Rutland Herald: Entergy lawsuit vs. state goes to court

Jun 24, 2011 No Comments by


Staff Writer – Published: June 24, 2011


BRATTLEBORO — Vermont legislators have a not-so-secret wish to control safety issues at the Vermont Yankee nuclear plant, and the laws they passed are unconstitutional, an attorney for Entergy Corp. said Thursday.

“It is safety, safety, safety,” said Entergy attorney Kathleen Sullivan in her opening arguments in the federal preemption lawsuit the company has brought against the state of Vermont.


“Vermont has unconstitutionally sought to act in the area of federal law,” she said. Only the Nuclear Regulatory Commission has jurisdiction over safety, she said.


Sullivan told U.S. District Court Judge J. Garvan Murtha that Vermont legislators were “coached” by state regulators on the language to use — and not to use — during the writing of Act 74 and Act 160.


Entergy is seeking a preliminary injunction from Murtha to maintain the status quo at Vermont Yankee, while its federal lawsuit against the state of Vermont plays out. Legal analysts say it could be years before the federal preemption issue is resolved.


The state was “second-guessing” the federal government on safety issues, Sullivan said, and thus was trespassing on federal jurisdiction when it came to regulating nuclear power plants.


Vermont is the only state in the country, she said, which has made such a grab.


Sullivan said that there was no question that Vermont Yankee is safe, and she noted the NRC was in Brattleboro on Wednesday evening to report on its annual safety assessment. Vermont Yankee got a good rating with some additional oversight.


Bridget Asay, the Vermont assistant attorney general arguing the state’s case, said that Entergy is playing a few minutes out of thousands of hours of discussion and testimony on the various bills was misleading.


“No way you could determine what motivated the Legislature,” she said.


The Legislature was concerned about reliability, she said, and was well aware that safety was the NRC’s responsibility.


Asay countered that Entergy had agreed back in 2002 that it needed state approval from the Public Service Board if it wanted to operate Vermont Yankee beyond 2012, and had repeatedly applied for state approval of its power uprate, dry cask storage and relicensing — the matter that is currently stalled.


“Entergy has made promises over the years,” Asay said, “And that should matter.”


“This was a contract, and the department (Department of Public Service) made commitments, and there’s no question the department fulfilled that part of the deal,” said Asay.


Asay even produced a copy of a statement Entergy made regarding the issue of not challenging federal preemption.


“Entergy will stand by the commitments, it will not walk away,” one Entergy executive assured the state.


The company says it needs to have an answer from Murtha by late July, so it can have enough time to order new nuclear fuel for the plant’s last scheduled refueling in October.


The state is opposing the preliminary injunction, saying Entergy can always restart Yankee if it prevails in court.


Asay played her own audio clips from committee and floor debate on the various Vermont Yankee legislation, which gave the Vermont Legislature in essence veto control over whether the plant got a state certificate of public good.


During those clips, various legislators were heard repeatedly saying that safety issues were the sole control of the NRC.


“Safety is not within our purview,” said Sen. John Campbell, the Windsor Democrat who is now Senate president pro tempore.


Sen. Virginia Lyons, a Democrat from Chittenden County and chairwoman of the Senate Natural Resources Committee, said that Act 74 would allow the state to diversify its energy portfolio, and help create “a more diverse and sustainable” energy future.


Both lawyers cited a 1983 California case involving the future construction of nuclear power plants by Pacific Gas & Electric as precedent for their argument. But Sullivan said there are three key differences — Vermont Yankee is a wholesale plant, and doesn’t sell power directly to the consumer, a key difference to some provisions of the case.


“That is a big difference your honor,” she said. Because Vermont Yankee is a wholesale generator, it is the Federal Energy Regulatory Commission, and not the state of Vermont, that has economic oversight, she added.


“Vermont is not authorized to regulate the economics,” she said. “Vermont is not producing electricity for Vermont.”


She said California was considering new construction, while Vermont Yankee is an operating reactor.


The two-day hearing started with about 50 antinuclear protesters silently lining Main Street around the federal building. Many held signs saying, “We Support Vermont.”





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