photo courtesy of topher76@flickr.com

This past week has shown Vermont first-hand the high cost of nuclear power. Hosting a plant in your state is clearly a high-stakes bargain.

Vermont went to Court in Manhattan this week before a three judge panel at the United States Court of Appeals. (Read more here and here). It had fifteen minutes for its lawyer to explain to the judges why the decision of the District Court blocking the actions of the Vermont Legislature should be reversed. A tough task.

With clarity and nimbleness, Vermont proved it was up to the task. Its lawyer, Attorney David Frederick, an experienced appellate lawyer who argued a case last week before the United States Supreme Court, explained that Vermont has every right to determine Vermont Yankee’s fate. And doing so does not impinge on the federal government’s oversight of radiological issues.

In a nutshell, there were three points.

First the United States Supreme Court case from 1983 that let stand a California law enacting a moratorium on nuclear plants would allow the Vermont law. If a state can ban all nuclear plants, it can certainly allow the Legislature to determine the fate of one plant.

Second, the lease on Vermont Yankee expired and like a landlord, Vermont can simply refuse to renew the lease. Period. Any tenant knows this. Vermont is hosting this plant and can say it wants the property used for another purpose.

Third, Vermont has huge skin in the game and economic exposure from Vermont Yankee. If Entergy, the owner of Vermont Yankee, goes bankrupt or simply chooses to walk away, Vermonters are left holding the bag for what Conservation Law Foundation has described as the nuclear equivalent of junk car in its backyard. This possibility is more likely following recent reports that Vermont Yankee is not pulling its weight and that Entergy would be better off closing the plant.

The stakes are high. Apart from hosting this plant, Entergy is seeking to recoup over $4 million in legal fees, and now has four law firms working to push every legal angle possible. Times change. When Vermont first approved the Vermont Yankee facility in the 1970s, there was a hearing for three days before the Vermont Public Service Board. Clearly nuclear power and hosting plants is more expensive and time consuming than ever.

Vermont is right to begin extracting itself from this nuclear legacy. Unfortunately, that is proving to be not so easy.

Should Vermont have a say in the future of Vermont Yankee, an aging nuclear plant on the banks of the Connecticut River?  A trial to answer that question begins next week.  Vermont Yankee’s owner sued the State of Vermont in April.  Yankee’s owners want to avoid State oversight, and filed suit as a last ditch effort to keep the plant operating.     

The State has a strong case.  For years, Vermont has responsibly overseen the economic, power supply and land use impacts of Vermont Yankee – matters within traditional state authority.  Vermont Yankee’s owners ignore this long history and want the Court to find all actions by Vermont are an attempt to regulate radioactive safety – something within exclusive federal authority. 

Conservation Law Foundation provided a “friend of the court” brief explaining the history, legal background and context of the State’s actions focusing on the owner’s untrustworthiness, poor economics of continued operation, and Vermont’s interests in advancing renewable power.   

Beginning Monday, experts on power supply and regulation will explain their views.  The trial will last three days.  A decision is expected later this fall.