Nuke plant vote raises question of pre-emption


MONTPELIER (AP) -- A looming legislative vote that could call for the shutdown of the Vermont Yankee nuclear plant in 2012 has raised the possibility that a federal court might be asked to block a shutdown.

Vermont's Legislature is the only one in the country that has the power to vote on whether a nuclear plant should get a license extension; other states leave it to utility regulators and the federal Nuclear Regulatory Commission.

In 2006, lawmakers allowed Vermont Yankee to expand storage of highly radioactive spent fuel on its site in Vernon. But the law also gave lawmakers a say in whether Vermont Yankee should operate after the expiration of its 40-year license in March of 2012.

The law said the Legislature must agree to the license extension before the state Public Service Board would get to decide whether to issue the plant a new state license.

Senate leaders announced Tuesday they would vote next week on a bill authorizing the board to complete its process and that they expected the bill would die in the Senate and not make it to the House or to Gov. Jim Douglas for his signature.

That raised an obvious question: What would the next move be for Vermont Yankee and its owner, New Orleans-based Entergy Corp.?

Vermont Yankee spokesman Larry Smith declined to comment Wednesday, adding that the company will wait until the Senate acts before it comments.

But one possibility would be for Entergy to go to federal court to argue that the state had overstepped into an area under federal jurisdiction.

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"Any state rendering a decision to shut down a plant would be new territory," said Neil Sheehan, spokesman for the federal Nuclear Regulatory Commission's Northeast regional office. "It's typically not a realm that the states have been involved in."

Federal pre-emption has been an issue throughout the history of commercial nuclear power in the United States, longtime NRC historian Sam Walker said in an interview Wednesday.

Congress gave the Atomic Energy Commission and its successor, the NRC, exclusive authority over radiation emitted by nuclear plants, a move upheld by a 1972 U.S. Supreme Court decision.

But in 1983, Walker and other experts said, the court upheld the states' say over questions concerning the economic impact of nuclear power.

Michael Dworkin, former chairman of the Public Service Board and now a professor at the Vermont Law School, said that as part of its agreement with the state in 2002, when it bought Vermont Yankee, Entergy agreed to abide by the board's decisions on the plant's operation in Vermont after 2012.

The company could argue that it made that promise regarding the board, not the Legislature. But Dworkin said that legally, the board is a creation or an extension of the Legislature, so it's doubtful the company would prevail on such an argument.

He also said most courts likely would hold Entergy to its previous promise not to seek pre-emption.

"The state's legal case is pretty darn solid," Dworkin said. On the other hand, he added, "It's easy to file lawsuits and it's hard to predict the results of them."


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