Vermont Still Has Authority to Retire Vermont Yankee Nuclear Plant for Good

Anthony Iarrapino

The headlines following yesterday’s federal court decision overturning Vermont laws giving the legislature a say in the continued operation of Vermont Yankee make it seem like the case was a total victory for Louisiana-based Entergy Corporation and its multi-million dollar legal dream team.  Not so!

The decision makes clear that State officials — specifically the state’s Public Service Board — still have broad authority to deny Entergy the “Certificate of Public Good” on grounds that are traditionally within the authority of the state to decide, including economics, land use, and trustworthiness of the plant’s owners to be honest, fair-dealing members of the state’s business community.  Unless Entergy receives a Certificate of Public Good authorization from the Board, it cannot continue operating the plant for another 20 years past its long-scheduled retirement date of March 2012.

Nothing in the Court’s decision upsets that aspect of longstanding Vermont state law — a law that applies to all sorts of power generating projects located in Vermont’s borders — the so-called “Section 248 process”. On page 4 of the Court’s decision the judge clearly states as follows:

“This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices. The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here.”

So where does that leave things?

Fortunately, CLF has played a leading role in the ongoing Public Service Board proceedings involving Entergy’s application for a new Certificate of Public Good.  Tapping some leading industry experts, CLF has presented a clear case that continued operation of the Vermont Yankee is NOT in the public good of the citizens of Vermont.

Our case rests entirely on grounds that are specifically not placed out of bounds by the Court’s decision yesterday.  These include economics and the failure to have sufficient funds available close the plant and restore the site at the end of its useful life.  Also the claims of an economic benefit from the revenue sharing agreement and the lack of a power contract all show that continued operation does not benefit Vermont.  Add to that the failure of Entergy officials to be forthcoming and provide truthful information about underground pipes, and Entergy’s failure to abide by existing water quality permits and there are many areas of traditional state concern that remain.

The court’s decision is a definite setback, but there are still many opportunities.  Vermont shouldn’t be forced to prop up this old reactor.  Enough is enough.  The Court’s decision left many avenues still open for Vermont to have a say in whether Vermont Yankee continues to operate for another twenty years.

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24 Responses to “Vermont Still Has Authority to Retire Vermont Yankee Nuclear Plant for Good”

  1. Warner Shedd

    That’s encouraging news, Anthony, and I’m delighted that CLF is going to pursue the matter. It galls me tremendously that the lying, scummy executives from Entergy might get away with this. Keep up the good work!

    Thanks and best wishes,
    Warner

  2. Warner Shedd

    That’s encouraging news, Anthony, and I’m delighted that CLF is going to pursue the matter. It galls me tremendously that the lying, scummy executives from Entergy might get away with this. Keep up the good work!

    Thanks and best wishes,
    Warner

  3. Warner Shedd

    That’s encouraging news, Anthony, and I’m delighted that CLF is going to pursue the matter. It galls me tremendously that the lying, scummy executives from Entergy might get away with this. Keep up the good work!

    Thanks and best wishes,
    Warner

  4. Warner Shedd

    That’s encouraging news, Anthony, and I’m delighted that CLF is going to pursue the matter. It galls me tremendously that the lying, scummy executives from Entergy might get away with this. Keep up the good work!

    Thanks and best wishes,
    Warner

  5. Although the PG&E case cited by the court on the nuclear federal preemption issue clearly recognizes a state’s rights to regulate nuclear power for economic reasons, and not for safety reasons, case law is less clear about how this balance works. Practically, decision on an energy source involves balancing economic considerations with safety concerns. This leaves the question unanswered of how much a state can consider the safety of nuclear power when considering the economics. In this current case the judge seems to have noted that the legislature spent a great deal of time expressing safety concerns, and therefore concluded that the legislation was safety related despite its economic basis. Followed to its conclusion, this could be read to suggest that a state cannot use its traditional practice of balancing safety concerns with economics when it comes to nuclear power. How can such an energy issue be considered in a vacuum? Its hard for me to believe such a precedent will be allowed to stand if appealed.

    • Anthony Iarrapino

      Thanks for your comment, Ben. This raises a very good point and shows the wisdom of the PG&E case which cautions against Courts becoming embroiled in attempting to ascertain a Legislature’s true motive. It is a very slippery slope. Similarly the parameters of what is and is not pre-empted are unclear. What is clear is that going forward either the Legislature or the PSB need to be very clear about the bases for the decisions they make. Decisions clearly rooted in economics, or environmental issues wholly within state authority will be valid.

