BRATTLEBORO -- Late Monday, the Vermont Supreme Court denied a petition to shut down Vermont Yankee nuclear power plant.
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 Condition 8 of the sales order stipulates Entergy must 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 on whether to issue a new CPG 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 that it has no 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 Condition 8 "would necessarily be covered by the federal injunction" preventing the state from closing Yankee until the PSB has issued its decision.
The court also noted that after the PSB denied a request by Entergy to amend Condition 8 allowing it to continue operation, it appealed the PSB's decision to the supreme court.
"The Board developed a record in those cases, and the merits 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 ...."
Brice Simon, who with Jared Margolis, is representing NEC before the Supreme Court, said that though the ruling is a disappointment, there is a silver lining in the opinion.
"The court is leaving it to the appeal to decide whether Yankee is in violation," he said. "We respect the fact that the appellate process is going to determine that issue."
If the court upholds the PSB's decision, NEC could conceivably go back to the board and ask it to either enforce Condition 8 or issue sanctions, said Simon.
"If the Supreme Court had said we are looking at the statute and interpreting it according to its plain meeting that extends the CPG including the sales order, that would have been a terrible defeat," said Simon. "The fact the court did not issue any kind of judgment on the merits and referred to the appeal leaves us hope we can prevail."
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 email@example.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.