory Commission.

Shumlin also left the door open for further action by the state, perhaps bringing an appeal to the U.S. Supreme Court.

"I know that the Attorney General's office is reviewing today's lengthy decision and will continue to take the lead in the state's response to it."

Shumlin said the appeals court's decision "does not change the simple fact that Entergy has over the years not been a good partner with Vermont, preferring to focus on multiple lawsuits against the state. I remain steadfast in my belief that Entergy's continued operation of this facility is not in the best interest of Vermont. Our state's energy future should be charted by Vermonters, and I am committed to increasing Vermont's reliance on renewable, sustainable, and responsibly managed sources of energy."

While the appeals court affirmed the district court's ruling that the two statutes are preempted by federal law, it reversed the district court's decision that the state imposed unconstitutional restrictions on the sale of power by the plant. The appeals court vacated the district court's injunction preventing the state from conditioning a new certificate of public good on the execution of a power purchase agreement favorable to Vermont ratepayers. The court ruled because no PPA exists, there is nothing to enjoin, and even if a PPA was in the works, it has to first be presented to the Federal Energy Regulatory Commission for review.

The Vermont Energy Partnership, which bills itself as "a diverse group of more than 90 business, labor, and community leaders committed to finding clean, affordable and reliable electricity solutions," stated the decision was good news for Vermont, "Particularly the 1,000-plus people Vermont Yankee employs directly and indirectly, as well as their families. We congratulate them for staying focused, working hard and persevering through difficult circumstances."

A spokesman for the Vermont Public Interest Research Group stated the decision "demands an impossible standard in siding with Entergy Louisiana over the interests of Vermonters."

"We knew that this would be a tough case to win on appeal given that the District Court had swallowed hook, line and sinker Entergy's version of legislative events," stated VPIRG Executive Director, Paul Burns. "It's not merely difficult for an entire legislative body to discuss various proposals related to the problem-plagued Vermont Yankee plant without a thought about safety ever escaping the lips of a single legislator, but that is essentially what the Court is demanding."

The appeals court's decision allows the federal government to have a greater role over the state and the people of Vermont on key issues that affect their quality of life when it comes to nuclear power, stated Sandy Levine, senior attorney for the Conservation Law Foundation in Vermont. However, she noted, the decision "left intact Vermont's authority to regulate on matters of economics, power supply and the trustworthiness of the plant's owners. The fact remains that Vermont Yankee continues to face economic and management challenges."

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