  6. Although the PG&E case cited by the court on the nuclear federal preemption issue clearly recognizes a state’s rights to regulate nuclear power for economic reasons, and not for safety reasons, case law is less clear about how this balance works. Practically, decision on an energy source involves balancing economic considerations with safety concerns. This leaves the question unanswered of how much a state can consider the safety of nuclear power when considering the economics. In this current case the judge seems to have noted that the legislature spent a great deal of time expressing safety concerns, and therefore concluded that the legislation was safety related despite its economic basis. Followed to its conclusion, this could be read to suggest that a state cannot use its traditional practice of balancing safety concerns with economics when it comes to nuclear power. How can such an energy issue be considered in a vacuum? Its hard for me to believe such a precedent will be allowed to stand if appealed.

    • Anthony Iarrapino

      Thanks for your comment, Ben. This raises a very good point and shows the wisdom of the PG&E case which cautions against Courts becoming embroiled in attempting to ascertain a Legislature’s true motive. It is a very slippery slope. Similarly the parameters of what is and is not pre-empted are unclear. What is clear is that going forward either the Legislature or the PSB need to be very clear about the bases for the decisions they make. Decisions clearly rooted in economics, or environmental issues wholly within state authority will be valid.

  7. Although the PG&E case cited by the court on the nuclear federal preemption issue clearly recognizes a state’s rights to regulate nuclear power for economic reasons, and not for safety reasons, case law is less clear about how this balance works. Practically, decision on an energy source involves balancing economic considerations with safety concerns. This leaves the question unanswered of how much a state can consider the safety of nuclear power when considering the economics. In this current case the judge seems to have noted that the legislature spent a great deal of time expressing safety concerns, and therefore concluded that the legislation was safety related despite its economic basis. Followed to its conclusion, this could be read to suggest that a state cannot use its traditional practice of balancing safety concerns with economics when it comes to nuclear power. How can such an energy issue be considered in a vacuum? Its hard for me to believe such a precedent will be allowed to stand if appealed.

    • Anthony Iarrapino

      Thanks for your comment, Ben. This raises a very good point and shows the wisdom of the PG&E case which cautions against Courts becoming embroiled in attempting to ascertain a Legislature’s true motive. It is a very slippery slope. Similarly the parameters of what is and is not pre-empted are unclear. What is clear is that going forward either the Legislature or the PSB need to be very clear about the bases for the decisions they make. Decisions clearly rooted in economics, or environmental issues wholly within state authority will be valid.

  8. Although the PG&E case cited by the court on the nuclear federal preemption issue clearly recognizes a state’s rights to regulate nuclear power for economic reasons, and not for safety reasons, case law is less clear about how this balance works. Practically, decision on an energy source involves balancing economic considerations with safety concerns. This leaves the question unanswered of how much a state can consider the safety of nuclear power when considering the economics. In this current case the judge seems to have noted that the legislature spent a great deal of time expressing safety concerns, and therefore concluded that the legislation was safety related despite its economic basis. Followed to its conclusion, this could be read to suggest that a state cannot use its traditional practice of balancing safety concerns with economics when it comes to nuclear power. How can such an energy issue be considered in a vacuum? Its hard for me to believe such a precedent will be allowed to stand if appealed.

    • Anthony Iarrapino

      Thanks for your comment, Ben. This raises a very good point and shows the wisdom of the PG&E case which cautions against Courts becoming embroiled in attempting to ascertain a Legislature’s true motive. It is a very slippery slope. Similarly the parameters of what is and is not pre-empted are unclear. What is clear is that going forward either the Legislature or the PSB need to be very clear about the bases for the decisions they make. Decisions clearly rooted in economics, or environmental issues wholly within state authority will be valid.

  9. If everyone in VT opted for Green Energy on their utility bill, Entergy would have no place left to sell its electricity. Switch over to LEDs, install solar array cooperatives leasing roof space on strip malls, bring in wind turbines, fight like hell to shut down this miserable plant which has transformed the citizens of Brattleboro into zombie sheeple!

  10. If everyone in VT opted for Green Energy on their utility bill, Entergy would have no place left to sell its electricity. Switch over to LEDs, install solar array cooperatives leasing roof space on strip malls, bring in wind turbines, fight like hell to shut down this miserable plant which has transformed the citizens of Brattleboro into zombie sheeple!

  11. If everyone in VT opted for Green Energy on their utility bill, Entergy would have no place left to sell its electricity. Switch over to LEDs, install solar array cooperatives leasing roof space on strip malls, bring in wind turbines, fight like hell to shut down this miserable plant which has transformed the citizens of Brattleboro into zombie sheeple!

  12. If everyone in VT opted for Green Energy on their utility bill, Entergy would have no place left to sell its electricity. Switch over to LEDs, install solar array cooperatives leasing roof space on strip malls, bring in wind turbines, fight like hell to shut down this miserable plant which has transformed the citizens of Brattleboro into zombie sheeple!

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