State appeals Entergy decision

byReformer Staff

Posted:   02/18/2012 10:00:27 AM EST
Updated:   02/18/2012 11:02:17 AM EST

Vermont Yankee nuclear power plant in Vernon (Entergy Corp.)

Saturday, February 18, 2012

BRATTLEBORO — Vermont Attorney General William H. Sorrell on Saturday morning filed an appeal of the federal district court’s recent decision in favor of Entergy Nuclear Vermont Yankee.

Federal Court Judge J. Garvan Murtha rendered his opinion on Jan. 19, ruling the state Senate crossed over into federal territory when it voted to prohibit the Vermont Public Service Board from issuing a certificate for public good for continued operation.

“We have strong arguments to make on appeal,” Sorrell said. “The district court’s decision improperly limits the State’s legitimate role in deciding whether Vermont Yankee should operate in Vermont beyond March 21, 2012. The court’s undue reliance on the discussions among our citizen legislators, expert witnesses, advocates, and their constituents has the potential to chill legislative debates in the future. Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings.”

Murtha ruled the Senate inappropriately considered the radiological safety of the power plant — which is under the sole jurisdiction of the Nuclear Regulatory Commission — in deliberations over the future of Yankee. In his decision, Murtha prohibited the state Legislature from taking part in the issuance of a CPG. However, Murtha affirmed the PSB’s authority to issue a CPG, as long as it only considers “economics, reliability, and other objectives over which the other entities may have jurisdiction …”

Murtha also found that the PSB cannot condition the issuance of a CPG on the existence of a below-wholesale-market power purchase agreement or at rates below those available to wholesale customers in other states.

Murtha’s ruling was based in part on discussions conducted in the Legislature about the future of Yankee, discussions that invoked the safety of the plant.

But Sorrell has contended — before, during and after the hearings in September — that the state Legislature has the right to explore the bounds of its authority before writing legislation or taking a vote. Prohibiting a legislature from doing so would tie its hands, he has said.

A release from the Attorney General’s office states that the district court, in its Jan. 19 ruling, invalidated two Vermont statutes that gave the Legislature a say on the ability of Vermont Yankee to continue operations when its current state license expires on March 21, 2012.

Sorrell stated on Saturday that the State has appealed all aspects of the judgment entered by the district court.

“I have taken seriously my responsibility to make this decision. We consulted with Governor Shumlin, other executive branch officials, legislative leadership and others. We took the necessary time to thoroughly consider our options. We look forward to defending our laws in the Second Circuit,” Sorrell stated.

Gov. Peter Shumlin has always said he did not agree with Murtha’s decision and lauded Saturday’s announcement.

“We as a state have had many important and legitimate concerns with Entergy Louisiana and its operation of Vermont Yankee that are not reflected in the opinion,” Shumlin said. “I support the Attorney General’s work in getting a positive result on appeal.”

Shumlin added that his administration would be focusing on Vermont’s continuing authority over Vermont Yankee.

“I support the decision by Vermont to appeal the flawed ruling by Judge Murtha in the Vermont Yankee litigation,” Sen. Bernie Sanders stated after news of the appeal was announced. “I believe the law is clear that states have the right to reject nuclear power based on economic and other reasons that have nothing to do with safety.

“The Vermont Senate in a bipartisan 26-4 vote decided against renewing Vermont Yankee’s license,” Sanders continued. “If Vermont wants to move to energy efficiency and sustainable energy, no corporation should have the right to force our state to stay tethered to an aging, problem-ridden nuclear plant.”

The appeal will be heard by the Second Circuit Court of Appeals in New York

There will be much more coverage in Monday’s Reformer.