See Entergy's lawsuit against the state

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Vt. Yankee Owner Files Suit Against State's Role In Relicensing

04/18/11 9:36AM By John Dillon
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AP Photo/Jason R. Henske
The Vermont Yankee nuclear power plant on the banks of the Connecticut River in Vernon, Vt.

(Host) The owners of Vermont Yankee have gone to court to block the state from shutting down the reactor next year.

The Entergy Corporation recently won a new 20-year license from the federal Nuclear Regulatory Commission. But it still needs state permission to run the Vermont plant after next March.

And as VPR's John Dillon reports, Entergy's lawsuit is a legal challenge to the state's control over nuclear power.

(Dillon) The lawsuit was filed in U.S. District Court in Burlington and it takes direct aim at Vermont's unique law that gives the Legislature a role in nuclear plant operations.

Entergy says federal law trumps the 2006 state statute that says lawmakers have to vote in favor of a new state permit for Vermont Yankee. 

(Smith) "We believe the state of Vermont changed the rules on us."

(Dillon) Richard Smith is an Entergy vice president. He spoke on a media conference call, but did not take questions from reporters. Smith says that Entergy agreed to submit to state oversight when it bought the plant in 2002, but the 2006 law went too far.

(Smith) "You will hear that Entergy went back on its word in breaking the deal it made in the 2002 memorandum of understanding. This is not true. We believe the General Assembly changed the rules and left us with no other choice."

(Dillon) Governor Peter Shumlin and Attorney General Bill Sorrell promised to vigorously defend state law. And as Entergy predicted, Shumlin pointed to comments the company made in 2006 when a Yankee spokesman praised the law that gave the Legislature control over the plant's future.

(Shumlin) "I mean the point of that matter is that Entergy Louisiana, as I have said before, does not do business the way we do business in Vermont. We keep our word. We tell the truth. We follow the laws of the state. Entergy has struggled to do that."

(Dillon) The state Senate last year voted against a new permit for the plant in part because senators were worried about leaks of radioactive materials and misstatements made by plant officials. Attorney General Sorrell said Entergy is unhappy with that decision, and appears to be going back on the deal they made in 2002.

(Sorrell) "They made the agreements when it was to their advantage to make the agreements so they could buy the plant and operate. And now they're saying, ‘Whoops, whoops, whoops, not a good deal for us, illegal, never should have done it, state can't enforce it.'"

(Dillon) But the Entergy lawsuit goes beyond a challenge to the 2006 state law and questions a state's role over nuclear power in general. The suit says the U.S. Atomic Energy Act gives the federal government sole authority over re-licensing. Entergy cites a 1983 Supreme Court ruling in a California case.

Pat Parenteau is a professor at Vermont Law School who has studied federal pre-emption issues. He says the 1983 California case affirmed the federal government's right to control nuclear plant safety. But he says the ruling carved out a role for states on issues of economics, reliability and the environment.

(Parenteau) "This is a precedent-setting case in the context of no state has ever sought to shut down an operating nuclear plant that has been licensed by the NRC. That's what makes this a test case."

(Dillon) Parenteau and Attorney General Sorrell say they expect any decision by a federal court in Vermont to be appealed, possibly to the U.S. Supreme Court.

For VPR News, I'm John Dillon in Montpelier.

To listen to Entergy's conference call about the lawsuit, click on Additional Audio above


See Entergy's lawsuit against the state (pdf - 2.22mb)

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