Saturday June 4, 2011

In its lawsuit filed against the state, Entergy, which owns and operates Vermont Yankee nuclear power plant, wants to have its cake and to eat it, too.

With one slice of the cake, its attorneys say the memorandum of understanding between Entergy and the state was invalidated when the Legislature passed Act 160, but with the other slice, they are saying that due to a condition in the MOU the state is causing it "irreparable harm."

As we stated yesterday, we are by no means legal experts, but in our opinion, any high-school graduate can pick through Entergy’s May 31 filing to the Supreme Court for the District of Vermont and find glaring discrepancies.

To wit: According to the MOU signed by Entergy and the PSB in 2002 when the plant was sold to Entergy "... the Board has jurisdiction under current law to grant or deny approval of operation (of Yankee) ..."

Entergy is claiming that the MOU "spoke only to then ‘current law’ ..." and not Act 160, in which the Legislature gave itself the authority to prohibit the PSB from OK’ing Yankee’s continued operation.

Therefore, wrote Entergy’s attorneys, "... the Assembly’s post-2002 actions have tainted any PSB process."

Seeing as we’re not legal experts, we turned to one to help us understand this contention.

"Judge Murtha could agree with the state’s argument that Entergy waived it’s right to challenge Act 160 because it did not raise either the repudiation or preemption argument when it could have in 2006 and in fact testified that the state retained the authority to make the final decision on whether Yankee would continue operating," said Pat Parenteau, Professor of Law and Senior Counsel for the Environmental and Natural Resources Law Clinic at Vermont Law School.

And even if the judge agrees that Entergy’s interpretation of "current law" is correct, he said, the court would have to find that the passage of Act 160 "somehow vitiated the entire agreement despite the fact that Entergy got what it bargained for which was approval of the sale and the subsequent approval of the uprate and dry cask storage."

(To read more of Parenteau’s comments, and his colleagues, some of whom disagree with his conclusions, visit wordpress.vermontlaw.edu/vy.)

So, that’s one slice of the cake.

Here’s the other: Later in the filing, Entergy uses the MOU to support its contention that ceasing operations of the plant would cause it irreparable harm because the MOU states Yankee must be decommissioned if no new certificate of public good is issued by the PSB.

Entergy’s attorneys claim the state "incorrectly states that the plant can be shut down without certifying that it is permanently ceasing operations. But even if such an option were practical, which it is not economically, it is not permissible (under the MOU) for the VY station to simply stay on ‘standby’ after March 2012."

If you ask the NRC, from it’s standpoint, there’s no rule that states a plant can’t be put into standby mode.

"There have been cases where reactors were shut down for many years and then restarted," said Neil Sheehan, spokesman for the NRC.

Millstone 2 and 3 were barred from restarting for many years and Browns Ferry Unit 1 was shut down for "several decades" after a fire, he said.

"If a shutdown is temporary, the plant’s license to operate would remain in effect," said Sheehan.

So is the MOU valid or is it not?

Can one part of the MOU be "vitiated" while another remains in effect?

Obviously, that’s for a judge to decide. Come the end of June, following hearings in court in Brattleboro, we should know the answer.